Privy Council and Royal Charters: Constitutional Obfuscation

18 07 2013
Privy Council (1)

Meeting of the Privy Council

The Privy Council is in the news following the unfortunate decision of the Prime Minister to ignore a key Leveson recommendation and to constitute a “recognition body” by Royal Charter, rather than by statute.

Neither the press nor Lord Justice Leveson’s supporters were enthusiastic about this recourse to Royal Charter.  This inevitably involved the Privy Council, an important but obscure feature of the British Constitution, which appears to be an independent body but is, in practice, a committee of the Cabinet. As the authoritative legal textbook, Halsbury’s Laws of England, puts it:

“the Privy Council itself has ceased to exercise its former deliberative and consultative functions, except through the medium of its committees and meets principally to confer formal approval upon documents, the purport and tenor of which has been previously considered and decided upon by the Cabinet, committees of the Privy Council, or the various ministers and government departments.”

In short, the Privy Council rubber stamps government decisions.  Privy Council meetings are usually attended by four government ministers – although there is no rule specifying the number (See P O’Connor,The Constitutional Role of the Privy Council and the Prerogative, JUSTICE, 2009. p.8).  The Queen usually presides but any two “Counsellors of State” (that is, one of five senior members of the Royal Family) could take her place.

There has been much discussion of the proper procedures for the consideration of the Cross-Party and PressBoF Royal Charters.  Like everything else about the Privy Council there are no actual written rules as to how this should be done.

The Privy Council has a procedure under which anyone may petition for the grant of a Royal Charter.  This is set out on its website (it is not clear whether there is a formal document embodying the procedure, but this seems highly unlikely).

This procedure suggests that where a body applies for a Charter the Privy Council will publish the application to allow for comments or “counter-petitions”.  It is said that “any proposal which is rendered controversial by a counter-petition” is unlikely to succeed.

The Petition for the PressBoF charter was lodged on 1 May 2013 and the DCMS decided to have a “period of openness” – that is a “publication” in accordance with the usual procedure.  “Comments” were invited and were lodged.   But this procedure concerns applications for “private” charters by bodies of people wishing to be incorporated, it does not deal with Government Charters.

It has now been announced that on 10 July 2013 the PressBoF charter was referred to an eight member Committee of the Privy Council.  Once again, the language should not obscure the true position.  The PressBoF charter is being considered by a Committee of Government Ministers.  The decision as to what to do about this charter is a government decision.  The role of the Privy Council is purely formal – and not subject to any written rules.

The PressBoF charter is inconsistent with settled Government policy – approved by Parliament – namely the Cross Party charter.  The Committee should quickly and efficiently dispose of the PressBoF document and the Cross Party Charter can then be presented for sealing at a Privy Council meeting in late July or August.  Such a meeting can be called whenever the Government decides to do so.

This constitutional farce has dragged on too long. The Press BoF charter should have been ignored at the outset.  It should be rejected now and the Cross Party charter sealed as soon as possible.  The next phase of the implementation of the Leveson report can then, at last, begin.

This post originally appeared on the Hacked Off Blog and is reproduced with permission and thanks


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18 07 2013
Michael Hall

The main problem with the draft Royal Charter is that it is internally inconsistent – clause 8 defines the powers of the Recognition Panel acting through the Board – which mean that it is open to judicial review, and must only do things which it is authorised to do, and then clause 14 says that the Board has all the powers of a natural person – this means that it can get married, and found a dynasty, climb Mount Everest, enter the Olympic games, sail round the world etc. Obviously nonsense. Why does there have to be a Board and a Recognition Panel? Why cannot there just be the one body called the Recognition Panel Board?

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