On 24 October 2013, it was announced that the newspaper industry’s associations, through PressBoF, were applying to the High Court for judicial review of the decision to reject their application for a Royal Charter. This application was not in fact issued until 28 October 2013.
The claimant is The Press Standards Board of Finance and the defendants are the eight members of the Privy Council Committee which decided to reject the PressBoF charter application plus the Deputy Prime Minister, Nick Clegg, who is the Lord President of the Council.
The Statement of Facts and Grounds [pdf] is a 37 page document which itself refers to a witness statement of Lord Black of Brentwood which has not been made public. It seeks to overturn the recommendation of the Privy Council committee – made in its letter of 8 October 2013 [pdf] (“the Recommendation”) and the order of the Privy Council of 9 October 2013 (“the Order”) which gives effect to the Recommendation.
The Statement of Facts and Grounds set out some of the history of the discussions between PressBoF and Government ministers. It confirms that, prior to the publication of the first draft charter on 12 February 2013, “the Government Charter was discussed with press industry representatives including Lord Black” . It complains that after that date there was “little further discussion” with PressBoF. however, after the submission of the PressBoF charter on 30 April 2013 further meetings took place between PressBoF and Government ministers – on 23 May 2013 , 3 July 2013  and 9 September 2013 .
PressBoF contends that it submitted its own charter because it did not regard the Government’s proposal as suitable “principally because of a core concern that it did not guarantee freedom of the press from executive interference” . It is said that “the scope for Government regulation of over the press is preserved in the Government charter”  These assertions are not explained or amplified.
Four grounds of judicial review are relied on:
- a breach of the right to be heard ( to ). .
- a breach of the duty of adequate consultation ( to )
- that the procedure followed was “conspicuously unfair” and hence an “abuse of power” ( to )
- that the decisions under challenge were irrational ( to ).
PressBoF seeks a declaration the the Recommendation and the Order were unlawful and a “quashing order”. it also seeks – on a basis which is difficult to follow – an injunction to prevent the Government Charter being considered or approved until the conclusion of the action. In its statement announcing the issue of proceedings the press said
“Given the gravity of these constitutional issues, the industry’s lawyers asked the Privy Council on Friday to give an undertaking that the rival cross-party Royal Charter, written by politicians and the Hacked Off lobby group, would not be presented to the Queen for sealing on Wednesday. That request has been refused and an injunction will now be sought”.
There are a number of legal difficulties with the claim. The most fundamental is that it relies on a right to be heard or to be consulted in circumstances where no such right arises. The law does not impose a general duty of this kind. It is said that PressBoF is directly affected by the recommendation of the Privy Council Committee that its charter be rejected but that, of itself, does not require them to be heard or consulted after their application was submitted. It is not suggested the the Government promised to consult PressBoF before making a decision or that this is the usual practice of the Privy Council on charter applications.
Moreover, a decision to adopt the Cross-Party Charter involved the implementation of a policy adopted on 18 March 2013 – a policy which the press were fully aware of. PressBoF has had since 18 March to make representations about the Cross-Party Charter but has, apparently, failed to do so. It has known for more than 6 months what the Government was proposing to do and could have submitted comments at any time. Judging the process as a whole, it is difficult to see any unfairness. The application for judicial review looks highly unlikely to be successful.
It will be interesting to see whether PressBoF pursues its application for interim relief before 30 October 2013. There is, at present, no injunction application listed before the Courts.