The Crime and Courts Act 2013 (‘CCA’) sections 34-42 inclusive are headed “Publishers of news-related material: damages and costs” and form a complete and closely integrated scheme enacted for the public benefit, and the protection of the press from spurious complaints, for implementation as a whole. How can bringing section 40 into force logically be a question of government policy?

The CCA Explanatory Note sets out Parliament’s purpose and intent of sections 34-42 (underlining added):

Sections 34 to 42: Publishers of news-related material: damages and costs

“On 29th November 2012 the Report of An Inquiry into the Culture, Practices and Ethics of the Press was presented to Parliament (HC 780) (“the Leveson Report”). In the report, the Rt. Hon. Lord Justice Leveson makes a range of recommendations to reform the regulatory framework for the press, creating a new framework for press regulation, with the principle of industry self-regulation at its heart. The new framework proposed is for a system of voluntary self-regulation, overseen by a recognition body established by Royal Charter and strengthened by a series of incentives for members of the press in the application of costs and exemplary damages, encouraging them to join a recognised regulator. Sections 34 to 42 and Schedule 15 set out the new system for exemplary damages and costs, as well as defining those who meet the definition of a ‘relevant publisher’ to whom the new system of exemplary damages will apply.

By CCA section 61(7)

“Sections 34 to 39 come into force at the end of the period of one year beginning with the day on which a body is established by Royal Charter with the purpose of carrying on activities relating to the recognition of independent regulators of relevant publishers (as defined by section 41)”.

Such a body, the Press Recognition Panel (‘PRP’), was formed on 3 November 2014. To comply with the Interpretation Act section 12(1) and CCA section 61(7) on 4 November 2015 The Crime and Courts Act 2013 (Commencement No. 14) Order 2015, signed on 27 October 2015 by Edward Faulks, Minister of State, Ministry of Justice, brought into force s.41 with Schedule 15 and s.42, as they related to sections 34-39.

Interpretation Act 1978 section 12 (underlining added): Statutory powers and duties

Continuity of powers and duties.

(1) Where an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, from time to time as occasion requires.

CCA Commencement No 14 was a statutory duty to be performed to comply with the true meaning and construction and Parliament’s purpose in enacting CCA sections 34-42 in accordance with section 61(7) occasioned by the formation of PRP and not a matter of discretion or government policy.

CCA section 61(2) provides

Subject as follows, this Act comes into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes and, in the case of Part 4 of Schedule 16 and section 44 so far as relating to that Part of that Schedule, for different areas.

CCA Section 40(6)

This section does not apply until such time as a body is first recognised as an approved regulator.

In context of the intent and purpose of CCA sections 34-42 the true construction and meaning of section 40(6) of ‘does not apply until such time as a body is first recognised as an approved regulator’ is no different in substance or intent from ‘applies from such time as a body is first recognised as an approved regulator’.  Even if the latter had been the wording it could not have been brought into force on a defined day of the month because of section 40(4).

CCA Section 40(4)

The Secretary of State must take steps to put in place arrangements for protecting the position in costs of parties to relevant claims who have entered into agreements under section 58 of the Courts and Legal Services Act 1990. (underlining added)

The writer has analysed the Crime and Courts Act 2013:  ‘may’ occurs 743 times; ‘must’ 281 times; ‘shall’ 29 times and ‘should’ 24 times.  These words have different shades of meaning or else there would be no need to use alternatives.  There is case law as to the meaning of ‘shall’ but none could be found for ‘must’. Depending on circumstances ‘shall’ may be discretionary or mandatory.  The Oxford English Dictionary definition of ‘must’ is: Be obliged to; should (expressing necessity): e.g. ‘you must show your ID card’. ‘Must’ is mandatory.

As section 40(4) obliges the Secretary of State ‘to put in place arrangements’ he had to have time to ‘take steps’ before bringing section 40 into force once ‘such time as a body is first recognised as an approved regulator’.  It seems the commencement provision in CCA 61(2) cannot come into effective operation until such regulations have been made: chicken & egg?

Interpretation Act 1978 (IA) section 4 Time of commencement.

An Act or provision of an Act comes into force—

(a) where provision is made for it to come into force on a particular day, at the beginning of that day;

The IA does not define ‘a particular day’.  It is submitted that ‘a particular day’ may include the day on which a clearly defined event occurs as well as a specific date or period of time. On 25 October 2016 the PRP recognised a body, IMPRESS, as the first approved regulator. CCA section 40(6) was applicable.

By parity of reasoning with sections 41-42 and IA section 4 the ‘arrangements’ in CCA section 40(4) should have been ‘put in place’  and a CCA Commencement Order been issued as soon as possible after 25 October 2016, ‘on a particular day’, to bring section 40 into force in accordance with section 67(2). This is a statutory necessity occasioned by PRP’s recognition of IMPRESS and in accordance with the IA section 12(1) to comply with the true meaning and construction of the CCA and the overall intention of sections 34-42: not a matter of discretion and/or government policy. The failure to do so since November 2016 has frustrated the true meaning and construction and purpose of the scheme in sections 34-42 and frustrates the will of Parliament.  Such failure is also a failure to comply with IA section 12(1) ‘as occasion requires’.

Dicta in RM (AP) (Appellant) v The Scottish Ministers (Respondent) (Scotland) (SC(Sc) [2012] 1 WLR 3386, [2012] UKSC 58 (which considered Regina v. Secretary Of State For The Home Department, Ex Parte Fire Brigades Union And Others [1995] 2 AC 513) seem to support the proposition that on the true meaning and construction of the CCA ‘Publishers of news-related material: damages and costs’ section 40 should have been brought into force, as have sections 41-42, as ‘the particular day’ prescribed in the CCA section 40(6) has come to pass and ‘as occasion requires’.

“This appeal raises a question … where the provisions which are subject to the commencement provision cannot come into effective operation unless such regulations have been made.” [1] …

“… Parliament is not given to idly passing legislation. As Viscount Simon LC observed in  Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014, 1022, Parliament would legislate only for the purpose of bringing about an effective result. Its intention can ordinarily be taken to be that an enactment, when brought into force, will not be futile but will have practical consequences for the life of the community. And it is for Parliament, not the Executive unless Parliament confers the necessary power upon it to determine when an enactment comes into force. This is an aspect of the wider principle, fundamental to our constitution since the seventeenth century, that Parliament makes the law and the Executive carries the law into effect.” [34] (emphasis added)

“… As Lord Nicholls of Birkenhead observed in Ex p Fire Brigades Union [1995] 2 AC 513, 574, a provision of the latter kind is often the most convenient way of coping with the practical difficulty that, when the legislation is passing through Parliament, it is not always possible to know for certain what will be a suitable date for the legislation to take effect. Regulations may need drafting,” [35].

“It has long been a basic principle of administrative law that a discretionary power must not be used to frustrate the object of the Act which conferred it: see for example Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.” [42]

“The fundamental flaw in the Ministers’ argument is to assume that a failure to exercise a discretionary power can only be unlawful or, to put the matter differently, to assume that an obligation to exercise a discretionary power can only arise where the exercise of the power is necessary to make effective a legal right. That is too narrow an approach, as was made clear in Padfield’s case [1968] AC 997, where the same argument was advanced (see pp 1020—1021) and rejected. As Lord Reid explained in that case, at p 1033, Julius v Bishop of Oxford 5 App Cas 214 is itself authority for going behind the words which confer a statutory power to the general scope and objects of the Act in order to find what was intended. In the words of Lord Cairns LC in Julius’s case, at pp 222—223,

“there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty …’’ [46] (emphasis added)

“The importance of Padfield’s case [1968] AC 997 was its reassertion that, even where a statute confers a discretionary power, a failure to exercise the power will be unlawful if it is contrary to Parliament’s intention. That intention may be to create legal rights which can only be made effective if the power is exercised, as in Singh (Pargan) v Secretary of State for the Home Department [1992] 1 WLR 1052. It may however be to bring about some other result which is similarly dependent upon the exercise of the power. Authorities illustrating that principle in the context of a statutory power to make regulations, where such regulations were necessary for the proper functioning of a statutory scheme, include Greater London Council v Secretary of State for the Environment [1984] JPL 424 and Sharma v Registrar to the Integrity Commission [2007] 1 WLR 2849, para 26, per Lord Hope of Craighead. In the present case, the exercise of the power to make regulations by 1 May 2006 was necessary in order to bring Chapter 3 of Part 17 of the 2003 Act into effective operation by that date, as the Scottish Parliament intended. The Ministers were therefore under an obligation to exercise the power by that date.” [47] (emphasis added)

“Furthermore, although at the time when this case was before the Court of Session it might have been thought that the petitioner lacked standing to challenge the Ministers’ conduct unless he could complain of a violation of his rights, it is now clear from AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868 that it is necessary for an applicant for judicial review to demonstrate only a sufficient interest in the subject matter of the application.” [48]

The public, who may have a grievance against the press, and those publishers that are registered with Impress have had a legitimate expectation and sufficient interest that the scheme in sections 34-42 would have been completely brought into force.  Thus providing the legal cost protections for both public and press for genuine claims against the press.

I suggest that Parliament cannot consider repealing only section 40 and frustrate the totality of the scheme in sections 34-42 which are drafted as an interrelated single scheme.  It is to be noted that Enterprise and Regulatory Reform Act 2013 Section 96 Royal Charters: requirements for Parliamentary approval states:

Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter or dissolve the body unless any requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.

The Royal Charter on Self-Regulation of the Press states:

“AND WHEREAS it is in the interests of Our People that there should be a body corporate established for the purpose of determining recognition of an independent regulatory body or bodies, in pursuance of the recommendations of the Report of the Inquiry.”: and

“10.4. For the purpose of this Article [dissolution of the Charter and Recognition Panel], “approved” means that at least two-thirds of the members of the House in question or the Scottish Parliament who vote on the motion do so in support of it.”

In the spirit of the Charter it would be totally unreasonable, if not unlawful, for a government to try and frustrate the totality of the scheme enacted in sections 34-42 for the benefit of public and press by repealing section 40 by a simple majority.

Furthermore on 23 May 2018 The Department for Digital, Culture, Media & Sport publicly declared (underlining added),

“As you say in your correspondence “The clear meaning of the emphasised parts [of section 40] appears to be that in certain circumstances the court has the discretion to say which party pays the costs”. Discretion is the key word, it cannot be guaranteed this will be applied consistently or universally, with unmeritous [sic] cases being filtered out – meaning that publications would be vulnerable to spurious legal claims and therefore, emphasising the discretion the court has, might be forced to pay regardless of merit.”. 

It is contemptuous for the department to imply that the courts might not exercise its discretion correctly.  If this helps motivate to any degree the desire to repeal section 40 it has no merit. A repeal on such a basis is totally unreasonable if not unlawful interference with the independence of the judiciary.

For the avoidance of doubt, as the Government is a minority administration reliant upon a confidence and supply arrangement, reliance cannot be placed on the Conservative manifesto: see The House of Lords Library briefing describes the background to the Salisbury Convention and considers how it applies when a hung parliament produces a minority or coalition government.  It cannot be alleged that the public wishes to have section 40 repealed because of the manifesto commitment and the outcome of the election.