Paul Moura, an American lawyer currently at LSE, takes an anthropological look at the Royal Charter option being discussed in relation to implementing Leveson

To All To Whom These Presents Shall Come Greeting!

You will find those words gracing the titles of some of the 900-plus Royal Charters currently in existence in the United Kingdom. If reports are accurate, we may soon see one more. In the wake of the Leveson Inquiry, lawmakers and stakeholders are proposing several approaches to establishing a “Recogniser” – a body tasked with the duty of recognising and periodically auditing a press regulator. Recent reports suggest that the government plans to propose a “Recogniser” set up by Royal Charter, which would then evaluate the new press regulator on a three-yearly basis.

A Royal Charter! How nice. How regal.  I envision Colin Firth standing on a balcony announcing the new role of the Monarch as the defender of the press, presenting a glorious parchment scroll, stamped with a beeswax seal.  But rather than romanticizing, perhaps I should try to figure out what a Royal Charter is.  As an American attorney, I am unfamiliar with the use of a royal document as a legal instrument. How exactly would it work?

Royal Charters date back to the 13th century, before the introduction of a constitutional monarchy and before regular sittings of parliament. They are reserved for organisations that work in the public interest, such as charities, universities, hospitals and professional institutions. Royal Charters do not follow a standard format. Like any bylaws, they can be tailored to an organisation’s specific purpose. Unlike normal bylaws, however, charters are amended at the say-so of the Privy Council, a group currently headed by Nick Clegg, which includes all Cabinet Ministers and some junior Ministers.

Comparing the BBC’s Royal Charter

The BBC currently operates under a Royal Charter. The rationale is that this ensures the BBC’s independence from parliament. Yet, this also means that amending and periodically renewing the charter is ultimately a private negotiation between the BBC and the politicians within the Privy Council. It has been suggested that this arrangement has consequences for the outcome of the charter review.  For instance, the Society of Editors pointed out that “you don’t have to be a geologist to find a fissure or two indicative of government attitudes in the 2006 review”.

A Royal Charter for the Press Watchdog?

The assumed motivation behind a Royal Charter is that it would avoid the “statutory underpinning” recommended by Lord Justice Leveson, and thereby thwart any future opportunity for politicians to interfere with the press. In a Lords debate following the release of the Leveson Report, Lord Younger noted that Maria Miller, the Secretary of State for Culture, Media and Sport “has been clear that she remains committed to a non-statutory route”.

Yet critics are concerned about putting too much power in the hands of the Privy Council, which is “not exactly a democratic body”.  Opposition media spokeswoman Lady Jones cautioned that this would place “too great a concentration of power in the hands of the executive rather than Parliament.”

According to reports, in an attempt to address these critics, the government would propose that the charter would work in tandem with a “five-page bill to prevent the government of the day [from] interfering”. Instead of allowing the Privy Council to amend the Royal Charter, any changes would require a ‘super majority’ vote in the House of Lords and House of Commons.

It is odd that these proposals for a Royal Charter, whilst escaping “statutory underpinning” per se, would still involve creating a statute that then gives to parliament power to change the charter. This appears to throw two key aims – that of avoiding a statute, and that of avoiding political interference – right out the window. The result would be a confusing regulatory web involving the Monarch, executives and ministers. If transparency of regulation is a primary goal, the Royal Charter approach may not be conducive to that.

Still, there may yet be some advantages to a Royal Charter, and the government is likely to clarify its proposals in due course. Perhaps there is still a way to fashion a charter to avoid too much political interference. At the very least, particularly to the outside observer it makes for an interesting debate.