|James I - Divine Right|
The Privy Council is an ancient and interesting institution. Some would argue that it is anachronistic: a survival from medieval times. The Council's website is here. The government intends to use the Privy Council to issue a Royal Charter in connection with Press Regulation. A narrow view of the draft Royal Charter on Self-Regulation of the Press would be that it does no more than incorporate a body to be called the Recognition Body. Viewed in this narrow way, the use of a Royal Charter would hardly be controversial since it is well established that the Privy Council may grant Charters of Incorporation. There are over 900 such chartered bodies - (list via Privy Council website). In 2012, the the Chartered Institute of Legal Executives was granted a Royal Charter. The Institute had been in existence since 1963. Royal Charters may also be used to create bodies or to continue bodies in existence. Examples include the Bank of England and the British Broadcasting Corporation (BBC).
In creating the Recognition Body, the Royal Charter defines the considerable powers of that body. In brief, it will carry on activities relating to the recognition of regulators in accordance with the terms of the Charter; determine applications for recognition from regulators; review continuance of recognition and apply the Scheme of Recognition set out in Schedule 2 of the Charter. To obtain and retain recognition, a regulator will have to comply with the considerable list of recognition criteria set out in paragraphs 1 to 23 of Schedule 3. (There will be a single recognition body but there is no limit on the number of regulators).
Already, the use of a Royal Charter to impose such a scheme begins to look more controversial and there is no doubt that a strong case existed for an Act of Parliament to be enacted as opposed to the charter route. See Press regulation deal struck by parties
There is of course no doubt in constitutional law that Parliament could have enacted legislation relating to Press Regulation. (In fact, the regulation scheme is partly statutory in that Parliament has enacted a scheme for exemplary damages. Also, Parliament has provided for control over any future amendment of the charter. See previous post). However, the route being taken for creation of the recognition body is via the Privy Council and the Council must obtain its powers to act either from statute or from the Royal Prerogative. Whilst a charter may be used to incorporate a body (i.e. to give it legal personality), a deeper question is whether there are any limits on what a body created by the prerogative may actually be empowered to do.
The full extent of prerogative powers is unclear though there are certain well established powers such as the rights of the Crown (in practice Ministers) to enter into international treaties and to conduct foreign affairs. (For a remarkable example of the power of the Privy Council in relation to British Overseas Territories see R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  UKHL61. The European Court of Human Rights decided that the Chagos Islander's case was inadmissible - Brick Court Chambers 3rd January 2013).
In recent years, a number of documents have discussed the prerogative in some detail:
The Constitutional Role of the Privy Council and the Prerogative - Patrick O'Connor QC - Justice
Taming the Prerogative - House of Commons Public Administration Select Committee 4th Report of Session 2003-2004
The Governance of Britain - Cm 7170, July 2007.
Unfortunately, none of these documents addresses the question of what a body incorporated by royal prerogative may be empowered to do. Are there any limits and, if so, what are they? Here is what appears to be a major loophole in our constitutional arrangements. The full extent of Privy Council powers are not defined and it is particularly unclear what a body incorporated by royal charter may be authorised to do. Could it be authorised to do anything at all? A charter to create a body with powers concerning press regulation certainly seems a long way from the more usual use of charters of incorporation (see note 2 below).
Perhaps the Charter will somehow be challenged before the courts. Unless that happens, the existence of a prerogative power to regulate the press is likely to become accepted given that the Charter itself effectively claims a prerogative right to do so by using the words:
It might then be wondered what might be ordained and declared at some time in the unknown future when some further need for State Control over some activity is perceived.
1. This year the Privy Council has met 8 times to issue various Orders in Council and to deal with other business. On 9th October, new Privy Counsellors were sworn in and one removed; proclamations were issued concerning coins; a Charter of Incorporation was granted to the Forensic Science Society; an Order was made under the United Nations Act 1946; another Order continued the armed forces; burials were discontinued in certain named churchyards etc.
2. Privy Council business in 2013 has included grants of charters of incorporation to bodies such as the Welsh Livery Guild and the Worshipful Company of Hackney Carriage Drivers. Various applications for charters (or petitions) are before the Council including the Worshipful Company of World Traders and the Association of Building Engineers. Charters amended in 2013 have included The Royal Ballet and the Magistrates' Association.
3. Additional material - The importance of the royal prerogative in contemporary government - Noel Cox, Aberystwyth University.
4. Extract from 'Taming the Prerogative' - The royal prerogative itself is a notoriously difficult concept to define adequately. The classic definition was given by A.V. Dicey, who described the royal prerogative as “... the remaining portion of the Crown’s original authority, and it is therefore ... the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers”
5. 'Taming the prerogative' contains a paper by Rodney Brazier who was Special Adviser to the Public Administration Select Committee. Brazier began by saying:
6. Amendment of certain Royal Charters.
The Enterprise and Regulatory Reform Act 2013 section 96. This will apply where a royal charter relates to an industry and where the charter contains a requirement for Parliamentary approval to an amendment of dissolution of the body.