Untangling the Proposed Press Regulation Scheme – The Royal Charter

Following negotiations between the main political parties in the UK, and threats by the opposition to introduce press regulation schemes into other legislation, the Government has published its proposals for implementing some of the recommendations of the Leveson Inquiry. There has been a great deal of comment on these, much before the details were published, and this post will attempt to set out precisely what is being put forward.

On 18 March 2013 the UK Government announced proposals to introduce a press regulation scheme. This followed the recommendations of the Leveson Inquiry into the Culture, Practice and Ethics of the Press. This post is based on the first published proposals – if or when the scheme is implemented it may be different.

There are two main limbs to the proposals; a Royal Charter to establish a Panel for recognising and monitoring Regulatory Bodies, and a series of Amendments to the Crime and Courts Bill to encourage the use of Regulators by the press.

This post will focus only on the Royal Charter, while a second post covers the Amendments.

The Royal Charter

A Royal charter is a formal document used to establish a legal person. Prior to the introduction of company law, it was the only way of creating a non-natural legal person, and many important institutions (from Universities to the BBC) were created by a Royal charter. This Charter creates a Recognition Panel and sets out its duties and powers.

The Panel

The Panel’s purpose is to give recognition to (or remove it from) certain independent Regulators of certain Publishers. The Charter does not create any regulators, require that anyone be subscribe to a regulator, or introduce any incentive for publishers to subscribe, but it does set out rules that a regulator must follow for it to be recognised by the Panel.
The Panel (acting through a Board consisting of four to eight members) and its staff must have sufficient independence of both the relevant industries and the Government, so those connected with publishers, MPs and Ministers are all excluded from being on the Panel.

Definition of Regulators and Relevant Publishers

A Regulator is defined as an independent body formed “for the purpose of conducting regulatory activities” in relation to Relevant Publishers.

A Relevant Publisher is anyone who publishes a newspaper, magazine or website, either in the UK or mainly targeted at people in the UK, containing news-related material.

News-related material has a broad definition, and covers both traditional news and current affairs, opinion about news and current affairs and gossip about public figures or those in the news.

It is important to note that the definition of Relevant Publisher in the Royal Charter is significantly broader than that in the Amendments. The definition here would seem to cover anyone running a website, including a blog, covering news. As website is not defined, it is unclear as to whether this could include blogs hosted on other websites (such as this one) or social media posts.

Even if these are covered, this would simply mean that if such publishers (individual Twitter users, for example) established a Regulator, that Regulator could apply to be recognised by the Panel. There is no requirement in the Royal Charter that any Regulator be created, that any Relevant Publisher subscribe to the appropriate Regulator, or that any Regulator apply to be Recognised. The Royal Charter merely states that this can happen and sets out the requirements for recognition.

Recognition of Regulators

For a Regulator to be recognised, the Panel must be sure that it satisfies the criteria set out in the Royal Charter. The Panel can also consider some of the recommendations of the Leveson Inquiry.

Recognised Regulators must be reviewed every 3 years (or 2 years for the first review), and if they no longer satisfy the criteria, recognition can be withdrawn. Additionally, if there are “exceptional circumstances” (such as a serious breach of the criteria by the Regulator) or significant public interest in carrying out a review, the Panel can decide to review the situation earlier.

The Panel is allowed to charge Regulators for their applications or reviews, has broad powers for hearing evidence and can publish policies and guidance about how it recognises Regulators, and reports on how the scheme as a whole is progressing.

Criteria for Recognition

Possibly due to the rushed drafting, the recognition criteria refer specifically to the press, rather than to publishers in general. This may be an oversight on the part of the drafters and may be amended before the Royal Charter comes into force.

For a Regulator to be recognised it must be run by an independent Board (this is separate from the Board of the Recognition Panel), appointed in a “genuinely open, transparent and independent way”, free of influence from both the industry and the Government. There are detailed restrictions on who can be on the Board and who can be on the panel for appointing people to the Board. For the former, there must be no service editors or MPs, and the majority of members must be independent of the press.

  • The Regulator must have a Code, open to public consultation every two years, which must include standards for conduct (particularly when “obtaining material”), respecting privacy where appropriate and accuracy. However, the Code must also take into account the importance of freedom of speech and any relevant public interests (such as in exposing crime, impropriety etc.).
  • Regulators should also provide advice to the public on their Code, and a service for warning members of the press when someone has indicated that they “do not welcome press intrusion.” They should also provide “non-binding guidance on the interpretation of the public interest” and how that might apply to potential breaches of their Codes.
  • Regulators should have whistleblowing hotlines through which individuals can report possible breaches of their Codes.
  • Regulators should ensure that their subscribers (i.e. the Publishers) have adequate, speedy and free complaints procedures that individuals can use in the event of breaches of the Codes. If the complaint is not dealt with suitably, the Regulator should be able to impose sanctions, such as requiring apologies or corrections or, in the case of “serious or systemic breaches”, fines of up to 1% of the Publisher’s turnover (but no more than £1m). However, the Regulator should not be able to prevent publication of any material.
  • Regulators should provide an arbitration process (free for complainants) so that if a complaint cannot be settled with the Publisher directly, or with the Regulator, it can be handled through a formal arbitration process (governed by the Arbitration Act), without the need to go to a court.
  • Finally, the Regulator should be open to all relevant publishers on “fair, reasonable and non-discriminatory terms.”

Entrenchment

There are some provisions in the Charter to “entrench” it by creating specific rules for amendment or repealing it. This would require the approval of both Houses of Parliament, with the votes needing a 2/3rds majority of those voting to pass. This raises some interesting academic issues as entrenchment of law is theoretically impossible under the UK Constitution (something one would hope the Government was aware of). There is a good (if brief) discussion of the issue here by @LoveAndGarbage who is a real lawyer.

Summary

The Royal Charter creates a Recognition Panel whose main purpose is to recognise any independent Regulators, to ensure that they are both independent and are regulating the relevant industry. There are no requirements that any regulators be formed, that anyone subscribe to them, or that any regulators that are formed apply to be recognised.

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