Media Reform welcomes Hacked Off’s statement that the government’s proposals for a Royal Charter to guide independent press regulation are ‘overcomplicated and undemocratic’.
We thought it might be helpful to remind people of the very similar concerns that were highlighted by the House of Lords Communications Committee in its report on BBC Charter Review back in 2005.
Its warnings that a Royal Charter process lacks a sufficient degree of scrutiny and requirements for public participation and involves instead a ‘significant degree of Government regulation of the affairs of the body’ should be taken on board by all those who think that it will help foster a truly independent and ethical press. We should continue pressing for the implementation of Lord Justice Leveson’s recommendation for legislation that protects press freedom but also guarantees an effective form of oversight.
The constitution of the BBC: Charter or Statute?
33. We believe it is vital that the process for agreeing the constitution of the BBC is open, transparent and not in the hands of any one political party. Unfortunately the process for agreeing a Royal Charter satisfies none of these criteria. Although, during this Charter Review, there has been public consultation, an independent report and two parliamentary Select Committee inquiries, the fact is the Government do not have to listen to anyone and can draw up the new Charter and Agreement as they please—indeed this is what they seem to be doing. Even if the Charter and Agreement are put to a vote in the House of Commons (something the Secretary of State said was a matter for the Whips) there would still not be proper parliamentary scrutiny in the way that there would be if the BBC were established by statute. In our view there should be proper parliamentary scrutiny and that scrutiny should involve both Houses of Parliament.
34. We propose therefore that the BBC should be placed on a statutory basis by Act of Parliament. Such an Act could provide for periodic reviews of BBC services, involving public consultation, and be tied in with Ofcom’s quinquennial reviews of Public Service Broadcasting. It could also provide for a periodic review of licence fee funding.
35. There are several grounds for proposing that the BBC be established by Act of Parliament. First, establishment by Royal Charter is an arcane and little understood procedure. Second, the passage of an Act through Parliament is a more transparent and democratic route than agreeing a Royal Charter through the Privy Council. Third, a statute can more explicitly enshrine the BBC’s editorial independence and provide for long term certainty and transparency over the BBC’s basic terms of reference. We received evidence supporting the replacement of the Royal Charter by an Act of Parliament from the Campaign for Press and Broadcasting Freedom and the Commercial Radio Companies Association.
36. However, Michael Grade, the [former] Chairman of the BBC, was against establishing the BBC by statute. He believed that “The Charter allows the BBC to be one step removed from a vote in both Houses”. The Government have also argued that if the BBC was a statutory body it might be more open to Government intervention. They suggest that if the BBC were established by statute there would be no guarantee of its long term existence or independence because legislation would be subject to repeal or repeated amendment.
37. [Former Culture Secretary] Tessa Jowell defended the status quo on the grounds it had been the constitutional basis for the BBC for the last 80 years. However, the Satellite and Cable Broadcasters Group stated in its evidence that “the Royal Charter and Agreement are anachronisms that do not reflect recent reforms in other areas of public life and publicly funded institutions. The appropriate way for the BBC to be re-established, and given long-term security with independence from Government, is as a statutory corporation like the UK’s other principal public service broadcaster Channel 4.
38. Tessa Jowell cited licence fee payers’ wish for clear independence of the BBC from Government and Parliament as a reason why the BBC should not be established by statute. She referred to research showing that only 9 per cent of people surveyed thought that the Government should be responsible for holding the BBC to account when things go wrong and just 4 per cent thought that Parliament should. While we accept that these statistics do not show support for political involvement of any kind we fail to see how the Secretary of State can pray them in aid of continuing with the Royal Charter. Qualitative research showed that respondents were general unclear about the boundary between Parliament and the Government. Given that the Royal Charter is drafted by the Government, and therefore is not independent of Government, it seems strange that the Secretary of State would cite this research as evidence for continuing with a Royal Charter.
39. In respect of its role towards the BBC the Privy Council is an instrument of Government. It has a ministerial president and only ministers of the Government of the day participate in the Privy Council’s policy work. The Privy Council’s own guidance shows that the terms of a Royal Charter are not formulated independently of Government. It states that “once incorporated by Royal Charter a body surrenders significant aspects of control of its internal affairs to the Privy Council. Amendments to Charters can be made only with the agreement of The Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body.