England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30 October 2013

LORD JUSTICE RICHARDS:

1. The background to this case lies in the recommendations of the Leveson report concerning regulation of the press. Linked with recommendations for the establishment of a self-regulatory regime, were recommendations relating to the function of recognition of a self-regulatory body, so as to ensure that specified criteria were met. I do not propose to go into the details of those recommendations or how they were received and interpreted by those concerned. They sparked a lengthy public debate, as is well known.
2. In the event, the government proposed, with cross-party support, to create a chartered body to fulfil the recognition role, and published a draft of a proposed Royal Charter on 18 March 2013. The claimant, the Press Standards Board of Finance Limited, or PressBof, developed a rival proposal, and on 30 April petitioned the Privy Council for its own charter for a recognition body. On 8 October a committee of the Privy Council recommended that the claimant's petition be rejected. The following day, 9 October, an Order in Council was made approving that recommendation.
3. A revised draft of the government's proposed charter, the "state sponsored charter" as it is described in the documents before us, was published on 11 October. At 5.30 pm today, 30 October, the Privy Council is due to meet to consider it. I understand that approval for it will be sought at that meeting.
4. By a claim form filed two days ago the claimant seeks permission to apply for judicial review of (1) the recommendation and (2) the Order in Council relating to its own petition for a charter. The defendants are the Secretary of State for Culture, Media and Sport, the Lord President of the Council, and as I understand it, the Privy Counsellors who were on the committee which considered the claimant's application.
5. In addition, the claimant seeks an interim injunction in the following terms, that until after judgment in this claim:

"(A) The First Defendant must not put to the Privy Council or any committee of the Privy Council any charter, draft charter or petition for a charter relating to any aspect of regulation of the press, whether in the form published on 11 October 2013 or otherwise.

(B) The Privy Council (sued through the Second Defendant its Lord President), or any committee thereof, must not consider or recommend the grant of any charter relating to any aspect of regulation of the press, whether in the form published on 11 October 2013 or otherwise, and whether advanced by the First Defendant or any other person."

6. Because of that request for interim relief, the urgent procedure has been used and the matter has come on for hearing before us this morning. We have heard oral submissions from Mr Gordon QC on behalf of the claimant and Ms Lieven QC on behalf of the defendants. Those submissions have been directed primarily to the application for an interim injunction, but they have also necessarily addressed the underlying merits of the application for permission to apply for judicial review, and it seems to me that in the circumstances we should address that issue too. In view of the urgency, we are giving our decision on the applications now, with briefer reasons than we would ideally have wished.
7. The challenge to the recommendation and the Order in Council relating to the claimant's petition is based on arguments of procedural unfairness. It is a pure "process" challenge. The factual background to the arguments is set out at length in the supporting witness statement of Lord Black of Brentwood, the claimant's chairman, and is summarised in the claimant's detailed statement of facts and grounds. I am not going to repeat even the summary here, but salient points include the following.

(1) The claimant's proposed charter was put on the Privy Council Office website on 3 May. We have the specific date from Ms Lieven on instructions.

(2) In the course of May, the claimant was informed that there was to be a "period of openness", during which, via the Privy Council Office website, interested parties had the opportunity to submit their views on the claimant's proposed charter. There would then be a period of consideration to assess whether the charter met the Privy Council's criteria, followed by an assessment by ministers and the Privy Council.

(3) It was made clear to the claimant that the period of openness was not viewed as a formal consultation as such, because the government's preferred direction had not been set out, and answers to specific questions on specific areas had not been sought.

(4) The criteria by reference to which the proposed charter would be assessed were not published, save that on the Privy Council Office website there was published a standard list of criteria which, it is said, related to professional institutions and were not directly applicable to a charter of the present kind. I should note that although the general criteria published on the website were directed more appropriately to professional institutions, they did include such plainly relevant matters as the body's role; details of the number of members, grades, management organisation and finance; qualifications required for membership of the various grades; and "why it is considered that the body should be accorded chartered status, the reasons why a grant could be regarded in the public interest, and in particular what is the case for bringing the body under government control as described above."

(5) The claimant had been told by a letter of 21 May from the DCMS, that is the Department for Culture, Media and Sports, that it would be of use, so as to inform the consideration of the charter, if the information referred to on the website could be provided. At a meeting on 23 May with the DCMS, the claimant understood it to be accepted that some of those criteria were not relevant to the claimant's petition, but the note of the meeting also records that the claimant was told that a letter would be helpful and that a helpful response would be to cover the criteria so far as relevant. The reaction to that was that the relevant items had been dealt with in the petition. That point had already been made, in any event, in a letter from the claimant dated 22 May. On this aspect of the case, I should add that there was a ministerial answer to a Parliamentary question on 3 June, to the effect that consideration would be given to the proposed charter by reference to the criteria on the website.

(6) A further factual point is that the claimant was not informed of the responses received from other interested parties during the period of openness. Attempts by the claimant to obtain information about the progress of consideration of its petition, and, for example, to establish whether, if the committee of the Privy Council were minded to reject the petition, there would be an opportunity for the claimant to address those reasons before a final decision was taken, met with little by way of substantive response.

8. In the event, the reasons for the decision were received without any "minded to reject" procedure of the kind to which the claimant had referred. The committee's recommendation of 8 October that the petition be rejected took the form of a reasoned decision which was sent to the claimant. It stated, amongst other things, that the committee had concluded that the petition fell short of government policy on the self-regulation of the press for a number of key reasons. Those reasons are set out over the next two and a bit pages of the decision. I will quote some passages from them:

"Independence. Following on from the Leveson report, Government policy is that there should be an independent verification body (a Recognition Panel) able to recognise a press self-regulator. A self-regulator should be independent of the press, of Parliament, and of the Government. Whilst there is much to be said for industry engagement in a system of industry self-regulation, the Committee was unable to satisfy itself that industry both funding and playing a significant role in appointments to the Recognition Panel are factors which could be consistent with Government policy. There were three areas which the Committee particularly noted:

(i) Recognition panel: The Committee did not consider that the PressBof Recognition Panel would be sufficiently independent for the following reasons ….

(ii) Self-regulator: The Committee was not satisfied that the proposed 'recognition criteria' would deliver a sufficiently independent self regulator for the following reasons ….

(iii) Certainty: The Committee welcomes PressBof's intent to impose constraint on future amendment of their Charter. However, the Committee considered that the specific proposals do not provide proper independence from the press, Parliament and Government. There would be nothing to stop the Government alone amending the charter in the future ….

Arbitration: The Committee welcomes that the PressBof Charter includes the option for arbitration, but is concerned that it does not make it a condition of recognition that a self-regulator must provide an arbitration service for complainants. This was an essential element of the Leveson Report …

Standards Code: … The committee is not satisfied that the PressBof Charter would deliver a robust standards code, which is ultimately the responsibility of the self-regulator.

Apologies: The PressBof Charter states that the self-regulator should have the power 'to require remedial action', and the 'power to require the nature, extent and placement of a remedy', but it does not make clear what this remedial action might include. Following on from the Leveson Report, the Committee is unable to satisfy itself that this wording would ensure that the self-regulator will have the necessary power to require the relevant publisher to direct apologies.

Third party complaints: The PressBof Charter requires a self- regulator to have the power to hear complaints. In the case of third party complaints, it is required only where the alleged breaches are significant and there is a substantial public interest in the self-regulator giving formal consideration to the complaints. In the light of the Leveson Report, Government policy is that all such complaints should be considered if there is a public interest in so doing. The Committee is not satisfied that the higher thresholds in the PressBof Charter are consistent with Government policy and would deliver an effective complaints mechanism."

9. The decision goes on to state:

"Following on from the Leveson Report, Government policy is that any solution must be perceived as credible by the public and supported by the press. The Prime Minister has said that 'As Lord Justice Leveson recommended we need a system of tough, independent self-regulation that will deliver for victims and meet the principles set out in his report'. The responses to the Period of Openness showed that (i) the PressBof Petition was not seen to have credibility with the public; but (ii) was supported by the industry, with support coming from a number of regional press newspapers and groups, and most national newspaper groups, following a campaign by The Newspaper Society."

10. Those are the most relevant passages of the decision itself. The letter then set out views as to aspects of the claimant's proposal which merited further consideration.
11. The body of the letter referred to Annex A to the letter. That annex stated that the committee had considered whether the proposed charter would, following the Leveson report, deliver government policy, specifically the following considerations:

•    "Whether the PressBof Petition assists in securing a vigorous free press?

•    Whether the PressBof Petition will assist in securing a press self-regulator which delivers the key Leveson principles, as set out by the Prime Minister on 18 March 2013?

•    Whether the Petition will sufficiently activate the legislative incentives that bind the press into the system (exemplary damages and costs)?

•    Whether the PressBof Charter Petition is likely to hold credibility with the public?

•    Whether the PressBof Charter is supported by the press industry?

•    Would the petitioners be able to deliver in accordance with the Petition?"

12. In addition to the material to which I have already referred, I should mention that there are various statements in the documents showing that it was contemplated throughout that consideration of the claimant's proposed charter would have to be completed before consideration of the government's charter could be completed. The claimant submits, though it is no part of its existing grounds of claim, that since the two charters are competing charters there can no lawful consideration of the government's charter until there has been a lawful decision on the claimant's proposed charter. The injunction that is sought to prevent consideration of the government's charter by the Privy Council is premised on that argument. Mr Gordon offered the court an undertaking to add a challenge to the government charter if that were considered necessary for the purpose of enabling him to mount the injunction application.
13. So that is the background against which the arguments of procedural unfairness are advanced and against which the application for an interim injunction is made. The procedural arguments are elaborated in a variety of ways: as a breach of the right to be heard; a breach of the duty of adequate consultation; a breach of procedural legitimate expectation; conspicuous unfairness; and irrationality in relation to procedural matters. The protection of the right to freedom of expression under Article 10 of the European Convention of Human Rights is worked into the arguments. There is also a suggestion that the decision was not approached with an open mind and that there was a fettering of discretion as to the decision to be made, though Mr Gordon, in his oral submissions today, has made clear that is the procedural aspects, rather than the substantive decision, that are the subject of the challenge.
14. As regards the alleged breach of the right to be heard, complaint is made in particular about the failure to inform the claimant about the criteria that would be applied or about the reasons why the committee had concerns about the proposal, and the failure to show the claimant the materials on which the committee intended to rely, including comments received from interested parties during the period of openness. All of this is said to have denied the claimant an effective opportunity to make representations in support of its petition.
15. It is contended that there was a duty of consultation, or at least that having embarked upon a voluntary consultation, there was a duty to consult adequately, and that there was no adequate consultation: among other things, the claimant itself was not consulted; the applicable criteria were not known, so that people were not in a position to direct their responses, or they may have been misled into responding by reference simply to the published criteria relating to the professional institutions. A further aspect of the argument is that it was not clear how long the period of openness was to last.
16. The alleged breach of procedural legitimate expectation relies on essentially the same matters. The allegation of conspicuous unfairness is likewise in substance another way of putting the same points. So too is the irrationality argument, which presents the alleged procedural failings in terms of the taking of irrational procedural steps.
17. I should indicate that no threshold point as to jurisdiction is taken by the defendants. There are questions as to the amenability of an Order in Council to judicial review, but they are questions that would need to be considered at a substantive hearing if permission were otherwise appropriate. It is in relation to the issue of an injunction that Ms Lieven, for the defendants, takes points arising out of the status of the Privy Council and the nature of the decision making process that it is sought to enjoy. I will come back to that.
18. I propose to address the merits of the claimant's procedural arguments first. They are relevant both to the question of permission to apply for judicial review and to the question of whether there should be an injunction if permission is granted.
19. First, I do not consider there to be arguable case that the claimant or other interested parties did not know what points they needed to address in order to make informed comments on the claimant's petition, whether in support of the petition or against it. The standard published criteria included, as I have said, why the body should be accorded charter status, the reasons why a grant would be regarded as in the public interest, and what is the case for bringing the body under public control. All this engaged issues which were well known and had been the subject of intense debate during the course of the Leveson Inquiry and following his report. The government's own policy in relation to these matters was equally well known and was reflected in the government's proposal for a chartered recognition body. The claimant must have understood the issues that needed to be addressed in its own petition and it had a fair opportunity to address them. The claimant's proposed charter was in itself the claimant's representations as to the best way forward.
20. Nor do I consider there to be an arguable case that the process of consideration of the petition by the Privy Council or its committee involved breach of the requirements of fair consultation, even if, contrary to Ms Lieven's submission, the Privy Council was under a duty to consult or if what was done by way of receiving representations during the period of openness amounted in law to a formal process of consultation. All concerned were well informed of the main issues on which to comment by reason of the background.
21. As I have mentioned in my recitation of the facts, the claimant had said that the relevant points in the website criteria had been addressed in its petition. The response of the campaign group, Hacked Off, in the period of openness, shows the wide range of issues which that group realised to be relevant, including areas covered by the considerations taken into account in the decision of 8 October. Reference to the website criteria as being the relevant criteria cannot have misled or deterred anyone from addressing the relevant issues.
22. I am satisfied that the claimant had no legitimate expectation or right under the obligation of fairness to be consulted on the public's responses to the claimant's proposed charter, and that there was no promise of any specific procedure being adopted.
23. I cannot see any basis upon which it could be said that the committee was under a duty as a matter of fairness to inform the claimant of the reasons why it was minded to recommend rejection of the petition, so as to give the claimant an opportunity to engage specifically with those reasons before a final decision was taken. In my view, the committee was plainly entitled to move to a decision on the basis of the material before it, and without going through the additional loop suggested by the claimant.
24. As to the reasons actually given for the recommendation that the claimant's proposal be rejected, and the considerations taken into account in reaching that decision, none of it can have come as a surprise to anyone.
25. In summary, I do not accept that the procedure adopted can have unfairly prevented the claimant from putting forward its case in support of its petition. The various different ways in which the claimant's case is formulated add nothing of substance to the points with which I have already dealt, albeit it has been necessary to deal with them in relatively summary terms.
26. I would, however, add that Article 10 ECHR, deeply important though that provision is, does not have a material impact on the analysis. I come back to the fact that there has been a great deal of consultation, and an extensive canvassing of views through the Leveson Inquiry and the debate that followed it. There is no arguable case that the procedure adopted in considering the claimant's petition in some way infringed Article 10.
27. There is a further point. The challenge concentrates on alleged defects in the process but does not set out how a different procedure (and what in the claimant's submission would have been a lawful and better procedure) might have led to different result. Lord Black says at paragraph 107 of his witness statement: "If the claimant had seen at an earlier stage the considerations eventually taken into account, it would have had very substantial comments to make, and might well have been prepared to amend aspects of the proposed charter in recognition of some of those points." No supporting details are given in the evidence. For my part, I cannot see, on the evidence before the court, what points of substance the claimant can be said to have been denied the opportunity of putting forward by reason of the procedure adopted.
28. Equally importantly, in the light of the reasons given by the committee for its recommendation - reasons founded in stated government policy – I cannot see any realistic possibility that a different procedure might have led to a different outcome. To my mind, the recommendation would inevitably have been the same even if the claimant had had the fuller opportunity it says it should have had to make informed representations. That is not because the decision was approached with a closed mind, or because there was any fettering of discretion. It is simply that the considerations telling against the proposal, as explained in the written decision of the 8 October, were such as in my view to have made it inconceivable that anything additional the claimant might have had to say, even by way of putting forward amended proposals, could have made any difference. In saying that, I do, of course, bear in mind Mr Gordon's submission that the court should be very slow in a case of procedural unfairness to conclude that a lawful procedure would have made no difference. But that is my conclusion.
29. For those reasons, I would refuse permission to apply for judicial review. The application for an injunction will necessarily fall with it.
30. I should, however, go on to say why I would dismiss the application for an injunction in any event. Ms Lieven's first ground for resisting the injunction, as it appears in her written skeleton argument, is that it would be constitutionally improper to grant it. Her arguments in this are set out in the skeleton. I am not greatly impressed by them in so far as they seek to raise a constitutional bar. It is open in principle to the court to grant an injunction at least against the Secretary of State, and Ms Lieven acknowledges that in practical terms it would be sufficient to grant relief against the Secretary of State, without needing to enjoin the Privy Council itself. She did not therefore press the constitutional arguments in her oral submissions.
31. Ms Lieven's next submission was that the court should be slow to grant such an injunction in relation to a matter of public interest of this kind. She submitted that it is necessary for an applicant to establish a strong prima facie case, and in support of that she cited the Queen v Secretary of State for Health, Ex Parte Scotia Pharmaceuticals [1997] Eu LR 626, in particular at 635 to 636. But neither that passage nor any other case to which attention was drawn establishes in terms a threshold test of the kind put forward by her. She appeared to acknowledge that in her submissions. Mr Gordon accepted initially that he needed to show a strong case, but he backtracked on the point and submitted in the end that the threshold is that of serious issue to be tried, and the considerations of public interest come into play at the stage of balance of convenience. I am not satisfied that there is any threshold test of a strong prima facie case, but I accept Ms Lieven's point as to the caution to be exercised by the court in relation to the grant of injunctive relief of the kind sought in this case. The broader considerations of public interest come into play at the stage of a balance of convenience.
32. So far as concerns of balance of convenience, I accept Ms Lieven's submission that there is a strong public interest in allowing the Privy Council to proceed to consider the government's proposed charter, for which there is, as I have said, cross-party support, and which, we are told, has been endorsed by Parliament and, as Ms Lieven submitted, is designed to ensure independent and effective press regulation expeditiously to secure public confidence. That appears to me to be a stronger public interest than the public interest invoked by the claimant in support of its case, which lies, as Mr Gordon made clear, in the press's grounds of opposition to the government charter and therefore in the press advocacy of its alternative charter. Ms Lieven accepted in any event that public interest is not itself decisive and that it is necessary to consider the merits of the claim. As to that, I repeat that for the reasons already given the merits of the claimant's legal case are in my view at best weak.
33. I should add that it is difficult to see on Mr Gordon's arguments how the claimant would be substantially prejudiced by the Privy Council proceeding to consider the government's proposed charter, since on the case advanced by Mr Gordon, if the claimant is right that defects in the consideration of its own petition preclude lawful consideration of the government's charter, the opportunity would exist to seek to strike down the government's charter in the event of the claimant succeeding in its case at trial.
34. I should at the same time make clear that Ms Lieven does not accept that it would be open to the claimant to challenge the government charter, if granted, in the way envisaged by Mr Gordon. If she is right in the position that she adopted, the result would be that what the claimant is seeking to do by the injunction is to prevent a perfectly lawful process (that is to say the process of consideration of the government's own charter) from continuing until its own claim has been determined.
35. Whichever way one looks at it, it cannot assist the claimant's case. On the contrary, the fact that there is that duality points ultimately against the claimant in terms of balance of convenience, providing a further reason why that balance comes down firmly, in my view, in favour of the refusal of an injunction.
36. Accordingly, for the reasons given, I would refuse permission to apply for judicial review and would refuse the application for an interim injunction.
37. MR JUSTICE SALES: I agree.
38. MS LIEVEN: My Lords, in those circumstances I ask for an order that permission be refused, the injunction be refused, and we do -- I don't know whether the court wants to deal with this -- have a statement of costs for summary assessment, which it may be appropriate for the court to deal with now.
39. LORD JUSTICE RICHARDS: I think it is.
40. MS LIEVEN: So if I can have that handed up. (Handed).
41. LORD JUSTICE RICHARDS: Thank you very much. Mr Gordon, had you seen this in advance?
42. MR GORDON: No, I haven't seen that, my Lord.
43. LORD JUSTICE RICHARDS: You are being given a copy now.
44. MR GORDON: I am taking instructions. I have passed it back to those instructing me.
45. MS LIEVEN: I think there are only two things I would say in general terms about it, my Lords. It will not surprise your Lordships that although this claim has only been with us a couple of days, it has taken a good deal of time from the legal team. Secondly, although I don't think we have a hard copy of it in court, the sum is, I am instructed, something like half that of the claimant's in their --
46. LORD JUSTICE RICHARDS: It doesn't surprise me.
47. MS LIEVEN: Well, in fact, my Lord, certainly from my experience, half is a relatively high proportion often, but those are my instructions.
48. LORD JUSTICE RICHARDS: Thank you very much.
49. MS LIEVEN: I can find the figure for your Lordships, if necessary, but I am afraid we haven't got a hard copy.
50. LORD JUSTICE RICHARDS: Mr Gordon.
51. MR GORDON: My Lord, I can't complain about the application for costs, and I have no instructions on the detail of the schedule, so I have no submissions to make on costs.
52. LORD JUSTICE RICHARDS: On the face of it, in relation to an injunction application of this kind, the figure is not unreasonable.
53. MR JUSTICE SALES: I agree, yes.
54. MR GORDON: I think that conclude costs.
55. LORD JUSTICE RICHARDS: Well, we will order the claimant to pay the defendant's costs, summarily assessed in the sum of £13,545.50.
56. MS LIEVEN: I am very grateful, my Lord.
57. MR GORDON: Now, my Lord, the next application is for permission to appeal. I understand that this case is on the Court of Appeal's radar, if I can put it neutrally.
58. LORD JUSTICE RICHARDS: I see.
59. MR GORDON: Your Lordship has my application.
60. LORD JUSTICE RICHARDS: Well, we refuse permission to appeal. You will have to apply to the Court of Appeal. If it is your intention to apply to the Court of Appeal, I will do my very best within the next hour or so, though I have got a hearing at 2 o'clock, to pull together and improve the notes from which I gave judgment so that you have got a better note of the judgment.
61. MR GORDON: That is very kind, my Lord. We are grateful for that. We also have kept in anticipation as careful a note as we could.
62. LORD JUSTICE RICHARDS: Thank you very much.
63. MR GORDON: Thank you very much.