Tonight Lord Fowler is speaking at a Constitution Unit seminar about the future of the BBC, as the corporation’s Charter comes up for renewal amid fears about its future funding and independence. The Charter is formally approved by the Privy Council, but will in fact be subject to significant parliamentary scrutiny. In this post Robert Hazell explains the role of the Privy Council, and the process of Charter renewal.

In media interviews about Jeremy Corbyn joining the Privy Council, I have been tempted to dismiss it as a dignified part of the constitution.  It has been criticised for being undemocratic and unaccountable, but in truth most of its formal business is of very little public interest.  It does meet in private, and its members are sworn to secrecy (hence the security briefings which the Prime Minister can give to the Leader of the Opposition on ‘Privy Councillor terms’).  But occasionally it is responsible for something of wide public interest, such as renewal of the BBC’s Charter.  On those occasions approval by the Privy Council does not preclude extensive public and parliamentary debate.

The Privy Council has about 650 members, mainly senior politicians; many of them now retired, since appointment is for life.  They are appointed by the Queen on the advice of the government; some members such as senior judges are appointed ex officio.  Their role is to advise the Queen on the exercise of the Royal Prerogative.  Meetings are held once a month, to approve Orders in Council.  The Queen is usually attended by just four ministers, led by the Lord President of the Council (currently the Leader of the House of Commons, Chris Grayling).  Meetings are held standing up, so despatch of the business is brisk.  Every Order in Council has been drafted by a government department, and where necessary is subject to prior consultation and collective ministerial agreement; approval by the Privy Council is the final stage, a formal sign-off with no discussion.
Orders in Council are a form of secondary legislation, used to make regulations and certain government appointments.  They are used to regulate a range of public bodies such as universities and colleges, professional bodies such as architects or vets, and chartered bodies which are established by Royal Charter. There are some 400 chartered bodies regulated by the Privy Council. The BBC is a chartered body, and the Royal Charter provides its constitution. It sets out its public purposes, guarantees its independence, and outlines the duties of the BBC Trust and Executive Board. Alongside the Charter is a more detailed Licence and Agreement between the BBC and the Culture Secretary, which covers the BBC’s funding and regulatory duties.

The BBC Charter is subject to renewal every ten years or so.  The current Charter was renewed in 2006 and expires in December 2016.  We can expect there to be an extensive process of public consultation and political and parliamentary debate prior to approval of the new Charter.  In 2006 the process started with an extended public consultation.  Green and then white papers were published, and the BBC responded with consultation documents of its own. In parliament there were inquiries by the Commons Culture, Media and Sport Committee ahead of the 2005 general election, and in 2005-06 by a separate committee in the Lords, chaired by Lord Fowler.

A similar process is underway this time.  The Department for Culture, Media and Sport has a website for the BBC Charter review, a green paper has been published and a 12 week consultation has taken place.  The BBC has published its own consultation document.  The government intends to publish a white paper in spring 2016, to be followed by drafts of the new Charter and Agreement.  If the 2006 practice is followed the Agreement will then be subject to an approval motion in the Commons, with a separate ‘take note’ debate in the Lords.

It is not a requirement for the Agreement to be approved by parliament, but we can expect both Houses to debate it and select committees to take a close interest.  So as with so much in our constitution, there is a big difference between form and substance.  The formality is a Charter approved by the Queen and four ministers with no discussion.  The substance is that the new Charter will only be agreed after extensive public consultation, inquiries by select committees, and debates in both Houses of Parliament.

A new book on the Privy Council written by David Rogers and titled By Royal Appointment: Tales from the Privy Council – the Unknown Arm of Government has recently been published by Biteback.

Tonight’s Constitution Unit seminar, titled ‘The Future of the BBC’, takes place in The Council Room, The Constitution Unit, The Rubin Building, 29/30 Tavistock Square, London, WC1H 9QU at 6pm.

About the author

Robert Hazell is Professor of Government and the Constitution at The Constitution Unit.