Tuesday, 12 January 2010

The Law and the BBC

As a practising lawyer (cue old joke about not practising hard enough) I have followed the saga of the General Election debates with interest. My view, having looked at the relevant broadcasting codes/guidelines and relevant case law is that the SNP would succeed in preventing the debate being broadcast in Scotland if they were not treated equally with the other three major parties.

The more interesting question is whether the BBC and others were aware when they announced the debates that they would be unlawful in Scotland, or whether they were simply ignorant of the rules. I'd like to think it was the latter, but I have heard on the legal grapevine that the BBC's original proposal was to hold the debates before the writ was moved for the GE, thus avoiding the issue by holding the debates outside the election period.

If true, this means that the BBC, Sky and ITV are guilty of one of more of the following acts:-

1. Knowingly proposing an unlawful event, in breach of the relevant rules; and/or
2. Ignorance of electoral or broadcasting law; and/or
3. Seeking to circumvent electoral and broadcasting law by scheduling debates immediately prior to an election period i.e. during the 'phoney war'.

Now, I don't really care about ITV's or Sky's conduct in all of this. They're commercial organisations, don't get public money and can be expected to push boundaries in pursuit of profit. The BBC, on the other hand, is paid for by us on a mandatory basis through the TV licence. Failure to pay the licence fee results in criminal proceedings. Meantime, they act as the media wing of the Labour party in Scotland and entirely fail to represent huge swathes of the country either geographically or politically.

This is where I think it gets interesting. Whilst power of broadcasting is reserved to Westminster, enforcement of the TV licence depends on the administration of criminal justice, which is devolved. As far as I can see, there is nothing that the BBC can do if the SNP decide to decriminalise non-payment of the licence fee. Imagine – Kenny Macaskill announces a press conference at which he advises Scots that, should they decide not to renew their TV licences, they will not be prosecuted. There would be joy unconfined, and each household would be given a personal fiscal boost of £142.50. Perhaps it might even leave room for an unbiased national media to grow afresh.

That should be the stick with which Salmond threatens to beat the BBC, unless they promise to provide a level playing field from now on. It's time to take the gloves off, Alex.

R of S


  1. The more interesting question is whether the BBC and others were aware when they announced the debates that they would be unlawful in Scotland, or whether they were simply ignorant of the rules.

    I suspect that they were simply ignorant of the rules or had some form of mental block when thinking about Scotland as they're locked into a mindset where England is Britain is England.

    I've read the various guidelines and the SNP has no right to a place on the platform for a debate broadcast in England so in the BBC mindset that will equate to no right in the UK.

    In fact the SNP case for inclusion on a debate broadcast in Scotland is based on their right as the OFCOM defined fourth major party in Scotland and on the rules which apply to Party Election Broadcasts in Scotland which give them the right to equality of treatment with the other three major parties, Labour, the Tories and the L-D's.

    If it comes to court the SNP will be fighting their case on their right to be on a Scottish debate not on a UK one and the point many fail to grasp is that once it crosses the border into Scotland any debate falls under the election broadcasting rules which apply to Scotland not to the rules which apply to England.

    I may be giving the BBC, ITV and Sky the benefit of the doubt but it's a concept that a lot of journalists, bloggers and commenters fail to grasp when writing about the proposed debates.

  2. I don't see how they were ignorant of the law since this was discussed at length months ago before any agreement was reached.

    Stories that the SNP might go to court over the issue were published IN THE BBC months before an agreement was reached.

    Perhaps they don't read their own coverage? =)

    I could hardly blame them.

  3. As in other places, can I draw everyone's attention to a petition on the No.10 Website. It seems that there are a lot of us commenting on blogs about the BBC in Norther Britain perhaps not being as impartial as we would like.

    We pay for their propaganda machine so we may as well use it.