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