4 THE GENTLEMAN'S AGREEMENT
25. As stated above, DCMS accepted the advice of
Lord Gordon and subsequently issued a press release on 25 June
1998[38] announcing the
contents of Group A and Group B of the listed events. As the
then Secretary of State, Chris Smith, added in the press release,
knowing that the cricket decision was the "really controversial
part":[39]
My decision to accept the Gordon recommendations
on cricket allows the sport more freedom to negotiate a fair price
for flagship events. This is something for which the ECB and
County Cricket clubs have specifically asked. I expect to see
that freedom used responsibly, with continued access for all viewers
to a substantial proportion of live Test coverage and any new
income derived for cricket devoted to improvements in the facilities
needed to play the game and to raise our standards. If these
expectations - especially the test of achieving substantial live
coverage on free to air television - are not fulfilled, then I
may of course need to review the listed criteria again.[40]
26. That cricket needed more income was undeniable
and the most obvious way to increase revenue was through some
sort of de-listing, thereby allowing into the bidding process
greater competition for the acquisition of broadcasting rights.
However, there was clearly a sense that cricket was considered
too important to the nation to be lost in its entirety to pay-TV;
the Secretary of State instinctively felt that some Test match
cricket should remain on terrestrial television. We surmise that
DCMS looked at two options: either some Test matches had to be
protected for the public and placed in Group A; or some form of
understanding had to be reached that cricket would be de-listed
but, in return, the sport's governing body would not be allowed
complete freedom to dispose of the broadcasting rights to all
Test matches.
27. The second option was, perhaps, the
pragmatist's choice. Lord Smith explained to the Committee
that it would have been problematic to opt for the first as the
difficulties in determining which particular Tests should be placed
in Group A were probably insurmountable.[41]
Therefore it was decided that the way forward, in 1998, was a
form of "agreement" with Lord MacLaurin, the then Chairman
of the ECB.
28. There has been much discussion in the press,
and elsewhere, as to what exactly was agreed between these two
main protagonists. The current Secretary of State for Culture,
Media and Sport, Rt Hon Tessa Jowell MP, went so far as to say
that the terms of the agreement were "somewhat unclear".[42]
In a letter to Sir Peter Tapsell, Member for Louth and Horncastle,
the Parliamentary Under-Secretary of State at DCMS, James Purnell
MP, stated that: "We must be clear, there was no binding
agreement between Chris Smith and Lord MacLaurin".[43]
We therefore considered it essential that the then Secretary
of State for Culture, Media and Sport and the then Chairman of
the ECB appeared before the Committee. At the oral evidence session,
the Committee asked each to set out what he believed had been
agreed in 1998 and whether the terms of that agreement had subsequently
been broken by the new contract.
29. Lord Smith informed us that one of his reasons
for moving Test matches played in England to Group B was that
he had: "been given a very clear assurance from Lord MacLaurin
and also there were public statements from the ECB themselves
that indicated that they would wish, in any circumstances, a substantial
amount of live coverage to be available on free-to-air television".[44]
He later added: "If I had not been given the assurances
that I had I would have thought very seriously, not necessarily
of placing the entirety of Test cricket on the A list, but at
least placing a proportion of Test cricket onto the A list. I
was reluctant to make such a decision. I did consider it very
carefully, but in the light of the assurances that I had been
given I was able to achieve what I think was effectively a win-win
in that cricket was able to negotiate a much better price than
they would have otherwise been able to do and we were able to
secure substantial free-to-air coverage".[45]
30. Lord MacLaurin said: " I am absolutely quite
clear that in the deal we did, Chris and I, we had to keep a substantial
amount of cricket on free-to-air television".[46]
He also understood that before he announced a new broadcasting
contract for cricket, he had first to clear the deal with the
Secretary of State, a procedure which Lord MacLaurin followed
in subsequent years.[47]
He continued: "It was quite clear. I had a conversation
with Chris which was very clear; he would not allow me to announce
anything until he was satisfied with the deal that was on the
table. So I phoned Chris and said 'This is the deal' and he said,
'Okay, you can announce it'. In my letter it quite clearly says
that a substantial amount of live coverage would be on free-to-air
television. I do not have any doubt about that".[48]
31. In response to Tessa Jowell's claims that the
agreement between them was "somewhat unclear," both
were categorical in their rebuttal. Lord MacLaurin replied that:
"From my point of view it is very clear indeed. I did the
deal with Channel 4 and Sky and I had to confirm it with the Secretary
of State before I was allowed to announce it. You could not have
anything much clearer than that".[49]
Lord Smith responded: "I think the terms of my announcement
on 25 June 1998 in public terms could not have been clearer".[50]
Furthermore, Lord MacLaurin confirmed to us that the details
of this understanding were conveyed to his successor, David Morgan,
as the BSkyB deal was going through.[51]
32. When asked whether James Purnell's statement
in his letter to Sir Peter Tapsell was a fair and accurate construction
of events, Lord MacLaurin was unambiguous in rejecting that interpretation.[52]
Lord Smith did not consider it legally binding but went on: "it
was a very strong agreement relating to that particular moment
and that particular deal".[53]
It would, he added, have been inconceivable for the ECB to have
reached an exclusive deal with BSkyB due to the very public nature
of the assurances and statements to the contrary made by the ECB
at the time.[54]
33. Richard Caborn, the Minister for Sport, described
the agreement as more of a personal assurance given by Lord MacLaurin
in 1998 since when the world had moved on. He in no way accepted
there was a written agreement.[55]
He later added: "That was not an agreement between the Government
and the ECB, that is a very genuine wish list and one that was
genuine at the time".[56]
34. David Collier, Chief Executive of the ECB, in
oral evidence, stated that: "it was not a binding contract".[57]
He went on: "As it happened, the next two broadcasting contracts
reflected that balance, not only with the Channel 4 entry into
the market and sharing the Tests with Sky, but also with our broader
arrangements as well. That was six years ago. The new contract
needs to be judged on what we now see as the prevailing circumstances".[58]
35. It is very evident to the Committee that no
matter what description it is given and no matter how its precise
ramifications are interpreted, the understanding between Lord
Smith and Lord MacLaurin constituted an agreement. And the content
of that agreement was unequivocal: live Test match cricket played
in England was not to be removed completely from free-to-air TV.
What is equally evident to this Committee is that the terms of
that agreement have manifestly been breached by the ECB with the
tacit approval of DCMS.
36. If, as is clear, the whole purpose of the agreement
was to give the ECB the flexibility to raise funds for cricket
while protecting the general public from having to pay a subscription
to watch the majority of the sport, then the 1998 compromise has
failed that latter aspiration in absolute terms. Whatever
the good intentions and pragmatism of the decision at the time,
the gentleman's agreement has sadly proved totally ineffectual.
Removing Test match cricket to Group B gave the ECB what they
wanted but it meant that no lasting protection was afforded to
the cricket fan. We do not wish to re-open the 1998 debate and
the decision which was taken but if, as is clear from the evidence,
that was not the intention then the compromise should have been
made explicitly legally binding for the future, if necessary by
singling out Test cricket as a special case. The compromise has
all too clearly illustrated the inadequacies of a government proceeding
by way of a gentleman's agreement. The Government should have
been very clear as to what outcome it desired in 1998 and given
legal effect to that decision. The resulting gentleman's agreement
has instead proved unsatisfactory and unworkable.
37. Rather than remaining silent on the issue,
DCMS should have made a clear decision as to whether they were
content for the ECB to be released from the gentleman's agreement.
The Minster for Sport has made it known that although the ECB
did not seek the permission of DCMS for the new contract, it did
keep the Department informed of the negotiations.[59]
The onus, therefore, was on the Department to confirm its
acquiescence to the new contract and to make public its decision
to change its policy by allowing the ECB to sell all live cricket
to a pay-TV broadcaster. The ECB is entrusted with doing its
best for cricket; DCMS have the wider public interest to consider.
The Committee wishes to express its profound disappointment with
the ECB and DCMS for failing to honour their commitments, albeit
not legally binding ones.
38. The breaching of the agreement has wider ramifications
beyond cricket and beyond the auspices of the Department for Culture,
Media and Sport. If decisions are made by Secretaries of State
and government departments on the basis of understandings which
are subsequently ignored by future incumbents then this Committee
would wish to express its firm view that such informal arrangements
should cease to be treated as an effective tool in the decision-making
processes of government. Formal binding undertakings should instead
be sought to make policy decisions effective and to maintain public
confidence in government decision-making.
38 DCMS press notice 135/98, New protection for football
on television in revision of listed sporting events, 25 June 1998 Back
39
Q 68 Ev 36 Back
40
DCMS press notice, 25 June 1998 Back
41
Q 71 Ev 37 Back
42
HC Deb, 24 October 2005, col 11 [Commons Chamber] Back
43
Ev 43 Back
44
Q 68 Ev 36 Back
45
Q 84 Ev 39 Back
46
Q 66 Ev 36 Back
47
Q 68 Ev 36 Back
48
Qq 77 and 78 Ev 38 Back
49
Q 70 Ev 37 Back
50
Ibid. Back
51
Q 74 Ev 38 Back
52
Q 77 Ev 38 Back
53
Q 78 Ev 38 Back
54
Ibid. Back
55
Q 104 Ev 54 Back
56
Q 108 Ev 55 Back
57
Q 1 Ev 11 Back
58
Ibid. Back
59
Q 103 Ev 53 Back
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