Broadcast general election debates - Communications Committee Contents


Chapter 3: Regulatory context

Why it matters

44.  On 2 October 2009 a statement was released by the BBC, ITV and Sky, reporting a letter they had sent "to the leaders of the Labour, Conservative and Liberal Democrat parties with a joint proposal for three live televised debates during the next general election campaign."[49]

45.  In the weeks and months to follow, news stories about the debates came often to focus on two questions: why these particular political parties and why not others? Certainly some of the parties not invited to take part felt that these were important questions. Alex Salmond, leader of the Scottish National Party [SNP], later told a press conference that the proposal would "deprive large … sections of opinion [of] the opportunity to have their voice heard in a key part of an election campaign."[50] Ieuan Wyn Jones, erstwhile leader of Plaid Cymru, suggested that there would be inevitable consequences at the ballot box "if one party … is excluded from what is going to be seen as the context [in which] politics is being considered in the UK."[51]

46.  Similar news stories have already begun to appear in connection with debates potentially to take place in 2015. Taken at face value, these stories depict the proposed debates as the decisive and crucial events in the electoral calendar, and the broadcasters and political parties involved as their impervious gatekeepers. If only, like the man standing 'before the law' in Kafka's parable in The Trial,[52] parties who have been 'excluded' could succeed in persuading the gatekeepers, they might overcome an important struggle for legitimacy and inclusion.

47.  While superficially persuasive, this narrative fails to capture both the way in which the debates are currently set up and the safeguards thereby provided for ensuring that all political parties are given due weight across the patchwork of coverage laid on by the broadcasters during an election period. Under the current arrangements, these safeguards follow from an important characteristic of the debates which is easily forgotten: they are broadcast television programmes.

48.  This is a crucial distinction and perhaps less obvious than it sounds. The debates in 2010 were both produced and distributed by the broadcasters. While the broadcasters involved certainly considered the debates to be in the public interest, serving to fulfil in the case of the PSBs their public service remit, they also thought the debates would make for good television.

49.  This does not mean that the broadcasters had to produce the programmes themselves. Their production could conceivably have been handed to a body independent of the broadcasters. Indeed, much broadcast content is already produced by independent production companies. Equally, the debates could have been run as electoral events independently of any broadcaster; on this model, they might have been televised in a similar way to the finals of Wimbledon or the FA Cup or other such events; in these examples, the broadcasters may augment the experience of watching with commentary, interviews and so on, but these events do not necessarily happen on the broadcasters' initiative, nor do the broadcasters necessarily have full editorial control over their format or over who can participate.

50.  No matter the way in which the debates are set up, the UK system of broadcast regulation places obligations on the broadcasters for what is broadcast. Whether they produce the content, buy it in or are televising an event, the rules are the same; they apply to actually broadcast television programmes. So even if YouGov polls indicate public appetite for the inclusion of certain political parties,[53] even if former television executives think the inclusion of certain political parties would make the "the entertainment factor … shoot up,"[54] even if the debates were to be set up and run independently of the broadcasters as some sort of electoral event, it is important to recognise that the broadcasters may not be able to broadcast all or any of the content if the debates are set up in such a way that broadcasting them would not be compliant with the law. The broadcasting rules are the gatekeepers, not the broadcasters themselves.

51.  Accordingly, the debates, if broadcast, operate by definition under a legal and regulatory framework which imposes obligations on the way in which broadcasters produce all television programmes during election periods. As the BBC clarified in their written evidence, "in principle the debates were no different to the many other TV election programmes which broadcasters produce. They were subject to the normal regulatory and legal framework in the context of which each of the broadcasters operates during election periods."[55] This includes a number of safeguards to ensure that broadcasters uphold due impartiality and that they make a special effort in their election coverage to give all political parties due weight.

52.  We have learned that the way in which this framework applies to the debates —and in particular, the question of who participates in them—is not widely appreciated or understood. Media reports have regularly appeared during our inquiry, containing misconceived speculation of the way in which judgements over participation in Prime Ministerial debates are made. The gap in understanding may arise in part because of the range and number of codes, statements and guidelines which constitute it—upwards of four documents under the auspices of different regulatory authorities; more if their associated guidance notes are included, and more still if the regulatory and legal challenges which have tested the framework are included as well.[56] For that reason, we seek in the rest of this chapter to summarise this framework and its influence over the determination of who can participate in the debates. A proper understanding of this framework is not only important because it may answer some of the understandable—though not necessarily warranted—questions which can be and clearly have been raised about the propriety of broadcasters' judgements over who can participate, but also because a number of alternative models for the operation and management of the debates have been proposed. A sensible analysis of these alternative models—to follow in the next chapter—has to begin with a proper understanding of the way in which the framework operates now.

The regulatory frameworks in outline

53.  There are two regulatory frameworks with a bearing on participation in broadcast general election debates: one for the commercial broadcasters licensed by Ofcom and one for the BBC overseen by the BBC Trust. Before unpacking how these come to influence participation in the debates, we provide sketches of these frameworks in outline.[57]

OFCOM AND ITS LICENSED BROADCASTERS

54.  Under the Communications Act 2003, Ofcom is required to set standards for programmes on television and radio in order to secure a range of objectives, and is also required under the Act to put these standards in a code. This Broadcasting Code applies to all broadcasters licensed by Ofcom[58] and includes sections which are relevant at all times as well as sections which apply only during election or referendum periods. For example, among obligations applying at any time, section five of the Code relates to due impartiality and requires broadcasters to ensure that they reflect alternative viewpoints in their output when they are dealing with "matters of political or industrial controversy and matters of current public policy."[59] Due to their importance, elections are automatically recognised under the Broadcasting Code as such[60] and the provisions of section five therefore apply during election periods. Ofcom also publishes extensive guidance which assists in the application of the Code.

55.  In addition, special rules also apply during election periods.[61] These rules affect two types of broadcast content about elections: coverage of an election in general and constituency/electoral area coverage. For the coverage of an election in general, the Broadcasting Code requires broadcasters not only to report elections with due impartiality but also to give "due weight" to the coverage of "major parties." For constituency/electoral area coverage, the rules are slightly different: the Code requires broadcasters to ensure that they offer the opportunity to take part in the same broadcast item to all the candidates of the "major parties" and also to all candidates of other parties (and independent candidates) with previous significant electoral support or where there is evidence of significant current support.

56.  In either case, the important point is that the definition and designation of "major party" status is clearly critical. Ofcom's list of major parties is in fact an annex both to Section 6 of the Broadcasting Code as well as to the Ofcom Rules on Party Political and Referendum Broadcasts (PPRBs). In the latter case, its role is to indicate to the broadcasters the political parties to which their minimum requirements to cede time for PPRBs applies. In the former case, its role is to indicate the political parties to which the broadcasters must give due weight in their wider coverage.

BOX 2

The PPRBs stand apart from the broadcasters' wider election coverage
It is important to recognise that party political and referendum broadcasts (PPRBs) stand somewhat apart from the broadcasters' wider election coverage.[62] They are not exempt from the legal and regulatory framework with which all broadcast material must comply but the decision to broadcast them is different: they represent a mandated— albeit decreasingly watched—form of programming to which the broadcasters are obliged to cede time in their schedules. The broadcasters licensed by Ofcom are set "minimum requirements … to follow in determining the length, frequency, allocation and/or scheduling of party political or referendum campaign broadcasts."[63] Further, representatives of each of the broadcasters, including the BBC, who make airtime available to registered political parties and to designated organisations in election and referendum campaigns also meet from time to time with the Electoral Commission, under the auspices of the Broadcasters' Liaison Group (BLG), to share advice, ensure a consistent approach and to co-ordinate the criteria which each broadcaster applies in determining the amount of airtime to be made available to these broadcasters. Ultimately, the criteria which inform their judgements about how to achieve due impartiality with respect to PPRBs are similar to those which inform their editorial approach to achieving due impartiality in their coverage of political parties more generally—taking into account a range of factors including previous and current electoral support. However, the statutory footing and formal requirements placed on the broadcasters to cede time in their schedules with respect to PPRBs clearly means that these broadcasts stand somewhat apart from the wider election coverage which the broadcasters lay on during an election campaign, although ultimately they must comply with the wider legal and regulatory framework which applies to all content actually broadcast.

57.  From March 2013, in response to stakeholder concerns that the existing list of major parties was too inflexible, Ofcom began a new practice of reviewing its list of major political parties when there are cogent reasons for doing so, for example in anticipation of a given forthcoming election, taking account of relevant evidence, such as changes in the electoral landscape across a range of elections. Under the current arrangements, Ofcom must have regard to any views expressed by the Electoral Commission before changing the major party list.[64] Ofcom recently conducted its first consultation under its new practices, inviting views about the list of major parties for elections taking place on 22 May 2014—European Parliamentary elections (UK-wide), English local government elections (in some parts of England) and English mayoral elections (in five areas).

58.  In carrying out its duty to regulate broadcast content related to elections, Ofcom may convene its Election Committee.[65] This is a committee of the Ofcom Board whose delegated role is to consider and adjudicate on complaints received with regard to election coverage. In assessing complaints, it is important to recognise that Ofcom is a post-broadcast regulator. This means that Ofcom has no role in determining the structure, format and style of any broadcast general election debates, or other programmes for that matter, that might take place in future. Rather, Ofcom's concern would be whether any election debates complied with the rules once they had been broadcast.

THE BBC TRUST AND THE BBC

59.  In accordance with its Royal Charter,[66] the BBC Trust is responsible for exercising a general oversight of the work of the BBC Executive[67] and is the sole regulator for impartiality and accuracy and thus of election coverage in BBC output. However, it is fair to say that the BBC Trust has a different relationship with the BBC Executive than do licensed commercial broadcasters with Ofcom. For example, Ofcom produces the Broadcasting Code with which its licensed broadcasters must comply, while the BBC Executive produces its own Editorial Guidelines, which must then be approved by the Trust. To take another example, while Ofcom is strictly a post-broadcast regulator, the BBC Trust occasionally considers complaints prior to transmission, though in the examples they gave in evidence of this taking place, the Trust did not seek to substitute its own editorial judgment for that of the Director-General. Despite the differences, broadly similar standards are applied, captured in both a generalised set of Editorial Guidelines and election-specific Election Guidelines.

60.  Reviewed at least every five years, the BBC Editorial Guidelines[68] are approved by the Trust, apply to the content of the BBC's services and are designed to "secure appropriate standards."[69] In particular, the Agreement, which sits alongside the Charter and provides detail on many of the topics outlined in the Charter, requires the BBC to do all it can to ensure that controversial subjects are treated with due accuracy and impartiality. This includes drawing up a code giving guidance as to the rules to be applied and doing all it can to secure compliance with it. The code is included within the Editorial Guidelines. The Trust also approves extensive guidance which assists in the application of the Guidelines. The guidelines which are particularly applicable to any general election debates are Accuracy, Impartiality, Politics, Public Policy and Polls and Editorial Integrity and Independence from External Interests.[70]

61.  Separately, the BBC Trust's Editorial Standards Committee (ESC)[71] approves Election Guidelines for every election. Prior to approval, the guidelines are placed on the BBC's Editorial Guidelines website and are brought to the attention of relevant political parties who are invited to submit comments. These comments are reviewed by the ESC alongside correspondence with the Electoral Commission. The BBC must have regard to the views of the Electoral Commission before approving the Election Guidelines.[72] [73]

62.  The Trust has a role in overseeing and enforcing the BBC's compliance with the Editorial Guidelines through the BBC's complaints process. The overarching Complaints Framework is contained in a Trust protocol beneath which sit specific procedures for particular types of complaint such as an editorial complaints procedure which is the procedure which would be applicable to complaints about the election debates.[74] During an election significant complaints about election coverage are fast tracked. Generally the Trust considers complaints on appeal regarding broadcast content after it is transmitted. However, there have been occasions where the Trust has considered complaints prior to transmission.

The impact of the regulatory framework on participation in the debates

63.  As sketched out, the basic tenets of how the regulatory framework applies to participation in the debates are reasonably straightforward. Any election debate broadcast by the BBC would have to comply with both the Editorial Guidelines and its in-built code on due impartiality and accuracy as well as General Election Guidelines, applying to the coverage of political parties in a given election. Equally, for broadcasters licensed by Ofcom, any election debate must ensure that the programming complies with the Broadcasting Code, taking particular account of section six of the Code and its annex containing a list of major parties.

64.  However, the way in which this framework comes in practice to influence broadcasters' judgements about participation in the debates is a more nuanced matter which in the past has been subject to legal and regulatory challenge and which during this inquiry has received criticism from both interested parties and neutral observers alike. The next section considers this criticism and whether or not it is based on an accurate understanding of how the framework works.

IN THE BEGINNING: AN IDEA FOR A TELEVISION PROGRAMME

65.  The starting point for the debates in 2010 lies in the apparently obvious but nonetheless critical fact that the debates are television programmes.[75] As set out at the start of this chapter, the debates began as an invitation from the BBC, ITV and Sky "to the leaders of the Labour, Conservative and Liberal Democrat parties with a joint proposal for three live televised debates during the next general election campaign."[76]

66.  Michael Jermey, Director of News and Current Affairs, ITV told us that from the very beginning the idea was based on the belief among the broadcasters that "the electorate wanted to watch and wanted to see what the leaders who were aspiring to be Prime Minister had to say on [the] major issues"[77] Accordingly, when it came to deciding to whom the invitation to participate should go, Ric Bailey, Chief Adviser, Politics, BBC told us that "we were taking a judgment initially on who were the candidates to be Prime Minister of the Westminster Parliament in a Westminster election."[78] In a nutshell, the judgement about participation was determined by a prior editorial decision to focus the television programme on the leaders of parties with a realisable or realistic prospect of becoming the Prime Minister following the election in question. This distinction lay behind the BBC's decision to adopt the programme title 'The Prime Ministerial Debates,' and with each broadcaster seeking to bring a more distinctive identity to their otherwise similar programmes, ITV understandably branded theirs 'The First Election Debate' and Sky stuck simply to 'The Leaders' Debate'. Nonetheless, they all presented their debates in the same way. The moderator of the ITV debate, for example, expressly introduced it with the words "…we'll be hearing from three men, each hoping to be the leader of the next UK government…"[79]

67.  Focussing a television programme on candidates with a realistic prospect of becoming the Prime Minister raises two separate but connected questions: how should we refer to them, and what method should be used for establishing who these people are?

68.  On the first point, we have chosen in this Report to refer to them as candidates with a realistic prospect of becoming the Prime Minister after a given general election. While we recognise that this language is imperfect due to its scope for being interpreted in different ways, we have found no better alternatives and continue to use it in this Report to refer to the candidates which broadcasters should be expected to invite to a Prime Ministerial debate. We note that this is the language adopted by Ofcom in its guidance notes to section 6 of the Broadcasting Code. Further, it seems to us that the important point is less about perfect language and more about being clear what is meant by what we say.

69.  On the second point, therefore, the broadcasters' decision to focus a programme on candidates with a realistic prospect of becoming the Prime Minister clearly obliges them to have some method for establishing who these people are, while avoiding the business of making predictions. Accordingly, it is critical that their method for deciding who to invite to a Prime Ministerial debate is objective and defensible. We set out the account given to us by the broadcasters of the sort of analysis they undertake in this respect from paragraph 72 below.

70.  While it is not an argument which we have heard in evidence, we can see that there is a logically coherent position to be advanced by political parties which feel excluded from the Prime Ministerial debates. In 2010 some maintained, for example, that the fact they were not invited to the Prime Ministerial debates could not be "corrected merely by the introduction of a Welsh-level debate which provides equivalent coverage for all four major political parties in Wales," in part because these debates are likely "subsequently [to] receive substantially fewer viewers and third-party media interest."[80] Accordingly, they might argue that if a Prime Ministerial debate television programme were likely to receive a large audience and dominate the wider political news agenda, and if the legal and regulatory framework were such that an objective analysis could defensibly leave them without an invitation to it, then such a debate simply should not happen at all.

71.  It does not seem to us that this is a strong argument but it is at least a logically coherent one. Its weakness lies in two main points. First, there is a clear and legitimate public interest argument in the idea of a Prime Ministerial debate television programme. We recognise that our electoral system invites voters to make a direct choice between local candidates,[81] not Prime Ministers. However, that does not remove the public interest in voters being able as well to see a substantive debate between candidates with a realistic prospect of becoming their Prime Minister, setting out their policy position and demonstrating—or not—their ability to stand up to pressure and scrutiny. Secondly, the broadcasters are not able—no doubt, much to their professional frustration—to determine whether a television programme receives a large audience. As Michael Jermey told us, "None of us should forget that there is individual choice in this. We scheduled other programmes about politics and about the election in peak time that people did not come to in such large numbers."[82] The fact that a television programme whose broadcast is in the public interest happens to interest the public does not mean that the broadcasters can be held responsible where other television programmes which are in the public interest do not.

Determining who has a realistic prospect of becoming the Prime Minister

72.  Deciding to produce a Prime Ministerial debate prompts an obvious question: how do the broadcasters go about determining who has a realistic prospect of becoming the Prime Minister? It is important to recognise that each of the broadcasters is responsible for coming to a judgement on this themselves and is under some considerable pressure to do so in a defensible way. They are individually accountable to their respective regulator and ultimately, as ITV put to us in written evidence, "for the commercial broadcasters, compliance with the Ofcom Broadcasting Code … is fundamental to their continued possession of their broadcast licences, without which they cannot operate," so as Michael Jermey added later, "we each individually will have to make a judgment at each election as to what we think is compliant with the code and the law and the way we are regulated."[83]

73.  It appears nonetheless to be the case that each of the broadcasters goes about determining who has a realistic prospect of becoming Prime Minister on the basis of similar data and similar forms of analysis. As set out above, it is critical that in doing so the broadcasters do not get into the business of making predictions or trying to anticipate the actual result of a forthcoming general election. The risk is that some might criticise the broadcasters for not acting on the possibility of an unpredictable and meteoric rise of a political party without significant past electoral support. However, there is an equal risk of criticism for giving too much coverage to a political party which will later prove not to have merited it. Accordingly, the broadcasters' have reached the conclusion that it is most important that their method for deciding who to invite to a Prime Ministerial debate must be objective and defensible. So while remaining responsive to changes in the political landscape, and taking opinion polls into account, particularly as these become more accurate as a general election draws close, the broadcasters' priority is to ensure that their decision is based on a nuanced, thorough and balanced analysis of a range of facts. This involves undertaking an analysis which encompasses a wide set of available data, drawing in relevant information on voters' behaviour in equivalent past elections, supplemented with contextual understanding such as the recognition that people vote differently in European elections, by-elections, council, devolved assembly and general elections, and taking into account robust trends in opinion polling. This seems to us to be a reasonable approach, and as we go on to explore later on in this chapter, one that has stood up to regulatory and legal challenge.

74.  For the BBC, Ric Bailey told us that deciding whom to invite to a Prime Ministerial debate involves "at each election [making] that judgment based on consistent, objective evidence."[84] There is no single determinative measure used to inform their judgement. Instead, a range of factors are taken into account, as revealed in the BBC's 2010 Election Guidelines:

    "Previous electoral support in equivalent elections is the starting point for making judgements about the proportionate levels of coverage between parties. However, other factors can be taken into account where appropriate, including evidence of variation in levels of support in more recent elections, changed political circumstances (e.g. new parties or party splits) as well as other evidence of current support. The number of candidates a party is standing may also be a factor."[85]

75.  Ric Bailey clarified this when giving evidence to the Committee:

    "the best way to make a judgment about these things is to look at how real people vote in real elections. Our starting point would be the last general election, but we would also look at subsequent elections. We would also look at any other evidence that might be relevant to setting out the political context. That might include a consistent, robust trend in opinion polling. All of those things we will take into account and, just as we do with any other election and any other coverage, we would make an editorial judgment based on that. That is something that we do at each and every election."[86]

76.  Michael Jermey told us that

    "a similar process happens in ITV. We will look at the evidence of what we think are the relevant elections … We would take cognisance of Sections 5 and 6 of the Ofcom code that sets out the appropriate weight and due impartiality that we are under an obligation to follow through, and we would make that decision at a timely moment."[87]

77.  John Ryley clarified that the process at Sky News is "very similar. Sky as a broadcaster will make the final decision about who would take part in a debate" and he added that "we would be guided by the guidance from Ofcom."[88]

78.  This last point, touching on guidance given by Ofcom, highlights an important difference in the broadcasters' processes. As set out earlier in this chapter, the BBC produces Election Guidelines; and if these meet the approval of The Trust, they provide a clear, established view on the factors to be considered by editorial executives and programme makers when determining how to preserve due impartiality in the coverage of parties during an election period. The Trust oversees and approves the BBC's Guidelines for reaching these decisions and may in light of complaints review specific editorial judgements made under them. Still, the important point is that the BBC clearly carries a great deal of the responsibility for getting these decisions and the basis for them right. The commercial broadcasters licensed by Ofcom, as explained above, also carry the ultimate responsibility for their decision but by contrast with the BBC, they arguably have a little more help from their regulator in reaching their decision. They are required to comply with the Broadcasting Code and in particular, during election periods with section six of the Code whose annex contains a list of the parties with "major party" status across a given electoral and geographical footprint. For example, point three of the current Ofcom list of major parties reads: "At present in Great Britain, major parties are defined as: the Conservative Party; the Labour Party; and the Liberal Democrats."[89]

79.  According to Ofcom, its "list of major parties reflects the fact that some political parties have a significant level of electoral support, and number of elected representatives, across a range of elections within the UK or the devolved nations."[90] In other words, much like the analysis which the broadcasters say that they undertake, it is based on a range of objective measures with a particular emphasis placed on past electoral support in recent equivalent elections. The figures for votes cast in the 2005 election, which formed the context for the 2010 general election, shows the three main parties some way ahead of all others: Labour, 9,552,436; Conservative:8,782,197, Liberal Democrat 5,985,454, while UKIP polled 605,973, SNP 412,267 and Green 283,414.[91]

80.  As Michael Jermey explained, when it comes to "a debate … including the major parties, [we apply] a set of criteria and judgments that are very similar to those that Ofcom apply when determining a major party."[92] As a result, he told us that he would be surprised "to find circumstances in which our decision about who to include was very different from Ofcom's definition of a major party"[93] although "at least in a theoretical world I could think of circumstances and ways in which you could broadcast—compliant with the code and compliant with the law—debates that did not absolutely mirror Ofcom's major party rules." Accordingly, there is no suggestion that the broadcasters licensed by Ofcom simply copy their regulator's homework. As he put it, the list "is not determinative … in a mechanistic way" and as Ofcom underlined in their written evidence to us, they are a post-broadcast regulator. As noted in above, the list of major parties may set minimum requirements when it comes to PPRBs, but for the broadcasters' wider electoral coverage, it simply sets out the political parties to which due weight must be given—how the broadcasters follow through on this latter aspect comes down ultimately to their nuanced editorial judgement. Nonetheless, it is presumably of no small assistance to the broadcasters it licences, who are conscious of their responsibility to determine which parties have a realistic prospect of their leader becoming the Prime Minister in a way which will satisfy their regulatory obligations, that a list like this produced by their regulator already happens to exist.

81.  The key point, as Ric Bailey put to us is that the broadcasters are all "looking to find due impartiality and, although we have different routes to it, in the end we are looking at the same sort of evidence to make those judgments, so it is not surprising that we will come to a similar conclusion. It is not about collusion. It is about looking at the same sort of evidence."[94]

ACHIEVING DUE WEIGHT WITHIN EACH DEBATE

82.  Having determined on their own analyses which parties have some realistic prospect of their leader becoming the Prime Minister following the election in question, the broadcasters must come to a view on how to achieve due weight for the coverage to be given to each of the invited parties during the debates themselves. This issue has the potential to arise for the following reason: even if a given political party has a realistic prospect of its leader going on to become the Prime Minister—and that party must therefore be invited to participate—its prospects of doing so may be measurably more optimistic than is the case for its fellow invitees. On that basis, it has been argued in the past that, if debates are to proceed, such a party should accordingly and on the prevailing regulatory logic be given less airtime during the debates. Historically, this decision has been one of the most susceptible to disagreement between the invited political parties and has even, on numerous occasions, led to the collapse of discussions about the debates altogether.[95] This is why in 2010 the broadcasters set out their position on this issue early in the process. As Ric Bailey explains,

    "aware of the myriad subcomplexities which could derail progress before it had begun, the first priority was to establish the simple basic principles and format through which the broadcasters could present a united front and hope the parties would accept, rather than unpick. The most obvious of these … was that the three largest UK parties should be treated equally."[96]

83.  In 2010 this was arguably easier to defend than in 1997 when discussions around the debates ran into disagreements over the weight of coverage to be given to the Liberal Democrat party during the debates as compared to the Conservative and Labour parties. As Ric Bailey explains:

    "Two elections later, the Liberal Democrats had three times as many MPs and even if—as critics maintained—it was fanciful to suggest that Nick Clegg was a genuine candidate for the premiership, nevertheless, his party was streets ahead of all the 'other' parties in terms of UK-wide electoral standing and, crucially, was putting up candidates throughout England, Scotland and Wales—enough at least to demonstrate an aspiration for Downing Street."[97]

84.  The broadcasters had learned a crucial lesson. On sheer intellectual principle, the awarding of more or less coverage during the debates themselves could provide a form of 'fine tuning', allowing the broadcasters to give different weight to the invited parties, all of whom have a realistic prospect of their leader becoming the Prime Minister but who may differ in terms of their probability of doing so. However, in practice, the presence of this complication in the past has served only to ensure that discussions around the debates end in disagreement and failure. The lesson which the broadcasters had learned was not to accept negotiation on this point. As Ric Bailey put it, "the three watchwords for the broadcasters—to misquote another Prime Minister—were 'simplification, simplification, simplification."[98] It seems to us that the implication for the future is that if similar issues were to arise again, the broadcasters may be wise to look to alternative 'fine tuning' mechanism and other ways of meeting their regulatory obligations if it proves necessary, but not to allow this kind of negotiation on coverage of the parties within the debates themselves.

ACHIEVING DUE IMPARTIALITY WITH RESPECT TO THE COVERAGE OF OTHER POLITICAL PARTIES

85.  The broadcasters must also find a way to achieve their obligations to uphold due impartiality with respect to the coverage of other political parties, ie. those not judged to have a realistic prospect of having their leader become the Prime Minister after the election in question. As Ofcom notes in its most recent review of the Ofcom list of major parties, "to date, the major parties have been of two types:

·  political parties that field candidates typically across England, Wales and Scotland, in other words, the nations making up Great Britain[99] (i.e. the Conservative Party, the Labour Party and the Liberal Democrats); and

·  political parties that only field candidates within one of Wales, Scotland, or Northern Ireland (i.e. the Scottish National Party, Plaid Cymru and the Northern Ireland parties)."

86.  In the first category, there are a number of UK-wide parties judged in 2010 not to have a realistic prospect of their leader becoming the Prime Minister, such as the Green Party, the United Kingdom Independence Party (UKIP) and the British National Party (BNP). According to Ric Bailey, "the BBC… constructed an elaborate mechanism to ensure that all the parties with some level of UK support—UKIP, the Greens and the BNP, as well as the nationalists—were given reasonable opportunities around the debates to have their voices heard across BBC TV and radio channels."[100] The broadcasters licensed by Ofcom are required simply to "consider giving 'appropriate coverage' to non-major parties and independent candidates with 'significant views and perspectives' [but] it is an editorial decision for the broadcaster as to what constitutes 'appropriate coverage' and 'significant views and perspectives'."[101]

87.  There are several nuances involved in ensuring due weight is given to political parties in the second category. The broadcasters are obliged to take steps to ensure that audiences in those nations are given an appropriate opportunity to hear about the different political issues at stake there during a Westminster election, compared to England. Each of the broadcasters has to deal separately with this issue because of the UK's broadcasting architecture and each broadcaster's footprint across it. While BBC One transmits separately to the English regions, Scotland, Wales, and Northern Ireland and the ITV1 network also broadcasts by nation and region, Sky News and Channel 4 transmit their programming across the UK/Great Britain. This complication lies behind the apparently vague closing line of the statement released by the three broadcasters in 2009: "Each of the broadcasters will seek to make suitable arrangements for ensuring due impartiality across the UK."[102] This was, as Ric Bailey admitted in his Reuters Report, "shorthand for sorting out the problem of the 'others' without complicating the joint approach for UK-wide debates."[103]

88.  In the event, the broadcasters sought to achieve their obligations for due impartiality to the parties in the devolved nations in a number of ways. According to their written evidence, they offered separate debates between the main parties respectively in Scotland, Wales and Northern Ireland; and sought to ensure that this coverage was prominently trailed elsewhere including during the debates between the leaders in the running to become the next Prime Minister.[104] To take one example, Sky told us that

    "during the course of the election campaign in April 2010, Sky held three debates in Cardiff, Belfast and Edinburgh on successive Sundays where the key parties in those areas were given 90 minutes to discuss the issues that were relevant to those parts of the UK. They were trailed very heavily across our output in the preceding days."[105]

89.  The efforts of the BBC and ITV in this regard are particularly noteworthy, not because they were strikingly different to those of Sky, but because they were subject to challenges, all ultimately dismissed by the regulators. With regard to ITV:

    "Ofcom received separate complaints from the Scottish National Party ("the SNP") and Plaid Cymru concerning the ITV1 Debate, broadcast on 15 April 2010. In summary, the two parties each considered that ITV1 had breached the Code rules on due impartiality by not including the SNP and Plaid Cymru in this Election Debate. In response to these complaints, Ofcom convened its Election Committee. In summary, the Election Committee decided that the SNP and Plaid Cymru's complaints should not be upheld. This was because principally this Election Debate was presented as an opportunity to hear from the three major UK political parties, one or more of which had a realistic prospect of forming the next UK Government. In addition, ITV1 signalled to the audience for the Election Debate that viewers in the devolved nations could see separate televised debates between leading figures of the major parties in those nations (including the SNP and Plaid Cymru as appropriate) on issues of policy most relevant to those nations."[106]

90.  ITV argued in its written evidence that "the significance of these adjudications is not to be underestimated" because it means that their approach to due impartiality with respect to the debate between the party leaders in the running to form the UK Government and in "associated programming was tested in 2010 and found by the regulator to have been in keeping with the public interest tests established in the Code."[107] The BBC Trust received a similar joint complaint from the SNP and Plaid Cymru and stated in its decision that "in light of the public interest in hearing from the party leaders who may be the next Prime Minister, it was entirely appropriate to include in the 'Prime Ministerial' debate only the leaders of the Labour, Conservative and Liberal Democrat parties."[108] The Trust noted that,

    "in the context of a UK general election, the SNP and Plaid Cymru are not UK-wide parties with substantial electoral support in the UK. They are not standing sufficient candidates to aspire to win a majority in the House of Commons. Nor are their leaders seeking to become the next Prime Minister of the UK."

91.  The Trust therefore concluded that "the DG's [Director General's] approach to achieving impartiality was appropriate. That is that SNP and Plaid Cymru have not been included in the Prime Ministerial debate programme but in associated and clearly signposted coverage agreed by the BBC."[109] The Trust's decision gained legal reinforcement when an application for judicial review of the exclusion of the SNP and PC leaders was ultimately rejected by the Scottish courts.[110]

Summary

92.  This chapter began by reviewing the nature of some of the news stories which accompanied the build-up to the debates in 2010 and which have already begun to appear in connection with debates potentially to take place in 2015. These show that a lack of clarity tends to permeate discussion of the debates; speculation about who will be 'allowed' to participate has arguably proceeded on an ill-informed basis; and there also appears to be confusion about the nature of the current arrangements among experts and attendant disagreement over whether these should change in certain ways. A degree of confusion is entirely understandable. Indeed, it was in part a lack of certainty about whether participation in the debates is determined on a basis which serves the public interest which prompted this inquiry. However, it is not always clear that criticisms made of the current arrangements are supported by a full understanding of how the framework works in practice. Accordingly, this chapter has sought to clarify this framework and its influence on participation. In addition, it may be helpful to go further and pick out a number of the challenges to the current system which have been put to us in evidence and where relevant show how these on occasion appear to neglect important aspects of the existing legal and regulatory framework around the debates as it currently stands but also, where these challenges identify potentially important reforms, explain why these might be of benefit.

Challenges to the regulatory framework

93.  Several challenges to the current arrangements for determining participation in the debates were raised in evidence to this inquiry. In the rest of this chapter we will pick out three which appear to neglect important aspects of the existing legal and regulatory framework around the debates.

94.  First, we note that some have argued that the purpose of the debates is confused, and that this has a knock-on effect for confusion around the criteria for judging who can participate. Evidence submitted collectively by Dr Nicholas Allen, Dr Judith Bara and Dr John Bartle argues that there are two potential objectives which the televised debates can serve:

    "In an era of multi-partyism, there are two potential guiding principles for determining who should participate. The first is that debates should be between prospective heads of government. The second potential guiding principle is that debates should be between leaders of all parties that stand a chance of being in government either by themselves or in coalition with other parties"[111]

95.  It is argued that the judgement about who could participate in 2010 meets neither of these objectives and that its criteria for determining who can participate were confused:

    "Attempts to justify who participated in the 2010 leaders' debates fell between the two stools of the first and second principles. Brown and Cameron took part because the former was the current prime minister and the latter was the best-placed challenger for that job. Clegg took part, not because his party was ever likely to obtain a majority or a plurality of seats but because the Liberal Democrats could conceivably hold the balance of power in a hung parliament."[112]

96.  It seems to us that this latter statement represents a misunderstanding of the way in which the judgement was made. As set out earlier in this chapter, the Liberal Democrats were not invited to participate in 2010 solely because they could conceivably hold the balance of power in a hung parliament. Instead they were invited because of an analysis of factors including previous electoral support which made it clear that their leader had a realistic prospect of becoming the Prime Minister after the election in question. As Ric Bailey points out in his Reuters Report, "even in 1997, legal opinion had been that the then Liberal Democrat leader, [then] Paddy Ashdown, would have to be included."[113] Further, it is important to recognise that the broadcasters have a degree of flexibility in what they do so long as their coverage overall complies with their legal and regulatory obligations. For example, two broadcast debates in the run-up to the European Parliamentary elections between Nick Clegg, leader of the Liberal Democrats, and Nigel Farage, leader of UKIP, were able to take place without the participation of the Conservative and Labour leaders. We agree with these witnesses that it is important for the broadcasters clearly to communicate the purpose of the debates as television programmes. However, on a proper understanding of the current arrangements around the debates as set out in this chapter, there does not appear to us to be any conflict between the objectives of the debates as they were communicated by the broadcasters and the way in which participation was ultimately determined.

97.  Others argued that the objective of the debates is clear but that criteria for participation should change. For example, David Muir, Labour Party chief negotiator on television debates in 2010, argued that in the future "there should be an established vote share threshold for participation in the debate."[114] The argument for this links to the objective of the debates being to expose to the public a discussion between the main UK-wide party leaders in the running to become the Prime Minister. Changing the criteria to a vote share threshold is argued to provide a simple and easy-to-understand way of determining who those parties are. In particular, it would clarify the basis on which a party with a track record of carrying a large vote share which does not, however, have a track record of forming a majority Government could continue to be seen as eligible to participate. As David Muir explained, "from the start it was clear that the Lib Dems should be included although their leader could never be the next Prime Minister. The Lib Dems since the 1980s had registered a significant and steadily growing vote share, it was therefore right that they should be included."[115]

98.  However, this proposal appears to misunderstand the nature of the judgement about who can participate in the debates; and the benefits that lie in this decision, under the current arrangements, remaining a complex editorial one for the broadcasters, overseen by their regulators.

99.  First, the broadcasters currently take into account a range of factors in their decision about whom to invite to a Prime Ministerial debate, not simply vote share. This allows them to make this judgement with a certain amount of flexibility, responsive to rises and falls in the prospects of political parties in the present as well as in the past. Reducing their assessment down to a single-factor analysis of previous vote share would remove the possibility of the broadcasters recognising potentially compelling arguments to invite a political party to a Prime Ministerial debate arising from a fuller analysis including factors other than vote share. Secondly, this proposal could compromise the broadcasters' requirement to maintain due impartiality. Obliging the broadcasters to judge who can participate in the Prime Ministerial debate programme in a different way to the way they make this judgement with respect to other programmes would create a complication: it would make it difficult if not impossible for the broadcasters to comply with their regulatory requirements in a consistent way and could force them to distort coverage outside of the debates programme in order to meet their obligations to 'due weight' and 'due impartiality' across the total grid. Thirdly, as a matter of principle, introducing a vote share threshold criterion would also remove the broadcasters' ability to exercise discretion over the coverage they give to political parties. As such, it would compromise and arguably undermine the basis on which broadcast regulation has operated for decades, with broadcasters' independent decisions scrutinised post-broadcast rather than made for them pre-transmission.

100.  Some of these same criticisms also apply to those who have challenged the current arrangements, arguing that the decision about who can participate in Prime Ministerial debates should rest on an analysis of current voting intentions as measured through opinion polling. The proposal to shift the assessment of who can participate to an analysis solely of survey data is, however, also flawed for two additional reasons. First, surveys on voting intentions, particularly a long time ahead of an election, can be unstable and unreliable as a predictor of actual behaviour. It is right that survey data is taken into account by the broadcasters but this should form part of a wider analysis in which real behaviour—by definition the most tangible measure of actual behaviour—is the key measure. As mentioned earlier, Ric Bailey told us that, for the broadcasters, "the best way to make a judgment about these things is to look at how real people vote in real elections" supplemented by "other evidence that might be relevant to setting out the political context. That might include a consistent, robust trend in opinion polling."[116] Secondly, the impetus behind the proposal—to make the assessment of participation in Prime Ministerial debates more responsive to changes in the parties' prospects in the present—fails to recognise the flexibility already inherent to the current arrangements. The broadcasters take a wide set of factors into account which allows their editorial decisions to be responsive to the political context.

101.  Of course, both proposals—to shift the assessment of who can participate to vote share or to survey analysis—may be seen as a more relevant consideration under alternative arrangements which we will consider in the next chapter, for example, if the debates were arranged independently of the broadcasters. However, under the current arrangements, there are a number of flaws in the proposal to replace the broadcasters' nuanced judgements with a vote-share threshold criterion or an assessment based only on opinion polling.

102.  The suggestion made by some that eligibility to participate in televised debates should be based on an established vote share threshold or solely on opinion polling should not be adopted. Instead, it must be recognised that the decision about who is invited to participate in television programmes will have to continue to be one that is consistent with the legal and regulatory framework around broadcasting. Of course, the decision to accept a broadcaster's invitation to participate in a television programme remains voluntary.

103.  More generally, some have recognised that these principles might be put under strain if one or more of the political parties judged to be relevant to the programme in question chose unilaterally not to participate. As Michael Jermey told us,

    "In a sense, any political programme is a voluntary activity when it comes to whether you are going to take part in it or not—any programme at all. We follow our own editorial judgment but we cannot compel people to take part in a programme. It is possible that the actions of a particular party make it quite difficult for us to conform with the letter of the code if people are not willing to take part. There is a discussion and a negotiation about participation in all forms of programming. I am not sure I would describe that as a veto but broadcasters are not in a simple place to click their fingers and make politicians or any other participant appear in programmes. If they had been, I suspect debates would have happened 50 years earlier than 2010."[117]

104.  There is clearly uncertainty about whether a decision by one of the political parties to withdraw would necessarily mean that the debates could not proceed and still remain compliant with the broadcasters' respective obligations. We only note that we cannot suppose that the political parties will deem it is in their best interests to find out by withdrawing, against a backdrop of wide public support and manifest expectation that the debates do take place again.

105.  This chapter has focused on the legal and regulatory framework around broadcasting and its impact on who can participate in a debate between Prime Ministerial candidates. However, it certainly seems likely that there will be an ever greater role for online media as a complement to the experience of viewing broadcast debates, for example for those viewers engaging with a second screen. Tim Gardam told us about what he saw in 2010 as an important "interaction of old media and new media that gave the public service purposes to the debates, because social media became a viral transmitter, essentially, of this conversation rooted in a mass audience."[118] This formed part of an interesting thesis he put to us according to which traditional, regulated broadcast media form part of a "civic network" where "if you are viewing, you have to take account of views that you may not agree with or may not know about" which sits alongside your "social network" which characterises "the way people express themselves and relate to each other in a society that is both increasingly connected but, of course, increasingly diverse."[119] If correct, it seems to us that these ideas have important implications for the role of public service media more generally and may merit exploring further in the future. More prosaically, we note that the second screen and online media might also be used for political and tactical gain. Nigel Farage, the leader of UKIP told the Total Politics magazine recently that:

    "If UKIP [is] excluded [from the broadcast Prime Ministerial debates], we will provide an alternative form of entertainment on the evening … I'm working on some ideas … you could live stream. It would be quite fun wouldn't it? People would have their TVs and their laptops next to it. They might think they can exclude us but modern technology has such a power."[120]

106.  Online media is also potentially significant, of course, because a debate hosted entirely online would side-step the broadcasting framework and the safeguards discussed in this Report. It is notable that the idea of hosting general election debates online is not unheard of internationally. Sweden's next general election takes place on 14 September 2014. During the course of our inquiry, a Swedish national newspaper, Aftonbladet, announced the success of its initiative to invite the party leaders to an online election debate in the run-up to their election.[121] However, it is important to recognise that on current behavioural trends, at least in the UK, going exclusively online would be likely to result in the failure to reach a large live audience. As an example, Felix Baumgartner's record-breaking skydive in 2012 attracted a reported 8 million viewers of its live stream on YouTube worldwide.[122] Live streams of the 2012 Olympics peaked at "more than half a million."[123] In short, neither top-flight athletics nor an audacious supersonic skydiver, leaping from a capsule at 128,100ft (24 miles; 39 km) above New Mexico have succeeded in gaining worldwide the live audience which broadcast Prime Ministerial debates have achieved in the UK. Accordingly, it seems likely that the attractiveness to party leaders and their strategists of an exclusively online debate would remain low, at least for now.


49   BBC Press Office. Op. Cit. Back

50   'Anger from Plaid and SNP over televised debates', BBC News, 10 March 2010. Available online: http://news.bbc.co.uk/1/hi/wales/wales_politics/8560022.stm Back

51   Ibid. Back

52   Franz Kafka, (1953), The Trial, Penguin Books.  Back

53   YouGov Cambridge Programme, Peter Kellner, October 7 2013, Who should take part in TV election debates? Available online: http://cambridge.yougov.com/news/2013/10/07/a/ Back

54   Selwyn College, Cambridge, Roger Mosey, March 2014, With Farage or without, we must have TV debates. Available online:

http://www.sel.cam.ac.uk/development/Roger%20Article%20Sunday%20Times%20Mar14.pdf Back

55   BBC Back

56   See Appendix 4, containing a reference list of documents which should aid those seeking a full understanding of the framework around broadcast general election debates. Back

57   This largely summarises written evidence given to us by Ofcom and the BBC Trust. Back

58   This includes the commercial broadcasters reported to be involved in discussions over election debates potentially to be broadcast in 2015: ITV, Channel 4 and BSkyB. Back

59   Ofcom, Section 5, Broadcasting Code. Available online:

http://stakeholders.ofcom.org.uk/binaries/broadcast/831190/section5.pdf.

Ofcom's published Guidance to Section Five of the Code is also available online:

http://stakeholders.ofcom.org.uk/binaries/broadcast/guidance/831193/section5.pdf Back

60   Rule 6.1 of the Broadcasting Code Back

61   These are laid in section 6 of the Broadcasting Code Back

62   These are sometimes given different terms. See footnote 11.  Back

63   Ofcom, 21 March 2013, Ofcom rules on Party Political and Referendum Broadcasts. Available online: http://stakeholders.ofcom.org.uk/binaries/broadcast/guidance/ppbrules.pdf Back

64   The 'major party' list has relevance not only to general electoral coverage but also to Party political and referendum broadcasts (PPRBs). The list is published not only as an annex to section six of the Broadcasting Code but also as an annex to the PPRB rules. Ofcom has a requirement under Section 333(5) of the Communications Act (2003) to have regard to any views expressed by the Electoral Commission with regard to its rules on PPRBs.  Back

65   Ofcom, Election Committee. Information available online: http://www.ofcom.org.uk/about/how-ofcom-is-run/committees/election-committee/ Back

66   BBC Charter. Available online:

http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter.pdf Back

67   It is also worth noting that the Trust is responsible for securing the effective promotion of the Public Purposes of the BBC which are set out in the Charter in Article 4 and include sustaining citizenship and civil society (which is of particular relevance to this inquiry). The BBC's public purposes are available online:

http://www.bbc.co.uk/aboutthebbc/insidethebbc/whoweare/publicpurposes/citizenship.html Back

68   BBC, Editorial Guidelines. Available online: http://www.bbc.co.uk/editorialguidelines/  Back

69   Article 24(2)(d) of the Charter, and clause 43(1) of the Agreement 34 Back

70   BBC, Editorial Guidelines. Op. Cit. Back

71   The Editorial Standards Committee (ESC) of the BBC Trust has primary responsibility for the exercise of the Trust's functions in relation to editorial standards and policy. This includes leading the Trust's reviews of the Editorial Guidelines; monitoring of editorial standards, especially accuracy and impartiality; considering serious breaches of standards reported to it by the Executive; and determining appeals about editorial issues. The appeals function can lead it to investigate in some depth issues raised by audience complaints. Back

72   Representation of the People Act 1983, section 93(3)  Back

73   The standards protocol which explains the procedure for setting election and other guidelines is available online: http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/regulatory_framework/protocols/2013/b2_editorial_standards.pdf Back

74   The BBC's complaints framework is available online here:

http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/regulatory_framework/protocols/2012/ complaints_fr_work_ed_complaints.pdf Back

75   See Paragraph 47 Back

76   BBC Press Office. Op. Cit.  Back

77   Q 2 Back

78   Q 8 Back

79   Ofcom, 15 April 2010, Decision of the Election Committee on a Due Impartiality Complaint Brought by the Scottish National Party in relation to the "First Election Debate," ITV1. Available online: http://licensing.ofcom.org.uk/binaries/tv/updates/election10_snp.pdf Back

80   Plaid Cymru Back

81   Arguably, they also make an indirect choice over the electoral college who play an important part in selecting the party leader.  Back

82   Q 10 Back

83   Q 7 Back

84   Q 5 Back

85   BBC Election Guidelines for Elections taking place on 6 May 2010  Back

86   Q 5 Back

87   IbidBack

88   Q 6 Back

89   Ofcom, 3 March 2014, Ofcom list of major parties. Available online:

http://stakeholders.ofcom.org.uk/binaries/broadcast/guidance/major-parties.pdf Back

90   Ofcom Back

91   HC Library note, General Election 2005. Op Cit. The equivalent data for the 2010 general election is as follows: Conservative: 10,683,577; Labour: 8,601,349; Liberal Democrat: 6,827,312; UKIP: 917,581; BNP: 564,003; SNP: 491,386; Green: 284,823. HC Library note. General Election 2010. Op. Cit.  Back

92   Q 6 Back

93   Q 6 Back

94   Q 6 Back

95   Squeezing out the Oxygen. Op. Cit.  Back

96   IbidBack

97   Ibid. Back

98   Ibid. Back

99   Parties from Great Britain rarely field candidates in Northern Ireland, and as a consequence do not have significant levels of support in Northern Ireland. Back

100   Squeezing out the Oxygen. Op. Cit. Back

101   Ofcom, Section 6, Broadcasting Code. Available online:

http://stakeholders.ofcom.org.uk/binaries/broadcast/guidance/831193/section6.pdf Back

102   BBC Press Office. Op. Cit.  Back

103   Squeezing out the Oxygen. Op. Cit. Back

104   See Appendix 5, containing a summary of the general election debates broadcast in 2010. Back

105   Sky News Back

106   Ofcom Back

107   ITV Back

108   BBC Trust, 21 April 2010, Ad Hoc Appeal Committee-BBC Prime Ministerial Debate Joint appeal from the Scottish National Party and Plaid Cymru. Available online:

http://www.bbc.co.uk/bbctrust/assets/files/pdf/appeals/ad_hoc/snp_pl_cymru/snp_pl_cymru.pdf Back

109   Ibid. Back

110   BBC Trust Back

111   Dr Nicholas Allen, Dr Judith Bara, and Dr John Bartle Back

112   Ibid. Back

113   Squeezing out the Oxygen. Op. Cit. Back

114   David Muir Back

115   Ibid. Back

116   Q 5 Back

117   Q 5 Back

118   Q 86 Back

119   Q 86 Back

120   'UKIP's Nigel's Farage threatens to intrude on TV election debates by live streaming alternative', Huffington Post, 21 November 2013. Available online: http://www.huffingtonpost.co.uk/2013/11/21/nigel-farage-tv-election-debates_n_4318173.html Back

121   'Första Partiledardebatten Online', Aftonbladet, 1 April 2014,. Available online:

http://www.aftonbladet.se/nyheter/article18643087.ab Back

122   'Felix Baumgartner jump: record 8m watch live on YouTube', The Guardian, 15 October 2012 Available online: http://www.theguardian.com/media/2012/oct/15/felix-baumgartner-skydive-youtube Back

123   Ibid. Back


 
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