R The British Broadcasting Corporation The Independent Television Commission and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,MR JUSTICE POPPLEWELL |
| Judgment Date | 24 April 1997 |
| Judgment citation (vLex) | [1997] EWHC J0424-1 |
| Date | 24 April 1997 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO-1175-96 |
[1997] EWHC J0424-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
The Strand
Lord Justice Auld
-and-
Mr Justice Popplewell
CO-1175-96
Mr G Robertson Qc and Mr G Millar (Instructed by Peter Carter-Ruck & Partners, London EC4A 3BQ) appeared on behalf of the Applicant.
MR D PANNICK QC AND MR P GOULDING (Instructed by Sarah Jones, Head of the Litigation Department, British Broadcasting Corporation, London W12 7TS) appeared on behalf of the First Respondent, the BBC.
MR C CLARKE AND MR M SHAW (Instructed by Allen & Overy, London EC4M 9QQ) appeared on behalf of the Second Respondents, the ITC.
MR W WOOD (Instructed by Goodman Derrick & Co., London EC4A 1EQ) appeared on behalf of the ITVA as an interested party.
Thursday, 24th April 1997
This is the judgment of the Court. The applicant, the Referendum Party, challenges the allocation to it by the respondents, the British Broadcasting Corporation and the Independent Television Commission ("the broadcasters"), of broadcasting time for party election broadcasts in the current campaign for the General Election on 1st May 1997. Each of them, exercising different powers but the same criteria, has allocated it one such broadcast of five minutes on the television network for which it is responsible. Those allocations are to be compared with the broadcasters' allocations to the Conservative and Labour Parties of five ten minute television party election broadcasts and to the Liberal Democrats of four such broadcasts.
The Referendum Party argues that those allocations are irrational, and for that reason unlawful, because the broadcasters:
1.wrongly included in the criteria for their decisions past electoral support, something that a new party could not show.
2.failed to take account of its electoral size and support, especially the large number of candidates it is fielding in the election.
The resultant allocations, it claims, are absurdly low when compared with those made to the main national parties.
There is also a complaint of procedural impropriety, namely that the Party was denied an opportunity to make sufficient representation when the allocations were being considered.
The Referendum Party is a new political party and a company limited by guarantee. Sir James Goldsmith formed it in 1994 and launched it publicly in October 1996. Mr Geoffrey Robertson QC, on its behalf, described it as "going for Government". According to its manifesto, its purpose in contesting this parliamentary election is "to obtain a full public debate on Britain's relationship with Europe followed by a fair referendum" and thereafter to dissolve. It has not previously contested any elections and, thus, has no record of previous electoral support. It has one sitting Member of Parliament, Sir George Gardiner, the Member for Reigate who transferred from the Conservative Party to it shortly before the election was announced. It claims to have written pledges of support from about 200,000 potential electors and recent opinion poll indications of present support of over 3%, and growing, of the vote. It has a national office and is fielding candidates, supported by agents from constituency offices, in about 85% of the United Kingdom constituencies, except for Northern Ireland. That is 547 out of 659. It has decided not to field any candidates for the 18 Northern Ireland seats because the Unionist Party supports a referendum. It is said to have a budget of £20 million for the campaign.
The BBC
The BBC is incorporated by Royal Charter and is wholly independent of the Government. Its general broadcasting powers derive, not from statute or statutory instrument, but from its Agreement with the Secretary of State for National Heritage of 25th January 1996 and, pursuant thereto, licences granted under the Wireless Telegraphy Act 1949 and the Telecommunications Act 1984. However, the relevant obligations and machinery for their fulfilment are almost identical with the statutory framework provided for the ITC by the Broadcasting Act 1990. Under clause 5.1(c) of the Agreement the BBC has undertaken to secure that its programmes, including those dealing with matters of political controversy, are dealt with with "due accuracy and impartiality". Under clause 5.3(a) it has also undertaken to draw up, and from time to time to review, a code giving guidance on the rules to be observed to that end.
Apart from those general requirements of securing, and giving guidance on, accuracy and impartiality, the BBC has been left with a broad discretion as to its allocation of party election broadcasts. It has published a code of rules called "Producers' Guidelines", now in its third, November 1996, edition. The Guidelines, in Part 1, paragraph 1, refer to "due impartiality" as "a core value" lying "at the heart of the BBC", and include, in paragraph 4, as a general objective the BBC's aim to achieve impartiality in the allocation of party election broadcasts. Their only relevant specific provision to that end is a threshold condition in Part 18, paragraph 2.2:
"Any party contesting a minimum of 50 seats at the general election will be allocated at least one 5 minute broadcast on television and/or radio. The allocation of time between the parties is decided by the BBC. …"
Parliament has not imposed on the BBC any conditions or criteria for its allocation of time for party election broadcasts for general elections, clearly leaving it to the judgment of the BBC. Section 93 of the Representation of the People Act 1983 prohibiting certain broadcasts pending elections, upon which Mr Robertson relied by way of analogy in support of his argument for "a level playing field" has no direct application since it is concerned only with the broadcasting of an item about a "constituency or electoral area".
The ITVA
The Independent Television Association is the association of the Regional Channel 3 companies and represents their joint interests through the Network Centre.
The ITC
The ITC was established by Section 1 of the Broadcasting Act 1990. It has replaced the Independent Broadcasting Authority as the licensor and regulator of the commercial television companies. By Section 6(1)(c), (3) and (5)(a) it is required -much as the BBC is required contractually - "to do all that … [it] can to secure that every licensed service" preserves "due impartiality … as respects matters of [major] political … controversy" and to draw up and maintain a code giving guidance as to the rules that the companies should observe to maintain impartiality. It has power under Section 41 to impose sanctions, including fines, on a licence holder who has failed to comply with the licence conditions which it has imposed giving effect to that requirement or with any direction given by it.
Section 36(1) requires that licences must include –
"(a) conditions requiring the licence holder to include party political broadcasts in the licensed service; and
(b) conditions requiring the licence holder to observe such rules with respect to party political broadcasts as the Commission may determine."
The Commission has a wide discretion as to the rules it may make. As in the case of the BBC, it has been not been trammelled with any criteria of impartiality. Section 36(3) provides that, without prejudice to the generality of the power expressed in Section 36(1)(b), it may determine
"(a)the political parties on whose behalf party political broadcasts may be made; and
(b)in relation to any political party on whose behalf such broadcasts may be made, the length and frequency of such broadcasts."
And Section 36(4) provides that any rules made by the Commission for this purpose "may make different provision for different cases or circumstances".
The Commission's rules under this provision are contained in its Programme Code issued in the Summer of 1995. The Code applies to all commercial licensees, who are required to ensure that their programmes comply with it. Paragraph 3.2(i) of the Code equates the statutory requirement of "due impartiality" with impartiality which is "adequate or appropriate to the nature of the subject and the type of programme". The ITC gives specific guidance as to allocation of party election broadcasts in paragraph 4(1)(ii) and (iv), which states:
"(ii) The allocation of time for Party Election Broadcasts on ITV and Channel 4 is related both to electoral support at the previous General Election and to the number of candidates nominated. Any party fielding at least 50 candidates is normally entitled to at least one Party Election Broadcast of five minutes' duration. …
(iv) Unresolved disputes over the allocation, duration or frequency of Party Election Broadcasts must be referred to the ITC by or on behalf of the relevant licensees."
We pause to compare briefly the substance of the respective rules of the BBC and the ITC as to the allocation of party election broadcasts. Each contains a threshold entitlement to at least one five minute broadcast to a party fielding a minimum of 50 candidates, the BBC requiring it and the ITC indicating it as a normal entitlement. The ITC Programme Code, but not the BBC Producers Guidelines, indicates that allocation of any further broadcasts should also relate to the number of candidates and previous electoral support.
The CPPB
We should also mention the Committee on Party Political Broadcasting, a long-standing informal and private body of members of the existing political parties in Parliament (save for those in Northern...
To continue reading
Request your trial