The Liberal Democrats v ITV Broadcasting Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby,Lord Justice Davis |
| Judgment Date | 29 November 2019 |
| Neutral Citation | [2019] EWHC 3282 (Admin) |
| Date | 29 November 2019 |
| Docket Number | Case No: CO/4429/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3282 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
and
Mr Justice Warby
Case No: CO/4429/2019
CO/4471/2019
The Queen (on the application of
Guy Vassall-Adams QC and Aidan Wills (instructed by Kingsley Napley LLP) for the First Claimant
Philip Coppel QC and Sam Fowles (instructed by Balfour and Manson LLP) for the Second Claimant
Kieron Beal QC (instructed by Hogan Lovells International LLP) for the Defendant
Hearing date: 18 November 2019
Lord Justice Davis and
Introduction
A General Election is to be held on Thursday 12 December 2019. The defendant in these proceedings, ITV Broadcasting Limited (“ITV”), decided to schedule a televised debate on Tuesday 19 November 2019 at 8pm between Boris Johnson, Leader of the Conservative Party, and Jeremy Corbyn, Leader of the Labour Party. The Liberal Democrats (“the Liberal Democrats”) and the Scottish National Party (“the SNP”), by Claim Forms issued respectively on 11 November 2019 and 13 November 2019, have challenged that decision. Put shortly, they say that to exclude the leaders of their own parties from such a debate is unfair, contrary to the Broadcasting Code (“the Code”) and unlawful. They have sought, by way of judicial review, in effect to stop the debate going ahead in that format. In a nutshell, the essential points arising are whether the decision of ITV to schedule the debate in such a format was amenable at all to judicial review; and, if it was, whether such decision should be pronounced unlawful.
Clearly urgency was involved here. On 11 November 2019, Supperstone J directed that a rolled-up hearing (that is to say, a hearing as to whether permission to apply should be granted and, if so, with the substantive claim to be determined immediately thereafter) of the Liberal Democrats' claim was to take place on Monday 18 November 2019. Thereafter, having issued its own claim form, the SNP sought also to participate in that hearing on a similar basis; and it was granted permission by this court to do so.
The hearing necessarily had to conclude within the day. Very full written arguments, detailed evidence and numerous legal authorities were provided in advance of the hearing. Oral argument had, to a degree, to be compressed. The parties sensibly agreed, however, a time-table for their respective submissions (to which time-table they faithfully adhered), taking the hearing up to 4pm: on the basis that the court would then give its decision, with reasons in writing to follow at a later date.
At the conclusion of the arguments, and after a short retirement, this court announced its decision to refuse permission to apply for judicial review in both cases. A text of that decision, as so announced, is appended to this judgment at Annex 1. We said at the time that, as agreed by the parties in advance, we would give our reasons in writing thereafter. These are our reasons for that decision.
The factual background
We summarise the background relatively shortly for present purposes.
The issue of Brexit has dominated the political landscape in the UK for a considerable amount of time. Strong views are held and expressed. Difficulties in getting an agreed resolution through Parliament prompted, at least in considerable part, the decision of the Prime Minister, Boris Johnson, to seek a General Election. On 31 October 2019 the Early Parliament General Election Act 2019 received Royal Assent. That provided for a General Election to take place on 12 December 2019. Parliament was dissolved on 6 November 2019. Campaigning is under way, although at the time of the hearing before us no party had yet published its Manifesto.
As at the date of dissolution of Parliament, the Conservative Party had 298 seats and its leader, Boris Johnson, was Prime Minister. The Labour Party had 243 seats, the second highest number. Its leader, and leader of the Opposition, was Jeremy Corbyn. In terms of Parliamentary seats the third largest party was the SNP, with 35 seats. The Liberal Democrats were the fourth largest party, in terms of Parliamentary seats, with 20 seats. Other parties with seats in Westminster were the Democratic Unionist Party (“DUP”) with 10 seats; Sinn Fein with 7 seats; the Independent Group for Change with 5 seats; and the Green Party with 1 seat. The Conservative, Labour, Liberal Democrat and SNP parties do not put up candidates in Northern Ireland. The DUP and Sinn Fein do not put up candidates in England, Wales or Scotland. The SNP does not put up candidates in England and Wales. Other parties, including the Brexit Party, are also due to contest some seats at the General Election.
Brexit will of course be one of the issues in the General Election – that is to say, whether, how and when the UK should or should not leave the European Union. In the 2016 referendum, a majority had voted in favour of “Leave”, a minority in favour of “Remain”. After a Parliamentary vote, notification pursuant to Article 50 of the Treaty on the Functioning of the European Union of the UK's intention to leave the European Union was given on 29 March 2017. The date of actual withdrawal has since been postponed.
The various parties have differing stances on the issue of Brexit. As we have said, Manifestos had not been published at the date of the hearing. But the current campaign slogan of the Conservative Party is “Get Brexit Done”. The stated policy of the Labour Party is to seek to renegotiate a withdrawal deal with the European Union and, if such a deal is negotiated, to put that deal to a further referendum with an alternative option to vote in favour of remaining within the European Union. The stated policy of the Liberal Democrats is that, if they won a majority at the General Election, they would revoke the notification under Article 50 or, if they did not win a majority, would support a second referendum and campaign for “Remain”. The policy of the SNP is to object to the removal of Scotland from the European Union on the basis of a UK wide referendum vote (the electorate within Scotland itself having by a majority voted in favour of “Remain” at the 2016 referendum).
Nevertheless, it is important to bear in mind that (as Mr Beal QC for ITV pointed out) the forthcoming General Election is not a second referendum on Brexit, as such. All parties, for example, can be expected for the purposes of the General Election to formulate policies on a number of other issues which will potentially be very important both to them and to the electorate. These may include (for example and in no particular order): the environment, the National Health Service, taxation, social welfare, law and order, defence and others besides. There can be no assumption that those who choose to vote will do so solely in accordance with their views, if they still have any, on the merits or otherwise of “Leave” or “Remain”. To some, no doubt, that will be the sole consideration. To others, it may be an extremely important consideration, along, however, with their views on other issues reflected in the parties' respective policies. To others again, the other issues, or some of them, will be even more important than Brexit; and some voters, indeed, may solely be interested in the other issues. It is important to emphasize this, because some aspects of the evidence filed on behalf of the claimants is suggestive of a presumption that to all voters the Brexit issue will of itself be determinative as to how they cast their vote. That is a viewpoint which no doubt can be held; but it cannot be assumed to be fact.
Clearly the public airing and public discussion of the respective parties' policies is central to the political process where a General Election is being held.
For this purpose, television has an important part to play. It can reach out – whether in free-to-air form or by way of subscription channel – to, potentially, many millions of people. It can do so in a variety of formats: debates, interviews, question and answer sessions, profiles and so on.
So far as televised debates between leaders of political parties are concerned, the evidence shows that there had been no such debates in the UK in General Election periods before 2010. In that year there were televised debates involving the leaders of the then three largest parties (Conservative, Labour, Liberal Democrat). At the 2015 General Election, there were televised debates featuring a number of parties. There was no televised debate involving all the leaders of the main parties at the General Election of 2017, as the then Prime Minister, Theresa May, declined to take part. Evidence placed before us (which also included academic studies) would suggest that such televised debates have a significant role in informing the public, in reaching parts of the population not reached by other forms of campaigning and in contributing to the shaping of voters' views. No doubt similar points can be made of party political broadcasts, televised interviews and profiles and so on. Campaigning via the internet and social media will doubtless also have a very significant part to play. Indeed, much has changed over recent years in the ways news, views and information about politics and current affairs are delivered and shared. But as to televised debates themselves it can be argued that these have their own particular “power and importance”, as Mr Coppel QC, for the SNP, put it.
The decision under challenge
As the written evidence of Mr Michael Jermey, Director of News and Current Affairs at ITV PLC explains, ITV is part of the ITV group of commercial media companies. It is incorporated under the...
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References
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