Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 56
P451/10	OPINION OF LADY SMITH in the Petition of SCOTTISH NATIONAL PARTY AND OTHERS Petitioners; for Judicial Review of decisions of the British Broadcasting Corporation to exclude the petitioners from participation in a political debate ­­­­­­­­­­­­­­­­­________________

Petitioners: Bovey, Q.C.; D Hamilton; Anderson Strathern LLP

Respondents: Moynihan, Q.C.; Carmichael, Q.C.; Brodies LLP

28 April 2010

Introduction

[1] This is a petition for Judicial Review of a decision by the respondents dated 21 December 2009. The petitioners are a political party, the Scottish National Party and a number of its named representatives. The only respondents are the BBC.

[2] The petition came before me on 27 April 2010 on a motion for First Orders and for interim interdict. The focus of the petition is encapsulated in the latter which is in the following terms:

"For interdict ad interim against the respondents broadcasting in Scotland on or before 6 May 2010, by any means, a debate scheduled to be broadcast on 29 April 2010 between the leaders of The Labour Party, the Conservative Party and the Liberal democrats that does not feature on equal terms with the said persons a representative of the petitioners."

The Parties

[3] The petitioners are a political party and five named representatives. They have 7 MP's at Westminster. Within the devolution settlement, they form the minority government in Scotland and the second petitioner is, as their leader, the First Minister of Scotland. They are standing candidates in less than one tenth of the seats in the Westminster Parliament that are contestable across the United Kingdom.

[4] The respondents are the British Broadcasting Corporation, a body corporate founded by Royal Charter (6/1) within which exists the BBC Trust and the Executive Board of the BBC. The current charter is dated October 2006 and came into force on the expiry of the previous charter, on 1 January 2007.

[5] A Framework Agreement dated July 2006, prepared with the 2006 Charter in mind, also came into force on 1 January 2007. Paragraph 44(1) of that agreement provides:

"The BBC must do all it can to ensure that controversial subjects are treated with due accuracy and impartiality in all relevant output."

[6] In that regard, paragraph 44(5) provides for the drawing up by the Trust of a code giving guidance the rules of which are to take account of the need for due impartiality to be preserved as respects major matters such as news.

[7] Chapter 4 of the respondents' "Editorial Guidelines" (6/3) includes the following statements:

"In practice our commitment to impartiality means:

·       We seek to provide a properly balanced service .........We take particular care when dealing with political or industrial controversy or major matters relating to current public policy

·       .............

·       We must ensure we avoid bias or an imbalance of views on controversial subjects

....................

Impartiality must be adequate and appropriate to our output. Our approach to achieving it will therefore vary according to the nature of the subject, the type of output, the likely audience expectation and the extent to which the content and approach is signposting.

Impartiality is described in the Agreement as 'due impartiality'. It requires us to be fair and open minded when examining the evidence and weighing all the material facts, as well as being objective and even handed in our approach to a subject. It does not require the representation of every argument or facet of every view on every occasion or an equal division of time for each view.

........................

IMPARTIALITY IN SERIES

In achieving impartiality a series of programmes on the same service may be considered as a whole.

.............................

REPORTING OF UK POLITICAL PARTIES

Network output must reflect the political parties in Scotland, Wales and Northern Ireland...

.....................

BROADCASTING DURING ELECTIONS

........................

.....we must ensure that:

·       News judgments continue to drive editorial decision making in news based programmes

·       News judgments at election time are made within a framework of democratic debate which ensures that due weight is given to hearing the views and examining and challenging the policies of all parties. Significant minor parties should also receive some network coverage during the campaign."

[8] The respondents issued "Election Guidelines" (6/4) which apply to the forthcoming General Election. The provisions of paragraphs 3 and 4 of those guidelines include:

"3.1 Coverage of the Parties

To achieve due impartiality, each bulletin, programme or programme strand as well as online and interactive services, for each election, must ensure that the parties are covered proportionately over an appropriate period, normally across a week. This means taking into account levels of past and current electoral support.

Due impartiality must be achieved within these categories:

·       clips

·       interviews/discussions of up to 10 minutes

·       longer form programmes

Previous electoral support in equivalent elections is the starting point for making judgments about the proportionate levels of coverage between parties.

.....................

3.2 Impartiality in Programmes

Daily news magazine programmes (in the nations, regions and UK wide) should normally achieve proportional and appropriate coverage within the course of each week of the campaign."

[9] A separate document of the respondents headed

"GUIDANCE - GENERAL ELECATION &LOCAL GOVERNMENT ELECTIONS (ENGLAND) 2010"

includes the following guidance:

"The relative amount of coverage give to political parties in each electoral area (from the UK as a whole to individual constituencies) should reflect levels of past and/or current electoral support. In considering this, the following factors should be given due weight:

·       performance at the last equivalent election ( i.e. the 2005 General Election) in terms of representation and share of the vote

·       performance in subsequent elections where relevant

·       other relevant evidence of current electoral support

·       the number of candidates a party fields in the election

...............................

1.     Party Coverage for broadcasts across the UK:

In Scotland ......the SNP ...gained substantial electoral support at the last General Election. UK wide programmes must ensure that, on issues where they have distinctive policies, the SNP...are given appropriate levels of coverage in items to which the GB-wide parties contribute."

[10] Accordingly, it is clearly demonstrated that the respondents have given careful consideration to the means by which impartiality is to be maintained and judged how they consider that objective can best be achieved. In terms of the respondents' documentation, there is a clear commitment to due impartiality and a recognition of the fact that elections raise particular challenges in that regard. In addressing the task of allocating coverage to the different political parties in an election the respondents have regard to their duty of impartiality by determining what is proportionate and appropriate in that regard, setting out in the above guidelines the factors that are to be taken into account when so doing so. Those factors include taking account of past and current electoral support and that they are impartiality does not require representation of every argument or facet of every view or an equal division of time for each viewpoint.

Background

[11] 6 May 2010 is the date of the next General Election. On 21 December 2009, a press release (6/6) was issued advising that the Labour Party, the Conservative Party and the Liberal Democrat Party had agreed to a proposal made by the respondents, ITV and Sky to hold and broadcast a series of three live Prime Ministerial debates during the election campaign. It was agreed that the three programmes would be broadcast in peak time, that ITV would produce the first debate, that Sky would produce the second debate and that the BBC would produce the third debate. It was also agreed that BBC and Sky would make their programmes available to other broadcasters simultaneously and ITV would make their programme available to other broadcasters immediately after transmission.

[12] Key principles were agreed (6/7) which included that there would be three live TV debates during the election campaign, one in each full week of the campaign and that the three party leaders of the Labour, Conservative and Liberal Democrat parties would appear in each debate programme.

[13] The petitioners' Chief Executive wrote to the respondents by letter dated 22 December 2009 (6/9) expressing the view that the format announced on 21 December would not comply with the BBC's editorial guidelines in that parity of coverage would not be given to recognised major parties in the nations of the UK (by implication, would not give parity of coverage to the petitioners).

[14] Correspondence between the respondents and petitioners ensued. In a letter to the respondents dated 4 February 2010 (6/11), the second petitioner, expressed the following views:

"My primary position is that any attempt to broadcast such a debate in Scotland without the participation in the debate of the SNP will not satisfy the requirements of 'due accuracy and impartiality' under the terms of the 2006 Charter and Agreement. Moreover, as the proposal is currently constituted it seems inevitable that viewers in Scotland will be presented with a misleading impression of the issues debated in so far as they relate to Scotland."

and

"As presently proposed, the programme would offend against any claim to be 'impartial' by excluding from the debate the views of the SNP - the party which forms the Scottish Government - on issues which are entirely, or partially the responsibility of the Scottish Government and Scottish Parliament."

[15] The respondents' Chief Adviser, Politics, responded to that letter on 2 March (6/12). He refuted the suggestion that the due impartiality would not be achieved and sought to give reassurance that the views of parties other than the three whose leaders would be included in the debate, including the petitioners, would be appropriately reflected. He explained the respondents' plans in that regard, to which I will return.

[16] On 1 March 2010, the format for the debate broadcasts had been agreed (6/8). The petitioners were provided with a copy of the document containing the format.

[17] By letter dated 12 March 2010 (7/9), Mr Salmond wrote to Sir Michael Lyons, the Chairman of the BBC Trust to "formalise our complaint that the BBC Executive has through its actions brought into question the impartiality of the BBC in advance of the General Election." He referred again to the petitioners' view that the programme for the debates would disenfranchise the people of Scotland and would mislead them. In accordance with the appropriate procedure, that complaint was passed to the Director General of the respondents. He responded to it by letter dated 29 March 2010 (6/13) in which he rejected it and gave reasons for doing so. In particular, he stated (at p.4-5):

"For the reasons set out in Ric Bailey's letter of March 2^nd, I consider that the BBC can properly broadcast Prime Ministerial debates between the leaders of the three largest UK- wide parties. This is because they are standing sufficient candidates to aspire to win a majority in the House of Commons and have demonstrated levels of past and current electoral support across the UK that are different in scale to other such parties.

Electoral support - in terms of the votes case and the levels of representation in Parliament - is an accepted yardstick for making such judgments, as is the number of candidates standing. The Labour and Conservative parties hold more than 550 Westminster seats between them; the Liberal Democrats hold more than 60 seats and polled in excess of 20 per cent of the vote. All three parties stand candidates throughout the UK.

The SNP currently holds seven seats at Westminster and is standing candidates in less than one tenth of the constituencies of the UK. Plaid Cymru stands fewer candidates and holds three seats at Westminster. In that context, we are confident that our proposals will be judged to be both proportionate and appropriate, as well as being entirely within our editorial discretion."

[18] That letter advised the petitioners of their right to appeal to the BBC Trust if dissatisfied with the Director General's response. The petitioners appealed. On 21 April 2010, the Trust determined (6/15) that the appeal was not well founded and rejected it. In particular, it was satisfied that the Director General had not erred in law or misunderstood or misapplied the relevant guidance nor had he taken a decision which was inconsistent with the respondents' obligation of impartiality. The Trust's decision was intimated to the petitioners on 22 April.

[19] Meanwhile, the first debate had taken place. It was produced by Sky and broadcast on the evening of 15 April 2010. It covered the first group of the debate themes which were, put broadly, domestic affairs. The second debate, the ITV debate, took place on the evening of 22 April 2010. It covered the second group of debate themes which involved international affairs.

[20] The leaders of the Labour, Conservative and Liberal Democrat parties were the participants in those debates. The petitioners aver:

"The impact of the previous two debates on the media coverage of the General Election campaign as a whole, has been demonstrably the single largest factor in the current UK General Election campaign in terms of impact on the media profile , approval ratings of party leaders and overall voting intention ..."(article 13) and

"The inclusion of the leader of the Liberal Democrats in the previous two debates has greatly increased the coverage of that party in the media....." (article 14) and

"The inclusion of the leader of the Liberal Democrats in the previous two debates has greatly improved the fortunes of that party in the opinion polls..." (article 15).

[21] In oral submissions, Mr Bovey QC, for the petitioners, explained that they became aware after the first debate of the favourable effect of the debate on the Liberal Democrats; that was evidently a matter of concern.

[22] The third debate, the respondents' debate, is due to take place on the evening of 29 April 2010. It is due to cover the third group of debate themes and involves the consideration of economic affairs. It is due to be broadcast by Sky simultaneously. It will also be broadcast on radio. It will be accessible online i.e. via the internet. The petitioners seek to stop it going ahead other than on the conditions set out in their motion, namely that it "features" "on equal terms" with the three leaders who participated in the first two debates, "a representative of the petitioners."

Coverage for the Petitioners

[23] The respondents' plans for broadcasting on the same channel as the third debate include there being an announcement by the moderator of the debate, about halfway through, that there will be an "opt out" available during the 10 o'clock news, to see and hear an interview with a representative of the petitioners. They include that the second petitioner has been invited onto the panel of the BBC1 programme "Question Time" which will be broadcast after the 10 o'clock news, that is, starting less than an hour after the close of the debate. There will also be contributions to allow coverage of the petitioners on other channels such as the BBC2 "Newsnight" programme, where 15 minutes will be available to the petitioners. Further, the respondents have arranged for a Scottish leaders debate to take place on BBC 1 on Sunday 2 May at 9pm.

Broadcasting in Scotland/England and Wales

[24] I was advised by Mr Moynihan QC, who appeared for the respondents, that it was not, as a matter of practicality, possible to prevent all broadcasting of the programme in Scotland unless the programme was cancelled or certain transmitters situated in the Borders , the North of England and Northern Ireland , were 'switched off'. He made reference in particular to the Caldbeck, Chatton, and Limavady transmitters. Although Freeview and Cable services could be split so as to separate Scotland, there would be overspill transmission.

[25] As to satellite television, viewers in Scotland have access to the 900 series of channels via which they can access the English variants of BBC programmes.

As to radio, there could be a seepage problem from the Droitwich transmitter in respect of longwave transmission.

[26] It would not be able to go ahead in England and Wales without resulting in some broadcasting in Scotland. Some Scottish viewers received television from transmitters in the north of England, the Borders of Scotland had now transferred to a digital service from which Scotland could not be split off, radio broadcasts could not be split, and Sky could not split its broadcasting so as to cut out Scotland. The programme would also still be able to be accessed online if it went ahead because although a process called geoblocking was possible, that would not be able to be effected in the time available..

Submissions for the Petitioner

[27] Mr Bovey made five submissions:

1. the exclusion of the petitioners' representative from the debates was inherently unfair. As to the identity of that representative, he said that the second petitioner was their "preferred representative" but they would "accept" another person who would (unlike the second petitioner) be a candidate in the General Election, if necessary. In support of this submission he relied particularly on the novelty of the election debates. Their nature was such, he said, that no compensation could possibly be effective.

2. the criteria used to justify the exclusion of the petitioners were unreasonable and unnecessarily discriminatory. He submitted that the criteria failed to take account of the nature of devolution and that the criteria had been designed so as to exclude parties such as the petitioners.

3. the exclusion of the petitioners conflicted with the respondents' own election guidance. Here, Mr Bovey referred to the petitioners having distinct policies; with reference to the third debate he submitted that they had their own economic policies as referred to in the second petitioner's letter of 4 February. No reasonable programmer could have thought, he said, that there was compliance with the statement in the respondents' General Election Guidance that where they have distinctive policies, the petitioners are to be given appropriate levels of coverage. As he went through various passages from the respondents' documentation, his approach was, it seemed to interpret the duty of impartiality as requiring the petitioners to be given equality of coverage with the three parties represented at the first two debates. He laid emphasis on the obligation relating to longer form programmes contained in paragraph 3.1 of the Election Guidelines (6/4) and the import of his submission appeared to be that that meant that unless the respondents allowed the petitioners to participate with those three parties' leaders at the forthcoming debate, the respondents would be in breach of that guideline.

4. the respondents' assessment of what he referred to as "compensatory material", by which I understood him to be referring to the actual and planned coverage of the petitioners by the respondents was flawed. There needed, he said, to be balanced coverage on each channel and it was not right to take account of what was going to be available other than on BBC 1.

5. the balancing coverage was, in any event, inadequate. This was, in particular, a reference to the proposed debate amongst the four Scottish leaders. It would be limited in its balancing effect because of the presence of the other three parties.

[28] Under balance of convenience, Mr Bovey focused on the issue of delay, in response to questioning and anticipating, no doubt, a challenge in that regard. The petitioners' position was that it was not until after the first debate that they had evidence of its impact and they had to exhaust their avenue of appeal with the respondents prior to raising the petition. It was also, however, apparent that the petitioners had become more concerned about their position after the first debate took place and its impact appeared to be so positive for other political parties. He also made submissions to the effect that practical blockage of transmission to Scotland was possible. The petitioners would take no issue with any seepage from Droitwich and "switching off" transmissions would not result in black screens. It was not known how many English and Northern Irish residents would be affected. As to Sky, his position was that the respondents should refrain from supplying the broadcast feed. He did not accept that they might be in breach of contract by doing so which was surprising given the implication from the press release of 21 December that the television broadcasters had reached agreement between themselves inter alia about feeding the broadcasts to each other. Mr Bovey submitted that in the case of Houston v BBC the court had pronounced interim interdict notwithstanding the fact that there would have been overspill broadcasting outwith the jurisdiction.

[29] As to the relevant law, Mr Bovey referred to Cream Holdings Ltd & Ors v Banerjee and another [2005] 1 AC 253 for the appropriate test which was, he said, a flexible one and may, according to circumstances, not require to be as high as that of probable ultimate success. He also referred to Article 10 ECHR and to Castello v Spain a judgment of the ECJ (Chamber) dated 23 April 1992 to stress the importance of the respondents as a public service broadcaster, fulfilling their duty of impartiality.

Submissions for the Respondents

[30] Mr Moynihan QC made two principal submissions in response. The first was that the petitioners' approach to impartiality was erroneous; it was a matter of what was proportionate and appropriate not a matter of affording equality of coverage. The respondents' approach was proportionate and was constantly monitored by them. He referred to certain obiter dicta of Lord Ross in the case of Wilson v IBA 1979 SC 351.

[31] The second submission was that their submissions did not relevantly support an attack on the decision of 21 December 2009; the petition did not seek to impugn the decision of the Director General of 29 March 2010 nor did it seek to attack the Trust's decision on appeal.

[32] Separately, Mr Moynihan referred to other factors which made it inappropriate to grant the discretionary remedy sought. To do so would not be a wise exercise of discretion: Kelson School Board v Hunter (1874) 2R 228. The ambit of the interdict sought was not at all clear: Murdoch v Murdoch (1973) SLT (N) 13. There were practical problems as to broadcasting, to which I have referred above, which were liable to mean that the debate would not be able to go ahead in England and Wales. There had been significant delay by the petitioners which was highly relevant. The result of any interdict would be to stop the third part of a three part process to take place, something which he likened to leaving matters so that two rounds of a boxing match had taken place but the spectators were prevented from viewing the third round. To grant interdict would not accord with the promotion of good administration: King v East Ayrshire Council 1998 SC 182. Then, so far as Article 10 ECHR was concerned, it was important to bear in mind the pre-eminent constitutional importance of that right, the pre-eminent importance of the ability to impart information, as discussed in Cassells and that section 12(1) of the Human Rights Act applied.

[33] In all the circumstances, the motion for interim interdict should, he submitted, be refused.

Discussion and Decision

[34] Put shortly, the petitioners' case is that unless they are allowed to participate in the third debate that is due to take place tomorrow, the respondents will be failing in their duty of impartiality. Only if they are given the same voice in that debate as the three parties whose leaders participated in the first two debates will the requisite impartiality be achieved. Furthermore, according to their argument, in refusing them such a voice, the respondents are failing to follow their own guidelines as to impartiality at elections.

[35] It is not for appropriate for me, at this stage, to reach a final view on this matter. I do, however, require to form a view as to the prospects of the petitioners' argument succeeding. I do not consider it likely that it will succeed. Mr Moynihan's criticism of the petitioners' approach to the concept of impartiality in this context seems justified. It cannot be a simple matter of giving each and every political party equal coverage. Nor can it be a simple matter of taking one point in time during the election period and examining the coverage on a single channel at that stage. The respondents do not approach matters on that basis; the petitioners, essentially, and insofar as the petitioners approached matters on the basis that they do, but I cannot accept that that is correct. The respondents y explain in their guidance documentation what their approach is, taking account of apparently relevant matters which appear properly relevant such as prior electoral support, all subject to overriding considerations of what is proportional and appropriate over the relevant period , thus leaving themselves with what, on the face of it, seems to be a sensible measure of discretion. Different considerations may well arise when it comes to what amounts to appropriate coverage in a referendum, as was discussed in the case of Wilson. It is, however, also of note that Lord Ross, as he then was, referred with approval to a system of allocating broadcast time similar to that used by the respondents, in Wilson, at p.359:

"They aver that the allocation of party political broadcasts is reached based in principle upon the votes cast for each political party in the last General Election. That may be all right when voting in Parliamentary and local government elections is concerned...".

[36] Those comments were, I recognise, obiter but they nonetheless, for present purposes, carry weight.

[37] The question that then arises is whether, on the available information, there is a prima facie case that the respondents have failed to have regard to their own guidance and determined on coverage that is not proportionate or appropriate bearing in mind their duty of impartiality. I cannot conclude that such a case is made out. The information before me shows that Tthey have planned coverage of the petitioners' campaign , in particular , at the present time, which appears to be of some substance and cannot be said to be lacking in impartiality.

[38] Turning then to the question of whether it would be appropriate to grant the discretionary remedy sought, it is important to bear in mind that this this a petition for judicial review. The petitioners are not, in this process, entitled to interim interdict as of right; nor indeed, even if they can ultimately show that the decision of 21 December 2009 was flawed, will they necessarily be entitled to have it reduced, the jurisdiction to reduce administrative decisions being inherently discretionary: London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL)1. It is relevant to consider whether they have delayed in seeking this remedy: King v East Ayrshire Council. It is relevant to consider whether or not it would promote good administration to grant the order that they seek at this stage.

[39] As to delay, as the above background narrative demonstrates, the petitioners were not only aware of the decision of 21 December within some 24 hours of it being made but by 4 February, they had formed and articulated their view that the respondents would, in following the proposed debate schedule, be in breach of their duty of impartiality. That is a charge which is repeated by the petitioners in the ensuing correspondence and complaint and which is supported by quite detailed argument. I am not persuaded by the petitioners' response to being criticised for having delayed. That response was to the effect that it was only when they had evidence of the damage done by the first debate that they could take action and prior to that they could only speculate. That, however, ignores that it is of the essence of most applications for interim interdict that they are sought in advance of damage, on the basis of some speculation that damage will occur if interdict is not granted. The reality may well be that the petitioners have been taken by surprise by the nature of the apparent impact of the debates thus far but that is beside the point. Their complaint, which is one of partiality, has been their complaint all along since they first became aware of the decision last December. Nor do I accept that the utilisation of the respondents' appeal process is of any relevance where the decision which the petitioners seek to bring under review in this petition is not the one which was made the subject of appeal. The petition seeks reduction of the decision of 21 December. It was not made subject to any appeal process. There is no satisfactory explanation advanced as to why the petitioners did not take action prior to the first debate.

[40] Delay is particularly significant in this case because whether one compares the debates to three rounds of a boxing competition, a three course meal, a play in three acts or any similar convenient analogy, the planned event that is the series leadership election debates is now two thirds of the way through and has, thus far, taken place according to plan. The order that the petitioners seek would, whatever happens, result in wholesale disruption of that plan. It would deprive the public, possibly the whole of the UK public, who are anticipating being able to complete their viewing and consideration of the whole series of debates tomorrow, of the opportunity to do so. It would, on the face of matters, leave them with an incomplete picture. That would hardly accord with proper, well ordered administration.

[41] I turn then to section 12(1) and (3) of the Human Rights Act. It provides:

"(1) This section applies if a court is considering whether to grant any relief which , if granted , might affect the exercise of the Convention right to freedom of expression.

.............................

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed."

[42] I am readily satisfied that if I grant interim interdict that "might" affect the exercise of the important right to freedom of expression. I did not understand Mr Bovey to suggest otherwise. Further, as will be evident from the above discussion, I am not satisfied that the petitioners are likely to be ultimately successful in establishing that the broadcast of the third debate ought not to be allowed on the impartiality grounds advanced in their petition.

[43] I turn finally to the terms of the order sought. As is often said, it is not appropriate to grant interdict unless the terms of the order are so precise and clear that the person interdicted "is left in no doubt what he is forbidden to do." (Murdoch p.13). The order sought seeks to restrict the broadcast to one which "features" a "representative" of the petitioners "on equal terms" with the three party leaders who are due to appear at the debate. None of those expressions are further explained and all give rise to serious doubt as to what is envisaged. Does the "representative" require to be a Westminster MP? Does that person require to be a candidate in the election? Is it envisaged that the debate will be a four way debate or will some other "featuring" of that representative suffice? What is meant by "equal terms"? Who is to be the judge of that? Does this place a new burden on the moderator of the debate? In short, it seems to me that the order sought lacks the requisite precision and clarity and would leave the respondents in real and reasonable doubt as to what they could or could not do if they went ahead with the debate.

[44] In all these circumstances, I am not satisfied that it is appropriate to grant the order sought and I will pronounce an interlocutor refusing the petitioners' motion.