Last month, ITV scheduled a leaders’ debate between Boris Johnson and Jeremy Corbyn to take place on 19 November 2019 which excluded the leaders of all the other UK political parties. The Scottish National Party and the Liberal Democrats complained about this and sought judicial review of ITV’s decision.

The High Court held, on 18 November 2019, that ITV was not exercising a public function and therefore its decision was not one that could be the subject of judicial review.

It held that the proper recourse for any dissatisfaction with the line-up was a complaint to OFCOM via the statutory Broadcasting Code (“the Code”).

Further, it held that even it had had jurisdiction in this matter, it would have found that ITV’s decision was a matter for the editorial judgment of ITV, and that that judgment was not in breach of the Code, particularly considering future planned programmes. ITV had not considered irrelevant or immaterial factors or failed to take into account relevant or material factors, and the decision could not be regarded as irrational or perverse.

So, the debate went ahead as planned.

But where does that leave smaller parties, and members of the viewing public who feel that neither of the two main parties represents them?

Complaints to OFCOM via the Broadcasting Code?

By definition, a complaint to OFCOM does not enable changes to be made to programmes before they are broadcast: it provides a route for complaints to be made after broadcast, so this is an inherently less satisfactory remedy.

Secondly, the High Court has in this case headed this route off at the pass. It has already decided that ITV’s editorial judgment was not in breach of the Code, and it has specifically highlighted ‘subsequent planned interviews, further debate and other programmes, which are properly to be regarded as a series of ‘linked’ programmes’, the relevance of which is explained below, so any such complaint to OFCOM would seem doomed to failure.

What does the Code say?

Two sections of the Code are particularly relevant: sections 5 and 6.

The Principles set out in section 5 of the Code require broadcasters:

  • ‘To ensure that news, in whatever form, is reported with due accuracy and presented with due impartiality’ and
  • ‘To ensure that the special impartiality requirements of the Act are complied with.’ (This refers to the Communications Act 2003 (as amended).)

Special impartiality requirements

The special impartiality requirements are set out at section 320 of the Communications Act 2003 (as amended), and the relevant requirement for present purposes is:

(1)(b): the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters [mentioned in subsection (2)];

(2): Those matters are— (a) matters of political or industrial controversy; and (b) matters relating to current public policy.

(4) For the purposes of this section— (a) the requirement specified in subsection (1)(b) is one that (subject to any rules under subsection (5)) may be satisfied by being satisfied in relation to a series of programmes taken as a whole;

(5) OFCOM’s standards code shall contain provision setting out the rules to be observed in connection with the following matters— (a) the application of the requirement specified in subsection (1)(b); (b) the determination of what, in relation to that requirement, constitutes a series of programmes for the purposes of subsection (4)(a);

…’

OFCOM’s Broadcasting Code

The Code explains at the beginning of section 5 the meaning of ‘due impartiality’, and highlights that it does not require that an equal division of time be given to every view, or that every view be represented.

Section 5 goes on to reflect the statutory provisions quoted above, and provides some additional clarification.

‘Series of programmes taken as a whole’

The meaning of ‘series of programmes taken as a whole’ is explained after rule 5.5 of the Code as:

more than one programme in the same service, editorially linked, dealing with the same or related issues within an appropriate period and aimed at a like audience. A series can include, for example, a strand, or two programmes (such as a drama and a debate about the drama) or a ‘cluster’ or ‘season’ of programmes on the same subject.

It continues at rule 5.6:

The broadcast of editorially linked programmes dealing with the same subject matter (as part of a series in which the broadcaster aims to achieve due impartiality) should normally be made clear to the audience on air.

General elections

Section 6 of the Code deals specifically with elections and referenda and its Principle requires broadcasters: ‘To ensure that the special impartiality requirements in the Communications Act 2003 and other legislation relating to broadcasting on elections and referendums, are applied at the time of elections and referendums.’

Rule 6.2 provides: ‘Due weight must be given to the coverage of parties and independent candidates during the election period. In determining the appropriate level of coverage to be given to parties and independent candidates broadcasters must take into account evidence of past electoral support and/or current support. Broadcasters must also consider giving appropriate coverage to parties and independent candidates with significant views and perspectives.’

So ‘due weight’ must be given to the coverage of parties, and broadcasters must take into account electoral support. This is not the clearest of requirements, and helpfully the OFCOM Guidance provides some clarification:

1.16 There is no obligation on broadcasters to transmit leaders’ or candidates’ debates. The editorial format for such debates (i.e. the manner in which a broadcaster presents a programme to the audience) is a matter for the broadcaster, and as appropriate, the relevant political parties as long as the broadcaster complies with the Code. …

1.18 UK-based election programming (for example, UK leadership debates) can focus on those parties that have a realistic prospect of forming the UK Government following the election in question. However, in line with Rule 6.2, broadcasters must ensure that appropriate coverage is given (in the same programming, or in linked programming, as appropriate) to other parties, if evidence of past electoral support and/or current support means it is appropriate to do so.

1.19 It is an editorial decision for the broadcaster as to what constitutes “appropriate coverage” in relation to Rule 6.2.

1.20 The concept of giving “due weight”, as required by Rule 6.2, is flexible. Its application depends on the electoral context.

Application to the ITV debate

Pulling these threads together, leadership debates can ‘focus on parties that have a realistic prospect of forming the [next UK government]’, taking into account evidence of past / current support, as long as ‘appropriate coverage’ is given to other parties, in the same or ‘linked’ programming. The fact that programmes are linked should normally be made clear to the audience on air. Broadcasters only need consider giving appropriate coverage to parties ‘with significant views and perspectives’.

So, as the Liberal Democrats are unlikely to form the next UK Government other than as part of a coalition, and the SNP cannot do so, it appears to be lawful for broadcasters not to focus on these parties in the debates, as long as they are given ‘appropriate coverage’ in the same programme or one that is made clear to audiences on air as being linked.

Did ITV make it clear to the audience on air that the ‘head-to-head’ Leaders’ Debate, scheduled at 8pm, was editorially linked to the Election Interviews scheduled at 10pm? In her introduction to the Leaders’ Debate, Julie Etchingham did say a sentence telling viewers that ‘other party leaders’ were to be interviewed on ITV after this debate.

Was that sufficient to link the programmes? Off-air, the ITV website referred to the 10pm interviews following the 8pm debate. To some, it would appear that the two programmes were of an entirely different calibre. The leaders’ debate was a ‘debate’, lavished with considerable advertising and build-up in the manner of a boxing match, broadcast at prime time, and the subject of considerable online chatter and response both during and immediately after the programme. Contrast the election interviews, which were ‘interviews’, the subject of far less advertising, broadcast at a much later time slot, and obscured by the aforementioned post-debate chatter. While the viewing figures for the latter are easily obtainable (6.7m according to the BBC – less than the viewing figures for the seven-way 2015 election debate), no viewing figures are readily obtainable for the 10pm interviews, which may be telling in itself.

Discrimination law

For completeness, a word on discrimination law. The Equality Act 2010 does not assist in this case for two main reasons.

Firstly, it only assists you if you are at work, in education, a consumer, using public services, buying or renting property, or a member or guest of a private club or association. On the basis that ITV is a commercial network, and the High Court has already found that it does not exercise a public function, it is difficult to see how it might help the Lib Dems and the SNP.

Secondly, the Act prohibits discrimination due to philosophical beliefs, but following the EAT’s guidance in Grainger Plc v Nicholson in 2009, ‘support of a political party’ does not constitute a ‘philosophical belief’ under the Act, although a belief in a political philosophy or doctrine could qualify.

In conclusion, it is an uphill battle indeed facing the smaller parties. One might argue that the requirement to take into account their past / current electoral support creates a vicious circle designed to benefit the two biggest parties: the smaller parties need the media coverage to increase their support, but their participation in TV debates continues to be at the mercy of the apparently very wide discretion of the broadcasters’ editorial decisions.