TV Coup

At (almost) the end of an election campaign dominated by media interests and distortion, we asked Doug to examine the legal case against the SNP.

So the SNP failed to get an interim interdict to stop the the third debate. What happened and why did the interdict fail?

Firstly a bit of background. I’m not involved in the legal profession at all and if some lawyer comes in and tells me where I’m wrong or hopefully tells me where I’m right in my opinions that would be useful. However I’m not bad at looking at a report and digging out what I consider as the important points so here goes.

Thea BBC come under the OFCOM guidelines for some areas of broadcasting but not for the areas concerning impartiality and elections and referendums. In these areas the BBC have their own guidelines instead of the OFCOM ones. So the case was about whether or not the BBC are currently sticking to their own guidelines in the election and not how the BBC match up against the OFCOM guidelines. The SNP want a judicial review on the BBC decision to exclude the SNP from the debates and this particular case was to get an interdict to stop the third debate unless the SNP were represented on the platform as the BBC’s coverage was not impartial. This interim interdict was linked to the judicial review.

This is an analysis of the Judge’s written opinion and that opinion was written from her viewpoint. The others in the case may have different ideas on what happened in court.

I’m not going to go through the whole opinion line by line and if you want to do that you’ll get a full copy of the report here. What I’m going to do is have a look at the last part of the document, the, “Discussion and Decision”, which  comprises paragraphs [34] – [44] but if I refer back to an earlier part of the opinion I’ll give you the paragraph number which is relevant as the whole opinion is numbered by paragraph.

The heart of the attempt to get an interdict was that the SNP believed that the BBC coverage of the SNP in Scotland was not impartial and that the third debate would damage the SNP’s electoral chances unless the SNP had parity of coverage in Scotland with the other three main parties in Scotland. What the SNP had to do was to convince the Judge that the BBC were partial in their choice of political parties to go on that debating podium and unless the BBC also put the SNP on the platform for that third debate then the debate in Scotland should be switched off.

In court the SNP quoted the BBC’s own guidelines claiming that the BBC and broken these guidelines and the BBC reply was that they had followed their own guidelines to the letter.

Here’s a breakdown of the  Judge’s opinion with the relevant paragraph numbers (Judges’ comments italicised):

Para [35]
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.

What Judge Lady Smith says here is that she has to have an opinion on the SNP’s likely success at the judicial review because that has an impact on whether she will grant an interim interdict or not and she thinks that they won’t succeed. Mr. Moynihan is representing the BBC.

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.

There is no recognition here of the SNP’s status within Scotland as the fourth main party and, “Each and every political party”, firmly relegates the SNP to minority party status. The point about, ” 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”, is a reference to the leaders’ debates and in her view the SNP cannot expect to appear alongside the other three big parties in Scotland by right.

The respondents do not approach matters on that basis; the petitioners, essentially, approached matters on the basis that they do, but I cannot accept that that is correct. The respondents explain in their guidance documentation what their approach is, taking account of 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.

In the opinion of the Judge the BBC don’t have to give every party equal coverage and they don’t have to make sure that each party gets a representative on a programme where others are represented. Taking prior electoral support into account all they have to do is ensure that coverage is proportionate over a period of time. So what’s missing from this opinion? Two very important issues. Is the electoral support mentioned taken on a UK basis or on a Scottish one and the fact that there is no reference to the quality of representation in the media.

Para [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 they have planned coverage of the petitioners’ campaign , in particular , at the present time, which appears to be of substance and cannot be said to be lacking in impartiality.

This is the killer paragraph. It strikes at the heart of the SNP case for an interim interdict to stop the debate without SNP representation and makes the following paragraphs fairly superfluous. The Judge considers that the BBC’s coverage of the SNP is impartial despite leaving the SNP off the debate. This is a Judge’s opinion but it doesn’t make it correct, it simply means that the Judge has followed the establishment line on the coverage of the SNP in the media.

Para [38]
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.

The Judge considers the delay in bringing the action for an interdict relevant and it’s also relevant that the Court promotes good administration. Some lawyer will have to tell me how significant the latter part of that sentence is.

Para [39]
This is quite a striking opinion about when an interim interdict should be applied for and it follows on into the next paragraph. I’ll go through it bit by bit.

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.

The SNP knew of the debate decision by the 21st of December and there is evidence that they believed it would not be impartial by the 4th of February.

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.

She believes that the criticism that the SNP delayed in bringing an action for an interim interdict is justified even if they didn’t know then how damaging the debates would be before the start of the debates. The Judge regards the debates as a package not as individual debates.

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.

An interim interdict should be sought before damage occurs not after it. However this interdict is for the third BBC debate which at this point hadn’t happened and whose damage is yet to occur. It is not entirely clear to me what point the Judge is making apart from the fact she again considers the delay in applying for an interim interdict relevant.

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.

The Judge says that the SNP want a judical review of the 21st December decision. The appeal to the BBC Trust was not about the 21st of December decision but about the Director General’s response on the 29th of March. (para [17]). So waiting for a response from the BBC trust before going for an interim interdict based on the 21st December decision was not relevant to the case the SNP present even though the response of the Director General was directly linked to the original complaint about the BBC’s decision to exclude the SNP from the debates.

The Judge is of the opinion that the SNP should have gone for an interim interdict as soon as possible after the 21st of December. My assumption has always been that the courts should be used as a last resort but I appear to be wrong in that belief. In this case the Judge is of the opinion that an interim interdict should have been used as a first resort and then the SNP should have negotiated from a position where they had already switched the debates off. It’s one of the few places where I agree with the Judge’s opinion.

Para [40]
Again an interesting paragraph. The Judge again looks at the debates as a series or package not as individual debates which can be considered separately or interdicted separately.

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.

Since two of the debates have taken place then an interim interdict would disrupt the smooth running of that event.

<i>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.</i>

The whole point of the SNP case was that the Scottish public was being presented with an, “incomplete picture”, but since the Judge has already dismissed that idea in para [37] above then it’s an, “incomplete picture”, of the other three main parties in Scotland she’s worried about.

That would hardly accord with proper, well ordered administration.

The reference to administration again. Anyone legal out there?

Para [42]
The judge is concerned that blocking the debate, “might”, affect the other parties right to free expression and she doesn’t think the SNP will win the judicial review anyway.

Para [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?
s 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.

“Equal terms” and “representative” seem fairly clear to me but then again I’m not a judge. The repetitive questioning in the paragraph has got the distinct flavour of someone looking for objections.

Going back in the opinion, paragraph [37] is the sucker punch, the opinion that kicks the feet away from under the SNP’s case while the rest of the paragraphs are pretty much of the form:
…and you got this wrong as well,
…and you got this wrong as well,
…and you got this wrong as well,
in order to justify the original decision in para [37].

If you put it in more bloody terms, paragraph [37] is the head shot and the delay in trying to get an interdict and the precision of the interdict are just additional wounds.

So why does the Judge think that the BBC are impartial when a large chunk of Scotland are enraged about the way the BBC are biased against the SNP in terms of their media coverage? It’s all down to context. If you took the Judge’s opinion and changed the Scottish legal terms to English legal terms the opinion could have been written by a Judge in the English legal system. There is no Scottish context to the Judge’s, “Discussion and Decision”, at all and no reference to the SNP’s status as an equal to the three other main parties in Scotland.

I believe that the BBC have not been impartial because I look at this election in a Scottish context. The SNP are a major party in Scotland but the BBC and other broadcasters treat them as an extra, a supernumerary to the, “main”, parties in Scotland and they discriminate against them by separating them out from the three parties on the main debates by putting them on other programs at different times and by relegating them to, “regional”, debates. These regional debates can’t make up for the lost airtime on the main debates because they contain the other three parties as well. There is also the, “quality”, of the airtime to consider. If the SNP got two hours every night between 02:00 and 04:00 in the morning it still would not match a 20 minute appearance on the main debates for electoral impact. There are also all the prime time news items and programmes which analyze the debates after the event and also give the three parties represented additional quality airtime

What has happened is that this Judge has looked at the BBC’s impartiality guidelines in the context of a British election and in the context of Britain. In British terms the SNP are a regional party as are Plaid Cymru and there is no need to treat them as equal to the Tories, Labour or the Lib-Dems when allocating airtime for UK broadcasts as far as the Establishment are concerned. The time and the quality of the airtime the BBC give to the SNP are regarded by the Judge as quite adequate. It is a symptom of the Britain is England is Britain outlook where Scotland is not an English partner but an English region and the SNP are regarded as a regional British party.

There is an example where there was an interdict to stop a political broadcast in Scotland which is not mentioned in the Judge’s opinion. That was where the Lib-Dems and Labour stopped a broadcast by John Major in 1995. However that was for the Scottish local elections where there was a distinct Scottish context and a distinct Scottish boundary to the election. How that precedent would apply to a British General Election where the Scottish context and boundary within the election would be much less defined in British terms is not known. There are also the Question Time debates in 2005 where the SNP and PC were given parity of coverage as the party leaders were given individual slots instead of being on the podium at the same time but that was not mentioned in the opinion either. Again the BBC would simply argue that they were giving the SNP proper coverage in other ways. Going back to para [37] the Judge believed the BBC were impartial in any case.

The mistake people make is to assume that because they regard Scotland and England as distinct entities within the UK with a distinct Scottish context to the election that the Scottish legal system will also regard the SNP’s case and the BBC guidelines in the context of Scotland. In my opinion this was a British Establishment figure, (the Judge), looking at the political guidelines of a British Institution, (the BBC), in the context of a British Election not in the context of a distinct Scottish Election.

It’s no surprise that the BBC were found to be impartial. Despite the fact that there are some within the Scottish legal system who support the SNP it is a mistake to regard the Scottish legal system as entirely separate from the British Establishment or as an institution which regards Scotland as a nation.

There is an old saying, “Like it or lump it”. In terms of the media’s treatment of Scotland you can like it or vote SNP because if you don’t like it there is no other way to change things.