Wrong battle, wrong time, wrong country

If the broadcasters lose this case, they will have lost the right to decide what is impartial, says Stephen Ward

When the 1992 general election was announced, House Calls, the movie, was about to be shown on the BBC. One of the stars was Glenda Jackson, who was standing as a Labour candidate. The BBC decided to pull the film.

No one complained. It was an innocuous example of how the BBC has often taken the line of least resistance over political impartiality. By making sure there was no fight on the cases it either didn't care much about, or thought it might lose in a big fight, the BBC preserved the carefully nurtured illusion that it, and not the courts, had charge of its own impartiality.

House Calls was a straightforward case where the BBC knew the law. The Representation of the People Act strictly defines that during the period of an election, for three weeks before polling day, the BBC and other broadcasters have to give equal coverage to candidates over constituency matters. It could have tried to argue that this was not a constituency matter, but it wasn't worth the candle. Better safe than sorry. The result has been that until this week, there was a general and probably correct assumption that the BBC could be relied on to police itself, and an equally general and probably wrong assumption that there was no way in law to challenge its role.

The BBC's legal position outside the period of general elections is vaguer. The BBC is a corporation, set up in the 1930s as semi-autonomous from government. While the Independent Broadcasting Authority has a statutory duty to maintain impartiality on the ITV stations, the BBC has nothing similar. Its neutrality is no more solidly enshrined than in a resolution on impartiality appended to its licence granted by the Home Secretary. How this should be interpreted is passed down in guidelines issued from time to time by producers. The impartiality has been understood within the BBC for years to be "probably not enforceable in the courts," but best not tested.

So there was a common understanding of the rules of the game. In the 1980s, when the Conservative Home Secretary Leon Brittan asked the BBC to withdraw a programme he had not even seen, and when Norman Tebbit as Tory chairman laid into the BBC for bias, there was no suggestion of courts and legality. The appeal was to the public's perception of impartiality, with a veiled threat in the background to cut BBC funding. Jonathan Aitken's recent attack on the Today programme's alleged bias, and the supposedly unfair interviewing technique of John Humphrys, were played according to the same rules.

A year ago, Panorama was about to run a programme on the Tory-led Westminster council only 10 days before the local elections in England. It had been pencilled in to the internal BBC schedules, but was passed to senior executives as politically sensitive. The programme was not shown, officially for legal rather than political reasons. Before the 1992 general election, Panorama made a documentary, "Sliding into Slump", tracing the seeds of the recession back to the Conservative policies of the 1980s. It was not screened, again pre-empting any possible legal action.

Last year the BBC was found guilty of bias by the Broadcasting Complaints Commission over a Panorama broadcast which had alleged that single mothers were having babies to leapfrog housing queues. The National Council for One Parent Families had complained, even though the mothers in the programme had not. The BBC itself sought judicial review, and won: the court said the BBC did not have a duty to satisfy every pressure group on every issue.

The current row has still not established case law because it is only the first stage of a process. According to Michael Beloff QC, who represented the BBC in the "Babies on Benefit" case, the BBC, like all quangos, is potentially subject to judicial review of its internal rules. He said: "They have lost a battle here, not the war."

The crucial point for the BBC will come when it argues the case to its conclusion in the courts once the Scottish elections are over.

Under time pressure this week, unable to hear the full arguments on either side, the courts were virtually certain to decide that the "balance of convenience" lay with stopping the broadcast. The BBC will be much more likely to win the next round - with no time pressure, the burden of proof will lie with the other side. But if the courts still rule against the BBC, it may mean that by choosing to fight on the wrong case - in the wrong country, even - the BBC has lost more than a battle. It will have surrendered to the courts the right to decide what is impartial.

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