Law Report: Pressure group unable to make TV complaint

Regina v Broadcasting Complaints Commission, ex parte British Broadcasting Corporation. Queen's Bench Division (Mr Justice Brooke). 22 February 1995.
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The Broadcasting Complaints Commission lacked jurisdiction to consider a complaint brought by the National Council for One Parent Families about a Panorama television programme, "Babies on Benefit", shown on BBC1 on 20 September 1993, and acted beyond its powers in ruling that the programme was "misleading, unjust and unfair" to Britain's 1.3 million single parents, because the council did not have a sufficiently "direct interest" to complain.

Mr Justice Brooke so declared, granting an application by the BBC for judicial review of the commission's adjudication upon the programme.

Michael Beloff QC and Heather Rogers (Jean Strafford) for the BBC; David Pannick QC and Javan Herberg (Gregory Rowcliffe & Milners) for the commission; the council was not represented.

MR JUSTICE BROOKE said the programme provoked a furore when it reported that single women were deliberately getting pregnant to jump housing queues. The council made a formal complaint because it said the programme built up a false picture of lone parents by using misleading or false information. The programme's thesis appeared to be that women got pregnant in expectation of state support and its conclusion that if the benefits were removed the babies would not be born.

The commission upheld seven of the nine individual complaints by the council, concluding the programme hadbeen unfair to lone parents in general. The BBC broadcast an apology but accompanied it with a strong rebuttal, saying no individual featured had complained.

The commission's constitution and functions were set out in Part V of the Broadcasting Act 1990. By section 144(7) it "may refuse to entertain (a) a complaint of unjust or unfair treatment if the person named as the person affected was not himself the subject of the treatment complained of and ... did not have a sufficiently direct interest in the subject matter of that treatment to justify the making of a complaint ..."

Section 150 defined "person affected" as "a participant in the programme in question who was the subject of" the unjust or unfair treatment complained of, "or a person who, whether such a participant or not, had a direct interest in the subject- matter of that treatment".

Since the council was not a programme participant, it could only complain to the commission if it had a "direct interest in the subject matter" of the "unjust or unfair treatment" alleged.

In R v Broadcasting Complaints Commission, ex parte Owen [1985] 1 QB 1153 at 1173, Lord Justice May in considering the similar provisions of the Broadcasting Act 1981 said the type of complaint contemplated by Parliament was of a "personal, limited" and "specified" kind, rather than a more general complaint about the policy of a broadcasting organisation in relation to a programme.

Parliament must be assumed to have intended to comply with international obligations under Article 10 of the European Convention on Human Rights, under which the right to freedom of expression "shall include freedom to hold opinions, or receive and impart inform-ation and ideas without interference by public authority".

An adjudication by the commission represented a form of interference with freedom of expression, and if programme makers concerned with important issues were required to take into account questions of fairness and justice to large amorphous bodies of people they would be forced to play safe and steer clear of any politically sensitive issues.

In his Lordship's judgment, however, there was no evidence that Parliament had intended a national body should have an interest in the treatment of a large number of unnamed individuals whom it purported to represent so as to enable it to bring a complaint before the commission on their behalf.

The commission misdirected itself in law in holding that the council was capable of being a person with a direct interest in those parts of the programmesaid to have treated 1.3 million lone parents unfairly. Its interest was palpably an indirect one.

Paul Magrath, Barrister