Only one broadcast for Referendum Party

LAW REPORT 30 April 1997

Regina v British Broadcasting Corporation and Independent Television Commission, ex parte the Referendum Party; Queen's Bench Divisional Court (Lord Justice Auld and Mr Justice Popplewell) 24 April 1997

The BBC and the ITC, in each allocating the Referendum Party only one five-minute televised party election broadcast in the General Election campaign, had not acted irrationally.

The Queen's Bench Divisional Court dismissed the Referendum Party's application for judicial review of the allocation to it by the British Broadcasting Corporation and the Independent Television Commission of broadcasting time for party election broadcasts.

Each of the broadcasters had allocated to the applicant one such broadcast of five minutes, compared with allocations of five 10-minute broadcasts to the Conservative and Labour parties, and four 10-minute broadcasts to the Liberal Democrats.

Geoffrey Robertson QC and Gavin Millar (Peter Carter-Ruck and Partners) for the applicant; David Pannick QC and Paul Goulding (Head of Litigation Department, BBC) for the BBC; Christopher Clarke QC and Mark Shaw (Allen & Overy) for the ITC; WilliamWood (Goodman Derrick & Co) for the Independent Television Association (interested party).

Lord Justice Auld said that the applicant was a new political party formed in 1994 by Sir James Goldsmith, and publicly launched in October 1996. It had not previously contested an election and thus had no record of previous electoral support.

It had one sitting member of Parliament who had transferred from the Conservative Party shortly before the election was announced. It claimed to have recent opinion poll indications of over 3 per cent of the vote. It was fielding candidates in about 85 per cent of the United Kingdom constituencies, and was said to have a budget of pounds 20m for the campaign.

The applicant had argued that the allocations of broadcasting time by the broadcasters were irrational because they had wrongly included in the criteria for their decisions past electoral support, which a new party could not show, and had failed to take account of the party's electoral size and support, especially the large number of candidates it was fielding in the election.

In the court's view, neither the broadcasters' inclusion of past electoral support as part of their general criteria for allocating party election broadcasts nor their treatment of the lack of it in the present case was irrational.

As the evidence showed, neither broadcaster had treated that lack of past electoral support as a disqualification for the allocation of additional broadcasts to the applicant. It was a criterion which necessarily the applicant could not fulfil and they had had to consider the other factors upon which the applicant relied to show its current and potential strength and entitlement to further allocation.

The broadcasters had taken all those matters into account, no doubt observing that, whilst the party rivalled the three main parties in the number of candidiates, its claimed 3 per cent of committed support was well below the poll indications of any of theirs.

The weight that the broadcasters gave to the various criteria, in particular the significance of the number of candidates as a mark of overall support, was for them. The court should not intervene unless it was of the view that they had been irrational in not giving enough weight to those matters in allocating only one broadcast to the applicant, and it was not of that view.

The BBC had raised the issue of its susceptibility to judical review. There was no English decision on the question. Since, however, the applicant had failed on the irrationality point, it was unnecessary to decide the question of jurisdiction.

Kate O'Hanlon, Barrister