The negotiations for a debate among party leaders in the 2015 general election are currently being reported as a ‘will they, won’t they’ tale. The stakes are high. What happened in 2010 was remarkable. The debates drew a massive audience and for a brief period focused the attention of millions of voters. At a time of media fragmentation, when we worry that people can increasingly filter out views they do not share, this was an impressive achievement.
Of course, many people had worries about this process too. The debates may have focused attention on the style and image of the leader, and crowded out coverage of other campaign activity. The level of debate coverage led some commentators to describe 2010 as a ‘TV election’. The question is whether this will happen in 2015.
The key sticking point in the pre-debate debate is the important question of who to include – in particular whether to invite the Greens or UKIP. The issue here is serious. While the debates are primarily about informing the voters, access to the debates can be seen as a hefty political subsidy. Inclusion in the debates will guarantee the invited party leaders the largest audience during the campaign. This is probably worth more than all a party’s billboard posters combined. The broadcasters have considerable power in organising the debate, so it is important that access is granted on fair terms.
The decision facing the broadcasters is not easy. Elections are no longer about the two biggest parties. The leader of a smaller party may have little chance of getting into Downing Street, but can offer a fresh perspective and help to shape the campaign debate. The presence of the SNP and Plaid Cymru further complicate the broadcasters’ decision, as voters in the different nations face a different choice. The answer to these questions partly depends on the purpose of the debates. However, I want to put such issues to one side and consider the legal framework for such decisions.
Impartiality and broadcast regulations
What can a political party do if it believes that it has been unfairly excluded? There is no right to be included a debate. The matter is ultimately for the broadcaster to decide, based on a combination of factors including past electoral support, opinion poll data and number of candidates fielded. In 2010, this data was considered to decide who had a realistic prospect of becoming the Prime Minister. Yet this method still requires an exercise of judgment from the broadcaster.
In making this decision, the broadcasters have to comply with their duties under broadcasting law, set out in the Ofcom Broadcasting Code and the BBC Editorial Guidelines. At all times, broadcaster must treat matters of political controversy with ‘due impartiality’. Once Parliament is dissolved, the broadcasters are under a further duty to give ‘due weight’ to major parties, while smaller parties must be given ‘appropriate coverage’ (under the Ofcom Code).
Ofcom has published a draft list of ‘major parties’ for consultation. This does not bind the broadcaster in relation to the election debate. Nonetheless, it is likely to be influential, as it relies on similar criteria to that used by broadcasters to decide on participation in the debates. For this reason, the House of Lords Communications Committee heard evidence that the decision on who to include in the debates is likely to mirror the Ofcom list of major parties. If the broadcasters follow the Ofcom list, they are likely to be on safer ground if a complaint is made that the impartiality rules have been breached.
While excluded political parties can challenge any decisions made by the broadcasters, the track record for such complaints is not promising. In the 2010 election, the SNP applied for an interim injunction to stop the leaders’ debate being broadcast in Scotland without the inclusion of their party leader. Lady Smith rejected the application, expressing the view that the debate is just one part of the broadcasters’ coverage, and that the impartiality rules could be met by giving coverage elsewhere in the television schedule ( CSOH 56). Complaints to Ofcom made by the SNP [pdf] and Plaid Cymru [pdf] were rejected on similar grounds.
In her decision, Lady Smith was right to find that impartiality and fair coverage rules ‘cannot be a simple matter of giving each and every political party equal coverage’. As an election comes closer, attention will naturally be focused on the leading contenders. There is no need to give a minor party with little popular support exactly the same attention as a party likely to be in government. The inclusion of a large number of parties could also undermine the quality of the exchanges and make it harder for the audience to draw meaningful comparisons. In deciding whether smaller parties should be included in the debates, one question is to decide the optimum number of speakers in a debate.
There are, of course, dangers in making these decisions. Excluding a particular party could mean that it never has a chance of becoming a ‘major’ player in future. That is why it is important that other parts of the schedule give coverage to a wide range of viewpoints. There is a case for a variety of debate formats, some more than inclusive than others, to help address this issue. My point, however, is that the courts and regulators will normally be reluctant to interfere with the broadcaster’s judgment, except in the more obvious cases.
A matter of free speech
Perhaps a claim could be made that exclusion from the debates infringes the right to freedom of expression. The US Supreme Court rejected such an argument in Arkansas Educational Television Commission v Forbes (1998). There the Court considered whether the exclusion of an independent candidate from a public broadcasters’ congressional election debate, on the grounds that he lacked ‘political viability’, violated the First Amendment. For the majority, the key question was whether the broadcaster’s decision was viewpoint neutral. They found that the ‘political viability’ test did not discriminate against viewpoints and the claim failed. The dissenters accepted that there is no right for a candidate to be invited to a debate, but argued that ‘political viability’ was too vague, and that a state broadcaster had to devise some ‘objective standards’ to decide who to invite.
Would a challenge under the Human Rights Act fare any better (even assuming that the decision-maker is a public authority)? Under Article 10 of ECHR, there is no right of access to the broadcast media. Following the ProLife Alliance case, the test is whether the refusal of access is ‘discriminatory, arbitrary or unreasonable’. In applying this standard the court would ask whether the criteria for selection is ‘truly neutral between different points of view’ or whether the any ‘lack of neutrality can be objectively justified’. So it seems that if the decision is compliant with the impartiality rules, it is unlikely to fall foul of Article 10.
Whether or not the matter is constitutionally mandated, it is certainly a matter of good practice to follow the dissenters’s advice in Forbes by publishing the criteria for inclusion in the debates in advance. Whether or not standards can be sufficiently objective, while preserving the broadcasters’ discretion as to who to invite is a difficult balance. Basing the decision on the on algorithm using election and polling data might limit the broadcasters’ discretion, but criticis argue that it would be a little too mechanistic for what is a question of judgment.
The Empty Chair
Another key question being raised in the pre-debate negotiations is whether the debates could go ahead if one of the major parties refused to take part, or would that put the broadcaster in breach of the impartiality rules. The House of Lords Communication Committee described this as a matter of ‘uncertainty’. However, an analogy with the rules governing the broadcasters’ coverage of constituencies might lead to a more permissive approach.
Under the current rules, if one candidate takes part in an item on television or radio about the relevant constituency, then candidates in that constituency ‘of each of the major parties must be offered the opportunity to take part’ (and there is a similar provision for candidates with evidence of significant electoral support). However, if the candidate from a major party refuses to take part, the broadcast can still go ahead. What is important is that the candidate is given the opportunity to participate. If the approach for constituency coverage is adopted for the debates, then none of the major parties could exercise a veto over the event.
Are other media free from controls?
Could the broadcasting controls be by-passed by hosting an election debate online? That is what the Guardian, Telegraph and YouTube are proposing to do. But it is not clear whether this would be free from regulation. By giving a platform to selected party leaders (and not others), the debate might engage the rules on third party election spending (which can require registration and impose a spending cap). While there is an exemption for newspapers, this applies to material published ‘in a newspaper or periodical’. Whether a debate disseminated via YouTube can be deemed to be ‘in’ a newspaper is doubtful. Even if the video is disseminated via paper’s website, it is currently not clear whether website constitutes a ‘newspaper’ for the purposes of the third party controls.
But all is not lost for such an event. The Electoral Commission provides guidance to those organising hustings and states that if it is not possible to invite every party, then the organisers of the event should ‘be able to give objective reasons’ for not inviting particular parties and should invite those representing ‘a reasonable variety of views’. Much will therefore depend on how demanding the ‘objective reasons’ standard proves to be. Under some interpretations, it may well be that the questions facing the online and broadcast media in organising the debates are not so radically different.
Jacob Rowbottom is a Fellow of University College, Oxford.