How should the BBC be regulated?

James Cowling
5 February 2004

It took slightly longer than 45 minutes.

By the time Lord Hutton had finished reading his report last Wednesday, it was clear that the BBC (or the Beeb, as it is known) had come out of the Hutton “whitewash” with some serious stains.

British press reaction was mixed: according to the best selling British newspaper (pro-war) The Sun, the BBC was clearly at fault for everything (ever), whilst support for the Corporation came from some surprising sources, including even the hitherto anti-all-things-Beeb The Daily Mail. Within hours the Corporation’s chairman, Gavyn Davies, had resigned and director-general Greg Dyke walked to the end of the plank only to be pushed the next morning. Last to go was Andrew Gilligan. It was Gilligan’s ‘unfounded’ report and scoop-hunting journalism on the BBC Radio 4 Today programme, and the BBC’s reaction to the complaints it triggered, that lay at the heart of Lord Hutton’s critique.

What’s wrong with the BBC?

Despite disagreement around the justifications for Hutton’s conclusions, most commentators identified the crucial issue for the BBC as a question of governance rather than simply a single journalist in his pyjamas (Gilligan delivered his report unscripted, live to air, from his bedroom). Something has to change. Exactly what was less clear.

David Elstein’s perceptive survey of the events of last week identifies two key problems. The first is the BBC’s system of self-regulation that leads to ‘arrogance and dismissiveness’ in responding to complaints.

The second problem is the ‘sheer size and dominance of the BBC that have helped make the BBC a target rather than a bulwark’. This is what Richard Collins has described as the Goldilocks problem – how do we know how much BBC is enough?

David Elstein seems to suggest that it was the BBC’s size and dominance, rather than its reputation for impartiality, accuracy and high levels of public trust, which led the government to complain to the BBC rather than the Mail on Sunday. It may be combination of both. It is yet to be proven whether the self-regulatory newspapers are any less arrogant and dismissive than the BBC when dealing with complaints.

David Marquand provides a third critique of the BBC. He argues that the BBC should not employ journalists, ‘scoop-hunters’, like Andrew Gilligan. This is a subtle and more intelligent version of the “dumbing-down” critique. The BBC has long been held to be chasing audiences instead of providing a public service – too much Fame Academy, not enough Farming Today - a process that sped up under Greg Dyke’s leadership, according to former chief regulator Patricia Hodgson. As David Elstein has identified elsewhere, whilst the BBC is funded by a poll tax, it has had to both chase ratings to justify the tax to the public and provide the unpopular public service programming that the tax is supposed to fund.

The bigger and bigger picture

The Hutton report has thrown into sharp relief long-term debates around the future of the BBC. Technological advance has presented a fundamental challenge to the ethic of public service broadcasting. The increase in available television channels has enabled the market to provide more choice for viewers, thus increasing competition for eyeballs.

Crucially, when viewers are given more choice, they turn off the traditional public service programmes and choose more stimulating fare. Damian Tambini’s analysis in a recent ippr publication has shown that in the UK and more mature multi-channel markets such as Germany, when given the choice between arts, religious and regional content and films, sport and entertainment, viewers choose Friends not My Favourite Hymns. It is getting harder than ever before for public service broadcasters to make the good popular and the popular good.

The wrong answer

But what do these issues mean for the governance of the BBC?

Many have argued that the BBC should be fully regulated by the new single communications regulator OFCOM. These voices include the former culture, media & sport spokesperson of the Conservative Party John Whittingdale, who appointed David Elstein to chair the Conservative Party’s independent charter review panel. The panel’s report has been much delayed. It was due to be published in December 2003, and already has been dogged by some controversy. It is yet to be seen whether the BBC’s youngest ever graduate trainee and former candidate for director-general comes back to bite them.

Though this is conceptually neat, the BBC should not be fully regulated by OFCOM for three reasons. Two are purely practical.

First, the Communications Act that sets out OFCOM’s powers was not designed with the BBC in mind. It may be the case that OFCOM’s current powers are sufficient to provide effective regulation of the BBC but the fact remains that the act was not written to achieve this end. If OFCOM was to have regulated the BBC it may be the case that parliament would have framed OFCOM’s powers differently. We cannot know.

Second, OFCOM is a new untested and extremely busy regulator. OFCOM has eleven current consultations, including major pieces of work such as the public service television broadcasting review and the spectrum consultation, with more planned into the future.

There are practical reasons for suggesting that the BBC should not be fully regulated by OFCOM immediately but both these concerns are not insurmountable by charter review in 2006. The final objection is.

Independence in mind

The primary concern of media policy and regulation should be to ensure a plurality and diversity of available voices to the citizen. Broadcast news is the most widely accessed and trusted source of information by citizens. In the past both the BBC Board of Governors and independent regulators have lacked immunity to Government pressure – but usually at different times.

There are of course also many instances when both the BBC and the independent regulator have successfully resisted Government pressure. However, there is the clear danger that if a single regulator were to be unduly influenced by a power centre in society, whether government, business or even a think-tank, this could have a chilling effect on the plurality of voices available to the citizen. Essentially, two regulators are harder to lean on than one. This is not to suggest that OFCOM is any less independent from government than the BBC board of governors, but in this case the precautionary principle rather than neat regulatory solutions should apply.

Instead of bringing the BBC fully under OFCOM, the BBC board of governors need to be able to provide effective, transparent and independent regulation of the BBC. As David Elstein points out, it is clear the current system is anachronistic.

A governance structure that was put in place in the 1920s, when there was only one channel, combined with a powerful belief in the elite's ability to pursue the national interest, is no longer appropriate. In a world of increased competition, a far larger BBC with over forty hours of news output per day, and the principles of good regulation set out by the Better Regulation Task Force, there is a pressing need for reform. The Hutton report has shown the failings of the board of governors acting, in Barry Cox’s memorable phrase, as both the BBC’s champions and regulators.

A way ahead

The board of governors executive and management functions should be separated. The Governors should become the BBC’s regulators, housed outside of the Corporation, given sufficient resources to provide effective regulation and given a general obligation for transparency in dealings with the Corporations management. To ensure the governors’ independence they should be elected from an electoral college drawn from broadcasting societies, the House of Commons and regional advisor boards.

In these circumstances, the board of governors as the BBC’s regulator should be given additional powers similar to the German public service broadcasting regulator the KEF. Constant new services approvals and reviews by government present the possibility of undue governmental interference. Imagine if, for example, News 24 had been under review during the Iraq war. Instead, the regulator should take bids for new services from the Corporation that are announced prior to roll-out and are then assessed according to transparent criteria. The governors should publish public service broadcasting targets in advance, perhaps in terms of innovation, diversity of output and audience appreciation, using the public service television broadcasting review framework, and then assess the Corporation according to these transparent criteria.

Andrew Graham’s defence of public service broadcasting leaves open the question of how much BBC is enough. To answer the Goldilocks question, regular value for money audits should be conducted - once again according to published criteria - and funding decisions should be made more regularly than the current five to ten year cycle to avoid jacuzzis of cash in the future.

Reform of the BBC’s governance alone is not the answer to challenges faced for public service communications or even those outlined above. It is, however, essential.

The author is indebted to his co-editor of From Public Service Broadcasting to Public Service Communications, Damian Tambini and the other contributors to the publication which inform the recommendations and analysis in this article. Any errors and omissions remain the authors own.

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