Steve Hewlett knows more than most about the BBC which is why I was taken aback recently to read in his Guardian column that the BBC’s Charter ‘by convention cannot be changed without the BBC’s full agreement’
Using the term ‘convention’ in this context implies its constitutional force. The unwritten conventions of the British Constitution, anyway very much a concept cut from whole cloth by 19th century Vinerian professors of English Law at Oxford, are scarcely of a piece with the low political horse trading that has gone on at every BBC Charter renewal since the first in 1936. A BBC veto is a chimera even flimsier than ones Professor Dicey dreamt up for the British constitution in the 1880s. Moreover, ‘cannot’ – a veto -- wouldn’t cover it even if the convention existed (which it doesn’t).
It’s anyway hard to dignify the initial maneuverings of 1922/6 which saw the Broadcasting Company Ltd (as per the Companies Acts from 1863 on), become the British Broadcasting Corporation (as per the royal prerogative from time immemorial) as establishing a ‘convention’ in any sort of forceful fashion. On the contrary. And, on the contrary, the BBC has always struggled to make its Charter renewal case against government – to this day.
I think Hewlett’s use of this term speaks more to wishful thinking than to constitutional realities. It addresses our collective unwillingness to confront the essential constitutional problem of an organ of opinion being so directly sanctioned – indeed, specifically and directly licensed -- by the state. The praying in of a Royal Charter in 1926 was an obfuscation, a subterfuge – just as are more recent attempts to pull off the same trick in connection with the press in 2013
And, make no mistake, for all the amnesia and double-thinking involved, what law exists remains as straightforward on the matter as ever. Never mind a supposed ‘convention’ enabling a BBC veto, the 2006 Copy of Royal Charter for the continuance of the British Broadcasting Corporation makes clear the continued powers of the Culture Secretary (successor in office to the Home Secretary and Post Master General) over the Corporation. She appoints the BBC Trust and pays them. In BROADCASTING: An Agreement Between Her Majesty’s Secretary of State for Culture, Media and Sport and the British Broadcasting Corporation (2006) which fleshes out the practicalities of the Charter, the Secretary of State appears 78 times in 63 pages. Article 33.1, for example, talks about new platforms: Any proposal for the introduction of a new service is subject to a procedural veto by the Secretary of State.
These documents, of course, speak in the voice of Lewis Carroll’s Humpty Dumpty: words mean what HD says they mean and in this case ‘interference’, of course, doesn’t mean interference. Quite. 33.3 goes on:
In considering whether to use her procedural veto, the role of the Secretary of State is a limited one. She is not to concern herself with the substantive merits of the proposal, but only with whether the Trust has reached its decision to introduce the new service following appropriate processes which conform to the requirements of the Charter and this Agreement.
Elsewhere, she is vested with oversight of these same ‘appropriate processes’, the application of which she then further assesses by this clause. The carefulness of this language, prohibiting political messing with ‘substantive’ matters while publicly enforcing control of infrastructural ones, reflects the essential ploy which has allowed for the contradictions of the BBC’s constitutional position from the outset. Veto, conventional or not, has little to do with any of this, either at renewal time or on a day-to-day basis.
This is not to mount any criticism of these arrangements on the grounds that they (at a minimum) shadow the principle of free expression in a democratic society. Of course, they can be justified – but not by exculpating the problems involved. We should stop pretending that there are non-existent conventions in play.
The sharp end of all this is still in these 2006 arrangements where it was 80 years earlier when the Charter and Licence first appeared:
81. Defence and Emergency Arrangements
(1) Any Government Minister—
(a) may request that the BBC broadcast or otherwise distribute any announcement, and
(b) may, if that Minister has requested that the announcement be broadcast or otherwise distributed on television or by means of an online service, request that the BBC accompany that announcement with a visual image (moving or still) of anything mentioned in the announcement.
(2) If it appears to any Government Minister that an emergency has arisen, that Minister may request that the BBC broadcast or otherwise distribute any announcement or other programme.
One may say that it is a species of extreme naivety to expect that the state would not reserve such powers over any and all communication systems in such circumstances. The first Defence of the Realm Act, after all, stated: ‘No person shall by word of mouth or in writing spread reports likely to cause disaffection or alarm among any of His Majesty's forces or among the civilian population’. But the BBC is special. It has its own re-enforcement of the general residual state right of control and censorship and this does matter in the real world. Clause 81 goes on:
(4) The Secretary of State may give the BBC a direction in writing that the BBC must not broadcast or otherwise distribute any matter, or class of matter, specified in the direction, whether at a time or times so specified or at any time.
Such specific constrictions of the BBC’s freedoms are, au fond, why the Hutton Inquiry could put the Chair and the DG of the BBC on the stand while the owner of the Daily Mail and General Trust and the Editor in Chief of the Daily Mail Group, despite running exactly the same material that got the BBC into trouble, do not appear. And would have screamed the place down if it had been suggested that they do.
But it’s more complicated than that, of course. If the Secretary of State writes a gagging order, 81 goes on that:
(5) The BBC may, if it wishes, announce that such a direction has been given, varied or revoked.
However, 81 (5) far from confirming a ‘convention’, in my opinion speaks exactly to how wrong Hewlett – well, let me not single him out – how wrong opinion is around the Charter’s actual guarantee of the BBC’s independence.
81 (5) arises directly from a rare instance of the BBC’s defiance of the state which is known to the public record. In 1972, in the first phase of the Northern Ireland troubles, the then home secretary, Reginald Maudling, had threaten to use his powers under the Charter and Licence to curtail BBC reporting. Lord Hill, one of the BBC’s Board of Governors most effective chairs, called him out on it by saying he would go public on the matter. Maudling backed off. BBC 1, State 0.
it’s BBC 2, State 0. In 1956, the Corporation simply acceded to a
request from Hugh Gaitskell, the Labour opposition leader, for a
party political broadcast to lambast Prime Minster Eden’s Suez
adventure in private defiance of objections from the government. It
also refused to edit its Arabic services. There was something of a
worm turning here as the BBC had up to this point dutifully obeyed a
veritable blizzard of censoring D Notices preventing it reporting the
run-up to the invasion. It did, though, give Hill a platform from
which to threaten publicity of such censorship 16 years later. He was
right to do so not least because of the government’s
Humpty-Dumptyesque view of ‘national emergency’. During the
Northern Irish Troubles of the 1970s, it was increasingly quick to
declare ‘emergencies’. And let’s not forget that, historically,
these were not necessarily a consequence of terrorism or war.
‘Emergencies’ could just as readily be in line with the first
post-1914 occasion when one was announced: to break a coal-miners’
strike in 1921. The invocation of the Emergency Powers Act on the
occasion of the General Strike in 1926 created an ‘emergency’
which lasted for months after the strike was over: months during
which, by coincidence, the arrangements for broadcasting which were
to lead to the BBC were being determined.
We can note, without prejudice to any such other incidents (unknown or not), and certainly without reference to noisy political public attacks, that this issue of direct gagging is formally prohibited in matters of national emergency – no small thing. We can acknowledge that a measure of editorial protection was written into the arrangements at the next renewal after Hill’s disobedience (now: 81(5)). Nevertheless – as with the impact of Prince Charles’ letters to ministers, we simply don’t know how often those same ministers (and others) bring pressure to bear on the BBC and with what chilling results. It is, after all, a matter for the BBC’s discretion to say it has been pressured. Exercising that discretion might be thought probably more usual than the valour of these two incidents suggests-- given the realities of governance and licence fee control.
81(5) is about as close as we ever get to stating publicly a specific instance of the BBC’s real independence and it is welcome as such. However, it says nothing about governance in general or, indeed, about (unwritten) pressures brought to bear on a day-to-day basis. There are crucial matters aside from national security, after all. What freedom does the BBC have at this point, for example, to undertake exploratory discussion with the SNP about the proposed Scottish Broadcasting Service (SBS), should the ‘Yes’ campaign on Scottish independence triumph? Some (David Elstein on this site, for one) suggest that the answer to this is: ‘probably not much’. Giving Westminster’s self-interested concept of ‘emergency’ (and a greater ‘emergency’ to the Westminster village than the break-up of the nation is hard to imagine), they are probably right.
The point is we cannot know what the situation is because the matter of control remains vague: hence the chimera of ‘conventions’. The bottom line is that the licence is no mere matter of waveband allocation and other infrastructural issues. Editorial integrity can be threatened unless clearly demarcated and, beyond shibbolethic language about ‘independence’ in the Charter and the exception noted in 81 (5), it is not and never has been. Shameless politicians can threaten and seek to meddle with nary a thought of deep constitutional impropriety.
As Charter renewal time again approaches (in 2016), might it not be a good plan – with or without an SBS -- to come clean on these matters rather than allowing inertia and supposed ‘conventions’ to continue to go un-interrogated? We should finally confront the constitutional issues in a mature fashion and put in place some transparent and clear arrangements in time for the BBC’s centenary (see below).
John Reith, the Broadcasting Company’s general manager, got the radio manufacturers off his back in 1926 but he was less successful escaping from the clutches of the Post Master General (and the more general DORA-like tendencies of government) thereafter. He did so, but largely at the cost of promising to behave. This was the strategy he lit upon for dealing with the General Strike even before the chartered corporation plan was finally agreed. As he wrote to his managers after the strike was over (but with the ‘emergency’ still in place):
There could be no question about our supporting the Government in general, particularly since the General Strike had been declared illegal in the High Court. This being so, we were unable to permit anything which was contrary to the spirit of that judgement, and which might have prolonged or sought to justify the strike ... The only definite complaint may be that we had no speaker from the Labour side. We asked to be allowed to do so, but the decision eventually was that since the Strike had been declared illegal this could not be allowed.
No hint here, then, of the spirit of the Areopagitica or a sense of expression as, essentially, a right to speak to truth power, to offend, to guard the guardians etc etc. In this foundational document, as much as in the Charter and Licence being forged at the same moment, can be found a more realistic view of the BBC’s independence than in any supposed ‘convention’.
And trace elements of a sensitivity to the fact that all this might run counter to basic freedom can in seen in these old debates. The Charter emerged quite explicitly as a consequence of the delicate understanding of the authorities that they were up to questionable good. They knew full well that, as PR, their initial thought for a British Broadcasting Board or Commission, with Commissioners, sounded pretty alien for a society which had produced Milton, Wilkes and uncle Bill Cobbett and all. The Charter of 1926 was an obfuscating ploy then and it still is. That’s the ‘convention’ that really matters and its time we challenged it.
PS: In his October presentation, Lord Hall, the BBC’s current director general, spoke of 1922 as the centenary year. I found this as perplexing as Hewlett’s ‘convention’. The BBC’s existence dates from 1 January 1927, the day the Charter vested. In 1922, the Postmaster General cut the radio-set manufacturers into a slice of the licence to create the Broadcasting Company, a quite different kettle of fish which they all spent the next four years sorting out. Confusing company and corporation in this ostensibly minor way, given the constitutional complexity consequent on substituting the one for the other in 1926, is as significant as erroneously thinking the BBC has a right to veto official plans for its governance.
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