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The ‘Election Debates’ debate: is legislation the answer?

Ed Miliband has promised legislation that would see regulators imposing a debate structure at future general elections. Could it work? And is that the best answer? 

David Elstein
9 March 2015
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Flickr/Joana Kiyone: Ed Miliband

The broadcasters have issued an ultimatum to the Prime Minister – “we go ahead with our proposed election debates, with or without you” – but their position is weaker than his, and weaker than their joint statement implies.

That Ed Miliband is proposing legislation to prevent such a stand-off in the future suggests that he fears David Cameron may yet win a tactical victory in his refusal to submit to pressure from the combined might of the BBC, ITV, Channel 4 and Sky News.

Five years ago, circumstances conspired to grant Sky News its long-maintained wish of mounting leader debates in a general election. Gordon Brown felt he had nothing to lose, David Cameron had not re-imagined himself as the front runner for Downing Street, and neither realised that giving the little-known Nick Clegg acres of equal screen exposure would allow him to staunch what might have been a significant loss of seats in that election.

The BBC and ITV climbed aboard, and lo and behold we had three debates, attracting over 22 million viewers between them (which is actually not quite as impressive as it sounds, given that there would have been duplication of viewers across the three broadcasts).

Viewer behaviour is, of course, not a conclusive indication of viewer appreciation: the novelty value of the debates will have attracted many casual voters. Even today, although some 70% of those asked say they would like to see debates this time too, only 4% seem aware of the current stand-off.

If Cameron is risking some voter alienation by trying to minimize the extent and the potential impact of debates, the risk seems pretty low.

But the 22 million number spoke loudly to audience-seeking TV stations. The broadcasters know perfectly well that the most incisive way to deal with party leaders in live interviews is one at a time, allowing the questioner to pursue a line for as long as is needed: whereas in multi-interviewee formats, there is an obligation to shift from person to person and subject to subject in the time available.

In the old days of Weekend World, Brian Walden’s lengthy interrogations of party leaders would be meticulously plotted events, with many days of preparation, in which different routes were planned, according to which of several possible different responses to each question might be forthcoming. Somewhat to their discredit, the broadcasters have fetishised leader debates at the expense of proper interviews, because the rarity factor and the element of theatre draw in larger audiences.

Cameron’s many hostages to fortune – in the shape of previous endorsement of debate formats – were bound to cause him embarrassment once his advisors concluded that there was nothing to gain from agreeing to participate this time around. Similarly – given the massive advantage the Tories have over all other parties in their ability to buy advertising space during the election – every other party leader has grabbed at the chance of “equal opportunity exposure”.

It is unfortunate for the broadcasters that their clamour for debates is shared by all the parties, other than the Tories, who have been invited to participate: it gives the impression of taking political sides, and of ganging up. Off-stage threats of using an “empty chair” to represent Cameron if he fails to fall into line verge on bullying and blackmail.

The broadcaster case is further weakened by their having abandoned their original bid for a 2/3/4 format (Cameron v Miliband, then with Clegg added, and then with Farage added to those three). As soon as Cameron complained about the absence of the Greens, an invitation was extended not just to the Greens but also to the SNP and Plaid Cymru, with the format now 2/7/7.

This must have delighted Cameron: three left-ish parties to nibble at Labour, not just one. Also, even if inadvertently, he had done more in a week for the public role of women in politics than any other male politician had done for at least a decade, as all three of the newly invited parties have women as leaders. (Not that any of them had the grace to thank him: indeed, they are all giving him grief for not accepting the latest version of the broadcaster formula).

The new 2/7/7 proposal is for Cameron to debate Miliband, after two debates also involving Clegg, Farage, Nicola Sturgeon, Natalie Bennett and Leanne Wood.  The abandonment of the three-way, and the expansion of the category “others” so that he is just one of four, represents a huge setback for Clegg.

Not surprisingly, he volunteered to stand in for Cameron in the proposed head-to-head with Miliband, should the Prime Minister persist in resisting that format. The broadcasters – perhaps suppressing amusement at such a daft idea – quickly rejected his offer: the debates are between party leaders, not the outgoing coalition and the main opposition party. 

So what will happen?

As I have argued in a previous post (17Jan), the weakness in the broadcaster “united front” is the fact that, in regulatory reality, each debate is a separate event, with a different broadcaster being held accountable by regulators (quite how Channel 4 and Sky News will “share” accountability, given that they hold separate broadcast licences from Ofcom, is not clear).

This creates a gap that Cameron can exploit. The broadcasters claim to want the debates all to be held during the formal election campaign (after the dissolution of parliament, which is projected to take place no later than 2 April, and after the publication of the party manifestos). Cameron has argued the opposite: that any debate(s) (which he claims would “suck the life” out of the election campaign if allowed to dominate it) should take place by 29 March.

As it happens, the first proposed 7-hander has been pencilled in by ITV for 2 April (the other 7-hander is planned a fortnight later on the BBC, with the 2-hander a further fortnight later on Channel 4 and Sky News). To bring it forward to 31 March would surely cause neither side any real difficulty. That the chairman of ITV is Archie Norman, who was once a Tory MP and chairman of the Conservative Party, suggests that some informal cordiality might smooth the path to a compromise.

Against this is the claim from the broadcasters that one 7-handed debate is not enough. But unless ITV were to mount both of them, it could not make Cameron’s participation in the first dependent on his agreement to participate in the second.

Broadcasters may no more collude in blackmailing an interviewee than in blackmailing a programme supplier (“we will not licence series A from you at price B unless you agree to let our supposed rival and competitor have series C at price D”). Cameron would be entirely within his rights to say to ITV that he would deal separately with the BBC.

If he were to pull off that manoeuvre, Cameron could then turn to the Channel 4/Sky News proposal. He has explicitly rejected a head-to-head with Miliband, but the spokesman for the broadcasters – Jonathan Levy of Sky News – revealed on Friday 6 March that the planned date of 30 April was not fixed – indeed, the debate could take place any time from now onwards.

As Miliband has announced that he would debate Cameron, anytime, anywhere, there is clearly an opportunity for Cameron to amend his refusal to do anything beyond one 7-hander. Agreeing a March date for the head-to-head would allow him to claim that he had conceded the point, whilst sharply reducing the potential voter impact of a good performance from Miliband, if it had six weeks to dissipate before polling day on 7 May.

Where would that leave the BBC, with the second 7-hander? It might just offer to move the date to March, but such a comprehensive retreat by all the broadcasters would surely damage their collective credibility. On the other hand, if Cameron has already done a head-to-head and a 7-hander, he might find it relatively easy to turn down another 7-hander in April.

This brings us to the “empty chair”. Clearly, the broadcasters have been briefing (even if not publicly stating) that they might simply place an empty chair in the line-up of leaders to represent anyone who did not turn up. With the head-to-head, that would be entirely pointless, as Ofcom rules would force Channel 4 and Sky to offer Cameron a separate slot of equal length if they broadcast what would in effect be a long interview with Miliband. This, of course, may be the reason why Jonathan Levy abandoned the party line of three fixed dates.

What about an empty chair in the BBC 7-hander, if its date remains unchanged and Cameron continues to decline to participate? It would be a highly provocative step, even if the BBC were not facing crucial decisions about its future after the election, with Cameron possibly making them.

In any event, the BBC might feel obliged, before invoking the empty chair, to invite a Cameron stand-in to take his place, in order to avoid a situation whereby rules governing political broadcasts during an election campaign force the broadcaster itself to reflect the views of an absentee from a major discussion: a hugely awkward dimension to inject into a complicated formula.

Obviously, no cabinet minister would volunteer for that role, but someone like David Davis conceivably might. Could the BBC reject him? After all, he was the runner-up to Cameron in the last Conservative leadership election. The other leaders might object, but it would be the BBC’s decision – and Davis has been in the Commons for a lot longer than all the others (of whom four are not even MPs).

Of course, in that scenario, Miliband would undoubtedly repeatedly refer to Davis as a stand-in for a leader too scared to debate; but by then Davis might well have the riposte to hand that Cameron had squashed Miliband in two previous debates, so why waste time doing it all over again?

One way or another, an empty chair in the BBC debate might do Cameron little harm, and the BBC little good. It might be wiser at that point – if two debates had already taken place, away from the fixed dates the broadcaster collective had publicly described as immutable – for the BBC to fold its tent.

Will there be two debates? As the ultimatums whizz back and forth, compromise will seem hard to achieve; but my tentative prediction is a 60% likelihood of 2 debates; a 30% likelihood of one debate and a 10% likelihood of no debates.

Would legislation bring an improvement next time? That is what Miliband promises, with debates being set up and allocated by an independent regulator, rather on the lines of the Party Election Broadcasts (PEBs), whereby Ofcom and the BBC have adopted similar qualification rules (approved by the Electoral Commission) for the allocation of broadcasts, even though the BBC and the commercial sector are governed by different systems (the Charter in the case of the BBC, the 2003 Communications Act in the case of commercial TV and radio).

That superficial comparison has its limitations. First, PEBs are effectively inflicted on the respective broadcasters, not sought out by them. Also, although the rules for how many broadcasts each party can claim seem fixed, there remains a degree of broadcaster discretion, not least in terms of actual scheduling. And although the content is in the hands of the political party, it must nevertheless comply with rules governing broadcasting (both Channel 4 and the BBC have in the past rejected content on those grounds).

Rather more importantly, there are obvious sanctions for non-compliance by the broadcasters: but they are so severe, potentially – including loss of licence – that compliance has almost never been an issue.

By contrast, if election debates became compulsory, two types of puzzle would have to be solved. First, how many debates should there be, who can be invited, and how should they be scheduled? For instance, as Channel 5 is one of the Ofcom-licensed broadcasters obliged to show PEBs, might it feel entitled to join the tombola for election debates, to see if they draw a lucky ticket? In addition, as we have already seen the broadcasters this time coming up with two radically different versions of just three debates, who is to decide the format? Was 2/3/4 right or wrong? Is 2/7/7 right or wrong? Are they both wrong? (Or, indeed, are they both “right”, on the principle that any debates are better than no debates?)

Then we come to sanctions. Alex Salmond has already ridiculed Miliband by asking if Cameron would be put in clink if he refused to take part in a debate in 2020. It is hard to imagine any sanction that would work: disqualification from the election seems vastly excessive, a reprimand or even a fine ineffective.

 It is even possible to envisage a recalcitrant Cameron refusing to participate in any debates in 2020 on the grounds that the underlying legislation is an unwarranted interference in freedom of speech and behaviour. Such a stance might work better in PR terms than the current prevarications and tactical shifts.

Given that the BBC and the commercial sector are governed by different systems and rules, however comparable, it might still be possible for a party leader to pick and choose which – if any – debates to join. And a prime minister would always have the excuse of urgent public business (an international summit, a crisis of some sort) to justify by-passing a scheduled election debate. In the end, it would be for the public to judge the validity of any leader’s evasive behaviour: just as it will do in the current election.

Reaching so often for the regulatory stick (newspaper regulation, gas prices, election debates) may one day backfire for Miliband. The case for fixed-term parliaments has yet to be conclusively demonstrated, having been introduced as a knee-jerk response to 2010’s hung election. Party political broadcasts had been agreed informally for nearly 70 years before any legislative backstop was introduced. Indeed, if Miliband prevails in May despite Cameron’s annoying behaviour (the only circumstance in which he would be able to introduce legislation anyway), he might think better of binding his own hands in the future.

 

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