The five ‘guilty’ verdicts by Ofcom against GB News followed by the broadcaster’s angry response suggest there could be an escalating battle between the two sides over the issue of whether politicians, especially MPs, can present political programmes. I doubt it but there could be a bigger, wider and even more important battle ahead.

The creation of GB News has crystallised two separate but sometimes connected issues:

1. What programmes are serving politicians, especially current MPs, allowed to present on TV ?
2. When presenters, be they politicians or anybody else, express strong opinions on topical matters how is due impartiality achieved?

Issue 1:What programmes are serving politicians, especially current MPs, allowed to present on TV? 

Nothing in the current law, Ofcom Code or Guidance sets out what a serving politician can present, only what they can’t:

‘Rule 5.3: No politician may be used as a newsreader, interviewer or reporter in any news programmes unless, exceptionally, it is editorially justified. In that case, the political allegiance of that person must be made clear to the audience’.

So what is a news programme that a politician can’t present?

The Code itself doesn’t define a news programme but the guidance has this significant section:

‘1.8 In terms of this section of the Code (i.e. the requirement for ‘due impartiality’ and ‘due accuracy’), news in whatever form would include news bulletins, news flashes and daily news magazine programmes’.

One thing is clear : the authors of the guidance intended that the definition of a news programme should cover more than just a news bulletin. ‘News in whatever form’ seems pretty clear. But soon after GB News started inviting politicians from the right – but not the centre or the left – to present daily programmes about the political news of the day Kevin Bakhurst, then the senior Ofcom executive in charge of content regulation, published a blog justifying the practice.

He produced a definition of a news programme which restricted it to a news bulletin. By doing so he argued that the politicians on GB News were not presenting ‘news programmes’ but what he called ‘current affairs’. The term ‘current affairs’ does not appear anywhere in the impartiality sections of the Communications Act, the Ofcom Code on Impartiality or the Ofcom guidance. This was, in effect, Kevin’s Law, there was never a consultation or debate about it. Ofcom now relies upon what was in his blog (he has since left Ofcom) to support its judgements.

The recent Ofcom judgements against GB News show the confusion this has created. When Jacob Rees-Mogg delivers his Moggolgue on that day’s political news, much of which goes unchallenged in the programme, he is apparently a ‘current affairs’ presenter but the moment he mentions breaking news he has been transformed into a ‘news presenter’ which, of course, he’s not allowed to be. Hope you are still with me. The obvious solution is not too difficult, every time news breaks inside these programmes the presenter should hand over to the newsroom presenter. That’s if GB News wants a solution rather than escalate the issue for its own reasons.

But none of this solves the bigger problem as we approach the local and General Elections, should politicians be allowed to present programmes about that day’s political news whether or not you call them News or Current affairs.

The simple and best solution: politicians should not be allowed to present programmes which report and debate the controversial issues of the day especially political news unless there are exceptional circumstances. That’s what we thought the rules said so why not return to that.

Which takes us onto …

Issue 2; When presenters, be they politicians or anybody else, express strong opinions on topical matters how is due impartiality achieved?

This issue has been overlooked during the row about politician presenters but in fact it is equally important .

What the Code currently says:

‘5.9: Presenters and reporters (with the exception of news presenters and reporters in news programmes), presenters of “personal view” or “authored” programmes or items, and chairs of discussion programmes may express their own views on matters of political or industrial controversy or matters relating to current public policy. However, alternative viewpoints must be adequately represented either in the programme, or in a series of programmes taken as a whole. Additionally, presenters must not use the advantage of regular appearances to promote their views in a way that compromises the requirement for due impartiality. Presenter phone-ins must encourage and must not exclude alternative views’.

A number of points arise from this:

1. The implication of the first part of the first sentence is that news presenters and reporters in news programmes may not express their own views on current controversies or current public policy.
2. However  presenters of non-news programmes can do so subject to the condition that alternative viewpoints must be adequately represented in the programme or a series of programmes. This is explained in the guidance: 

‘1.48 Broadcasters are free to include ‘issue-led’ presenters in their programming, as long as they maintain due impartiality as appropriate. In clearly signalled ‘personal view’ programmes, many in the audience are comfortable with adjusting their expectations of due impartiality. However, in order to maintain due impartiality, alternative viewpoints should be adequately represented’.

How adequate does the representation of alternative viewpoints have to be? The Code and Guidance are not prescriptive about this. According to a Guardian article :

‘The broadcast code enforced by Ofcom is clear that opinionated hosts are fine but “alternative viewpoints must be adequately represented”. It has not specified what exactly that means, but GB News insiders believe 10-15% representation for differing views is probably adequate’.

Ofcom refuses to put a figure on ‘adequate’ but I believe the figure of 10-15% is an accurate statement of the view inside Ofcom and GB News. Is that a satisfactory figure for Ofcom when the 85-90% of political views expressed on GB News come from the same perspective in every primetime programme every night?

The implications for the General Election campaign are serious. Ofcom has still not grappled with this issue of whether leading supporters of the same side (only actual candidates are disqualified during election campaigns) can appear night after night giving an unchallenged monologue on that day’s news. On Ofcom’s current interpretation of its code it seems this can continue during an election campaign. Surely that has to change. Can we really have election campaign coverage presented by Boris Johnson and Nigel Farage where they and like-minded folk are free to say what they like about other parties but Labour and Lib Dem supporters get only 10-15% of the programme airtime between them to respond?