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Where does the Ofcom-GB News row go from here?

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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?

I’VE  READ ALL 10,101 PAGES OF BBC BASHIRGATE EMAILS (SO YOU DON’T HAVE TO) AND WHY 1,737 OF THEM JUST SAY ‘LPP’

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The most prominent initials in the documents released on January 30 are LPP, that’s Legal Professional Privilege. It appears on no fewer than 1,737 of the 10,101 pages, and that’s not including when it is expressed in a longer form as ‘Legal Privilege -s42’ a reference to Section 42 of the Freedom of Information Act which provides confidentiality for advice from lawyer to client.

The BBC has held back from public view hundreds of pages of internal emails covering crucial moments in its handling of the so-called ‘Bashirgate’ affair. They have long said that they would withhold entirely approximately 300 emails for legal reasons. I’ve no way of confirming that that’s the number they’ve withheld but reading through the files you encounter page after page of LPP.

This tactic is a very big bet by the BBC. Until now it has not had to explain these redactions to anybody but In the next stage of the legal process, which is scheduled to come to a head in March or April, it will have to provide justifications to a judge. If he disagrees with their rationale the hidden emails may become public.  The most persistent campaigner for transparency, Andy Webb of Blink Films, will certainly be pressing for that. 

One crucial test will be whether the redacted communications were made for what the Information Commissioner’s Office calls ‘the dominant (main) purpose of seeking or giving legal advice’. So, for example, does a group email between BBC executives count as ‘legal advice’ because one of the participants was an in-house lawyer. 

As a result of all the redactions it is impossible to come to any firm conclusion on the BBC’s handling of the release in 2020 of key 1995 and 1996 documents about Martin Bashir’s interview with Princess Diana. The three months covered in 2020 focus on the autumn when 3 rival broadcasters, ITV, Channel Four and Five , prepared programmes for the 25th anniversary of the interview.  The BBC which in 2007 had said it didn’t have any documents and then said in June 2020 that it did but wouldn’t release them, now decided to release some. But beyond that it went from ‘the BBC does not intend to take any further action on events which happened 25 years ago’ to appointing a former judge, Lord Dyson, whose report was damning about Martin Bashir’s conduct back in 1995. Quite a policy shift. So if, as most people now agree, there was a cover-up back in 1996, was there an attempted cover-up in 2020 which began with ‘tell them nothing’ but under pressure ended with ‘let a Judge find out’? 

We can’t be sure because of the withheld documents, there is certainly no firm evidence of it so far.The only hint of any ‘smoking gun’ is in an email from a BBC solicitor to a former BBC executive alerting him on the 19th October 2020  that documents in which his name is mentioned are about to be released that day. The key sentence is ‘we are not releasing all of the internal investigations documents at this present time’ which implies the BBC knew there were documents which would not be released.

The other key takeaway after my reading of the ten thousand:

In 1996 BBC executive Anne Sloman wrote an internal note after reviewing how Martin Bashir had got his exclusive interview with Princess Diana. She concluded: ‘The Diana story is probably now dead, unless Spencer talks. There’s no indication that he will’. 

25 years later BBC bosses clearly didn’t heed that warning. They failed to pick up the warning signs that Princess Diana’s brother was going to talk and very loudly at that, and the Daily Mail would help. 

On 21st October 2020 film-maker Andy Webb, commissioned by Channel Four, emailed Charlotte Morgan in the BBC Press Office. He set out the BBC’s traditional account of what happened back in 1995 and went on: 

‘We have recently spoken with someone intimately connected with these events and have received a different account. Our information is that at an 11.30 am meeting at Althorp on August 31 1995 Earl Spencer was told by Mr Bashir that he, Bashir, had a contact within MI5 who had important information regarding surveillance of Princess Diana’. 

Webb set out a series of facts as revealed to him by ‘our source’. He never named the source but it must have been obvious to any reader that these details could only have originated from Earl Spencer. Webb ended by asking: ‘ Given the many conflicting versions of what really took place, and as you have pointed out, the historic importance of the Panorama broadcast, has the BBC given any consideration to a full independent inquiry to determine what actually happened? ‘

In the BBC Press Office Charlotte Morgan seemed to understand the implications. She circulated Webb’s email to 8 top BBC people including Phil Harrold, Chief of Staff to DG Tim Davie. Harrold seems to have been the ‘go to’ person in the email chains. She added a covering note:

‘ What timing. Sorry to disturb your evening’s viewing. Channel 4 are not letting this rest. They have a ‘source’ (who seems very well connected to Earl Spencer), challenging our timeline and calling for a ‘full independent inquiry’. I mean what can we say beyond that a quarter of a century on, we can only go on contemporaneous BBC records, as we made clear to them previously, and with the testimony of the Princess herself, in the form of her note? Clearly we need to discuss. Charlotte’. Phil Harrold replied: ‘No worries,I’ll arrange a call for tomorrow’ .

There are no released emails about what was said and decided on that call or what was discussed with Tim Davie, but at 1158 on October 23. Charlotte Morgan emailed Andy Webb ‘‘the BBC does not intend to take any further action on events which happened 25 hears ago’. The request for an independent inquiry was ignored, the BBC was not going to budge. 

Later that day, at 15.01, Lord Spencer emailed Tim Davie for the first time setting out his detailed case against Bashir. He concluded: ‘If you agree that something needs to be done, now, then I look forward to hearing from you as to what you might propose. Yours sincerely, Charles Spencer’.

An email thread between the two men began in which over the coming weeks, step by step, the BBC would have to back down from its ‘do not intend to take any further action’ position and eventually agree to an independent inquiry. 

Towards the end of the correspondence, on 3 November, Phil Harrold circulated a draft of Davie’s proposed next response to Spencer. It contained the line: ‘I am also happy to meet with you, along with senior editorial executives who are close to these issues, to discuss this directly.’

In the eventual email this was watered down to ‘If you would like to put more to us, I would be happy to engage further’. Tim Davie never met Earl Spencer.The BBC must now be reflecting on whether, despite that warning from history, they missed a key opportunity.

This is not the end of the story.

The BBC now has until Tuesday February 13 to explain in detail to the tribunal judge why it has withheld so many emails for legal and other reasons . Andy Webb then has until February 27 to challenge their arguments.

The tribunal has the right to inspect text which has been redacted by the BBC.

Eventually there will be a hearing sometime after March 11.

If any emails are ordered to be released that probably won’t happen until the end of March.

One other legal option is for the BBC to appeal against the tribunal’s finding and take that to a higher court.

There is a lot at stake for the British Broadcasting Corporation.


 

Who did the first TV coverage of the Post Office scandal?

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SECOND THOUGHTS BLOG 9/1/24

ITV is quite rightly getting credit for waking a wider world up to the Post Office scandal with the drama ‘Mr Bates v the Post Office’. Now I discover that an ITV regional news bulletin in the South of England provided the first TV coverage of the problems sub- postmasters were having as a result of the Horizon computer system.

On February 2nd 2008 Meridian News reported on what 15 years later would turn out to be one of the most memorable episodes in the drama:

‘A postmistress who admitted fraud has walked free from court – after villagers came to her rescue. Jo Hamilton had called a meeting to explain to neighbours in South Warnborough near Basingstoke why cash had gone missing from their post office. She said couldn’t cope with the computer system. Well, the village soon rallied round, and raised thousands of pounds to help pay the money back’.

It appears the next broadcast was in September 2009 when S4C covered the Post Office scandal on a series called ‘Taro Naw’. The programme reported on the case of a jailed Anglesey sub-postmaster and wondered whether there were more cases ‘across Britain’. It is now available again on iplayer here with English subtitles here

The first BBC coverage I can find was three years later also in regional programming in the South of England, on Tuesday 7 February 2011. 

At 7.05 a.m BBC Radio Surrey Breakfast transmitted:

BBC Surrey Jingle: “BBC Surrey. With Nick Wallis.”

Good morning. You’re about to hear a special investigation by BBC Surrey Breakfast. In November last year, a listener called Davinder came to me in a bad way. His wife Seema, who was a Postmistress in West Byfleet, had been sent to Bronzefield Prison in Ashford for stealing more than £70,000 from her own Post Office. In a very emotional phone call, Davinder told me his wife had never taken a penny from the business, but had fallen foul of a problem with the Post Office’s computerised accounting system.’ 

That evening BBC 1 South broadcast an investigation by the same journalist, Nick Wallis, in the Inside Out regional TV documentary strand. The billing was: 

‘A special investigation by the Inside Out South team into the sub-postmasters who have fallen foul of the Post Office’s Horizon computer system’. 

You might think that in the light of the extraordinary interest now created by the ITV drama the BBC might now consider putting the regional Inside Out report back on the i-player. After all it is available on youtube.

But raising its profile on iplayer might risk reminding viewers that the Inside Out strand was scrapped amidst controversy in 2022. 

The Press Gazette reported then:

‘The BBC’s director of policy has said the refresh of its regional current affairs programming which is resulting in the cancellation of Inside Out is “long overdue”.Clare Sumner told Ofcom that Inside Out, which was cancelled with the loss of 29 jobs this year as part of plans to save £25m across BBC England by March 2022, was no longer making the same impact it did when it launched almost 20 years ago.Its audience has been in decline for ten years, she said’.

ITV’s Meridian News in the South of England followed up their original coverage in December 2014. They reported that ‘now postmasters and postmistresses across the South have gained the support of their local MPs’. Former postmistress Jo Hamilton and local MP James Arbuthnot were interviewed.

A few years after the 2011 BBC regional broadcasts Nick Wallis got network showings for reports he made for The One Show on BBC 1 in 2014 and a special UK wide Inside Out in January 2015. Panorama picked up the network current affairs baton with John Sweeney’s ‘Trouble at the Post Office’  in August 2015 and Nick Wallis’s own Panorama in 2020. The sub-postmasters told their story in another Panorama ‘The Post Office Scandal’ in 2022. Wallis was also commissioned to present a radio/podcast series for BBC Radio 4 last year, he was an adviser to the ITV drama and has been freelancing on different news outlets since the ITV drama began. 

Next up for Nick Wallis; more than 20 dates, starting at the Marine Theatre,Lyme Regis on 23 March, for his one man show ‘Post Office Scandal -the Inside Story’ . Some real life versions of the characters you saw in the drama have agreed to answer questions, as has what Wallis calls ‘a major anonymous source in my book’.