Journalistic Independence, the BBC and the Government of the Day
Who will replace the BBC’s political editor, Laura Kuenssberg, who is reportedly stepping down? And why should you care? And what has it got to do with questions of UK constitutional law? In my answer I’m going to start by trespassing on your understanding, and take you back some ten years ago to a beige office in a beige newsroom in the BBC’s since-demolished offices in Television Centre, West London, to an over-heated room filled with journalists carrying mugs of tepid BBC tea.
It is the day after a government has passed a Budget. I am in a corner, half-asleep, half-caffeinated, and if I’m honest half-hearted, sitting in the morning meeting in the office of the BBC’s Newsnight programme. Morning meetings are where journalists thrash through the stories of the day, work out what to cover, how and by whom.
Enter Sir Robbie
There was a new journalist in the room, someone from a recently-cancelled programme looking for a permanent berth on our show. It was the new guy’s turn to speak. What he said woke me up. He said he’d been spending the previous day, evening and morning before the meeting going through the Red Book, and had found some new lines of attack, on which we could base our programme. I didn’t know what the Red Book was. (It is one of the detailed formal papers that the UK government publishes to accompany the Budget, and has this name because it traditionally had a red cover.) I’m not sure that anyone else in the room did either, as none of us were financial or economics journalists. I, for one, nodded sagely, and pretended I had a clue what was going on. But I took note of the new guy. He would clearly go far.
He did. Sir Robbie Gibb (knighted since) soared through Newsnight, paused to take the helm of some of the BBC’s then most high-profile politics shows – the twin Sunday and Daily Politics, edited some very high profile debate programmes including the BBC’s 2017 general election debate, and then vaulted into Downing Street to become Theresa May’s spin doctor.
What does Sir Robbie’s carreer have to do with UK constitutional law? The answer relates to describing a form of influence that the UK government of the day has over the country’s leading broadcaster and leading source of news, and of which Sir Robbie can be seen as an example – or, to be more fair and more exact, the possibility of such influence. For it must be said that there is no evidence that there has been any exertion of influence, or any that has been exerted has led to any significant change. But the possibility of influence exists, because Sir Robbie now has another post at the BBC. He was appointed by the Government to the BBC’s Board. The BBC Board is the organisation that governs the BBC. He was awarded his knighthood for being a Conservative MP’s Director of Communications, and is now one of the figures who ultimately oversee the BBC.
Is this a problem? Removing Sir Robbie from the equation for the moment, the specific question of the day is whether the government should have any influence over the appointment of the BBC’s political editor. This job remains, even in an age of proliferating journalistic outlets and splintered audience attention, one of the most important jobs in British political journalism.
The Brammar affair
But a more general question, though, is whether the government of the day can and should have any influence – or appear to have any influence – on the editorial line of the BBC and the appointment of its senior journalists? And assuming that it shouldn’t, what are the rules that exist to preserve the independence of these – if it’s not too vainglorious a way of describing them – institutions of the constitution? It is here that the status of Sir Robbie merits attention.
A first point to address is one that’s already been mentioned in passing – the difference between appearance and reality. This is important. Public perception of influence is almost as important as influence itself. Sir Robbie may not exert or have exerted any influence. But when the Government has placed one of its former Director of Communications in a position of power over the BBC, that surely creates a problem of perception.
Perhaps the more important point is about reality. Here there may be reasons to be concerned, if reporting of events in July this year are accurate: Sir Robbie was reported to have attempted to block the appointment of a senior journalist, Jess Brammar, to a senior BBC post. The grounds were that he felt her appointment would harm relations with the Conservative government. Sir Robbie was said to have communicated this to the BBC’s director of news and current affairs, Fran Unsworth. This avenue for communication was open because Ms Unsworth is also on the BBC’s Board. From where would come the harm? Ms Brammar would have been a liability, the reports say, because of a spat between HuffPost UK and the Conservative Government. The details are perhaps a little prosaic, but they are interesting. Brammar had complained to the Cabinet Office after a Conservative minister, Kemi Badenoch, attacked at HuffPost journalist for asking a series of questions.
If these reports are true, then there is a problem. This is because the risk of harming relations with the Government of the day should not be an appropriate reason to consider when appointing a BBC journalist. Why? One of the points of the BBC (and more generally of public service, as opposed to state, journalists) is to hold the government to account. Indeed, it should perhaps be written into the job description of BBC journalists that their employment should create a risk of harming relations with the Government.
Low tolerance for impartiality
Clearly we do not know whether the reports are accurate. But at the least, this reinforces the view that there are reasons to be apprehensive about the closeness of a senior figure in a Conservative government to the decision-making at the BBC. That’s one reason why there are reasons to be apprehensive about the appointment of Ms Kuenssberg’s successor. Indeed, a senior Conservative MP – no less than the chair of the Parliamentary Committee that oversees (amongst other things) legislation relating to the BBC – has said that her replacement should have a specific political view. They should be, in his view, pro-Brexit.
At this point, it is worth emphasising a couple of details. The first is that it’s important to stress that I make no criticism of Sir Robbie for being offered the job, or taking it. I’m also quite clear that Sir Robbie, if he did discuss Ms Brammar’s mooted appointment, was making observations in good faith which he evidently felt were intended to help the BBC in its task. The second, following on from this, is demonstrated by the fact that I’ve taken pains in this blog to talk about the government of the day. This isn’t about people, and it isn’t a party-political issue. It’s a political and structural issue, and one about the relationship between the government of the day and the BBC. That is to say, it’s not really about the Conservatives and the BBC, so much as about the political party in power and the BBC. More generally, it’s about the norms that restrain two structures of power that should, ideally in a liberal democracy, be constructed in a way that enables them to be antagonistic. These norms include constitutional laws.
There is no reason to expect that a different resident of Number 10 Downing Street would be any less resistant to getting his or her hands into the sweetie jar that is the BBC. If there were a Labour Prime Minister, similar concerns would be raised. A few short months ago Ms Kuenssberg was practically a demon for some on the left. One particular charge was that she was biased against the Labour leader at the time, Jeremy Corbyn.
The notion that the Left also has some difficulty as the current UK Conservative government seems to have with the notion of impartial journalism has been reinforced by recent research by Oxford University’s Reuters Institute for the Study of Journalism. Their evidence suggests this is a phenomenon wider than the UK. They found in four countries that younger people who identify as left-leaning have comparatively low tolerance for the notion of impartiality in some contexts:
[T]he majority of people across markets think that news outlets should try to remain neutral. [But] among those aged 18–24, 40% in Brazil, 34% in Germany, 38% in the UK, and 30% in the US think it makes no sense to be neutral on some issues. The percentage of those aged over 55 who think the same ranges from 19% in Germany to 30% in Brazil, with the US (22%) and UK (26%) in between. As for those on the political left, the percentage of people who think neutrality sometimes does not make sense ranges from 36% in Germany to over half in the US (54%).
Such a view might be seen as having a long pedigree. A similar perspective was expressed by Herbert Marcuse in his 1965 article Repressive Tolerance. Marcuse argued that tolerance (which, although a different concept, is in relevant ways connected with impartiality for current purposes) is an ideological construct that stands in the way of what he terms ‘real democracy’. And the fact that left and right have a similar ambivalence to this notion is highlighted by the fact that a similar point was made by Churchill, in an early fight with the BBC at the time of the UK’s General Strike in 1926. Churchill said that the BBC ‘had no right to be impartial between the fire and fire-brigade’.
This blog and my past two blogs for the Verfassungsblog have been about questions of the UK Government and its influence and control over the BBC. In my first I explained how fragile are the protections in constitutional laws of the BBC from government influence. The most significant protections that exist are conventions. I argued that the fact they were conventions is not in itself a deficiency, as conventions can exert as firm a normative force over conduct as a law in a statute. But they are only powerful when there are consequences of their breach, and I was concerned that these consequences were being dissolved in the current politics of the UK.
One point the second post highlighted was the influence that a government of the day can exercise on the BBC through negotiations about money. The BBC is funded by a licence fee, and discussions about this are a means by which the government of the day can exert pressure on the BBC. Indeed, just this happened a few days ago, when Nadine Dorries, the Government Minister responsible for such discussions, said she was unhappy about a BBC interview with the Prime Minster. This, she was reported to have said, would ‘cost the BBC a lot of money’.
This third blog highlights a potential problem caused by the fact that the government of the day has the power to appoint people to the board that oversees the BBC. A thread that unites three blogs is that the structures that preserve the independence of journalism from the power of the UK state seem to be under assault. If I’m correct, then there seems to be a problem. This problem, to express it in more abstract terms, relates to the extent to which private institutions that perform public functions should be the focus of public and constitutional law. It is reassuring that this problem is receiving the attention of public and constitutional lawyers, notably Aradhya Sethia at Cambridge, supervised by Professor Alison Young. There may have been little need for UK public law to pay attention to these questions in the past, but politics and attitudes seem to be changing.