BBC lawyers are insisting the law treats the public-funded broadcaster as a private body in a battle to resist a Freedom of Information request.
At the heart of the six-year case lies the question of whether or not the public is entitled to ask the Beeb questions and have them answered using FOI legislation. It will test the broadcaster’s obligation to meet high standards of openness and transparency as required by its charter. Success for the BBC would mean no one outside of a parliamentary committee can scrutinise the corporation’s journalism.
The history of the Beeb
The BBC began life in 1922 as a private consortium of what would now be referred to as telecoms companies and the state postal service. Five years later the British Broadcasting Corporation was established under a royal charter, and enjoyed a monopoly on TV broadcasting that continued into the 1950s and on radio broadcasting into the 1970s. Funding was through a hypothecated tax, first on radio sets, then on TV sets, and now on real-time reception of a TV signal.
What allowed this quirky arrangement to survive was the proposition that the BBC was not a wing of the state, but independent from it, and answerable not to politicians but to the citizens who funded it. The charter obliged the BBC to be impartial. However state bullying of the corporation is commonplace, and reached a peak in 2004 when the director-general and chairman of the BBC were both obliged to resign, the charter was rewritten and a new organisational structure imposed upon it.
The principle of “who holds the BBC to account?” is therefore very much alive. Yet politicians have their own agendas. And today, the political class is also drawn from the same elite as the media class, an ever-diminishing gene pool. As the author of the satirical Twitter account @FakeSteveHilton wrote, politics is a “magic circle” of friends. Allowing the citizen to ask questions to hold the BBC to account is vital, since – as Lord Patten wrote last month – the public “own” the BBC.
“We can never forget our responsibilities to the public who own the BBC”
Lord Patten, chairman of the BBC Trust, in a letter to the FT, 11 October 2012
Who were the secret 28 who shaped climate debate at the BBC?
The latest proceedings to test whether citizens can effectively scrutinise the broadcaster is Anthony George Foster Newbery vs The Information Commissioner and the BBC (AE/2009/0118), a case before the information tribunal in London. The argument that the Beeb is a protected private body was advanced by the corporation’s legal team during two hearings last week.
The tribunal is probing the BBC’s refusal to release, in response to a Freedom of Information Act request, the names of attendees of a high-level policy seminar on climate change in January 2006. The seminar, which was held by the corporation and invited 28 “scientific experts”, was later cited by the BBC Trust as the basis for the broadcaster’s abandonment of impartiality when reporting on climate change.
The identity of a small number of attendees has emerged, including Lord May and anti-growth activist Andrew Simms, who co-authored a book with one of the organisers of the seminar, climate-change campaigner Dr Joe Smith, a lecturer at the Open University. Dr Smith wrote that “everyday human activity – moving, eating, keeping warm or cool – is gently stoking what many reckon will be a slow-boil apocalypse”.
But what’s at stake is a principle: not whether Newbery is right to have the guest list – but whether Newbery, or you or I, may be permitted to enquire at all. BBC lawyers are arguing that we can not.
The Freedom of Information Act applies to “public authorities” and the BBC is nominally one. Lord Phillips, in 2009, described it as a hybrid authority – a public authority with an opt-out to withhold information “held for the purpose of journalism, art or literature”. Under the opt-out, it the BBC does not even need to acknowledge it holds the material requested if it is for the “purpose of journalism”.
Was this exception intended to protect a journalist’s confidential sources – or can it be applied sweepingly to withhold policy and management decisions too? A wide interpretation of the exception would permit the BBC’s interpretation of its charter obligation to go unquestioned. The argument is over the word “purposes” – and how broadly or narrowly “purposes … of journalism” should be applied.
In 2006 a tribunal ruled that the journalism exception should be interpreted narrowly, and that an internal review document, the Balen Report, should be disclosed. The Sugar case, as it became known, took several years to resolve. The Court of Appeal agreed with the tribunal that “the question whether information is held for the purposes of journalism should thus be considered in a relatively narrow, rather than a relatively wide, way”.
But the BBC appealed and the ultimate authority in the land, the Supreme Court, agreed with the broadcaster in February 2012, drawing a veil over the corporation’s strategic policy decision making.