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Who to include in the leaders’ debates

The BBC reports that there will be a debate between the main party leaders before the general election. It will hopefully generate much interest in the campaign, although much of that attention will probably focus on performance rather than substance (Charlie Beckett talks about this as one of the dangers).

The debate will include the Liberal Democrat leader Nick Clegg – this is an important point. If a debate of this kind is to be a national event (and according to Mike Smithson it will ‘shape the entire election campaign’), then inclusion has a serious impact on a party’s chance to be heard and be seen as a serious contender. For this reason Clegg is seen, by some commentators, to emerge as a winner from the decision to hold the debate. But where does this leave all the other parties?

At the end of the BBC report, it reminds us:

In October the Scottish National Party said it would consider legal action if its leader – Scotland’s First Minister Alex Salmond – was not allowed to take part.

Going off past rulings, any political party would face an uphill struggle in making a legal challenge. The courts have traditionally been unwilling to challenge the judgment of broadcasters as to how they allocate their time to parties. The nearest equivalent is with Party Election Broadcasts (PEBs). The decision to allocate free access time to the parties has been contested in courts by smaller political parties on several occasions. For example, the SNP made such a challenge in the 1987 election, claiming they were entitled to the same number of broadcasts, in Scotland, as the three main parties. A decade later, the Referendum Party brought a claim arguing that it was entitled to more than just one PEB. Both of these claims were rejected.

The context of a PEB is also different from that of a leadership debate. In the latter, time is limited and an increase in the number of participants may detract from the number of issues covered or the depth of the debate. There is a need to be selective. Even after the Human Rights Act, a legal challenge is likely to succeed only if the decision by the broadcasters is arbitrary or unfairly discriminates.

A complicating factor is the success of SNP in the Scottish Parliament since those earlier cases, which bolsters their argument for inclusion. While this would be true of any debate for the Scottish Parliament, it seems less likely to succeed in the context of an election for Westminster.

These issues have arisen in other jurisdictions. For example, in Arkansas Educational Television Commission v Forbes (1998) a candidate in a US congressional election claimed that his exclusion from a televised candidate debate violated his First Amendment rights to freedom of expression. The Supreme Court rejected the claim on the grounds that the broadcaster’s decision was reasonable and did not discriminate against Forbes based on his political viewpoint. The American example is of limited help, as broadcasters there are not subject to the impartiality rules that apply in the UK. However, it does reflect a general unwillingness for courts to get caught in these tricky questions and a reluctance to require certain people to be included in such debates.

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  1. May 3, 2010 at 7:32 pm

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