Home > Election, Media > Impartiality, debates and injunctions

Impartiality, debates and injunctions

There are a number of signs that a general election campaign is taking place – posters in windows, signs in gardens, leaflets through doors, party election broadcasts, and finally litigation concerning the coverage of smaller political parties in the broadcast media. Ok, it is probably only lawyers who look out for the last one. Normally the cases concern the allocation of election broadcasts, but this time it was about the leaders’ debates.

The SNP applied to the Court of Session for an injunction to restrain the broadcast of the leaders’ debate in Scotland. They argued that the BBC’s refusal to include the leader of the SNP in the debate was unfair, discriminatory and in breach of the impartiality requirements. I’m not surprised the application did not succeed. It would have been a major upset had the debate been prevented from taking place at such short notice. That said, the Scottish courts have in the past been willing to make similar orders. In 1995, the Court of Session granted an injunction preventing the broadcast of an interview with the Prime Minister three days before the local elections. There it was said that the broadcast of the interview was not urgent and could be delayed until after the elections. The same is not true of the debates, which are of little use after the polling day.

Lady Smith, refusing to grant an injunction, commented on the meaning of impartiality in the media:

It cannot be a simple matter of giving each and every political party equal coverage. Nor can it be a simple matter of taking one point in time during the election period and examining the coverage on a single channel at that stage. […] The respondents explain in their guidance documentation what their approach is, taking account of matters which appear properly relevant such as prior electoral support, all subject to overriding considerations of what is proportional and appropriate over the relevant period , thus leaving themselves with what, on the face of it, seems to be a sensible measure of discretion.

Lady Smith also questioned what is meant by the ‘equal coverage’ demanded by the SNP. Those comments highlight the difficulty in deciding what a fair and equal process means in relation to media coverage.  The problem is that it is impossible to treat all parties equally in this context. The same type of question arises in relation to any subsidy for political groups: if it cannot be made available to all groups, then what is the threshold to benefit from the subsidy? This will to some degree be in the discretion of the broadcaster. The issue is more difficult in relation to debates than in relation to party election broadcasts. Smaller parties can at least ask to be given an extra PEB without that time coming at the expense of the time allotted to another party, but time for the debates is even more constrained. It was also found that the BBC could show impartiality through its coverage of the SNP outside the debates. That said, given the benefits in terms of exposure that the debate gave to Nick Clegg, it is a high stakes issue and you can see why the SNP felt aggrieved.

Lady Smith also based her decision on the SNP’s delay in bringing the petition. They had known about the debates well in advance and to impose an injunction at that stage would have disrupted the broadcaster’s planned coverage.

This was only an application for an injunction and the case will still go on to a final judicial review hearing. Though for reasons I have said before, past judicial decisions suggest that is unlikely to succeed.

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