Has the BBC fallen down on the job?
London Independent | March 11, 2007
From the General Strike of 1926 to Andrew Gilligan's "sexed-up" dodgy dossier exclusive 77 years later, the BBC has struggled to define its relationship with government. The corporation's most ardent admirers acknowledge that its independence has often been compromised by a reluctance to confront ministers.
For ideological opponents, this risk aversion is an inevitable consequence of the licence fee. Others say it has grown particularly intense since the fiasco of the Hutton inquiry. Those in the latter camp say the corporation's response to the injunction that prevented the 10 o'clock news on Friday 2 March transmitting allegations in the cash-for-honours probe marks a new low.
"Why was the BBC so weak?" asks a leading lawyer. "If it had been a bit more savvy, it would have broadcast the story on News 24 as soon as it got it. The information would have been in the public domain and the injunction would have been irrelevant."
"I was surprised," says Eric Barendt, Goodman Professor of Media Law at University College London. "The legal argument was that publication would create 'a substantial risk of serious prejudice', but that is very weak. One has to look at the BBC's behaviour in the context of the Hutton inquiry."
The leading media lawyer says: "The BBC's lawyers have been pathetic since Hutton." Mr Barendt is slightly less acerbic: "The BBC has always been reluctant to challenge government. It behaved in a similar fashion when Margaret Thatcher banned the voices of IRA members."
Campbell Deane of media lawyers Bannatyne, Kirkwood France offers a partial explan-ation for the failure to challenge the initial gagging order obtained by Lord Goldsmith, the Attorney General, one hour before the bulletin. "The BBC desperately wanted to get something on air," he says. "If they had sought to appeal the decision at that stage, that would have been impossible."
The tactic backfired. The BBC was restricted to reporting that it had been prevented from broadcasting a story which it believed was a "legitimate matter of public interest". Viewers got the impression that something spectacular was being concealed.
The impression lingered when, last Sunday, the corporation's legal team concluded the injunction was "too rigid" to contest and abandoned their appeal.
The precise terms of the ruling were not given to other media, but papers and broadcasters were told they were bound by it. The Guardian chose not to comply. Its Tuesday edition reported that police were investigating whether Ruth Turner, Downing Street's director of government relations, had been asked by Lord Levy, Labour's chief fundraiser, to modify information that might have been of interest to the police inquiry.
The newspaper story galvanised the BBC. On Tuesday it returned to the High Court to appeal against the injunction. Lord Goldsmith did not contest the action and the corporation was able to report that Ms Turner had written that she was worried Lord Levy had put to her a description of "his role in drawing up the honours list which she believed to be untrue".
The story was significant but not earth-shattering. "This evidence is not a smoking gun," says a top criminal lawyer.
"It [the injunction] was a very odd decision," says Mr Barendt "taken by an apparently non-expert lawyer."
Other sources say the injunction hearing was taken by a judge who does not specialise in media issues, while others speculate that this may explain why the details of the judgment have not yet been published.
Some lawyers call the decision to grant it eccentric. That makes the BBC's behaviour uniquely perplexing.
Defending the corporation on Radio 4's Today programme last week, the deputy director-general, Mark Byford, said any notion the BBC was "sitting back" was "absolutely untrue". It could not publish before putting the allegations to the individuals involved (Ms Turner and Lord Levy), and "once the injunction was in place, we had to respect it".
That fails to take account of the hours before it was granted, when the story had been checked and could have been broadcast on News 24 or Radio Five Live. Mr Byford's Today interview strongly implied that the BBC was satisfied about accuracy and fairness well before the injunction tied its hands.
It is plausible - as corporation spokespeople insist - that it was the decision to confirm details with Lord Levy and Ms Turner that alerted the police and prompted a request for the Attorney General's intervention. But that has not satisfied BBC journalists that their managers did everything in their power to ensure the story was broadcast.
One journalist says: "Peter Horrocks [head of BBC Television News] was happy with the report. He wanted to get it on air and he fought his corner hard." Others say a desire to break the exclusive on the flagship TV bulletin played into the hands of the Attorney General by delaying the broadcast long enough for him to obtain the two-hour hearing in chambers that delivered the injunction.
Allegations that Lord Goldsmith acted politically are emphatically denied. One experienced criminal lawyer insists: "He was damned if he did and damned if he didn't - but the police asked him to act and he could not refuse that request."
The same source has no sympathy for the corporation's response: "The BBC has a regrettable tendency to brief very expensive libel lawyers who have never appeared in a criminal court."
The strong implication is that the BBC should not have lost even at the initial hearing. The test in this case - whether a real risk of serious prejudice exists under the terms of the Contempt of Court Act 1981 - is hard to meet when there is not the remotest possibility of any prosecution reaching court for months.
Mr Barendt agrees that the risk of prejudice to any future trial was remote. He describes the BBC's caution as "a little bit supine, but rather in character". However, Jo Glanville, editor of the Index on Censorship journal, says: "It is much more difficult for a broadcaster to publish and be damned than a newspaper. While there's no doubt that the shadow of Hutton still looms, this is a much bigger issue than whether the BBC is or isn't rising to the occasion. The cash-for-honours story is a matter of public interest and the use of prior restraint to gag the press has to be challenged."
It was, but it is not obvious that the BBC would have challenged it without prompting from a newspaper.