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Privatising ‘Auntie’? BBC Reform – Long Overdue

BBC logo on a building during daytime

BBC bias continues to make the news. But, says Clive Thorne, other serious problems also need tackling, from its monopolistic terms, to the nature of its control and regulation.

Nadine Dorries, as Culture Secretary has made it plain that she regards BBC reform as a major element of her brief. It is to be hoped that she does not “duck” reform as her predecessor, John Whittingdale was perceived to do, supposedly under pressure from the then Chancellor, George Osborne, whilst negotiating the last Charter settlement.

Dorries has a timely opportunity to do so with the mid-term BBC Charter review imminent. She will meet opposition from vested interests within the BBC. Already she has appeared to have withdrawn from the unconditional view that she recently expressed that the licence fee will be abolished as of 2028. It is nevertheless a plus that the licence fee is to be held at its current level for the next two years.

The issues that must now be addressed by an ostensibly Conservative government are existential. Should there continue to be a publicly-funded broadcaster?  Should it continue to be maintained on monopolistic terms funded by a compulsory licence fee or tax enforced by the criminal law whilst at the same time purporting to be self-governing?  If it continues to operate in its current form are the existing editorial obligations in respect, particularly of impartiality and accuracy, adequate? Is there sufficiently independent control supervision and enforcement of content?  Is the current system of regulation by Ofcom effective?

The concept of a publicly-funded broadcaster is hard to justify in the media market of the early twenty-first century. Sky, Netflix and other private sector broadcasters have been successful and profitable in providing high-quality television in all areas including leisure, culture, sport and news. The uncompetitive BBC appears increasingly anachronistic within such a market. What good reason is there for the BBC not to be privatised at arms- length with all the benefits, not least to the Exchequer, that the privatisations of the Thatcher years provided? It would also be popular with the public who would have the opportunity to purchase shares.

The traditional reason to maintaining a publicly funded broadcaster has been that only such a body is capable of maintaining high broadcasting standards and is able to broadcast subjects of national importance such as a royal event or general election or even a national sporting event. There is no doubt that its competitors are capable of those roles and of performing them better.

However, it is now very apparent that the BBC has failed to maintain editorial standards which warrant a national monopoly. Recent events such as the Bashir scandal and the ensuing Dyson report have shown that. Indeed, it was confirmed by the BBC’s own Serota Review in October 2021.

Arguments have been made that the BBC Radio services are different and their alleged high quality demands their maintenance on a publicly-funded basis. With the possible exception of BBC Radio 3 the quality of BBC sound broadcasting is now poor and also frequently complained of for left-wing bias and of no higher quality that any of their competitors such as LBC, Times or Classic FM. As in the case of television why should BBC Radio not compete as a private entity?

If privatisation were to occur the licence fee inevitably disappears. If the BBC survives in its present form there is still no justification for funding by a fee or tax, imposed by government, paid essentially by all users of televisions and screens even if they choose not to watch BBC broadcasts and without regard to means. Moreover as frequently described, the collection process is handled offensively by Capita, on behalf of the BBC, and disproportionately enforced by the criminal law.

The BBC states in its response to the Serota Review that its obligations of accuracy and impartiality are at the heart of its “mission and public purposes”:

“It is essential to ensuring audiences get value from the BBC and is the bedrock of why people come to our news output. We provide trusted, unbiased news. We cover all sides of the story. In the age of fake news, echo chambers of opinion and noisy partisan media outlets, our news serves audiences with the facts, the analysis and the insight they deserve.”

Except that the BBC doesn’t. The Press is full of instances of bias usually of a left-wing or “woke” persuasion. Random instances include ; a BBC board member, Muriel Gray, mocking Brexit and attacking Conservative Party policies as repugnant, as reported in The Times on Christmas Eve 2021, the analysis of the Today programme showing only “a Left-wing progressive take on everything from Brexit to statue toppling and the NHS ” as reported by Stephen Glover in the Daily Mail on January 7, 2022.

There is little doubt that such lack of impartiality is endemic. For example, it was recognised by comment from Sir Robbie Gibb, a BBC board member who referred to the appointment of Jess Brammar as executive news editor, an executive with impeccable left-leaning credentials, that it would damage the “already fragile trust” between the BBC and the government.

The invaluable work undertaken by watching services such as News-watch and its Principal, David Keighley, has demonstrated not just that bias and inaccuracy is endemic but also that under its current constitution there is no effective means of enforcing the BBC’s editorial obligations.

The BBC relies upon a Complaints Framework which provides a three stage complaints procedure. The first “stage 1a” is delegated to Capita who are contractually obliged to handle complaints not independently but in accordance with BBC policy. The third stage or “stage 2” is to an internal BBC body known as the Executive Complaints Unit or ECU.

The ECU’s failings were graphically illustrated in the very recent complaint now rightly referred to Ofcom by the Culture Secretary in respect of the BBC’s reporting of an incident. The BBC, inaccurately, reported (giving great offence in so doing) that three men who terrorised a group of Jewish celebrants of Chanukah on a hired bus in Oxford Street were reacting to a provocation; “Dirty Muslims” allegedly shouted from the bus. Though the ECU claimed that the alleged comments had been made, that was contrary to the evidence. They had not. The matter demonstrates that the BBC complaints system is unfit for purpose.

While future BBC reforms are considered there is now a pressing need meanwhile for a complaints process to be introduced, independent of the BBC, including an independent complaints tribunal with powers to fine and enforce its decisions against the BBC. The post-Leveson reform of the press complaints process provides a useful precedent.

Many people hope that Nadine Dorries, the Culture Secretary and the government will have the courage to make fundamental reforms of the BBC, its constitution, funding and standards.  Already a body of MPs from across the parties support reform. Privatisation might prove the best, and cleanest, option.

Clive Thorne

Clive Thorne is a lawyer specialising in intellectual property including patents, copyright, trademarks, breaches of confidence, privacy and data law, as well as IT Litigation Arbitration and administrative law. He practises in the UK and internationally, with experience particularly in the Far East, and is admitted to practise in Hong Kong and Australia. He has handled disputes in all relevant courts including the High Court, IPEC, Court of Appeal, Privy Council and UK Supreme Court. He writes and lectures on IP law and recently co-authored A User's Guide to Copyright. (Seventh Edition).


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