Opinion: Debates, PEBs and Judical Review: A graveyard of lost causes

This week’s announcement of broadcasters’ provisional plans for the 2015 General Election Debates predictably drew complaints and threats of legal action.

The plan is undoubtedly odd in some respects.  Glen Oglaza, who has been a senior political broadcast journalist for as long as I can remember, tweeted that the idea of excluding a party in government (the Liberal Democrats) from one debate was “bizarre.”

Broadcasters will have to review their plans nearer to the election period, taking into account what the polling situation may be at that time, the number of candidates each party is set to field and other election results between now and then.

The Green Party, which is facing the catastrophe of losing its only seat in the General Election,  says it will seek judicial review of their non-inclusion. UKIP supporters will be unhappy at their non-inclusion from two.

There is a long history of such cases before the courts. Almost all have ended in failure for the side bringing the case.  An SNP action against their non-inclusion in the 2010 leaders’ debates failed.  So have various instances of parties seeking to challenge the number of party election broadcasts (or restrictions in what they can show in those broadcasts). The courts in both England & Wales and in Scotland have given broadcasting authorities a wide discretion.

As long as the decision maker’s view has taken into account all relevant matters, disregarded irrelevant factors and is not plainly irrational the court will not interfere. Many of the people commenting on the issue  this week are evidently incapable of telling the difference between irrationality and something they happen to disagree with.

Regarding the 2015 debates, the Green Party’s argument is that a) they have as many MPs as UKIP and should be at least on a par with them and b) there are polling similarly to the Liberal Democrats and should be treated at least on a par with us.

These arguments are bound to fail.  In relation to (a) the broadcasters will be entitled to treat the Greens and UKIP differently on the basis of very different opinion poll results, that UKIP are likely to field many more candidates than Greens, have recently won a national election, have won significant results in parliamentary by-elections, have scored better in local elections, can point to evidence that they might win a larger number of seats than the Greens can point to.

In relation to (b) I am not sure it is true that Greens are polling as well as Lib Dems if you look at all opinion polls rather than a few. Aside from that, the broadcaster will be entitled to treat them differently with regard to one being a party of government, vastly different number s of MPs and  candidates, comparative success in local elections and the number of seats in which each party has an objectively credible chance of winning.

If the Green Party is prepared to throw away its members’ funds in such a blatantly hopeless legal action you have to wonder what attitude they would take to public funds if they were ever in power.

The fact is there is a party with proven commitment to the environment, as well as science and rationality, which has a credible chance of being in government after the General Election and that is the Liberal Democrats.

* Antony Hook was a Liberal Democrat MEP for South East England (2019) and has practised as a barrister since 2003. He is currently Leader of the Liberal Democrat Group on Kent County Council.

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  • Given that nobody seems to be able to agree on the nature of the leaders’ debates, why not just dispense with them? I don’t see that they add very much. In my view they reduce the whole election to the level of Britain’s Got Talent, with the “winner” is usually decided by who tells the funnier jokes and comes up with the more biting insults.

    If we really must have debates, then there is some logic in restricting at least some of them to those who are genuine potential prime ministers. At time of writing that is Cameron and Miliband.

    If the debate is to be extended, I see no reason not to include all parties with a realistic chance of winning at least one seat – including all the nationalists.

    The solution the Lib Dems seem to favour – i.e. the same format as last time – is the least logical and least fair of all options. It’s unfair on the excluded leaders, some of whose parties may end up winning more votes than Nick Clegg’s. And it’s clearly unfair on Miliband (assuming he’ll still be in post) since he’ll be the sole opposition representative versus two from the current government. Two versus one is not fair.

  • paul barker 14th Oct '14 - 6:38pm

    The Greens have an excellent moral case for being included where UKIP are but not a good enough Legal one. The Courts really dont like interfering with Broadcasting & the decision to exclude The Greens isnt utterly unreasonable.
    The idea of excluding one of the Parties in Government seems much more unreasonable, we should niether accept it nor challenge it in the Courts, just keep on nagging about it. Our case will get stronger as our Polling improves.

  • Tony Dawson 14th Oct '14 - 6:44pm

    Antony Hook’s arguments concerning the Greens seem to be saying: “This is the status quo (or at least it was 5 years ago) – let’s arrange broadcasting to help perpetuate this, I would suggest that having a bit of a challenge to the establishment consensus would not be a bad thing. There are problems, however, in arranging a ‘debate’ with four or more active participants.

  • The Liberal Democrats should be arguing for the widest possible participation of parties in at least one debate.

    And let’s not fail to think ahead: whatever criteria we demand for 2015 are likely to be used against us in 2020. The most intelligent thing to do would be to ask for criteria which might allow the Lib Dems to participate in the next election’s debates.

    I think that a good compromise would be three debates including:
    1) Leaders of all parties currently with MPs, or with a good chance of gaining MPs
    2) Leaders of the four parties that consistently poll the best
    3) Leaders of the two parties that consistently poll the best

  • Julian Tisi 14th Oct '14 - 6:55pm

    I think there’s a difference between the legal position and the moral position. I’m sure you’re right, Anthony, that if the broadcasters have been given a wide scope and they have taken all matters into consideration as you say that unless there’s obvious irrationality, they would probably win any legal challenge.

    A quite different question though – and one most people are concerned with – is whether or not the broadcasters have made a fair and reasonable decision (the moral position as it were). On this I think the broadcasters have got it wrong for two reasons: 1) Excluding a national party with 57 MPs, when currently a party of government and with a government record to defend, seems just bizarre. 2) By going with a format which whittles the contenders down (4, then 3, then 2) an impression is being given that it’s ultimately down to just the top two. This is clearly acceptable to both Labour and Tories because they want to encourage the view that it’s only about them. But it was clear in 2010 that we’re now in a multi-party era and in 2014 it’s even more clear than it was in 2010. So to go backwards, reinforce the 2-party norm and move away from the new norm of multi-party democracy is surely going against the tide and for that reason wrong.

  • @Julian Tisi: “Excluding a national party with 57 MPs, when currently a party of government and with a government record to defend, seems just bizarre.”
    But no one here ever hesitates, when the government record is called in question, to insist that it is not a Liberal Democrat government, and that government policy and Party policy are two different things. Again and again we’re told that “if this were a Liberal Democrat government it would be different.” So what difference does being a so-called “party of government” make? If the government were composed, as some are, of seven parties, one of which had only one MP, would that be a good cause for including all seven in a leaders’ debate? Probably not, because those smaller parties, though they might be necessary to give the government a working majority, would not be influential. But if you agree with that reasoning, then you have to start asking how influential the Lib Dems are in the current government. Whose record will they be defending? Their own? Or that of the Conservatives? And why does the government, which has only a single head, require two people to defend its record?

  • The main players by a long way in the 2015 GE will be the Conservatives and Labour, it is only fair they get the most time. The main secondary parties are UKIP and the LibDems and it’s again fair that they get to take part in some of the debates. If anyone is getting a rough deal I think it’s UKIP, I think recent elections have shown they have a large support in the country and should get equal time with the LibDems.

  • I think the Greens have the most tenuous case, but UKIP having won the Euro elections and performed strongly in most By-Elections should really not be ignored. If for no other reason then they are a one trick pony. At present they try to appeal to both natural Labour and Tory voters. Forced to debate on the breadth of issues they would be exposed as either inconsistent or (I suspect) to the right of the Tories.

    The other issue is the SNP and to a lesser extent Plaid Cymru. I would have thought that a debate each for Welsh and Scottish TV areas including them would be appropriate. The Westminster parties could decide whether to use their regional or national leaders. In England though to deny UKIP a seat at the table risks making them Martyrs to the “Westminster Clique”.

    I would have thought that the Lib Dems would do better to suggest a more inclusive arrangement then trying to deny the success of UKIP.

    Legally they probably have no case, but morally parties other than the current Westminster big 3 do in my opinion. It is also worth remembering that if the number of Lib Dem MP’s drops to the lower end of expectations than they could be the losers in 2020…

  • The Greens being excluded screams sexism in volumes… sorry but that is how it is coming across.

  • A few questions to try and help with getting this into perspective. —
    1. Why should this be up to the broadcasters? They hacked phones, told lies, some are still in prison for their crimes.
    2. Will many real people actually watch these programmes?
    3. Of those that do watch these programmes, how many will be political anoraks who will not change their vote?
    4. Was the lesson of Cleggmania that even an incompetent can shine in a TV studio and prosper for one week?
    5. What are these broadcasts for?
    6. Are they anything to do with democracy?
    7. Are they just a cheap way for TV companies to fil a hole in their schedule?

    Cheaper than the Great British Bake Off and with less politics than Strictly Come Dancing. ???

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