Lady Smith has ruled just before lunchtime on Wednesday 28 April 2010 that the SNP ‘s action to request their inclusion in the TV debate on Thursday evening has been rejected.
She said that if she granted the interim interdict requested then she would be affecting the exercise of the right to freedom of expression afforded by the Human Rights legislation. She goes on to say that as this case was a request for judicial review then an interim interdict could not be granted as of right. It had to be proved necessary, and since the order which the SNP were seeking lacked any precision it simply could not be granted. If she had granted the order sought then she contended that the BBC would have difficulty in understanding exactly what it was they were to do or not do.
There were other outcomes which could have resulted and they have also been rejected by the court. Expenses have been awarded in the usual way with success, so the SNP may have to dig a little deeper than their £50,000 fighting fund.
The party had requested a review of the decision by the BBC of 21 December 2009, according to the court papers and the written decision handed out by court officials at the end of the hearing which finished just before lunch.
This is rather curious, as the SNP had earlier claimed that part of the reason for the delay in bringing the court action was that they apparently wanted to go through the BBC appeal process. They did go through the BBC appeal process by asking the BBC Trust to intervene last week, but it was about a different matter. The BBC Trust which governs the BBC, ruled that the corporation and principally the Director-General had exercised its discretion correctly in banning the SNP from the Prime Ministerial Debates.
It seems clear that the appeal to the Trust was made against a decision by the BBC dating from 29 March this year, when the Director-General of the BBC wrote to the Chief Executive of the SNP advising that:-“The SNP currently holds seven seats at Westminster and is standing candidates in less than one tenth of the constituencies of the UK…In that context we are confident that our proposals will be judged to be both proportionate and appropriate as well as being entirely within our editorial discretion.” And in this letter which rejected the SNP leader as a participant in the debates, there was also information given about the way the party could appeal that decision to the BBC Trust which they did. The BBC Trust rejected their appeal and said that it was satisfied that the Director-General had not erred in law, nor had the obligation of impartiality been breached.
The action it seems was based on a previous, and now rather historic, announcement by the BBC of 21 December 2009. It is little wonder then that part of her Ladyship’s decision was based on the fact that there was a delay by the SNP in doing anything about it.
On 21 December 2009 a press release was issued stating that all three main parties, Labour, Conservative and the LibDems had agreed to a proposal made by the BBC that there would be a series of three live Prime Ministerial debates during the election campaign. This set out which broadcaster would air which debate and also other key principles were agreed.
The SNP did write on 22 December 2009 to the BBC asserting that this format would breach BBC editorial guidelines as parity of coverage would not be given to all major parties in the UK. i.e. the SNP would be omitted.
So the SNP were aware of the decision by the BBC of 21 December and the arrangement made with all three broadcasters to air the debates.
By 4 February they had articulated a view that the BBC would be in breach of their duty of impartiality.
But the SNP then went on to state in court that it was only when they had evidence of the damage done (to their election campaign) by the first debate that they could take action about it. The judge points out in her decision that the rationale behind an interim interdict application is to avoid something happening and to put a stop to it before it does any damage which is contemplated. So the idea that an interim interdict would be applied for only after some damage was done does not sit very easily with the reason for such an action.
A crucial part of the decision states that it would be wrong to deprive the public of the third debate which her Ladyship likened to a three course meal or a play in three acts. It would be essential that the public, and by that she meant the whole of the UK, would have the right to watch the third debate to complete the picture being painted by the whole series.
The full text of the decision may be read here.
