And Now, Live from the Public-Private Divide…R (Liberal Democrats and Scottish National Party) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin)

Britain is currently in the throes of a general election in which, an unkind Transatlantic observer might say, the question for many voters is ‘who is the evil of two lessers?’ It is quite likely, indeed almost certain, that Boris Johnson or Jeremy Corbyn will be occupying 10 Downing Street come January 1, 2020, notwithstanding the disdain the electorate has for both men.

Yet in an election which will have a decisive effect on Britain’s future relationship with the European Union and the country’s own internal cohesion it is fair to say that the Liberal Democrats (who began the campaign promising to revoke Article 50 and cancel Brexit) and the Scottish National Party (who dominate in Scotland and are ramping up the pressure on London for a second independence referendum) are likely to have a large part to play in the electoral drama to be played out on and after December 12. Hence their annoyance at being excluded from a televised debate hosted by the national broadcaster ITV during the election campaign, annoyance which was pushed to the point of litigation: R (Liberal Democrats and Scottish National Party) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin).

The High Court held, however, that the decision to exclude the Liberal Democrats and the Scottish National Party was not subject to judicial review. Accordingly, the obligation of impartiality imposed by the Communications Act 2003 and by the Broadcasting Code (of Ofcom, the communications regulator) was not enforceable in the courts against ITV.

The most important point for Davis LJ and Warby J was that ITV is not directly subject to statutory duties of impartiality:

The way in which the 2003 Act works is to require Ofcom itself to set the standards for securing the defined statutory objectives (see s.319). The special impartiality requirements themselves are likewise to be the subject of rules contained in the Code. The actual obligation to comply with the Code, binding on the broadcaster, is stipulated by the express terms of the licence itself (as the sample version produced to us in court confirmed); and Ofcom has the wide-ranging powers of enforcement of those obligations conferred by sections 40, 41 and 42 of the [Broadcasting Act 1990] (at para. 83).

Accordingly, judicial oversight operates “at one remove” (at para. 86). Ofcom is the first port of call for an individual unhappy with the implementation of the impartiality obligation, with the courts ready to step in to review the legality, rationality and procedural fairness of any decisions made by Ofcom. But the broadcasters under Ofcom’s jurisdiction are, themselves, not directly subject to judicial review:

The position is that the activities of ITV are purely commercial: that is so, even though it broadcasts to the public at large. The source of its powers and functions derives from its Memorandum and Articles of Association, not from statute. Nor are its activities monopolistic. The function of commercial broadcasting is not intrinsically a governmental or quasi-governmental function: and it does not become so even when the broadcasting is directed at major political or industrial issues or takes place during a General Election. It is significant that a commercial broadcaster is under no obligation to broadcast any debates at all (as is conceded); nor does anyone have any public law right to appear on television. It is true that ITV has obligations, under its licences, to comply with the Code established by Ofcom pursuant to the statutory requirements of the 2003 Act. But that its activities are regulated by Ofcom, a public body, does not mean that it is itself performing a public function. There are indeed many private commercial undertakings offering services to the public at large which are regulated, but who no one could realistically suggest are exercising a public function. Ultimately, in our view, the activities in question of ITV are of such character; and therefore its broadcasting decisions in this context are not amenable to judicial review (at para. 85).

Davis LJ and Warby J also dismissed the suggestion that the exceptional circumstances of the present election warranted intervention.

With respect, this analysis places far too much emphasis on the private character of ITV. It is true that there are cases in which contractual relationships have been held not to be subject to judicial review. One might even say, for the sake of argument, that the starting point in such situations is that judicial review is not available. There is, perhaps, a presumption of unreviewability. But, if so, the presumption can be rebutted. And many of the factors usually relied upon to rebut the presumption were present in this case.

First, whether a private body has been interwoven into a statutory scheme. Here, ITV has been interwoven into a statutory scheme, the whole point of which is to ensure that various obligations will be imposed upon it. The fact that ITV is not directly subject to statutory obligations imposed by legislation does not alter the reality that the statutory scheme was designed to impose obligations developed in detail by Ofcom (which, of course, is itself a public body).

At one point the test for the availability of certiorari did involve an inquiry into whether the power at issue was statutory but we have long since moved to a more contextual approach where the issue is almost always whether the indirect obligations imposed on a private party are such as to draw the party into a web of state regulation, thereby making them subject to judicial review. Where there are direct obligations, the question of reviewability is, of course, much easier to answer.

Second, whether private-law remedies are unavailable or ineffective. Here, neither the Liberal Democrats nor the Scottish National Party had any plausible contractual or tortious remedy. Note, in this regard, that the controversial residential care cases of the early 2000s (where local authorities contracted out the accomplishment of their statutory objectives to provide care) all involved situations where there were some contractual remedies. These cases have previously been considered to be the high (or, depending on your perspective, low) point of English judicial analysis of the public-private divide. This case goes one step further.

Moreover, Ofcom’s stated policy is not to intervene prior to a broadcast. This gave Davis LJ and Warby J “some pause for thought” (at para. 92). So it should have. Indeed, given the requirement under the European Convention on Human Rights (and thus the Human Rights Act 1998) that any limitation on freedom of expression be “in accordance with law”, a regime of prior restraint would almost certainly be unlawful. There must be serious doubts about Ofcom’s ability to intervene ex ante to secure compliance with anything but the clearest provisions of the Code.

Third, whether there is a non-statutory code which courts can interpret. Where there is a code, it gives the courts something to hang judicial analysis on, making judicial review remedies more plausible. Here, there was such a code. Of course, judicial interpretation of such a code ought to be appropriately deferential or circumspect but this issue is distinct from the issue of the scope of judicial review (seeparas. 103-115).

Without even mentioning the unusual circumstances of the December 12 general election, which will have enormous consequences for the future of Britain and its relationship with the European Union, these factors would have amply justifed an extension of the scope of judicial review to cover ITV. That Davis LJ and Warby J concluded that there was not an arguable case and refused permission even to apply for judicial review is, in my view, quite remarkable.

This content has been updated on December 6, 2019 at 15:03.