BBC licence-payers deserve a strong, independent regulator

17.11.16 Publication:

In an Oxford lecture in May about the BBC, Chris Patten
concern at government plans
to hand regulation of Britain’s public-service broadcaster to Ofcom, calling it
the “ever-more powerful communications regulator, at only arm’s length from
ministers.” As a former chairman of the
BBC Trust, Lord Patten’s
view was thought a tad prejudiced. With the new BBC Charter having passed
through parliament, Ofcom is poised to take over the role next spring.

Having emerged from six months chairing Ofcom’s Content Board,
and four further months being extracted from my contract as a director, I am
now free to say that I share Lord Patten’s concern. In its current shape and
leadership, Ofcom looks unfit for the vital national task of protecting
editorial standards at the BBC and regulating the broadcaster’s performance and

Regulating the BBC is not easy, as Lord Patten knows. His BBC
Trust had the merit of having more distance from the broadcaster than its
predecessor, the Board of Governors, but it was neither fish nor fowl: it could
neither control strategy and keep executives accountable, nor be independent
and robust enough to command legitimacy when scandals hit the broadcaster.

Hence the resort to Ofcom. The agency has done an efficient job
dealing with editorial complaints against commercial broadcasters since it
gained its powers in the Communications Act of 2003. Dividing governance from
regulation, as the government’s BBC Charter now intends, with a new BBC Board
taking on governance and Ofcom the rest, makes sense.

In practice, success will depend on the same question as faced
the BBC Trust: is Ofcom independent and robust enough to command public support
and legitimacy when troubles hit? With the BBC, unlike commercial broadcasters,
the regulator has a double role: to serve viewers and citizens by ensuring
standards remain as high as the public expects; and second, to act as a strong,
credible and fair disciplinarian so as to prevent politicians from stepping in.

The main doubts concern the independence of the organisation
from government. Responsibility for assessing BBC performance will lie with the
main board of Ofcom; that for dealing with editorial standards issues with
Ofcom’s separate Content Board, although really controversial standards issues
will no doubt rise to the main board, too.

Non-executive directors are all appointed by the secretary of
state of Culture, Media and Sport (DCMS). Of its current six, three have
affiliations with the Conservative party. The deputy chair, Baroness Noakes,
takes the Tory whip in the House of Lords. Graham Mather is a former Tory MEP.
And the chair, Dame Patricia Hodgson, while not politically active, is a former
head of the Conservatives’ Bow Group and featured in Charles Moore’s biography
of Margaret Thatcher as her regular lunch companion.

The chair carries a double question-mark as she was a long-time
senior executive at the BBC until she left in 2000. Dame Patricia will be wise
to every trick in the BBC book, but at moments of political tension she is
liable to face accusations that she is too familiar with the players to be a
proper referee.

That frontline referee may have to be Ofcom chief executive,
Sharon White, who until 2015 was a Second Permanent Secretary at the Treasury.
Ms White has fine civil service values. But when fan and ordure meet, she will
have to prove her detachment from government.

Ms White’s caution, along with Dame Patricia’s BBC background,
played a role during my time chairing the Content Board. I succeeded Tim
Gardam, a former television executive, on the basis that Ofcom and the DCMS
felt independence from the BBC could best be displayed by choosing a former
print editor instead of an ex-BBC person.

The trouble with journalists, it transpired, is that they write.
Perhaps alarmed by the febrile atmosphere surrounding June 23rd, Ms White
decided in May that for the chair of the Content Board to publish articles
about issues of public policy would produce a potential conflict of interest
should editorial complaints arise about such issues.

A legal opinion was produced to back this up, one which should,
on the face of it, have ruled out my recruitment in the first place.
Accordingly, Ofcom negotiated an amicable settlement for the early termination
of my contract. Four months later, the secretary of state, Karen Bradley,
overturned the settlement, alleging that three tweets, one Italian interview
and an article about “Preparing for President Trump” amounted to “misconduct”
and that Ofcom had no power to negotiate a deal.

of the establishment is running high. So it is crucial that the BBC should have
regulators who are seen to be independent. Instead, the DCMS and Ofcom’s
leadership appear to believe that having editorial regulation fronted by an
independent writer is a greater risk than having the main board dominated by
one party. Contrary to Lord Patten, “ever-more powerful” does not seem the main
danger. Supine and too close to government represent bigger worries.