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Ofcom: Impartiality

Volume 793: debated on Monday 29 October 2018

Question for Short Debate

Asked by

To ask Her Majesty’s Government what assessment they have made of whether there is any conflict of interest between the duties of the chair and former deputy chair of Ofcom as impartial regulators of the BBC and their parliamentary duties including their voting record on Brexit.

My Lords, Ofcom is the broadcasting regulator, and its role was significantly increased last year when it was given responsibility for regulating the BBC under the new BBC charter. It is absolutely essential that Ofcom is impartial and seen to be impartial, and that impartiality must start at the top with its chair and deputy chair. Ofcom’s own code of conduct for board members could not be clearer about this. It says:

“There should never be any legitimate reasons for people outside Ofcom to suspect that Ofcom’s decisions may be influenced by … political interests and opinions, of Members”,

of the board. It further states that members of the board should avoid,

“expressions of opinion on matters of political or public controversy which could be thought to compromise the Board’s reputation for impartiality on editorial or other decisions”.

The memorandum and the code of conduct for board members lay specific additional duties on the chair of Ofcom. It says that the chairman shall have,

“particular responsibility for leading the Board in … encouraging high standards of propriety”.

In the case of uncertainty on the part of members as to what constitutes propriety, the code of conduct says:

“Members are asked, if in doubt, to consult the Chairman”,

who therefore must be entirely above board.

The problem is that the chair and the recently retired deputy chair of Ofcom do not command general confidence for being impartial. This has undermined and continues to undermine both Ofcom and the BBC at a time of acute sensitivity and controversy—sensitivity and controversy which are set to become still more acute amid the parliamentary, media and public debates on Brexit in the months ahead.

I obviously approach this issue with reluctance, since the noble Lord, Lord Burns, the Ofcom chair, and the noble Baroness, Lady Noakes, the recently retired deputy chair, are both distinguished Members of the House, who in non-political respects I hold in high regard. But we are discussing public duties, and it is crystal clear that the public duty of the noble Lord, Lord Burns, and the noble Baroness, Lady Noakes, while they held or hold responsibilities at Ofcom, is not to damage the independence and impartiality of the regulator by taking positions on issues of political controversy.

I need hardly say that Ofcom’s requirement to abstain from all political controversy is of a level far greater than that expected of noble Lords who chair most other public bodies and who sit on the Cross Benches. It goes well beyond a requirement simply to be discreet and not court undue controversy. It is the impartiality expected of a judge to abstain completely from political engagements, because Ofcom, like a court, is a credible arbiter and enforcer only if its arbitration and enforcement command general confidence on all sides of disputed issues, which in the case of Ofcom means all disputed political issues, since all are the stuff of broadcast news and programming.

The post that most resembles the chair and deputy chair of Ofcom is the director-generalship of the BBC, which is also held by a Member of the House: the noble Lord, Lord Hall of Birkenhead. The noble Lord is a model of impartiality. He neither speaks nor votes in the House on political matters—indeed, on any matters at all since he took the helm at the BBC. The position of the noble Baroness, Lady Noakes, who retired from Ofcom in May, is in every respect the reverse. She is not only a Conservative Peer who takes the Whip and speaks and votes with the Government consistently, she is an extreme Brexiter who voices her pro-Brexit views frequently in and out of the House, and she is brutally dismissive of those holding contrary views.

I do not wish to detain the House at great length but I have a whole pile of the noble Baroness’s tweets and speeches to give substance to the points I have just made. I will give a brief selection of her tweets while she was deputy chair of Ofcom, which aroused significant controversy in the House of Commons at the time. Before the 2015 election she tweeted:

“Be afraid. Be very afraid if @Ed_Miliband and #Labour get back into power”.

Her other tweets have included:

“We can never state too often the basic fact that every Labour government in UK history has left the country in financial ruins”,


“OMG: Lord Mandelson: Britain could still join the Euro … Another good reason to keep Labour out”.

I have no idea what OMG stands for; apparently it is Twitter shorthand for something. These tweets and interventions are utterly inappropriate from the deputy chair of Ofcom.

This situation caused profound disquiet within Ofcom itself, particularly in relation to the Ofcom Content Board, the committee immediately responsible for media content regulation. Its then chair, Bill Emmott, a distinguished former editor of the Economist, left Ofcom two years ago after sharp disagreements over these very issues, and the regulator has not recovered.

In this situation it was essential that the noble Lord, Lord Burns—as the new chair of Ofcom, appointed last year—should command general confidence. But, again, I am afraid that the reverse is the case. The noble Lord, Lord Burns, came to the post with a history of support for Brexit in the House, which made it all the more important that he abstained from controversy after his appointment. Far from doing so, in the single most controversial vote in the House so far this year, in April the noble Lord voted with the Government against legislation for the UK to join a European customs union. I hardly need tell the House that this issue is at the heart of the ongoing Brexit controversy. It is especially controversial among critics of the BBC, who claim that the state broadcaster’s coverage of Brexit has been inadequate and biased. I was astonished at the time to see the noble Lord passing through the Government Lobby, and I raised the issue directly with him. I received a bland, dismissive response, and then no response at all when I pressed the matter further.

The situation is all the more serious because Ofcom’s regulation of the BBC has been notable by its absence. The rules it has put in place for considering complaints about impartiality and content at the BBC are so restrictive as to be almost inoperable. The one voice that has been totally silent throughout the controversy about the BBC and its coverage of Brexit has been Ofcom’s. As I see it, the BBC is in effect regulating itself, and when in doubt the BBC and Ofcom defer to the Government. This situation is clearly unsustainable.

The irony of the situation is that the person who has best described why it is unsustainable is the noble Lord, Lord Burns, himself. When he was giving evidence to the Digital, Culture, Media and Sport Committee of the House of Commons at his confirmation hearing on 13 December last year, he said:

“One of the distinguishing features of our broadcasting world is the requirement both for accuracy and impartiality … I get very nervous when I see broadcast journalists tweeting in the way they do, where they make it perfectly clear what their own personal view is and then they appear on television the following day seeking to arbitrate between two people taking opposing views where they have already expressed their own views in print. I am uncomfortable with that”.

The noble Lord clearly had certain senior BBC journalists in mind when he made those remarks, and with good reason. But it is even more uncomfortable that the chair of Ofcom—at the apex of the whole system of media regulation—should seek to arbitrate between people taking opposing views when he too has already expressed his own. This undermines Ofcom, it damages our democratic institutions, it is simply unacceptable and it should not continue.

My Lords, last week this House with one voice condemned an attack on a public servant, Olly Robbins. It is extraordinary, and extraordinarily sad, that we should have to go through this sort of thing again. This debate should never have happened. Since when did we in this country judge a man or a woman not by their character or their conduct but solely by the colour of their political conscience? Our fathers and grandfathers fought for better than that.

The noble Lord, Lord Adonis, stands second to no one in his passion for the European Union, but passion can sometimes mislead and make blind, and I believe he has been misled. My mind keeps returning to the words of another European—born in Dublin, lived in London, buried in France—Oscar Wilde. He wrote:

“Yet each man kills the thing he loves

By each let this be heard.

Some do it with a bitter look,

Some with a flattering word”.

I have always had the most cordial relationship with the noble Lord and I fear that what I am saying may break those bonds. But I have listened to his words and I am appalled by them, frankly. They leave any fair-minded person far behind. He is, I believe, killing the thing he loves.

The House has shown its disdain for this debate: it has preferred its dinner. I say this with immense sorrow but I believe that the noble Lord owes this House an apology for sponsoring this debate—and a far more profound apology to those whose integrity he has attacked.

My Lords, I thank the noble Lord, Lord Adonis, for raising this subject, despite its highly controversial nature, because it is part of his work anyway as a great fighter for the European cause. I admire very much the many and frequent activities of the noble Lord, Lord Adonis, in all respects in dealing with the anti-Brexit battle and the menace we see in this country of this foolish decision—I do not blame the British public at all but the decision was foolish in objective terms—made two years ago, because of the growing national dismay about what is happening now. That was one element of the great march in London last Saturday, when 700,000 people of all kinds, ages and social groups, and from all walks of life and all over the country, came together to register their feelings of dismay. I believe that that will carry on and grow even more as time goes on, as was shown in a quite spectacular fashion last Saturday. The noble Lord, Lord Adonis, and I are frequently together in various meetings and on various groups and committees and so on, dealing with the anti-Brexit battle. It is very hard work, which I am glad to do because I think it is a duty of politicians in this country to wake the public up to the menace that we face.

On the Question, I am not an expert at all on the functions of Ofcom, which has now taken over these new duties in running the BBC. I do not know the noble Lord, Lord Burns, at all, and I know the noble Baroness, Lady Noakes, only fleetingly as being quite close geographically on the Benches and as a very popular Conservative Peer. She is someone with whom I have had conversations about the joys of skiing because she is an expert and I am a very bad skier, so it is good to get advice from her.

There is a function of the BBC, however, which worries me greatly. It may be accidental or haphazard, or because it has not got used to the new scenario that has developed from the position that it took with the referendum result. The reality is that we need to remind ourselves that because it was only an advisory referendum—this is why I do not criticise the public for that decision, which we respect—its advisory nature needs to be repeated as the nation grapples with this most painful problem. Although David Cameron said that he would respect the outcome and deal with it accordingly, when the next Prime Minister came along and said, “Brexit means Brexit”, she appealed to just one segment not of the public but of her own party only—that one narrow segment being the fiercest Brexiteers in the Conservative Party. She appeared to be pretty nervous of the trouble that they would make if she did not go along with that. That needs to be dealt with as the national dismay grows now.

There is no reason to assume this. It depends on the need to restore the position, power and reputation of Parliament, which has recently been under severe pressure, with the public increasingly disengaged from and disappointed by their MPs’ behaviour on all sorts of matters, not just on Europe but for various reasons. I feel sorry for the way that MPs were persecuted over their expenses, which was most unfair in respect of the vast majority of MPs, but all those things have added to the fierceness of the press. Unfortunately, we have some very melodramatic newspapers in this country, owned by individuals who insist on not paying UK personal taxes while saying that we must all be patriotic Britons. Those arguments are therefore never properly encapsulated in the dismay that is now growing and developing, as Parliament seeks to come to a final conclusion depending on the outcome of the negotiations.

There are comments that I hear so often from other people about the BBC. I declare an interest as I live in France as well, which is proud of being a well-known member of the eurozone—that strong international reserve currency. The British newspapers never report that, as we know, and nor does the BBC. I have particularly heard many comments in recent times from British residents who live abroad in other EU countries. They do not feel that the national broadcaster, which we all love and still find to be a national treasure despite the pressures, is really giving a balanced picture. It seems to be recording the continuing, narrower position of the Government rather than the wider position of the national dismay that I have described. There is a brilliant monthly English-language newspaper in France called the Connexion, which a lot of British people read. I have had many conversations with and many emails from such people saying that they do not feel that the BBC, which they listen to a lot from France, really covers the spectrum of people’s views on these matters. That needs to be done.

For example, why does the BBC not do this? I hope this is a fair criticism because I have been told it many times by other people who have more time to listen to the BBC’s programmes than I do. Unfortunately, I am usually limited to the “Today” programme—even that programme often faces criticism, particularly of John Humphrys and the way in which he chooses words that give the impression of just one narrow stance on the outcome of what was decided two years ago, despite all the maelstrom, turbulence, contradictions and disagreements that have emanated from that decision between then and the present day.

Why does the BBC therefore, if I may give this one example, say that effectively there are the following options? One is that Theresa May’s deal will get agreed with the EU; if that is done, that is one outlet. Another is that it goes wrong and there is no deal. Another, I suppose even worse, is that it is a bad deal—although I am not sure what the logical order of those things would be. But the other option, the most important one which is beginning to develop, is that which says that we would remain in the EU. That is the substantial wish of the people who marched last Saturday 20 October; if there is another march I confidently expect it to be even bigger. I hope that there will not need to be because of common sense at the national broadcaster, which I hope will listen to this debate—to the advice of the noble Lord, Lord Adonis, and the advice of the other speakers here.

It is important for us to ensure that the BBC gets it right and gives a genuine balance of all the opinions in this country. There is an opinion now developing, if not on the Tory Benches in the Commons. I think it is strong enough already among the Peers on the Tory Benches in this House, as the House of Lords has a big European majority. That opinion is to say that that final option of staying in, because nothing else works out at all effectively and practically, not even the Canada alternative or the Norway model—by the way, there has not been a deal on Northern Ireland yet anyway, so all this is just conjecture—needs to be taken into account properly. That would ensure that we get the record straight and that people can rely on what their crucial and much-loved national broadcaster says about these matters.

My Lords, we on these Benches started by regretting this debate. We feared that it was too personal and advised that it should be withdrawn. But although I was concerned about the personal aspects, in the event, as always, the noble Lord, Lord Adonis, has used his debate as a wider canvas, particularly on the importance of the independence of Ofcom. I generally respected the way that he has gone about it tonight.

I do not want to comment on the noble Baroness, Lady Noakes, because she is obviously a Conservative Back-Bencher and a more partisan figure. However, she was appointed before Ofcom’s role was changed and her accountancy expertise and experience would have been important to Ofcom as it was. She stood down in May, so I am really not concerned about her position—except that it has to be said that Conservative Governments are very good at getting their own people into public appointments. These political appointments need to be strongly scrutinised by the public appointments authorities.

The noble Lord, Lord Burns, is a respected Member of this House. His whole career underlines a long experience in how to maintain one’s political independence while undergoing political duties. Having looked at the detail, his voting and speaking in the House suggests to me that he has adjusted to his new role as chairman of Ofcom appropriately. He has in fact voted only four times since January. One vote was to protect our Summer Recess, which is hardly a partisan matter. On the hereditary Peers’ abolition Bill, he opposed the move to widen elections for hereditary Peers, which would have undermined his proposals to reduce the size of the House. Early on, he voted on the Sanctions and Anti-Money Laundering Bill. I expect that the vote on the customs union was an aberration before he really realised that he could open himself up to criticism. It must be difficult for a former economic adviser and Permanent Secretary to the Treasury not to have an economic viewpoint. That was the first vote on the withdrawal Bill and he never voted again. Personally, over the next year, I would advise that he should not vote on Brexit issues. As the noble Lord, Lord Adonis, said, the noble Lord, Lord Hall, absents himself. No one would expect a non-executive chair to do that totally but the noble Lord, Lord Burns, needs to be circumspect, which I think he now realises he has to be.

Managing the media is challenging. Having been in the print media myself—for a long time in the local media, where you are naturally very close to your customers and readers—my one bit of advice is that you never please everyone and if you have everyone complaining, you are probably nearest to getting it right. Ofcom is a regulator; it can influence the editorial balance of the BBC but operationally editorial decisions have to be the BBC’s responsibility. We have never needed the BBC more, as we seek to combat fake news and ensure that it plays its role in helping to unify the country on the difficult issues we are confronting.

The really worrying situation is that the BBC is becoming a minnow, given the restrictions it is under. BBC revenues are partially frozen while competitors are growing vastly in scale, often as part of large American consortia. The revenue figures of our respective media companies are chilling. The BBC shows revenue of £5 billion and a £34 million surplus in its latest annual report; ITV has £3 billion; Sky has revenue of £13 billion and an operating surplus of £1.5 billion. Netflix, admittedly an international company, has revenue of $11.7 billion and grew at 30% last year. Ofcom’s principal future strategic role is seeing the country through these severe commercial developments. Having an economist with the wide experience of the noble Lord, Lord Burns, as chair of Ofcom is probably timely and relevant.

My Lords, we very much value the wealth of experience, knowledge and skills that Members from all Benches bring to the House from their current positions outside the House as well as their former ones. It is one of the strengths of the House. We very much include our noble friend Lord Adonis in that. He brings his wealth of experience to the House. Nevertheless, and with the greatest of respect to my noble friend, it is hard to see why this is a question for the House. The House has its rules, code of conduct and procedures covering matters of conflict of interest, and where my noble friend has any concerns over breaches of the code or rules, we strongly advise him that he should follow the normal pattern of dealing with them.

My Lords, I would like to provide clarification on the question asked by the noble Lord, Lord Adonis, on this matter. To begin with, it is important to point out that we all have our own views, which we are entitled to have, yet in many of the roles we hold we are expected to separate ourselves from our private views and ensure that our decisions are objective and evidence based.

This debate was first requested in April when my noble friend Lady Noakes was deputy chair of Ofcom. As has been mentioned, she has since stepped down, and I thank her for her sterling work during her time as deputy chair. The new deputy chair, Maggie Carver, has recently been appointed by the Secretary of State for Digital, Culture, Media and Sport, and I congratulate her on her new role. She brings extensive knowledge and experience of the broadcast and telecommunications industries and will be a valuable addition to the Ofcom board.

Turning to the chair, the noble Lord, Lord Burns, should be much lauded for his continuing work on reforming the size of this House. Among other roles, the noble Lord, Lord Burns, previously served as chairman of Channel 4 for six years, and I commend him for his hard work since his appointment as Ofcom chair in December 2017. He has expertly chaired the board and the nominations committee. During his time, Ofcom has delivered the auction of airwaves for 4G and 5G and, more recently, the first annual report on the BBC.

I now turn to the role of Ofcom, the independent regulator and competition authority for UK communications industries. It is crucial that Ofcom is able to regulate broadcast content in an impartial manner and that any conflicts are declared by its members and dealt with according to statutory requirements and official guidance. There must be confidence that the private views of board members do not impact on its decisions. As the noble Lord, Lord Tunnicliffe, indicated, it is for this reason that there are rigorous and transparent procedures when making appointments to Ofcom boards and committees.

As set out in the Communications Act 2003, the Secretary of State is responsible for appointing non-executive members of the Ofcom board. All candidates for public appointments go through a fair and open process, as set out in the governance code for public appointments. The current chair and deputy chair, and the former deputy chair, completed declaration of interests as part of their applications. They discussed their conflicts of interest, perceived or otherwise, at interview and have to declare any additional conflicts that occur during their time in the roles. The board members’ code of conduct also sets out a requirement for impartial, objective decision-making. In addition, the preferred candidate for the chairmanship is also subject to pre-appointment scrutiny from the DCMS Select Committee.

During the pre-appointment hearing of the noble Lord, Lord Burns, on 13 December 2017, to which the noble Lord, Lord Adonis, referred, he made clear that he understood that the process by which Ofcom interacts with the Government requires caution in order that it makes the right decisions on proposals and effectively implements legislation. He also clarified any possible conflicts between existing roles and his chairmanship of Ofcom. Following his hearing and the outlining of all his possible conflicts of interest, some of which were raised by the noble Lord, Lord Adonis, this evening, the committee was completely satisfied that the noble Lord, Lord Burns, was a suitable candidate and fully endorsed his appointment.

All board members are required to declare and maintain a register of disclosable interests, which is published on the Ofcom website, and there are restrictions on direct investments in the sectors they regulate. Furthermore, a board member cannot take part in any discussions, investigations or decision-making unless there is a unanimous vote that the interest can be disregarded.

Most importantly, day-to-day decisions on editorial standards and breaches of the Ofcom Broadcasting Code are taken not by board members but by the Ofcom executive under advice of the Ofcom content board. The chair and deputy chair are not members of the Ofcom content board and are therefore removed from matters relating to programme standards and content. Let us imagine, entirely hypothetically, that the chair or deputy chair of Ofcom were trying to influence content regulation or editorial decisions. They would not have the platform or remit to do so, and their involvement would be rejected entirely by the content board, which makes specific reference to the Ofcom Broadcasting Code when making its decisions.

But there is more. Ofcom is a retrospective regulator, so it does not engage in pre-broadcast editorial decisions. It ensures transparency by providing details on the outcomes of all potential breaches of the broadcasting code in the Ofcom Broadcast and On Demand Bulletin. Ofcom also publishes its responses to freedom of information requests relating to complaints, including those on BBC political bias and Brexit coverage. If there was any interference by the board, it would be clearly visible here. Let me be clear: there is no evidence of this whatever.

I now turn to the BBC. In the current climate, the growing importance of impartiality in preserving the BBC’s role as a trusted news provider, particularly on issues of significant national interest, cannot be underestimated. Let us acknowledge how far the BBC has now moved from when the BBC’s governance and regulation of content were not separated. Yet the noble Lord, Lord Adonis, raises concerns about the regulatory treatment of the BBC. In 2017, Ofcom became the BBC’s first independent external regulator. As required under the BBC’s royal charter, Ofcom has developed an operating framework for the BBC, covering regulation of the BBC’s performance, compliance with content standards and impact on competition.

To clarify, Ofcom does not determine the BBC’s editorial policy. The BBC unitary board governs and runs the BBC and is ultimately responsible for editorial and management decisions. Ofcom has formal procedures in place for handling potential breaches of content standards by the BBC and stipulating how investigations are carried out, how sanctions are determined and how final decisions are reached. As already highlighted, these procedures are transparent. The BBC is accountable to Ofcom, which is itself accountable to Parliament.

Finally, let me touch on the House of Lords. As I am sure the noble Lord is aware the House of Lords Code of Conduct clearly sets out how Members of this House should balance wider activities with their parliamentary responsibilities. I refer to specific Lords guidance—known as the Addison rules—which sets out clearly that, where questions affecting members are brought to Parliament, it is the Government alone who are responsible. There is absolutely no evidence that engagement in the House of Lords by board members impacts on the impartiality of Ofcom’s decision-making.

The noble Lord, Lord Adonis, asked a question about Ofcom’s code of conduct and Peers who are board members speaking in the House. Ofcom’s code of conduct for board members clearly states that taking a party whip, engaging in debates and voting in areas outside the scope of Ofcom’s activities are acceptable.

I shall go further, because the noble Lord, Lord Adonis, asked about the noble Lord, Lord Hall, who chooses, as he rightly said, not to participate in the House of Lords, whereas the noble Lord, Lord Burns, does. There are distinct differences between the two roles. They have very different roles in which they must abide by two different sets of guidelines and have very different levels of editorial control. Ofcom is an independent and, as I said, retrospective regulator of the BBC. The BBC director-general is editor-in-chief of the BBC and determines BBC editorial policy, so it is understandable that that difference has meant that the noble Lord, Lord Hall, felt that he should stand aside as opposed to the noble Lord, Lord Burns.

In conclusion—and by the way I welcome the helpful comments made by my noble friend Lord Dobbs—the noble Lord, Lord Adonis, should be in no doubt that there is no conflict of interest between the duties of the chair and deputy chair of Ofcom as impartial regulators of the BBC and their parliamentary duties.

Sitting suspended.