The controversy
As the general election approached, televised debates between major political parties became increasingly prominent. With the twelfth of December drawing near, party leaders sought every opportunity to communicate their messages to the electorate.
ITV announced that it would host the first formal debate on the nineteenth of November, featuring the leaders of the two largest UK parties: Labour and the Conservatives. Shortly before the broadcast, ITV received a letter from the Liberal Democrats and the Scottish National Party threatening legal action if they were not included. ITV did not respond.
The Liberal Democrats’ stance
The Liberal Democrats entered the election with policies that differed significantly from those of their rivals. Their most distinctive position was the proposal to revoke Article 50 of the Treaty on European Union, thereby keeping the United Kingdom in the European Union. With 48.1% of voters having supported remaining in the EU during the referendum, this policy resonated with many. The party also emphasised environmental sustainability and improvements to mental health services within the NHS.
On this basis, the Liberal Democrats applied to the High Court for judicial review, arguing that ITV’s decision to feature only two parties demonstrated bias. Represented by Guy Vassall‑Adams QC, they claimed that excluding the Liberal Democrats left their voters and MPs unrepresented, particularly given their distinct stance on public policy.
They relied on the Broadcasting Guidelines issued by the Office of Communications (OFCOM), which require broadcasters to uphold impartiality and give due weight to all relevant views.
Is this a question for the courts?
On the eighteenth of November, Lord Justice Davis held that judicial review was not an appropriate route for this complaint under the Communications Act 2003 (CA 2003). The Act designates OFCOM as the correct body for complaints relating to broadcasting standards.
The court found that ITV does not perform a “public function” within the meaning required for Judicial Review. Judicial Review is reserved for decisions made in the exercise of public functions, and editorial decisions by private broadcasters do not fall within this category. As a result, the High Court lacked jurisdiction to intervene.
Arguments based on Article 10 of the European Convention on Human Rights (freedom of expression) were also dismissed.
Although the court commended the quality of the Liberal Democrats’ submissions, the application was rejected as “not realistically arguable,” allowing the debate to proceed.
OFCOM
As the court emphasised, OFCOM is the appropriate body for complaints about broadcasting. Established in 2003, OFCOM is the government‑approved regulator for broadcasting, telecommunications and postal services. The CA 2003 and the Broadcasting Act 1996 empower OFCOM to publish annual Broadcasting Codes that set out ethical standards for public content.
Two sections of the Code were particularly relevant:
Section 5: Due impartiality
Section 5.5 requires that “news, in whatever form, is reported with due accuracy and presented with due impartiality.” This may be achieved by giving equal time to different views or by ensuring balance across a series of editorially linked programmes, such as the interviews with the Liberal Democrats and SNP following the ITV debate.
Section 6: General elections
Section 6 mirrors s.5 but places additional emphasis on impartiality during election periods due to the potential impact on democratic processes. Broadcasters must give due weight to parties according to the extent of their support.
Had the Liberal Democrats pursued an OFCOM complaint, the regulator may have considered these provisions. Their failure to follow the correct procedure left them without remedy.
Media failure?
The ITV dispute was not the only controversy. The Labour Party accused the BBC of biased election coverage, particularly regarding the Prime Minister’s decision not to participate in an interview with Andrew Neil, which the Leader of the Opposition had already undertaken. The BBC described this as an editorial decision.
Academic research reported by The Guardian found that early election coverage was “overwhelmingly negative” towards Labour and “consistently positive” towards the Conservatives. These findings contributed to wider concerns about media influence during election periods.
The future
Although the Liberal Democrats’ challenge to ITV failed, they issued a similar threat to the BBC regarding the debate scheduled for the 6th of December. This was not acted upon, likely due to the absence of legal precedent suggesting liability.
As the election period continues, questions remain about the media’s role in shaping public understanding of policy and international affairs. The balance between media freedom and democratic integrity is delicate. Restricting the media risks undermining democracy, yet unchecked influence may distort public debate.
The tension between these principles will continue to shape discussions about political broadcasting and regulatory oversight.
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