Well, the first legal case in which I’ve had a financial interest has so far had a disappointing outcome. However, I have no regrets about spending the money. I still see it as not just right, but essential to challenge the exclusion of selected major parties from debates that were always going to be the focus of the election campaign, even if the extent of their effect was unexpected. I stand by the case I made a few days ago.
Since getting home, I’ve searched for and read Lady Smith’s opinion, since the various news reports are not particularly helpful in understanding what happened.
In a nutshell, the emphasis was placed on a different part of the BBC Editorial Guidelines than the one I quoted, and the SNP weren’t aggressive enough in pursuing their case earlier. There was also an emphasis on viewing the debates as being essentially a series which must be completed, for reasons of freedom of speech and contractual obligations.
The part of the BBC Editorial Guidelines that was referred to advised basing impartiality decisions on the voting record from the preceding election at the same level (i.e. the 2005 UK General Election in this case). That is one reasonable basis for decision-making, and I can’t object to it per se, but it does seem at odds with the section I quoted previously, which is also fair – in a different way. I couldn’t see Lady Smith’s justification for preferring one over the other. Obviously my opinion of the relative importance of these conflicting pieces of advice differs from Lady Smith’s.
I am less surprised by the judgment that the SNP were not aggressive enough in pursuing legal action. Seeking a reasonable negotiated solution appeals to me as being the right way to do things (especially if you don’t really have the spare cash to go to court), but if you don’t put the boot in early it can look as if you’re accepting the situation and accept that the opposition’s case have merit. If you’re not serious about defending yourself, why should the court? Reasonable though it may have been to work through all the complaint procedures, allowing the ITV and Sky debates to go ahead before going to court was a tactical error.
I have little sympathy for the simile that the three debates are like a three-act play or a three-round boxing match that must be allowed to run their course. If they’re not fair, they should be stopped; and if they can’t be practically stopped within Scotland only then they should be stopped at the UK level. Sorry, but if they’d followed the model used in other countries such as Canada or New Zealand, there would be no problem. The leaders’ debates may be popular but they’re not necessary for free speech – we managed elections fine without them before.
Finally, another reason for rejecting the interim interdict was that the SNP proposal for a solution was not detailed enough – they left room for negotiation on details such as who should represent them on the debate, what proportion of time they should receive, and so on. Reasonable, maybe, but Lady Smith was of the opinion that this lack of detail would have left the BBC unable to be certain of meeting the requirements of the interdict, and therefore it could not be granted.
I don’t believe this outcome is fair, but justice isn’t necessarily about fairness; just about whether the rules have been satisfied. Personally, I’m not even sure about that, but have to accept Lady Smith’s opinion.
Indications are that a favourable outcome to the judicial review in June is not certain either. If that’s the case, I’m not sure where we go from there, but I don’t believe this is an acceptable way to run or report an election and I’ll be looking for further ways that I can contribute to the prevention of this sort of imbalance in future.