TV election debates: excluding some party leaders may be legal, but adds to toxic political climate

Nick McKerrell, Lecturer in Law, Glasgow Caledonian University

“Outrageous and unacceptable – the decision defies democracy,” said Scotland’s first minister, Nicola Sturgeon, as she railed against Sky’s decision not to include her as Scottish National Party leader in its general election debate with the leaders of the UK’s three other main political parties.

Just a few days before, on November 2, Lib Dem leader Jo Swinson had experienced a similar snub from ITV which had opted to host a head-to-head debate between the prime minister, Conservative Party leader Boris Johnson, and the opposition leader, the Labour Party’s Jeremy Corbyn on November 19. “It’s sexist, or they are scared or maybe it’s a bit of both,” said Swinson, barely disguising her fury. The general election campaign has just begun and already various grievances are stoking political tensions.

Now the BBC has announced that it also plans to host a live one-to-one debate with Corbyn and Johnson on December 6, six days before the election. Keen to demonstrate balance, a “seven-way podium debate” on November 29 will also take place between “senior figures from the UK’s major political parties”. So far there has been no reaction from Swinson or Sturgeon.

After the furore over ITV’s decision, Sky appeared to take note and added Swinson to the roster for its big debate on November 28. But it seemed to overlook the fact that Nicola Sturgeon is the leader of the third-largest party represented at Westminster with 35 MPs, outstripping Swinson’s Lib Dems by 14.

Both snubs are now the target of legal action by the excluded leaders on the basis that they breach broadcasting rules which must be scrupulously followed during an election period. But what exactly is the law surrounding this issue? Do broadcasters have any sort of obligation to the leaders of the SNP or Lib Dems?

Lib Dem leader Jo Swinson is threatening legal action against ITV for excluding her from a TV debate. Shutterstock

Roots of the leader debate

In this fast-moving digital age and at a time of Brexit-inspired political crisis it is often forgotten that there was no such thing as leader debates until the 2010 election – less than a decade ago. For many, introducing the format felt like a concession too far to the “Americanisation” of UK politics.

In the US it made sense to have presidential debates where people vote directly for the individual. But in the British parliamentary system people vote for their local individual candidate, not for a leader – although it is likely that voters are endorsing the leader of the party they are voting for as their choice for prime minister.

Opposition leader Jeremy Corbyn is assured of a place in all TV debates. Shutterstock

But by 2010 the momentum was too great – and broadcasters, including the BBC, gave in to the trend of personality and organised a debate between the leaders of the three biggest political parties at the time. This gave particular profile to Nick Clegg as the then leader of the Lib Dems (although the party actually lost five seats in the subsequent election).

This pioneering UK format was itself subject to a legal challenge in 2010 in the Scottish courts by the then leader of the SNP and Scotland’s first minister, Alex Salmond, who had been omitted from a BBC party leader debate. The court case focused on the BBC Charter – a legal document which outlines the broadcaster’s responsibilities, including “due accuracy and impartiality” during elections. The action was lost as the judge, Lady Smith, argued that the case had not been made that BBC had acted in a “disproportionate” way by excluding the leader of the SNP.

The broadcaster argued that its coverage had to be viewed in the round and that it planned to have televised debates in Scotland which would include the SNP. The three-party structure debate was only part of its election coverage and there would be full reporting of the SNP’s campaign and programme. So the debate went ahead.

Now it could realistically be argued that things have changed: the SNP is now the third party in Westminster with 35 seats – in 2010 it only had six. Broadcasters have also varied the format of election debates considerably. In 2015 and 2017 all leader debates contained multiple political parties including Plaid Cymru, UKIP and the Greens.

Strong legal argument?

The SNP would appear to have a point when it comes to including the Lib Dem leader but not Sturgeon, given its current position as the third largest party at Westminster. It might be on slightly weaker ground if the debate just focused on the two biggest parties – Labour and Conservative – as broadcasters could argue one of those would produce the next prime minister.

The Lib Dems’ potential legal challenge focuses on this very format – ITV’s head-to-head encounter. This type of debate has never happened before as David Cameron refused to take part in one in 2015 as did Theresa May in 2017. Swinson argues that the commercial broadcaster is breaking the Ofcom Code of Conduct by not giving “due weight” to her party’s participation.

Amongst other things, the Lib Dems will argue their party has a unique position on Brexit and it has a realistic prospect of being in government. However these are very subjective arguments and it would seem unlikely that a court would accept them, particularly as Jo Swinson is unlikely to be the next prime minister.

The current legal position looks very much as if it is up to the broadcaster’s discretion on how many parties are involved in a leaders’ debate. In the potential SNP case there is a stronger argument to challenge the Sky format as it is unclear why Swinson merits being singled out alongside the two bigger parties rather than an SNP representative.

The BBC’s decision to follow ITV’s lead, but with a multi-party debate the week before, seems more considered and mindful of its charter that demands that overall election coverage must be balanced and include all parties.

The decision to have a leaders’ debate back in 2010 has had far-reaching consequences in the current splintered political environment. This may become yet another political issue to be discussed and decided in our courts.

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This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Nick McKerrell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.