UK Supreme Court affirms BBC’s supremacy: Maintains right to keep anti-Israel bias report secret

A guest post by David Lewis, a committee member of UK Lawyers for Israel.

In 2003 the BBC appointed a senior news journalist, Malcolm Balen, to produce an internal report on the quality and impartiality of its Middle East news coverage.  This report led to various changes in personnel and training.

In 2005 Steven Sugar, a pro-Israel lawyer, sent the BBC a Freedom of Information request to see the Balen Report.  The BBC rejected his application, and the resultant dispute was pursued through the Information Commissioner, the Information Tribunal, the High Court, the Court of Appeal and the Supreme Court.  After Mr Sugar sadly died, in 2011, his widow Fiona Paveley continued the fight.

The UK’s Freedom of Information Act broadly requires public authorities to disclose information to anyone requesting it.  Is the BBC a public authority?  The Act says it is, “in respect of information held for purposes other than those of journalism, art or literature”, and it’s clear that these exemptions are essentially to protect freedom of expression.

Leaving aside the bit about “art or literature”, what this literally means is that, if the BBC holds information for any significant non-journalistic purposes, even if the information is also held for journalistic purposes, then it is a public authority and must disclose the information.  But the law doesn’t always give plain words their literal meaning, as we shall see.

Neither of the parties, nor any of the officials, courts and tribunals involved, suggested at any point that the Balen Report was exclusively journalistic or exclusively non-journalistic; clearly it included both purposes.

On 15 February 2012 the Supreme Court rejected Mrs Paveley’s appeal.  It said that if information is held by the BBC to any significant degree for the purposes of journalism, it is exempt from disclosure under the Freedom of Information Act.  This does now seem to be the end of the road for Fiona Paveley, and for all those hoping to discover what the Balen Report actually said.

Anyone reading this is bound to ask: what could have been in the Balen Report to make the BBC fight so long and so hard to prevent it seeing the light of day?  But this is not, or not necessarily, the right question.  The BBC’s fixation on concealing the report’s content is directly linked to its obsession with protecting its editorial discretion.  Those who, rightly, criticise the BBC’s institutional anti-Israel bias need to understand that it is the sacred cow of editorial freedom which underpins that bias and the BBC’s power to perpetuate it indefinitely.

At the heart of that editorial freedom is the BBC’s right to decide what news items to report on and what subjects to make programmes about.  (Strangely, that key function was omitted in the list of activities which the Information Tribunal identified as constituting “journalism”, and which Lord Neuberger in the Court of Appeal said he could not improve upon.)

Here it is necessary to mention the BBC’s system for dealing with complaints about inaccuracy and lack of impartiality.  To say that this system is rigged to ensure the rejection of pro-Israel complaints would be an understatement.  The Corporation imposes time limits on complainants but none on itself.  When a complaint is rejected, there is no appeal beyond the BBC’s own officials and committees.

The BBC’s fundamental approach is to select news items and topics which involve complaints by Palestinians and others against the Israeli government, the Israel Defence Forces, and (naturally) Israeli “settlers”.  The resultant reports and programmes will essentially comprise accusations against Israel.  Certainly there will be some representation of the pro-Israel viewpoint, typically through fairly inarticulate and not terribly PR-savvy Israeli officials; and, of course, by a few wild-eyed “settlers”, preferably with an American accent.  You are highly unlikely ever to see a BBC programme about suicide terrorists or about rockets launched from Gaza or Lebanon against Israeli civilians.

Naturally, if virtually every BBC programme about the Middle East involves an attack on Israel, even where an adequate defence is permitted, then the viewer will be nudged continually in an anti-Israel direction, as required by the bien pensants of the BBC.  So it is selection of subject-matter which underpins the Corporation’s anti-Israel bias, even more than the content of the resultant programmes.

But whenever a complaint is made to the BBC about bias in its selection of subject-matter, the standard response is that this selection forms part of the Corporation’s legitimate editorial discretion, which is (according to the BBC) untouchable and not the proper subject of a complaint.  If nothing else, it would be fascinating to know whether Balen even touched upon this crucial element of editorial discretion and, if he did, what his conclusions were.  I’m sure you can now understand why the BBC must at all costs prevent the disclosure of any such discussion.

You might by now be wondering what democratic, legal or moral principle justifies the right of a publicly and generously funded corporation, staffed by an unelected elite, exercising a virtual UK monopoly in the field of non-commercial broadcasting, and possessing an enviable global reach, to select and disseminate programmes filled with the systematic and institutional bias which the BBC operates on Middle East affairs.

This question becomes all the more relevant in the light of the BBC’s persistent refusal to disclose the Balen Report, which is not itself a work of journalism but is simply an internal briefing document containing suggestions for improving the quality of the BBC’s coverage and its impartiality.  But for the BBC, publishing even a document about its exercise of editorial freedom is seen as undermining that freedom, and must therefore be suppressed at all costs.

The publication of the Hutton Report in 2004, with its serial criticisms of the BBC, marked an apparent low point in the fortunes of the Corporation.  But it proved to be no more than a temporary blip, as witnessed by the fact that in 2012 the Supreme Court has reinforced the extraordinary power of this venerated and apparently untouchable and indestructible institution.

Having won another victory in its war against those challenging its routine Middle East bias, the BBC is riding high and no doubt considers itself to be invulnerable.  The government probably has little interest in correcting the BBC’s anti-Israel slant, but is likely at some point in the future to be concerned for other reasons about the unconstrained power of this state within a state.

If the BBC’s power is to be checked, if not reversed, then a good place to start would be its complaints system, which needs to cover selection of news items and topics for programmes and to be subject to proper external review and appeal. 



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