The constitution of the BBC: Charter
33. We believe it is vital that the process for
agreeing the constitution of the BBC is open, transparent and
not in the hands of any one political party. Unfortunately the
process for agreeing a Royal Charter satisfies none of these criteria.
Although, during this Charter Review, there has been public consultation,
an independent report and two parliamentary Select Committee inquiries,
the fact is the Government do not have to listen to anyone and
can draw up the new Charter and Agreement as they pleaseindeed
this is what they seem to be doing.
Even if the Charter and Agreement are put to a vote in the House
of Commons (something the Secretary of State said was a matter
for the Whips (Q 1805)) there would still not be proper parliamentary
scrutiny in the way that there would be if the BBC were established
by statute. In our view there should be proper parliamentary scrutiny
and that scrutiny should involve both Houses of Parliament.
34. We propose therefore that the BBC should
be placed on a statutory basis by Act of Parliament. Such an Act
could provide for periodic reviews of BBC services, involving
public consultation, and be tied in with Ofcom's quinquennial
reviews of Public Service Broadcasting. It could also provide
for a periodic review of licence fee funding.
35. There are several grounds for proposing that
the BBC be established by Act of Parliament. First, establishment
by Royal Charter is an arcane and little understood procedure.
Second, the passage of an Act through Parliament is a more transparent
and democratic route than agreeing a Royal Charter through the
Privy Council. Third, a statute can more explicitly enshrine the
BBC's editorial independence and provide for long term certainty
and transparency over the BBC's basic terms of reference. We received
evidence supporting the replacement of the Royal Charter by an
Act of Parliament from the Campaign for Press and Broadcasting
Freedom (p 478) and the Commercial Radio Companies Association
36. However, Michael Grade, the Chairman of the
BBC, was against establishing the BBC by statute. He believed
that "The Charter allows the BBC to be one step removed from
a vote in both Houses" (Q 57). The Government have also
argued that if the BBC was a statutory body it might be more open
to Government intervention. They suggest that if the BBC were
established by statute there would be no guarantee of its long
term existence or independence because legislation would be subject
to repeal or repeated amendment.
37. Tessa Jowell defended the status quo on the
grounds it had been the constitutional basis for the BBC for the
last 80 years (Q 1809). However, the Satellite and Cable
Broadcasters Group stated in its evidence that "the Royal
Charter and Agreement are anachronisms that do not reflect recent
reforms in other areas of public life and publicly funded institutions.
The appropriate way for the BBC to be re-established, and given
long-term security with independence from Government, is as a
statutory corporation like the UK's other principal public service
broadcaster Channel 4" (p 235).
38. Tessa Jowell cited licence fee payers' wish
for clear independence of the BBC from Government and Parliament
as a reason why the BBC should not be established by statute (Q 1807).
She referred to research showing that only 9 per cent of people
surveyed thought that the Government should be responsible for
holding the BBC to account when things go wrong and just 4 per
cent thought that Parliament should.
While we accept that these statistics do not show support for
political involvement of any kind we fail to see how the Secretary
of State can pray them in aid of continuing with the Royal Charter.
Qualitative research showed that respondents were general unclear
about the boundary between Parliament and the Government. Given
that the Royal Charter is drafted by the Government, and therefore
is not independent of Government, it seems strange that the Secretary
of State would cite this research as evidence for continuing with
a Royal Charter.
39. In respect of its role towards the BBC the
Privy Council is an instrument of Government. It has a ministerial
president and only ministers of the Government of the day participate
in the Privy Council's policy work. The Privy Council's own guidance
shows that the terms of a Royal Charter are not formulated independently
of Government. It states that "once incorporated by Royal
Charter a body surrenders significant aspects of control of its
internal affairs to the Privy Council. Amendments to Charters
can be made only with the agreement of The Queen in Council, and
amendments to the body's by-laws require the approval of the Council
(though not normally of Her Majesty). This effectively means
a significant degree of Government regulation of the affairs of
the body" [our emphasis].
40. Given the large Government majorities that
have been seen in the House of Commons it would be possible to
argue that establishing the BBC by statute would not reduce Government
control over the Corporation. However, legislation would have
to pass through both Houses of Parliament and Governments do not
always have an overall majority in both Houses. Moreover, the
future of the BBC is an issue on which we believe many MPs would
wish to decide for themselves, irrespective of their party whips.
41. The House of Commons is the premier democratically
elected forum in the United Kingdom and is the only forum that
can claim to represent all licence fee payers. Allowing the democratically
elected representatives of the people to be involved in defining
the terms of the BBC's constitution would increase accountability
to the licence fee payer. Proper Parliamentary scrutiny of Government
proposals for the BBC means that Ministers would have to stand
up and defend their plans in a public forum. This will increase
the transparency and accountability of the BBC. The House of Lords
should continue to have a full scrutiny role and we believe that
a permanent House of Lords Select Committee on Broadcasting and
Communications is vital to this scrutiny (see para 44).
42. We do not accept that the current arrangements,
whereby the Charter is renewed by agreement between the Government
and the BBC, provide the most effective way to guarantee the public
interest. We recommend that the BBC be established by statute
so that its constitution is subject to parliamentary scrutiny.
We note that the House of Commons Committee came to the same conclusion
and we urge the Government to reconsider its proposal to persist
with a Royal Charter. We believe that establishing the BBC
by statute would better protect the BBC's political independence
by reducing Government influence in favour of Parliamentary influence.
Parliament is an all-party body directly accountable to the public.
Discussions leading to decisions in Parliament are conducted publicly,
whereas the Royal Charter process is open to possible political
interference by the governing party which makes its final decisions
behind closed doors. The BBC's independence of Government would
be notably strengthened.
43. It takes time to prepare legislation, and
to find space in the Government's legislative programme, and therefore
it may not be possible to have legislation in place by the time
the current Royal Charter runs out in December 2006. We therefore
recommend that a short interim Charter be granted to the BBC while
legislation is being prepared. Meanwhile it is vital that
Parliament continue to scrutinise any Government proposals for
change to the BBC's Charter and Agreement. At present there is
a curious position whereby the Government could amend the Charter
without reference to Parliament but would have to get the approval
of the House of Commons before amending the Agreement between
the Secretary of State and the BBC (a document of lesser status
than the Charter). This arrangement is curious for two reasons:
first that only one of the two documents needs parliamentary approval
before it can be amended and second that only the House of Commons
has to give that approval. We recommend that it should
not be possible to amend the Agreement between the BBC and the
Secretary of State without approval of both Houses of Parliament.
In addition, if it is necessary to grant another Charter while
legislation is being prepared, the Government should undertake
that the Charter will not be amended without the approval of both
Houses of Parliament.
44. Although this is a matter for the House of
Lords Liaison Committee, in order to strengthen parliamentary
scrutiny, we recommend that a permanent House of Lords Select
Committee on Broadcasting and Communications should be established.