I gave evidence to the Commons Culture Media and Sport Select Committee Inquiry into BBC Charter Review on Wednesday 25 November. The committee asked me to give evidence on transparency and the BBC and the BBC giving away its public service material as set out in my two articles at the links. It’s all on video here. I didn’t put in any written evidence in advance but following the evidence session I submitted some supplementary evidence which I publish below in the interests of transparency. Overall, my take is that the BBC has become more opaque during the last Charter period, a time during which public bodies are becoming more transparent. More transparency would lead to more commercial and public service value for the licence fee payer. And the time is ripe for the BBC to make an offer on transparency in this Review process.
Dr Jesse Norman MP
Chairman, Culture Media and Sport Select Committee
Director, Talk About Local
BBC CHARTER REVIEW – TRANSPARENCY OF THE BBC, SUPPLEMENTARY EVIDENCE
Thank you for the opportunity to give evidence in person to your committee. The dialogue sharpened my thinking and, as I had not submitted written evidence I thought you might find it useful to have my refined thinking set out, including specific recommendations for the BBC.
Proposals for change
The BBC has not yet brought forward substantive proposals on transparency of its own operations under the Director General’s ‘open BBC’ proposals. The BBC is designed to operate independently of the government. So the BBC should be encouraged to bring forward swiftly in the Charter Review its own proposals on transparency that catch up with the increased open-ness of public bodies that have occurred during the last Charter period, in particular the open data movement. And also set a path for further increasing its own transparency as the field moves forwards during the next Charter period. However, the BBC requires an external eye to assess how transparent it is.
Based on my experience of transparency schemes in the UK and worldwide the BBC should consider:
a transparency review/taskforce by an expert panel with strong external representation
resetting of the FOI regime in the BBC and its affiliates to include:
a modern definition of an irreducible core of material that parliament intended to protect in the 2000 Act – journalists emails, notebooks, commissioning challenging, controversial drama or documentaries and that is fundamental to the effective functioning of an independent state broadcaster.
comprehensive voluntary ‘shadowing’ of FOI to include material outside that core within the normal bounds of FOI in other public bodies
publication of basic output information as open data – a list of output (shows, concerts etc) detailing for each how much it cost, how much revenue was raised, who was contracted. Without descending to the farcical extremes of Producer Choice.
publication of all expenditure over £500 itemised as open data
voluntary shadowing of the 2015 Public Sector Information regulations (which apply to many cultural institutions but not the BBC).
If the BBC does not do so, or makes only tiny steps, then the government should consider amending FOI legislation to the effect above.
The BBC has not kept up with global transparency trends.
Since the 2000 Act, that came into force in 2005 there has been a marked global trend towards increased transparency of public bodies. On President Obama’s first day in office in 2009 he signed the Memorandum on Transparency and Open Government. This led to the international ‘Open Government Partnership’ inaugurated by Obama at the UN General Assembly in 2011, which has spawned a wave of global work including a major transparency summit in London in 2014 hosted by the Prime Minister and the recent G20 Istanbul summit declaration on transparency. The UK public sector now exhibits unparalleled transparency of expenditure, with much of government publishing all expenditure over £500. In 2015 the UK was rated top in the world for govenrment transparency by the World Wide Web Foundation
The BBC’s use of their qualified exemption from FOI has gone far beyond that originally conceived by Parliament.
Mike O’Brien MP was the Home Office Minister taking the FOI bill through the House. He said in committee:
‘In general, it is right that the BBC, as a public body, should be covered by the Bill. We must ensure, however, that its journalistic integrity is not undermined by the legislation’
And at Report
‘The BBC is particularly relevant here because its journalists will be able to claim an exemption from the provisions of freedom of information in respect of material held for the purposes of journalism, art or literature.’
I attach at Annex A other quotes from Mike O’Brien supplied by the Campaign for FOI.
Case law, in particular the Balen report case (https://en.wikipedia.org/wiki/Balen_Report), where the BBC sought to prevent publication of an internal report on whether their coverage of Israel/Palestine was biased or not, have expanded the BBC’s application of FOI to cover just about all activity that touches on journalism, art or literature.
So for instance it’s impossible to find out how much is spent on cleaning at a local radio station or how much a given station costs to run or how much it costs to make a programme. Judgements by the Supreme Court on the BBC/Balen report FOI case have confirmed that the BBC’s interpretation is legitimate.
The BBC can ‘shadow’ FOI without surrendering these exemptions should they need them
There is a common practice for public sector organisations that may be exempt from FOI in law to choose to ‘shadow’ FOI, acting as if it applied to them. This is suboptimal for the requester as they have no appeal route through the ICO and Tribunal. But it is better than nothing. The BBC does this to some extent (disclosures of pay and expense for a small proportion of its staff for instance) but the detail of the vast majority of its expenditure is un-challengably shielded from public view.
Increased FOI is an insurance policy for the public as regulatory change occurs
The BBC is about to go through another governance upheaval, the current system having unusually judged itself to have failed. It would be prudent to take measures to guard against another regulatory failure by opening up the BBC to broader public scrutiny than just the regulator.
Scrutiny of financial flows
At the core of holding the BBC to account is scrutiny of financial flows. The public, parliament and perhaps not even the current regulator knows how much it costs to make a given programme, what the transfer price is to Worldwide, Global News Limited, nor how much they then sell that for. We also do not know programmes are not considered for commercial exploitation.
The Fingleton Report (‘Fair Trading Policy Review’) http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/our_work/fair_trading/fair_trading_fingleton_jul15.pdf commissioned by the Trust cites a number of information deficiencies that leave the BBC open to action in sections 4.4 and 4.5 The issues Fingleton Associates raise are startlingly rudimentary and in my view point to long term regulatory deficiencies by the Trust. The nine month delay by the Trust in commissioning work on transfer pricing reported by The Guardian is extraordinary, given the £1billion p.a. turnover of Worldwide.
There is a balance to be struck between ability to trade commercially and public scrutiny. I challenge the need for excessive ‘commercial confidentiality’, given that alternative trading models such as rate cards, price lists etc are available. And that the intellectual property the BBC is trading isn’t readily substitutable by competitors (ie TV shows etc are not like toilet rolls that can easily be copied by a competitor at a lower price). The balance at present is too much in favour of commercial trading and insufficient for the public to carry out scrutiny of substantial public expenditure.
Talk About Local
27 November 2015
From Committee stage of the FOI Bill in the Commons on 11 January 2000. All quotes by Mike O’Brien, a Home Office Minister:
‘Mr. O’Brien:… In an interview with a BBC journalist today, we discussed whether I was entitled to request copies of his notes. Although he worked for a public authority, he was entitled, for the purposes of his journalistic activities, to subject his notes to an exclusion, and I, as a citizen, had no right to demand copies of his notes. There are levels of secrecy that journalists will favour, in particular when it is in pursuit of their own interests. I thought that that might be relevant to our debate. No doubt any journalist who reads the record may want to bear that fact in mind.’
‘The BBC gives rise to other examples of restriction on the nature of information that may be subject to freedom of information. It is a good example because information held for the purposes of journalism, art or literature is not covered by the Bill. In general, it is right that the BBC, as a public body, should be covered by the Bill. We must ensure, however, that its journalistic integrity is not undermined by the legislation’
‘We cannot overcome in the Bill all the doubts, concerns and paranoias felt by some people about Government, but we must put in place good housekeeping provisions, allow functions to be clarified, to protect journalistic integrity-as in the case of the BBC and perhaps the Stephen Lawrence inquiry-and enable the Secretary of State to adjust to changes in circumstances as organisations and functions change.’
Mike O’Brien, Commons Report stage 4 April 2000
I shall give another example that I gave in Committee. The BBC will be a public authority subject to the Bill’s provisions. The BBC is particularly relevant here because its journalists will be able to claim an exemption from the provisions of freedom of information in respect of material held for the purposes of journalism, art or literature.
What if a court decision were to conclude that for particular purposes of definition areas that we might feel should remain the confidential prerogative of the journalists should be subject to freedom of information, and the journalists had to disclose their sources? I suspect that the BBC journalists would not be too happy about it and would want the Government to be able to act to deal with the situation. I suspect also that they would be mighty displeased if fears that the Government might misuse such powers had prevented the powers being in the Bill in the first place. That is my concern.
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