When, five long years ago, Mrs Thatcher appointed the Peacock Committee to report on the financing of the BBC it was with the intention of replacing the licence fee by advertising, and thus killing off one more of the quangos dedicated to public service. Economics were against her. It took the Committee only a couple of weeks to discover that this would slash the income of all existing commercial television. But no government committee or Royal Commission has ever said, ‘we recommend nothing,’ and this Committee, being a very bright committee, said a great deal. The aim, commented Alan Peacock, was to open up a free-market economy and let British broadcasting develop in the same way as the free press has developed since the ending of pre-censorship in 1694. The trouble with that comparison is that three centuries of the ‘free press’ have ended with 93 per cent of national daily and Sunday newspapers concentrated in the hands of a mere five people. Indeed, with only three people – Maxwell, Murdoch and Stevens – controlling 80 per cent of it. We might well ask whether we have not simply returned full circle to a 1694 triple pre-censorship. The implications for broadcasting were ominous.
Worse was to come. Peacock, for all his Adam Smith convictions, had recognised that there were dangers in a broadcasting system thrown entirely open to the market, and in an extraordinary paragraph he listed all the things that were ‘suitable for public patronage’ and required special public support to ensure that they continue. It covered virtually everything that could be regarded as the best of public service broadcasting in Britain, and was a recognition that a free and unregulated market would not of itself provide this. ‘The Committee,’ the report said, ‘has its own views on the types of programme suitable for public patronage, and which form a large part of its concept of Public Service Broadcasting. Four key words we would suggest here are knowledge, culture, criticism and experiment.’ The next paragraph of the report concluded with an unfortunate metaphor: ‘If after all these efforts’ the public ‘still make for junk food, that is their privilege in a free society’.
The Bill that has just passed the Commons solidly enshrines in legal form and constitutional language precisely those two dangers: censorship and junk-food broadcasting. The first of these, apart from one diversionary point, has been generally ignored. The second has been given massive attention, both in the press and among broadcasters themselves. And not surprisingly. The proposals for the award of licences for the new Channels 3 and 5 were crude beyond belief. As Clause 17 put it succinctly and clearly: ‘The Commission shall, after considering all the cash bids submitted by the applicants for a Channel 3 licence, award the licence to the applicant who submitted the highest bid.’ True, this was qualified in a later section by adding: except where ‘there are exceptional circumstances.’ The major battles on the Committee were fought around that phrase, and the whole question of quality. And something was won. The Minister, David Mellor, accepted that ‘exceptional circumstances’ could include quality. This he has now spelled out in the Bill. But it still leaves much unanswered. Little is laid down in relation to ensuring diversity. The customary reference to the broadcaster’s duty to inform, educate and entertain has been left out.
These ‘exceptional circumstances’ represent, however, a weak safeguard. In order to beat the highest cash bidder, an applicant must be able to promise a service both ‘substantially’ higher in quality than the bidder’s and ‘exceptionally’ high in itself. This is a kind of double Becher’s Brook – and one can foresee endless opportunities for wrangling over that definition, on the part of highest bidders. The applicant must also, of course, be able to convince people that he has the cash to succeed. Money that should be used to make programmes is going to be used in paying for the bid. This is a prescription for later takeovers, and we have few assurances to protect us against the consequences of that. The Minister admits that the new system will be ‘a few notches’ below public service standards. George Russell, the proposed chairman of the Commission, believes that it will be equivalent to some 80 per cent of the existing public service broadcasting commitment. We are in for a tawdry future.
The extent of the anxiety about that future can be measured by the massive sense of relief occasioned by the minor amendments achieved and the praise heaped upon the Minister for ‘achieving’ them. But it is also the case that the anxiety about programme quality had dangerously obscured the real menace of the Bill. Hitherto the danger implicit in the narrow ownership of the British press has been offset by the excellence and relative impartiality of news and documentaries in our regulated broadcasting structures. It could well be that we have the worst popular press in the world and the best television and radio. The assurance of quality has been part of that – and that will now largely go. Even more important has been the degree of freedom and protection under which the broadcaster has acted. Regulated diversity has done much to ensure balance. But this has been coming under increasing pressure. The Home Secretary’s intervention over Real Lives, the Tebbit attacks on the BBC and Kate Adie over Libya, the sequestration of the Zircon tapes, the Government-inspired attack on Thames Television for their Death on the Rock programme, the appointment of boards on an ‘is he one of us?’ basis – all this has weakened the resistance of the broadcaster.
The Bill purports to be deregulatory. Freedom is the watchword. Choice is the bait. It will limit both. The freedom is the freedom of the new proprietor. Two of the present press trinity are already in the satellite market – Maxwell and Murdoch. The Bill has been tailored to exempt Murdoch from its nationality provisions and from those establishing restrictions on the level of shareholding in television permitted to newspaper owners. Paradoxically, it is regulation which has fostered diversity of opinion and the relative freedom of the broadcasters. Their freedom will now as never before be in the gift of the proprietor. With the example of the Mirror and the Sun before us we hardly need to read the crystal ball. We have seen the future.
In his lecture to the Royal Institution on 4 April, Howard Stringer, President of the CBS network in the United States, cautioned ‘against promiscuous uses of the word “freedom”. It is a word that, second only to “patriotism”, offers rich opportunities for flim-flam ... freedom is most available to those with the wealth and savvy to avail themselves of it ... those with the deepest pockets, the biggest marketplace clout, the fiercest lawyers and the fewest moral and artistic scruples.’ In a word, we face the danger of cross-media ownership. Formerly broadcasting could provide some balance to the proprietorial press: it will now reinforce it. A restricted range inevitably sets a restricted agenda for thought-censorship by limitation.
What alarmed the broadcasters most was the notorious Clause 145. This empowered a police officer, acting only on suspicion and without any judicial warrant, to invade the studio and impound any script or tape or recording. This astonishing extension of police power turned out to be a diversionary tac-tic. It gathered around it all the liberal flak. When it was removed, the cries of ‘censorship’ collapsed. They shouldn’t have. Five new methods of censorship have been add-ed in this Bill.
Hitherto there has been one authority with one code of practice. With the new Broadcasting Standards Council, we now have two authorities with two codes. And now for the first time we have brought the criminal law into broadcasting. The Obscene Publications Act in England and the Civic Government Act in Scotland constitute a new and dangerous hazard. We are assured that these will never be used, because their criteria for action are less severe than the existing codes. This misses the point. Censorship does not operate by action but by inhibition. The fear of criminal action is a more powerful disincentive to boldness of expression than infringement of a code. Further, these measures introduce a kind of triple jeopardy, for a programme originating in either Scotland or England could be shown and therefore prosecuted in either country or both. Incidentally, it seems that in the Scottish Act there is no provision for the classic defence of ‘in the public interest’.
In addition to all this, we have the new role of the licensee. Having paid a hefty whack for the licence, and being responsible for what is shown, he will tend to be the most repressive, certainly the most timid, of them all. He has to preserve his licence and defend his investment. Finally, we still have the vestigial power of the Home Secretary.
I do not expect an immediate host of tyrannical interventions. Censorship suffers when it has to intervene and punish. Its real intention is to inhibit and prevent, and it is at its most effective when it creates uncertainty as to how authority will act. For the first time, a broadcasting authority, the ITC (and later the BBC?) could find themselves criminally liable for a value-judgment. Producers will have to work out which code might apply, or which authority – the Commission, the Broadcasting Standards Council, the Police – might act. It is this combination, intended or otherwise, which will render timid and gutless and at times silent this marvellous instrument of human communication. The future of British broadcasting is now in the hands of their Lordships. Will they show themselves more courageous than the Commons?