Constitutionalising the BBC

The BBC’s celebration of its centenary in 2022 was muted. The country was emerging from a pandemic and both newspapers and commercial broadcasting faced an existential threat from big tech. Privately, both the government and the BBC’s competitors did accept that the broadcaster had much to celebrate as a national success story, and the BBC’s global reputation remained high. But a lack of government restraint in its dealings with the BBC, and a succession of scandals involving meddling in editorial policy was undermining fragile trust in the institution. It seemed that we were approaching a tragic outcome: whilst in the era of fakery and newspaper cuts the Corporation was needed more than ever, the critics and enemies of the corporation were more vocal, powerful and coherent in their demand to cut the BBC down to size, reform funding, and increase competition to the BBC.

In the current issue of PQ I argue that there are a number of urgent things that can be done to repair the relationship between government, parliament, the BBC and the public. Reform of the BBC Charter to legally protect the independence of the BBC is one thing. But this is only one of several reforms that should be guided by a new theory of the BBC. Rather than seeing the BBC as an institution of the market we should see it as constitutionally independent of government, but accountable to the public. This is why the real centenary of the BBC is yet to come. The BBC was a private company only for the first 5 years, until it was taken into public ownership and became the world’s first public service broadcaster. The anniversary of the BBC Charter of 1927 should be marked with a Centenary Charter and Agreement which celebrates and clarifies the institution not as a temporary response to market failures, but as a permanent democratic institution. It is time to clarify and institutionalise the constitutional status of the BBC.

Since the 1990s the theory of ‘market failure’ has framed understanding of the appropriate size and scope of the BBC for policy makers and regulators. According to this theory, the most efficient way of allocating resources is the free market, except when certain identifiable conditions such as public goods or social externalities cause the market to fail. In this framing, interventions in ‘the market’—such as license fees or distribution subsidies—were justified by the tendency of broadcasting markets to fail. The market failure approach was contested even during its 1990s heyday, but its legacy— that public communication is a market, and that more competition would be good for the BBC—lives on. I argue that this market logic should be replaced with new forms of social and deliberative accountability and the idea that the BBC is a response to market failure should be consigned to the history books.

The democratic mission of the BBC: informative, not didactic

During the current period of fragmentation and polarisation, it has become clear that the market approach to communication can fail to deliver critical public goods, including public discourse capable of generating trust, and can result in systemic risks for example related to disinformation. This is because the attention economy incentivises engagement and outrage rather than rational deliberation. This is the basis for arguments for mass behavioural interventions to provide quality information and maintain open public forums for civil discourse.

The BBC is the best template we have for civic, educational, and social deliberation, but it needs appropriate reforms to rise to the challenge. Deliberative legitimation of democratic authority requires noise reduction, agenda setting and curation of democratic debate, as well as a communication ethics enforced through shared rules which are themselves openly discussed and transparent. A total monopoly of ‘democratic’ media would be totalitarian, but there is a need for a dominant media provider with the ability to mediate between parliament, government and citizens. The UK is well placed in that it already has such an institution.

Public Service Media and ‘capture’

The BBC is publicly owned and independent of the government, yet any regulatory framework that privileges a particular service runs the risk of capture and reciprocity with state or other power: of an ‘approved’ channel that is privileged if it privileges the status quo.

Public Service Media (PSM) continue to rely on various forms of discretionary privilege, including funding and access to distribution. It becomes easier in such an environment for governments to exert control over PSM, and whilst Poland and Hungary seem to be clear cases of control strategies, there is no clear distinction between ‘populist authoritarians’, on the one hand, and open liberal democracies on the other. Indeed, according to the parliamentary select committee, ‘[t]he issue of (license fee) decriminalisation could be used as a bargaining tool by the Government during the ongoing licence fee settlement negotiations with the BBC and S4C, and thereby undermine one of the core principles of public service broadcasting: that it should be removed from Government interference.’

New privileges for the BBC: prominence

However, the regulatory settlement for the BBC and other public broadcasters is being rebuilt. Prominence regulation places the BBC outside the market, underlining the need for new forms of accountability. This is a more radical policy departure than has been acknowledged. The new legislation proposes that smart TV and some streaming platforms will have obligations to make public service portals more prominent, thus increasing audiences and protecting revenues of not only the BBC, but also Channel Four and ITV. As new co-regulation under the Online Safety Act beds in, there may be incentives to make BBC content more prominent on social media platforms. All of this adds up to a new deal for the BBC, which needs new privileges to ensure it maintains its position in the new media age. These are not responses to consumer preferences that are not met in a failing market, but positive measures taken to improve the information environment. Yet, these regulations fall short of fully transforming the BBC into a vehicle of democratic deliberation; necessitating further regulatory and other consideration.

Constitutionalising the BBC: some practical suggestions

The aim of a constitution is to provide ground rules which cannot be changed at will and which ensure that power is checked and balanced. Constitutionalising the BBC would involve enshrining its status, mission and governance structure in written documents that could not be changed without a two-thirds majority of both houses of Parliament.

Reforms of the BBC should empower the public. In this context, the BBC Royal Charter and Agreement and the process for revising them should be reformed, incorporating a number of different features, including but not limited to:

1) A permanent citizen’s assembly on the objectives and resources of the BBC.

2) Annual review and revision of regulatory benefits given to the BBC as approved by the BBC Citizens Assembly

3) Revision of the public service mandate based on these processes involving all parties, demographic and regional groups, and Parliament.

Moreover, policy makers should accept that the BBC is a core part of an open and participatory democratic fourth estate. But it is not part of the government, and urgent attention must be given to reforms which both enshrine independence from government and secure real accountability to citizens. To justify a BBC that is permanent, rather than a contingent response to market failure, we need a theory that is based on the needs of the democratic state. To this end, the BBC should be constitutionalised and acknowledged as a necessary and permanent part of a functioning democracy which needs effective accountability independent of the state.