The Liberal Democrats & The Scottish National Party, R. (On the Application of) v ITV Broadcasting Ltd

A private commercial broadcaster’s editorial decision is not amenable to judicial review merely because it broadcasts to the public, operates under statutory licensing and regulation, or deals with major political issues. The court must assess the context, including the nature of the function, its source, its governmental character and the effect of private profit-making. Regulation by Ofcom does not turn the regulated activity into a public function where obligations arise through the licence and enforcement is assigned to Ofcom. An Ofcom complaint is the appropriate remedy, with judicial review available against Ofcom’s decision. Due impartiality remains an evaluative and flexible standard. It does not require equal time or inclusion of every significant view in one programme, and may be achieved through clearly linked programmes.

In the period preceding the 2019 General Election, ITV scheduled a prime-time head-to-head debate between the leaders of the Conservative and Labour parties. It also planned a later interview and a wider debate involving other parties. The Liberal Democrats and the SNP challenged the exclusion of their leaders by judicial review, alleging breach of the Broadcasting Code, the broadcasting legislation, public-law requirements and, in the SNP’s case, Article 3 of the First Protocol to the European Convention on Human Rights. The central issues were whether ITV’s editorial decision was amenable to judicial review, whether an Ofcom complaint was an adequate alternative remedy, and whether the decision was unlawful.

1. Disposition. The court refused permission to apply for judicial review in both claims. It held that the proposed debate could lawfully proceed.
2. Amenability to judicial review. Whether a decision is amenable depends on its particular context. The court applied the approach in R v Panel on Take-overs and Mergers, ex p. Datafin Plc [1986] 1 QB 815, Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 and YL v Birmingham City Council [2007] UKHL 7. ITV was a profit-making commercial company. Its function was not governmental. It had no direct statutory obligation under the Communications Act 2003; its obligations arose through its licence, with Ofcom responsible for standard-setting and enforcement. Public reach, free-to-air broadcasting, political importance and statutory regulation did not convert its editorial decision into the exercise of a public function.
3. Alternative remedy. The statutory scheme entrusted regulation of commercial broadcasters to Ofcom. The courts could review an Ofcom decision on conventional public-law grounds, but the absence of a private-law remedy against ITV did not create a direct public-law remedy against it. A complaint to Ofcom was the sole and suitable remedy. Ofcom could rule promptly before the election and could require rectification or impose sanctions if a breach were established.
4. Due impartiality and editorial judgment. The court expressed these views after its conclusions on amenability and remedy. Section 320 of the Communications Act 2003 did not impose absolute impartiality. Due impartiality was evaluative and flexible. The Code permitted impartiality to be achieved through a series of clearly linked and timely programmes, and Rule 6.2 allowed broadcasters editorial judgment in giving due weight to parties and significant views. The court found no arguable breach and said that courts should not micromanage editorial format or content.
5. Other grounds. The alleged failure to consider relevant matters and the irrationality challenge were unarguable. Irrationality was a very high threshold, and ITV had considered the relevant electoral, polling and contextual matters. The Article 3 First Protocol argument was also untenable, including because of the wide margin of appreciation afforded to national legal regimes.