GB News Limited, R (on the application of) v The Office of Communications ('Ofcom')

Rule 5.3 of the Broadcasting Code prohibits a politician from acting as a newsreader, interviewer or reporter in a news programme. It does not extend to equivalent activity in a distinct current affairs programme. A programme cannot be both for this purpose.

Rule 5.1 applies to news in whatever form, including news presented in current affairs programmes. Outside Rule 5.3, due impartiality requires a fully contextual, fact-sensitive assessment. The politician’s status, the nature and content of the news, and the nature and content of the programme are relevant factors.

OFCOM cannot enlarge the Code by interpretation where that would introduce a new conclusive prohibition. Substantive change to the Code must follow the statutory review, consultation and publication regime.

GB News challenged OFCOM decisions concerning two editions of Jacob Rees-Mogg’s State of the Nation. OFCOM found breaches of Rules 5.1 and 5.3 after Mr Rees-Mogg read breaking news and conducted a live follow-up interview with a reporter.

The programmes were current affairs programmes containing, or adjacent to, news bulletins. OFCOM treated the relevant sequences as news content within news programmes and considered that a politician presenting news without exceptional editorial justification inherently lacked due impartiality. GB News challenged that interpretation, relied on Article 10 of the Convention, and raised a procedural objection concerning OFCOM’s Preliminary Views.

The central issues were the scope and relationship of Rules 5.1 and 5.3, and whether OFCOM had lawfully applied or impermissibly altered the Code.

1. The claim succeeded in substance. OFCOM’s decisions were vitiated by errors of law. The court was minded to quash both decisions and remit them for reconsideration, subject to further representations on relief.
2. Construction of a statutory regulatory code begins with its natural and ordinary language, read in context and with common sense. Any genuine ambiguity should first be addressed by considering the Code as a whole, then, if necessary, the parent statute and wider interpretative principles.
3. Rule 5.3 is confined by the words “in any news programmes”. A news programme and a current affairs programme are distinct categories within the statutory scheme. A current affairs programme containing news does not thereby become a news programme for Rule 5.3. The rule therefore did not apply to Mr Rees-Mogg’s activity in the programmes under challenge.
4. Rule 5.3 is a specific, conclusive prohibition, subject to an exceptional editorial-justification defence. Rule 5.1 is the residual general rule. It applies to news in whatever form, including news presented in current affairs programmes, and requires a fully contextual assessment of due impartiality. There is no exceptional-justification test in Rule 5.1. Relevant factors include the politician’s status, the nature and content of the news, and the nature and content of the programme.
5. Rules 5.1 and 5.3 do not apply simultaneously. Treating every presentation of news by a politician as inherently partial, unless exceptionally justified, unlawfully imported the Rule 5.3 approach into Rule 5.1.
6. OFCOM’s interpretation was novel and not reasonably foreseeable for Article 10 purposes. The court therefore regarded the interpretation enforced by OFCOM as not prescribed by law. The discussion of Article 10 was principally alternative to the construction reached.
7. The procedural challenge was not finally determined. Any procedural muddle arose from the underlying uncertainty about the relationship between Rules 5.1 and 5.3, and it was disproportionate to decide the issue conclusively where no substantive unfairness was alleged.

This was a first-instance judicial review in the Administrative Court. The judgment describes no earlier court decision in the same proceedings.