Tag: Communications Act 2003

The UK Productivity Puzzle, the English Regions and the Law

(Part 2 of 2)  The regulation of broadcast media considered in the last post to this blog draws attention to the real structural problems in the government and economy of the UK, and in particular of England. But it is merely a symptom of a deeper malaise, a malaise which both was a cause of Brexit and requires urgent remedial treatment if the UK is to survive as a major world economy after its break with the EU. If Parliament used the legislative tools at its disposal, there is no reason why the problem cannot be addressed.

The last posting to this blog considered how the UK broadcast media landscape, and the way in which it is regulated, reveals the serious structural defects in how the UK, and in particular England, are governed (London Calling – The BBC, Channel 4, and the Problem of the English Regions).

This, however, is not unique to broadcasting. It is merely symptomatic of a much deeper problem which now has significant implications for the economic as well as political and constitutional health of the nation.

It also entirely capable of being addressed, if Parliament used the legislative powers that are available to it, and that already have their template – however inadequately it has been designed and is currently enforced – under the Communications Act 2003.

Continue reading The UK Productivity Puzzle, the English Regions and the Law

London Calling – the BBC, Channel 4 and the Problem of the English Regions

(Part 1 of 2) The regulatory framework for public service television broadcasters, such as the BBC and Channel 4, contains a unique provision which requires them to produce part of their programming outside of London. How this works, how it is policed by Ofcom, and how the broadcasters respond to it, provide an insight into the serious structural problems with the government and economy of the UK, in particular the English regions.  

Every year, the UK media regulator, Ofcom, publishes a set of data which receives far less attention than it deserves. This is the annual ‘Made outside of London‘ register, a list of television programmes produced outside the capital by, or on behalf of, the UK’s four public service broadcasters (the PSBs – BBC, ITV3, Channel 4 and Channel 5).

Two things are surprising about this document. The first is that it exists at all. Regulatory bodies typically have no interest in whether, or to what extent, their regulated sectors contribute to economic activity in the UK’s constituent nations and regions. The second (which explains the first) is that Ofcom compiles the data to monitor compliance with duties imposed by Parliament. Each PSB is under a legal obligation to ensure that part of its programming is produced somewhere other than London.

This represents an exceptional, in fact unique, example of the law being used to require a measure of decentralisation in a major sector of the UK economy.

The data would merit scrutiny if only because they were so unusual. On examination, it turns out that they also offer a stark illustration of the underlying structural defects in the government and economy of England.

Continue reading London Calling – the BBC, Channel 4 and the Problem of the English Regions

The Duty to Follow Policies (and its Limits)

If a public body adopts a policy about how it will exercise one of its functions, it must follow it.

This principle has been developed over the last 15 years in a series of cases brought against the Secretary of State for the Home Department. Initially it was regarded as an outworking of the doctrine of legitimate expectation (Saadi at [7]). More recently it has been treated as a freestanding ground of judicial review which is ‘a requirement of good administration‘ (Nadarajah at [68]) and ‘a basic public law right‘ (Lumba at [58]).

The full extent to which the duty has now been cut loose from its traditional moorings in legitimate expectation became evident last year in the Supreme Court case of Mandalia. In that case the claimant successfully relied on the Home Office’s failure to follow an internal policy – a ‘process instruction’ to civil servants – of which he neither had, nor could have had, any knowledge at the time when it should have been applied. Following Mandalia, even an unpublished policy is now binding.

The duty is qualified by another basic public law principle, that policies should not fetter discretion. If the circumstances of an individual case provide a ‘good reason‘ for doing so (Lumba at [26]) a public body may, and sometimes must, depart from its own policy.

Subject to this qualification, the requirement to follow existing policies has developed into an important obligation on public bodies. However, two recent cases expose some of the limits of reliance on policies as a ground of public law challenge.

Continue reading The Duty to Follow Policies (and its Limits)