With the BBC’s Royal Charter up for renewal Lord Fowler, who chaired the Lords committee scrutinising the last review, came to The Constitution Unit to talk about the future of the BBC. He argued that the Royal Charter affords too much power to the government and that the BBC should therefore be established as a statutory corporation, enabling it to work independently and without government interference. Jack Sheldon reports.

Four days after the general election it was widely reported that the new government was ‘at war’ with the BBC ahead of the renewal of its Royal Charter, due by 2017. Downing Street sources were quoted as saying that the new Culture Secretary, John Whittingdale, intended to ‘sort out ’ the national broadcaster and some media outlets indicated that the future of the licence fee was in doubt. Whilst David Cameron has since dismissed these suggestions much uncertainty continues to surround the BBC’s future governance structure, funding and programming.

As Robert Hazell has explained on this blog the formal responsibility for Charter renewal lies with the Privy Council, which can be expected to approve without discussion an Order in Council drafted by the government. It is not necessary for the Charter to be taken through any formal parliamentary process, though select committees in both Houses have embarked on inquiries (to be undertaken by the Culture, Media and Sport Committee in the Commons and the Communications Committee in the Lords). On 14 July Lord Fowler, who chaired the Lords committee last time the Charter was up for renewal in 2005-06, led a debate in the upper house titled ‘Future of the BBC’ in which he warned that the corporation ‘is under unprecedented attack’. Fowler came to The Constitution Unit on 19 October to talk about the renewal process and his hopes for the current review.

Lord Fowler began his talk with a quick recap of the previous review. The Labour government had proposed a radical change to the BBC’s constitution with the board consisting of a Chair, Director General and Governors to be replaced with a new dual leadership structure. On one side would be the executive committee, headed by the Director General and able to appoint non-executive directors, and on the other would be the BBC Trust. The BBC Trust would perform a broadly similar function to the previous Governors, but with stronger powers to hold management to account.

Fowler’s committee unanimously opposed the change, arguing that there should be a single unitary body overseeing the BBC, but the government went ahead anyway. For Fowler the new leadership structure was a ‘recipe for weakness’. He recalled that when crises occurred ‘it was quite unclear who was speaking and what their roles were’. As Chairman of the BBC Trust Lord Patten had been criticised for failing to either attack or defend the BBC but his position was an ‘impossible’ one. In Fowler’s view it is a ‘racing certainty’ that the BBC Trust will be abolished this time round after less than ten years.

All this raised the question of how the BBC Trust was ever set up in the first place despite expert opinion and the parliamentary committees being overwhelmingly against it, and severe doubt that such a proposal could have got through the House of Lords. Here Lord Fowler divided with the position Robert Hazell set out in his blog post, that although the Charter is formally approved by the Privy Council it is in fact subject to significant parliamentary scrutiny. He argued that Royal Charters might sound grand but that they give ‘exceptional power to whatever government happens to be in office at the time of Charter renewal’, and quoted the following passage from his committee’s report:

[T]he Privy Council is an instrument of Government. It has a ministerial President and only ministers of the government of the day participate in the Privy Council’s policy work. The Privy Council’s own guidance shows that the terms of a Royal Charter are not formulated independently of Government. It states that “once incorporated by Royal Charter a body surrenders significant aspects of control of its internal affairs to the Privy Council. Amendments to Charters can be made only with the agreement of the Queen in Council and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body.”

Fowler contrasted this constitutional position with the normal legislative process that the government usually have to go through to do something as significant as creating the BBC Trust. When the parties are evenly balanced, as they are at the moment, this requires the government to think ‘twice and three times’ about their proposals. So Fowler’s first recommendation was that the BBC should be established as a statutory corporation, much like Channel Four, which would mean that the BBC’s independence could be properly enshrined and recognise that parliament rather than government was the crucial body.

Fowler went on to discuss two possible privatisation measures up for discussion during this Charter Review period, concerning Channel Four and BBC Worldwide. The privatisation of Channel Four – something the government is believed to be looking at – would require legislation and, in his view, it is by no means certain that it would get through with the present composition of parliament. Fowler’s guess is that ministers will not want to be defeated and so the privatisation will not happen. On the other hand BBC Worldwide could be privatised – a move that Fowler personally supports, because it would allow it to borrow to invest – without going near parliament at all if the BBC were leant on, as they already have been as far as the cost of free television licences for old age pensioners is concerned. In Fowler’s view the Royal Charter therefore gives far too much power to the government.

In concluding Fowler set out his wider hopes for the upcoming review. He is ‘passionately in favour of an independent BBC free from government interference’, wants a ‘BBC with a place of world’ – something the plan for BBC Worldwide is one element of – and a ‘strong BBC World Service’. He also wants a BBC where ‘news reporting is prioritised’ and the ‘reporting skills of the correspondents are properly valued’. Fowler supports the licence fee, as the ‘best possible value that you can get as far as broadcasting is concerned’, and is not attracted by a subscription model. He wants a BBC ‘subject to check’ – but not that of the BBC Trust whilst there is a perfectly good regulator in Ofcom. Above all Fowler wants a BBC that is a statutory corporation with ‘its own Chairman, its own Director General, its own board, making the decisions regarding the Corporation inside the budget that they have’.

Fowler did not want to create the impression that he does not think anything can be done to improve the BBC, but said that he ‘never quite understand[s] why this country does not take pride in having something like the BBC’ and that ‘we would be mad to turn our back on it’. He did not think that he was alone in that view; in particular, he thought that there were many people in the Lords who, like him, would like a sensible review that ‘enables the BBC to work independently and without government interference’.

It will be fascinating to see how the review plays out. Will it be conducted in the manner that Lord Fowler would like, or will it descend into something resembling the ‘war’ between the government and the BBC speculated about in the press after the election? To what extent will parliamentary opinion, and in particular that of its committees, be taken into account? And how will the proposals ultimately put forward address the problems with the current governance structure, the challenge of changing viewing habits and the related issue of future funding? By this time next year we should know the answers to these questions and more.

Lord Fowler’s speech can be viewed in full here.

About the speaker

Lord Fowler chaired the House of Lords Select Committee on the BBC Charter Review in 2005-06. He was in turn Secretary of State for Transport, Health and Social Security, and Employment in Margaret Thatcher’s government. He was Conservative party Chairman under John Major and Shadow Home Secretary in William Hague’s shadow cabinet, before moving to the Lords in 2001.

About the author

Jack Sheldon is the editor of The Constitution Unit newsletter and blog.