This is not the most interesting blog post but I wish to place this letter on record.
I have today written to Ofcom asking that its Consultation Champion reviews all the consultations into 'Modernising the BBC's Operating Licence'.
Whilst Ofcom and the BBC claim that there were three consultations, my analysis below indicates clearly how little was made clear to BBC local radio listeners in these consultations and how they failed to comply with Ofcom's own published Consultation Principles.
The Corporation Secretary
Consultation Champion
Ofcom
Riverside House
2A Southwark Bridge Road
London SE1 9HA
30th December 2023
Dear team,
REFERRAL FOR REVIEW OF CONSULTATIONS ON THE BBC OPERATING LICENCE
Ofcom has consulted several times on matters relating to changes to the BBC Service Licence.
Attached at Annex A is a full analysis of all relevant consultations and the way in which Ofcom’s Consultation Principles have been breached.
With 408 pages of consultation, only deep within the body of the final consultation in March 2023 was the level of change intimated to BBC local radio listeners. The most serious changes, however, are not mentioned in the summary of that document, nor even in the summary of the local radio section within.
The implementation of the changes has impacted seriously on BBC local radio stations, where the local output, familiar, locally-knowledgeable voices and services of frequent news and travel information have all been depleted. These changes have been criticised by MPs, DCMS, BBC staff and many listeners.
There is no doubt that the current serious level of opposition would have been registered by listeners at the stage plans were being formulated, had they been more aware of the changes.
As per the Ofcom Consultation Principles, I ask the Consultation Champion to perform a full investigation into these consultations, mindful of the 55+ audience to BBC local radio and the seriousness of the matters being consulted upon – an unprecedented diminution to UK local radio provision impacting on the quality and distinctiveness of BBC output the Charter demands.
You will be aware that a failure to consult properly, whether voluntary or statutory may constitute grounds for a public body such as Ofcom to be challenged in the courts by way of judicial review. The Gunning principles (R v London Borough of Brent ex parte Gunning) require sufficient information for "intelligent consideration". "The information provided must relate to the consultation and must be available, accessible, and easily interpretable for consultees to provide an informed response".
When a fair investigation concludes that the consultations on changes to an already flawed First Service Licence are not procedurally sound, then the outcomes of the process are inadmissible; and the changes implemented by the BBC must be reversed.
CONTEXT
Ofcom’s Content Policy team suggests that Ofcom “publicly consulted three times on a new Operating Licence”.
Attached is a full analysis of all relevant consultations and the breaches of the Ofcom Consultation Principles.
· July 2021 Consultation – ‘How Ofcom regulates the BBC’ (24 pages)
· 22nd June 2022 ‘How Ofcom regulates the BBC’ (56 pages)
· 22 June 2022 – Modernising the BBC’s Operating Licence (109 pages)
· December 2022 - Proposed changes to requirements for BBC Radio 5 Live, BBC
Radio 2 and programming of a national or regional interest Consultation on the BBC’s request to change the Operating Licence (45 pages)
· March 2023 - Modernising the BBC’s Operating Licence (174 pages)
BREACH SUMMARY
The analysis attached at Annex A concludes that is it disingenuous to suggest that BBC local radio listeners were adequately consulted ‘three times’. It sets out clearly the relevant parts of the consultations and the breaches of the extant Consultation Principles.
Contrary to the requirements, the consultations were unclear about “why” Ofcom consulted and “on what questions” as far as BBC local radio’s listeners were concerned.
The iterative nature of these consultations made matters more, not less, complex.
The labelling of the process overall as ‘modernising the licence’ misrepresented the matters in hand for local radio listeners.
The consultations were not ‘as short and simple as possible”. They comprise a staggering 408 pages in total. Whilst the aggregation of all BBC licence matters in this way might suit the regulator and the BBC, it is not appropriate for the consultee who will consider how changes will affect their chosen service.
Consultations must be tailored to the consultees if they are to have value. (See Government guidelines on targeting of consultations).
Despite the self-evident complexity of the matters, “a short Plain English guide” was not made available “to help smaller organisations or individuals who would not otherwise be able to spare the time to share their views”.
I am unaware of any “informal talks with people and organisations before announcing a big consultation, to find out whether we are thinking along the right lines”. Nor any specific “open meeting to explain our proposals, shortly after announcing the consultation”. Ofcom must supply information of where and then these were held and how they were publicised so that those affected might attend.
There also appears little evidence that the “person within Ofcom (will be) in charge of making sure we follow our own guidelines” made appropriate efforts “to reach the largest possible number of people and organisations who may be interested in the outcome of (our) decisions”.
Unlike previous BBC Trust consultations, Ofcom, with the BBC, failed to enforce a campaign of on-air announcements about the consultations, by which means those affected could have been easily targeted. A consultation which does not reach the relevant audience has little value.
STATUS OF CONSULTATION
It might be argued that the BBC could have adjusted much programming just by taking advantage of the freedoms afforded by the first Operating Licence. However:
a) Ofcom failed to assemble the First Operating Licence in accordance with the Charter. As set out below, Section 2.2 of the Charter stipulates that this Licence should have safeguarded the programming broadcast by the BBC under the Trust:
(1) In imposing the regulatory conditions in the first operating licence, Ofcom must seek to increase the current requirements on the BBC as a whole to secure the provision of more distinctive output and services. In particular, Ofcom must-
(a) have a presumption against removing any of the current requirements which would result in the provision of less distinctive output and services;
(b) consider the case for increasing the current requirements in areas where the BBC has exceeded those requirements or where this would support the provision of distinctive output and services;
(c) consider the case for setting requirements in areas where an improvement in performance would secure the provision of distinctive output and services;
As set out in my other submissions to Ofcom, it failed in the above statutory duty. BBC obligations for local radio were eroded in the First Licence.
Most notably, the First Licence failed to safeguard the amount of locally generated and locally relevant output and the amount and frequency of news/travel news etc. This is an area Ofcom has routinely identified as defining local radio services (e.g. commercial and community radio).
b) Even those reading the initial ‘modernising’ consultations would not have been aware that some programming adjustments were already possible under the First Licence. They would likely have taken the opportunity to ask for a strengthening of localisation requirements in the next Licence had the situation been made clear.
CONCLUSION
It is evident that the consultations did not follow Ofcom’s Consultation Principles, nor the general commonsense guidance for Government departments on consultations.
As per the provisions in the Principles, I ask for a full independent investigation into these consultations, mindful of the audience to BBC local radio and the seriousness of the matters being consulted upon – an unprecedented diminution to UK local radio provision impacting on the quality and distinctiveness of BBC output the Charter sets out to facilitate.
Respondents to consultations on this matter are not familiar respondents to business-to-business consultations, they are regular radio listeners predominantly aged 55+. The consultations should have been understandable with ease by this audience.
Additional evidence of the consultation failures exists in the form of the outpouring of belated criticism, criticism which would have been made clear earlier had the process been sound.
I look forward to a satisfactory outcome.
David Lloyd
(Annex A sent to Ofcom and available on request)
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