This story begins with Ofcom, the public authority that enforces broadcasting legislation in the UK, telling me that Al Gore’s film, An Inconvenient Truth (AIT) is not a ‘factual documentary’, and ends with them deciding that climate change - the subject of the film - is not a matter relating to current public policy. You may well wonder how this could have happened, and it will take some time to explain.
To start with, we need to go back to March 2007, when Channel 4 broadcast a film called The Great Global Warming Swindle (GGWS). This was Martin Durkin’s take on the arguments underlying global warming scepticism and it caused a furore in the environmental movement. In response, a group of warmist scientists and activists, including Sir John Houghton, William Connolly, Joe Smith, and Bob Ward, lodged a 176 page complaint with Ofcom. After sixteen months of deliberation, the regulator published a decision that made a couple of token criticisms of the film, but threw out most of the grounds for complaint. The warmists were very disappointed, but the decision made sense.
There were two sections of the Broadcasting Code, that GGWS risked falling foul of:
Section 2: Harm and Offence
2.2 Factual programmes or items or portrayals of factual matters must not materially mislead the audience.Section 5: Due Impartiality and Due Accuracy and Undue Prominence of Views and Opinions:
5.11 In addition to the rules above, due impartiality must be preserved on matters of major political and industrial controversy and major matters relating to current public policy by the person providing a service (listed above) in each programme or in clearly linked and timely programmes. (emphasis added)
5.12 In dealing with matters of major political and industrial controversy and major matters relating to current public policy an appropriately wide range of significant views must be included and given due weight in each programme or in clearly linked and timely programmes. Views and facts must not be misrepresented. (emphasis added)
Although Ofcom identified a minor error in one of the graphs used in the film - which was immediately corrected by the filmmakers before future distribution - they had no quarrel where Section 2.2 of the Code was concerned.
Concerning Section 5.11 and 5.12, Ofcom decided that, as it was clear to the audience that the opinions on climate change expressed in the film were those of a minority who took issue with mainstream, viewers had not been misled. They did find that the final section of the film, which explored the policy implications of assuming that anthropogenic global warming is taking place, had breached the Code to the extent of not providing ‘an appropriately wide range of significant views’.
The warmist media and blogoshere were horrified by Ofcom’s failure to slate The Great Global Warming Swindle, but Channel 4 was obviously relieved and launched a damage limitation exercise. In an interview soon after the decision was published, Hamish Mykura of Channel 4 announced that they would broadcast Al Gore’s film An Inconvenient Truth as soon as it became available for television. That really interested me.
If the complaint against The Great Global Warming Swindle was rather flimsy, in spite of it’s great length and the vast team that had been put together to draft it, a devastating indictment of AIT already existed from a quite unimpeachable source; a judgement in the High Court. This established that AIT appeared to present the mainstream views on climate change accurately and impartially, but did not in fact do so, a very different matter from GGWS made no secret of where it stood in the climate debate.
If the film was broadcast without either substantial editing or providing additional output that would balance its propagandist content, then there would be a gross breach of the Broadcasting Code that Ofcom would be unable to ignore. Or so I thought.
Usually, when members of the public complain about a broadcast, they are relying on their interpretation of the programme’s content. In their view the broadcast was misleading, biased, inaccurate, unfair, obscene or offensive in some way, to the extent that it infringed the Broadcasting Code. On the other hand, the broadcaster is likely to argue that their programme was none of these things. Ofcom’s duty, as set out in legislation, is to reach an impartial and objective view of the programme content based on the available evidence, and then decide whether the Broadcasting Code has been complied with. No one would suggest that this is always an easy task, but in the case of AIT it should have been, for the following reason.
In early 2007, when hysteria surrounding the findings of the IPCC’s Fourth Assessment Report on climate change was at it’s height, the Department of Education and Skills and DEFRA jointly issued a press release announcing that AIT was to be sent to every secondary school in England for use as a teaching aid. Subsequently, a school governor called Stuart Dimmock applied for Judicial Review of this decision in the High Court as he was concerned that the film contravened the terms of the Education Acts 1986 and 1996 (the Education Acts) which quite rightly ban the ‘promotion of partisan political views’ in schools, and also requires that when ‘political issues are brought to the attention of pupils’ then, so far as possible, they must ‘be offered a balanced presentation of opposing views’.
No one who has seen AIT could seriously suggest that it is anything other than a ‘partisan’ film, and thatit does not even attempt to offer ‘a balanced presentation of opposing views’. So to this extent, the judgement handed down by Mr Justice Burton in October 2007 was not surprising. He found that showing the film in schools must be a breach of the Education Acts unless Guidance Notes were issued to teachers to ensured that pupils were made aware of the purpose of the film, and that it contained misleading information about the scientific evidence for man-made global warming. In reaching this decision it was necessary for Mr Justice Burton to consider the film’s content in some detail, and his findings were clearly set out in his judgement. These were unambiguous and damning.
[The film] … is built round the charismatic presence of the ex-Vice-President, Al Gore, whose crusade it now is to persuade the world of the dangers of climate change caused by global warming. It is now common ground that it is not simply a science film – although it is clear that it is based substantially on scientific research and opinion – but that it is a political film, albeit of course not party political. Its theme is not merely the fact that there is global warming, and that there is a powerful case that such global warming is caused by man, but that urgent, and if necessary expensive and inconvenient, steps must be taken to counter it, many of which are spelt out. (Judgement Sec 3)
Paul Downes [for the claimant], using persuasive force almost equivalent to that of Mr Gore, has established his case that the views in the film are political by submitting that Mr Gore promotes an apocalyptic vision, which would be used to influence a vast array of political policies, which he illustrates in paragraph 30 of his skeleton argument:
- (i) Fiscal policy and the way that a whole variety of activities are taxed, including fuel consumption, travel and manufacturing …
- (ii) Investment policy and the way that governments encourage directly and indirectly various forms of activity.
- (iii) Energy policy and the fuels (in particular nuclear) employed for the future.
- (iv) Foreign policy and the relationship held with nations that consume and/or produce carbon-based fuels.”
‘There are errors and omissions in the film, to which I shall refer, and respects in which the film, while purporting to set out the mainstream view (and to belittle opposing views), does in fact itself depart from that mainstream, in the sense of the “consensus” expressed in the IPCC reports.’ (Judgement Sec 17 iii)
‘[There are] … 9 ‘errors’, the first two of which are, at any rate apparently based on non-existent or misunderstood evidence, and the balance of which are or may be based upon lack of knowledge or appreciation of the scientific position, and all of which are significant planks in Mr Gores’s ‘political’ argumentation.’ (Judgement Sec 34)
‘… some of the errors, or departures from the mainstream, by Mr Gore in AIT in the course of his dynamic exposition, do arise in the context of alarmism and exaggeration in support of his political thesis.’ (Judgement Sec 19)
Of course Ofcom is not in any way concerned with the Education Acts, but only the Broadcasting Code and the legislation on which this is based. However in the event of Channel 4 screening AIT, and if they received complaints that the film was misleading and anything but impartial about a major matter clearly ‘relating to current public policy’, then Ofcom would be in the unassailable position of being able to rely on no less than a High Court judge’s analysis of the film’s content when they came to a decision about compliance with the Broadcasting Code. Furthermore, if Ofcom found against the broadcaster then this breach of the Code would be a particularly flagrant one, as the Dimmock Case had been widely reported in the media and Channel 4 could not have been unaware of the High Courts assessment of the film’s purpose and content. Indeed their news service had reported the case prominently.
In April 2009 AIT was broadcast on Channel 4 and on S4C, the Welsh language channel. No edits had been made to the film and no programmes were scheduled to provide balance to Mr Gore’s partisan views on climate change. Indeed the Channel 4 screening was preceded by a disaster movie, The Day After Tomorrow, the theme of which was the catastrophic consequences of anthropogenic climate change, apparently in order to ramp up the audience’s concerns about environmental catastrophe before the main feature. The only concession to the requirements of the Broadcasting Code that Channel 4 had made was to display a notice (end-card), in very small white type on a black background, which said:
In October 2007 a High Court Judge, Mr Justice Burton, referred to nine alleged “errors” in An Inconvenient Truth but ruled that the film could be distributed to schools if accompanied by Guidance which would allow a balanced presentation of opposing views. “For more detail on the case please go to:
This appeared at the very end of the broadcast, when the credits had run for some 1min and 40 seconds after the final scene of the film. I wonder if there was anyone other than me who stuck around long enough to see it?
I sent Ofcom a complaint that, though very much shorter than the one they received about The Great Global Warming Swindle, still ran to five pages. It was detailed, carefully argued and fully referenced, relying entirely on the findings in Mr Justice Burton judgement, and the need to consider this when deciding whether Channel 4 had breached the Broadcasting Code. I was careful not to express any views of my own about the film’s content as, in view of the judgement, that would have been superfluous. The High Court had already determined that the film was misleading and partisan and dealt with matters relating to current public policy.
Usually, there is quite a time lag between sending a complaint to a regulator and receiving a substantive response; they need time to consider it. In this case I had sent Ofcom a long document that raised legal issues, and backed it up with a copy of Mr Justice Burton’s 17-page judgement, which they would need to consider. It seemed likely that they would require legal advice on such a matter. So I was astonished to receive a decision on my complaint from a Mr Marcus Foreman by return of post.
This informed me that Ofcom had ‘reviewed this matter’ - which given the timeline seemed most improbable - and no breach of the Code had taken place. But it was the justification for this decision that made my eyes pop:
… An Inconvenient Truth, is a film rather than a factual documentary and as such does not attract the requirements of due impartiality under [Section 5 of] the Code. Also, as a film, the expectations of the audience would be unlikely to regard the content of a film in the same way as a documentary transmitted by a public service broadcaster.
The letter ended with the following condescending and silly message:
For these reasons therefore, Ofcom will not be taking your complaint further. I realise that our decision will be disappointing to you, however, I would like to take this opportunity of thanking you for taking the trouble to contact us with your concerns. It is important for us to know that viewers think, even though on this occasion Ofcom has not upheld your complaint.
Apart from the impertinence of Ofcom presuming to know what I might think - compounded by misspelling my name twice in their letter - they had completely misjudged my reaction. I was anything but disappointed by their reply; there is something rather reassuring about seeing an arrogant official put his foot very firmly in his mouth. But I certainly was deeply shocked by such obvious incompetence from a statutory regulator that is supposed to be expert in the field of broadcasting and the media.
Even if one ignores the fact that AIT had won an Oscar for Best Documentary not long before, the evidence of any viewer’s own eyes would tell them that this film was a (supposedly) factual report on a particular subject, thereby conforming precisely to the dictionary definition of a documentary. So I wrote back to Mr Foreman asking him to explain the criteria that Ofcom had applied when deciding that AIT was not a documentary. At this stage, things began to get even more surreal.
After having to send a reminder, I eventually heard from a Mr Perry Hurcombe who informed me that, ‘I have been asked to take a fresh look at the case in light of your comments’. He continued:
I should state from the outset that Ofcom is not a fact-finding tribunal and its obligations, in respect of programmes that have been transmitted by its Licensees, is to reach a fair and reasonable decision on whether a programme – such as An Inconvenient Truth – breached the requirements of the Broadcasting Code (“the Code”). Its role cannot be to investigate and adjudicate on the facts of global warming.
There was nothing in my complaint, or subsequent correspondence with Ofcom for that matter, to suggest that I had any such intention in mind. I would no more ask Ofcom to ‘adjudicate on the facts of global warming’ than ask my local refuse disposal department to adjudicate on the facts of particle physics, and I had been very careful to make sure that I was not doing so. The issue that I had asked them to consider was whether, in view of a High Court judgement, Al Gore’s portrayal of the scientific evidence for global warming complied with the requirements for impartiality and accuracy set out in the Broadcasting Code. Cleary, no decision that Ofcom might take would have any bearing on the validity of climate science, only on Al Gore’s interpretation of it, a matter that had already been considered by the High Court. I was at a total loss to know how Ofcom had got that idea into its head, unless perhaps, neither Mr Marcus Foreman nor Mr Perry Hurcombe has actually read my complaint.
But Mr Hurcombe was by no means finished yet, and even Mr Foreman’s extraordinary claim that AIT was not a ‘factual documentary’ had prepared me for what came next:
Whilst broadcasters are of course responsible for ensuring that all the material they transmit complies with the Code, Ofcom will take into account whether, as was the case here, the programme was acquired by the broadcaster, after it had been on general cinema release, and had been passed by the British Board of Film Classification. Indeed we understand it is listed as a “feature film” on the BBFC’s website.
Whereas Ofcom is a public authority, with statutory obligations and powers under the Communications Act 2003 to impose sanctions including fines for non-compliance, the BBFC is nothing more than an independent body funded by the film industry with no statutory authority and no responsibility for material broadcast on television. It is not in any way concerned with impartiality or accuracy either, but more with bums, tits and gore (with a small ‘g’), which we were at least spared in AIT. Nor are the terms ‘documentary’ and ‘feature film’ mutually exclusive; the latter merely distinguishes major programme items from trailers and other types of filmed material that may be shown in cinemas, and for which the BBFC also provides classifications. In fact it only took a moment or two to turn up a reference to AIT being a ‘global warming documentary’ in the BBFC’s annual report. A documentary can obviously also be a feature film, and vice versa, as in this case.
I set this out in some detail in another letter to Ofcom, and also explained that I was not seeking their views on global warming, but resisted adding that all I expected them to do was deal with my compliant in a sensible and professional way, as the legal framework within which they operate requires. I also pointed out that Mr Hurcombe’s letter had not provided me with the explanation I had requested concerning Ofcom’s decision that AIT was not a documentary.
An exchange of letters with a Mr Andrew Morgan followed. He wrote at great length giving Ofcom’s views on the content of AIT, which were not, of course, relevant to my complaint unless Ofcom was prepared to argue that Mr Justice Burton didn’t know what he was talking about. There was no response to the judge’s findings that the film was partisan, part of a political crusade, belittled opposing views, or contained errors that were “significant planks in Mr Gores’s ‘political’ argumentation”.
Mr Morgan did suggest that the right to freedom of expression of the broadcaster, and presumably Mr Gore too, would be impaired if Ofcom found that the programme breached the Broadcasting Code and cited the European Convention on Human Rights in support of this extraordinary contention. In fact, as I learned later, the Convention very sensibly makes freedom of expression subject to ‘restrictions prescribed by law and necessary in a democratic society’. This would seem to be a pretty fair description of the impartiality requirements set out in the Communications Act 2003, which are supposed to be enforced by Ofcom in the form of the Broadcasting Code. It is obviously necessary in a democratic society that public service broadcasters should be impartial on matters relating to current public policy.
So far as the Dimmock Case was concerned, Mr Morgan argued that Mr Justice Burton’s judgement was irrelevant to Ofcom’s decision as the case had been about compliance with the Education Acts, and not the Broadcasting Code. This seemed strange, as a film does not suddenly become impartial and accurate when it is shown on television rather than in a classroom, and the judgement had found AIT to be neither of these things. He also argued that much of AIT dealt with the scientific evidence underpinning concern about global warming and that this was not ‘a matter of current public policy’, and in any case was not controversial. The fact that the wording of the Code is actually, ‘matter[s] relating to current public policy’ seemed to have slipped his memory, as had a note on Section 5 of the Code, which explains that such matters need not be controversial in order to be subject to the Code.
As though all that was not enough, he also told me in his first letter that:
I should also state that Ofcom is not a fact-finding tribunal. … Its role cannot be to investigate and adjudicate on the facts of global warming.
And in case I still didn’t quite understand, he added in another letter:
As I stated in my letter of 17 July, it is not the role of Ofcom to adjudicate on the causes of global warming.
At this point I decided to take a long, hard look at Ofcom’s published procedure for dealing with complaints in the hope that I might be able move on to someone rather more senior who would be prepared to deal with the matter seriously, and perhaps even address the issues that I had raised. That person turned out to be an extraordinary personage called Mr Trevor Barnes, Ofcom’s Senior Standards Manager, and a lawyer.
Ofcom’s procedure allows for three levels of appeal after an initial decision has been taken. Firstly, if the complainant persists and can provide adequate grounds, the matter is passed to a case officer who actually views the programme at issue and reviews the initial decision. Secondly, if there are grounds to challenge the case officer’s decision, then a further review is carried out by a more senior executive who has not been involved in the previous decisions. Finally, if there is reason to believe that Ofcom has still not dealt with the complaint equitably, the matter can be referred to the very top of Ofcom: the Content Board. Each step on this ladder is at the discretion of Ofcom, and the Content Board’s decision is final, with no further possibility of review.
All that sounds pretty thorough and convincing. In the past, I’ve usually found that where there is a problem, the higher up you get in an organisation, the more likely you are to find people who will take a reasonable and pragmatic view. Recently, I have discovered that this is not the case where climate change and public authorities are concerned.
By now I was beginning to get the measure of how Ofcom works - or I thought I was - but a few more surprises were in store.
I decided that, in order to get the case across, I needed to present it in a way that was impossible to misconstrue and with each argument stated, and supported, in such a way that it could not be ignored. It is worth pointing out at this stage that Ofcom, as a regulator, might be expected to act proactively when handling a complaint rather than simply trying to fend off criticisms on behalf of the broadcasters they are supposed to regulate. So far I had seen no evidence that this was the case.
So I sent in a request for a review accompanied by a fourteen-page submission with everything spelt out in stultifying detail, leaving absolutely no room for misunderstanding, or so I thought. I reiterated every point I had made so far, dealt with the arguments that I had heard from Ofcom during the previous three months - which wasn’t difficult - and quoted relevant chunks from Mr Justice Burton’s judgement as it seemed that no one at Ofcom had actually taken the trouble to read it properly. What I could not do was prevent Ofcom ignoring issues that they would prefer not to consider.
I then went on holiday.
When I returned, two emails from Mr Trevor Barnes were waiting for me. The first said:
As a senior manager in Ofcom’s Standards department, I will review your request and let you know whether I will entertain it as soon as practicable.
There was something strangely Dickensian about that use of the word ‘entertain’, which worried me, but the second email was more reassuring, if no less pompous:
Having reviewed the papers, I write to inform you that I have decided to entertain your appeal. I will now proceed to consider your appeal and will send you the result in due course.
At the end of October 2009, Mr Barnes informed me that, in view of the issues raised in my appeal, he would be writing to Channel 4 to ask for their comments. This seemed fair enough as it was in line with Ofcom’s procedure for handling complaints. The procedure also made the following provision:
If requested, Ofcom should also supply to a complainant the broadcaster’s or clearance centre’s response. However, Ofcom reserves the right to remove any confidential, market sensitive or legally privileged material which may have been supplied to Ofcom, if requested by the broadcaster or the complainant, in the course of its investigation.
I wrote back to Mr Barnes asking for copies of both his letter to Channel 4 and their response. He refused to provide me with these.
When I quoted the relevant section of Ofcoms procedure to him, he told me that he had forwarded my request to ‘my colleagues’ so that it could be treated as a request for information under the Freedom of Information Act, in spite of the guidelines making it absolutely clear that I should see the correspondence. At this stage, not only were my eyes popping, but my jaw was beginning to drop. Of course I had not made a request under the FOIA, but only requested that Ofcom should comply with its own procedure. Their decision to invoke the FOIA seemed only intended to cause delay.
The Freedom of Information Act requires a response to a request for information within 20 working days, which is in effect a month, and most public authorities make a point of not replying until the very end of that period, usually the last day. Furthermore, if they refuse the request, and the applicant asks for an internal review of the decision, they are allowed a further 40 working days to undertake this process. It seemed that Mr Barnes had very neatly kicked the ball into the long grass from which it was most unlikely to emerge for at least another three months.
A month later, I duly received an email from the FOIA officer at Ofcom. This informed me that I would ‘find enclosed copies of all the correspondence with Channel 4 relating to your request’. There were five items attached. Three were copies of my correspondence with Mr Morgan; letters that I had either written to Ofcom or received from Ofcom. There was also a copy of Mr Justice Burton‘s judgement, which I had originally sent to Ofcom. All these items were clearly in my possession already, and could not possibly be the subject of any FOIA request. It was a bit like peering into your Christmas stocking and finding a collection of your old toys. Finally there was a copy of Mr Barnes letter to Channel 4 in which he seemed extremely eager to hear their views on the matter of freedom of expression, and helpfully provided them with a copy of my appeal.
I noticed that, although the name and address of the person to whom this letter was addressed, presumably at Channel 4, had been redacted from the copy of Mr Barnes letter, my name had been used in the letter and, presumably, together with my address, had not been redacted from the copy of my appeal that had been enclosed. There seemed to be different rules for broadcasting insiders talking among themselves, and we mere mortals on the outside. It also seemed very strange indeed that Channel 4 was being assisted in making their submission by being provided with my submission, but Mr Barnes had refused to provide me with a copy of their response, or even reveal who was dealing with the matter at Channel 4. Mystery was piling up on mystery.
Of Channel 4′s reply there was no sign, and of course that was the document that I really wanted to see. It was the subject of the FOI request, albeit one that I had not actually made, and Ofcom’s own published procedure required that I should see.
Of Channel 4′s reply there was no sign, and of course that was the document that I had requested and really wanted to see. It was the subject of the FOI request, albeit one that I had not actually made, and Ofcom’s own published procedure required that I should see it.
When I queried this with Ofcom’s FOIA officer, as it was quite possible that the omission had been a genuine error, I had to write twice before getting a reply. His response took the form of a letter thanking me for my request for an internal review of Ofcom’s handling of my FOIA request and informing me that they would ‘aim to respond within two months’. But I hadn’t requested a review, only an explanation. The ball was now once again safely out of play for the foreseeable future, as I had expected. You cannot complain to the Information Commissioner about the way in which a public authority has handled a request for information under the FOIA until a full internal review has been conducted.
I wrote back saying that I expected to hear the result of the review on or before 29th January 2010, when two months would have elapsed. On 28th January 2010 I received a Decision Letter from Mr Barnes; he who had had decided to ‘entertain’ my appeal. Perhaps the timing was a coincidence; I would certainly like to think so.
Mr Barnes decision was that there had been no breach of the Broadcasting Code. His letter ran to 12 closely typed pages and read like a submission on behalf of the defendant, Channel 4, from beginning to end. The evidence and arguments that I had presented were hardly mentioned, while the submission from Channel 4 was summarised, analysed, and dwelt on, in great detail. Channel 4′s submission was clearly crucial to the decision, yet how could I determine whether the decision was justified when I had not seen this document. Was I supposed to have blind faith in Ofcom?
But there was something else. When Mr Barnes had refused my request to see Channel 4′s response to his letter he had said:
Fyi [sic] I would not plan to provide you with copies of my correspondence with Channel 4 before reaching a decision on your appeal.
This implied that, after a decision was reached, I would see this oh! so elusive document, which was not surprising. As a lawyer, Mr Barnes would understand the implications of his delivering a decision based on evidence that I had not seen. This could make Ofcom vulnerable to a legal challenge. Even so, he had not provided Channel 4′s submission with his Decision Letter.
I wasn’t particularly surprised when a couple of days later I received a lengthy report on Ofcom’s review of the FOIA request; a request that I had not in fact made, but that Ofcom had made to itself on my behalf and for its own reasons; a situation that might most kindly be described as Ruritanian. Quite predictably, but inexplicably, they had decided that I would still not be allowed to see what Channel 4 had said to them, but there was another startling new development. Apparently Ofcom had written to Channel 4 requesting their permission to show me the submission, but permission had been refused. This was strange in two ways: firstly the fact that they had seen fit to refuse, but also because Ofcom’s procedure, by which they also were bound, makes it clear that such documents will be available to complainants. So why had Ofcom felt any need to consult them in the first place?
Even at a first quick reading, it was clear from Mr Barnes Decision Letter that there were ample grounds for a further appeal, this time to the very top of Ofcom, so I set about preparing one. Surely at that level in the organisation I would get a fair hearing from people who would not want to be associated with the pantomime that had been going on ever since I received Mr Foreman’s letter telling me that AIT was not a factual documentary some eight months preciously. But first there was one pressing detail in Mr Barnes’ letter that needed to be dealt with.
Perhaps anticipating that his case did not hold water and that a further appeal would ensue, Mr Barnes had this to say in the preamble to his decision:
Please note that since you made your appeal, Ofcom introduced on 16 December 2009 new procedures governing reviews. In the interests of fairness however I have considered your appeal request dated 7 September 2009 under the old procedures. From now on however the new procedures are applicable to this case2.
When I looked at Ofcom’s new procedures, the requirement to let complainants see the broadcaster’s submissions, which had been clearly set out in the previous version, had of course vanished. This looked like a blatant attempt to move the goalposts and I challenged Mr Barnes on the point. Eventually he climbed down, agreeing that the process of handling my complaint should be completed according to the procedure that was in effect at the time when it was made. But he still didn’t provide me with a copy of Channel 4′s submission.
My final appeal, to Ofcom’s Content Board, was necessarily another long document. It began by explaining that, in requesting a further appeal, I was not in possession of all the evidence that Mr Barnes had based his decision on, which presented me with an impossible task that made a mockery of the process. How could I be expected to provide grounds for appeal when I had no way of assessing whether Channel 4′s submission, which seemed to be the main basis for the decision, had been accurately and impartially summarised and interpreted?
These concerns were well founded, and I included the following observation in my submission to make the point clear:
A summary from Channel 4′s submissions used in the Decision Letter says:
Channel 4 stated that the complainant’s references to Dimmock are “selective and are themselves misleading”. It refers in particular to paragraph 22 of the Judgment [sic] where Mr Justice Burton, it says, makes clear that that as regards the causes and likely effects of climate change he think [sic] the film is broadly accurate.(DL28, my emphasis)
The next paragraph reads:
Channel 4 goes on to state that the complainant does not properly reflect the Judge’s determination in respect of the nine alleged “errors”: the Judge is referring to nine points which the Judge “considered might be errors or where differing views should be presented for balance.” According to the broadcaster, the nine “errors” have themselves also been the subject of critical examination as to whether they really are “errors” or not.(DL29, my emphasis)
The quotation attributed to Mr Justice Burton is not to be found in his judgement. It does however occur in commentary on the case at a particularly radical climate change activist blog called Deltoid and is also used by a climate change activist and film-maker called Franny Armstrong (Age of Stupid) in an article in The Guardian. Cleary this has made me very cautious about the way in which Channel 4′s submissions have been represented in the Decision Notice.
If Mr Barnes and Channel 4 between them had managed to represent a quotation from that most vitriolic and zealous of climate activist blogs, Tim Lambert’s Deltoid, as being the words of a High Court judge, then anything was possible.
The Decision Letter also relied heavily on quoting fragments of Mr Justice Burton’s judgement that could be construed, if taken out of context, as showing that he had a high opinion of the film. He certainly did say that it was ‘a powerful, dramatically presented and highly professionally produced film’ which had won an Oscar. He also describes the way in which Al Gore presents the likely causes and effects of climate change as ‘broadly accurate’. But the first accolades says nothing abut the content of the film and the second is very faint praise indeed for a documentary that purports to provide a definitive view of a scientific subject. No less could be said of almost any work of science fiction. Indeed it is also fair to say that most successful propaganda is broadly accurate, but errs in the way that details are presented and conclusions drawn. I explained this in my submission too.
The Decision Letter avoided any consideration of the film being partisan, part of a crusade, belittling opponents, or the other adverse findings in the High Court judgement, preferring merely to say that the judgement was not ‘definitive’ and Mr Justice Burton findings were not ‘findings of fact’. It made no attempt to determine whether the film was impartial on the subject of climate change.
Concerning the nine blatant inaccuracies in the film, it was Mr Barnes opinion - and the term ‘my opinion’ turns up frequently in his letter - that these were not so serious as to infringe Section 2 of the Code, but then he didn’t even mention the judges finding that these were,”significant planks in Mr Gores’s ‘political’ argumentation”. Nor did he express any opinion, or even acknowledge that I had even mentioned, Mr Justice Burton’s view that the film used ‘alarmism and exaggeration in support of his [Al Gore's] political thesis’, features that could hardly be described as other than misleading, and also misleading to an extent that must cause ‘harm and offence’ when the subject is one as serious as catastrophic climate change.
Concerning the requirement of impartiality in matters relating to current public policy, I had no alternative but to restate all my arguments at length when I drafted my grounds for appeal; Mr Barnes had chosen to ignore most of them. His view, in a long and obfuscatory section, was that AIT did not deal with matters relating to current public policy and therefor was not subject to Section 5 of the Broadcasting Code; a preposterous view in my option, and one that I did not think the Content Board could possibly uphold. Of Mr Justice Burton’s finding ‘that Mr Gore promotes an apocalyptic vision, which would be used to influence a vast array of political policies’, specifically mentioning fiscal policy, investment policy, energy policy and foreign policy, there was no mention.
Not surprisingly, in view of the Mr Barnes letter to Channel 4, the broadcaster’s right to freedom of expression played a major part in his decision. Both he and the broadcaster seemed to think that my complaint was an attempt to get the film banned on UK television, which was not the case as I had made clear from the outset. The Broadcasting Code makes provision for controversial material to be screened so long as - and this is very important - balance is achieved in each programme or in clearly linked and timely programmes. My complaint had alleged that balance was not achieved within the film, which would be apparent to any viewer with knowledge of the subject matter, and this was confirmed by the High Court judgement in the Dimmock Case. I then pointed out that Channel 4 had been aware of this case, but had chosen only to provide the totally inconspicuous and ambiguous end-card, which appeared on screen long after most viewers would have lost interest. Needless to say, Mr Barnes made no mention of the 1min and 45secs that elapsed after the main programme content ended and the screen appearing.
Therefore if Ofcom were to decide, quite properly, that the Code had been breached, the fault would lie in the broadcaster’s failure to provide balance within the programme - by making it clear to viewers that the film had been the subject of litigation perhaps – or ‘in clearly linked and timely programmes. The legislation concerning freedom of expression is not intended to protect broadcasters from the consequences of not abiding by the Broadcasting Code. They could have provided ‘balance in a clearly linked programme, but had evidently chosen not to do so. This matter was to resurface in a remarkable way in Ofcom’s final decision later.
Ofcom’s Decision Letter has failed to consider all the aspects of my complaint and has misunderstood or misinterpreted some of my arguments and the evidence that I have identified in support of them.
In particular, the arguments supporting the application of freedom of expression legislation appears to be without foundation and the assumption that AIT is not concerned with a major matter relating to current public policy is implausible.
Ofcom’s decision has clearly been informed by representations from the broadcaster that I have not seen. This is unacceptable. It is the least requirement of a regulator that their deliberations should be transparent. The public cannot be expected to accept a decision that has been taken on the basis of private discussions between Ofcom and the broadcaster behind the back of the complainant.
I request that Ofcom should review all aspects of this decision not to uphold my complaint in the light of this submission.
I sent the submission off to Mr Barnes, who would no doubt know who to refer it to, and waited. Apart from an email from him informing me that, ‘we are currently considering your request for a review of my recent appeal decision in this case’ - which made me wonder why the person who had made the decision should be involved in deciding whether it would be reviewed - I heard nothing for over two months. Perhaps, I thought, someone might at last be giving serious consideration to all this and trying to formulate a way of rowing back from a decision, which was obviously deeply flawed, without loosing face.
Finally a letter arrived from Ofcom, and this time it was written by someone so infinitely important that, although what it said was ambiguous, and possibly intended to conceal Ofcom’s real intentions, I was never able to obtain a reply from him; subsequent correspondence was conducted through a minion. His name was Phillip Graf, and he was the chairman of the Broadcasting Review Committee (BRC), which had succeeded the Content Board at the time that Ofcom’s new procedure was adopted in December 2009.
The good news was that he had decided ‘to grant’ a further review. The bad news was that he intended that this should be very limited in scope:
I note that you have set out several grounds for review in your letter of 17 February, and have made the decision to grant this review on the grounds that there may have been a procedural flaw: namely, that you did not have the opportunity to see Channel 4′s full response to your second review request, on which Ofcom relied when reaching its second review decision.
Although I have taken the decision to grant this request for review on that ground alone, the BRC will have the opportunity to review all of your grounds for review as set out in your letter of 17 February.
The phrase ‘will have the opportunity to review’ sounded ominous in view of all that had happened over the previous year. I certainly didn’t want to discover, when Ofcom had taken its final and unchallengeable decision, that the BRC had somehow managed to resist reconsidering the previous decisions. So I sought clarification from the Mr Graf. After all it would only take a line or two to explain that, yes, a full review would indeed take place.
So far as the illusive submission from Channel 4 was concerned, Mr Graf said that he had also decided to let me see this, and provide ‘comments’ for the BRC. In fact he would send it me shortly. Why he had not simply attached this to his letter I never discovered, but I did finally receive a copy a week later.
Finally, Mr Graf said that the BRC would take one of three courses of action: uphold the Executive Decision; quash all or part of the Executive Decision and refer it back to the Executive for further consideration; or substitute their own decision for the Executive decision.
In an effort to discover just what the intentions of the BRC were, I wrote a diplomatic letter to Mr Graf asking him to be more explicit. In his letter he had asked me to contact Ofcom’s Fairness Case Manager, Content and Standards, if I had any queries, and as he had not provided me with his own email address I had no alternative but to send it to her with a request that it be passed on to the great man. I was surprised when a reply to my letter came. It was not from Mr Graf, but from the Fairness Case Manger. Apart from the obvious discourtesy, or even arrogance of this, if a correspondent seeks clarification of a decision that you have taken it is normal to provide an explanation yourself, rather than getting someone else to do it. If it concerns the agenda of a committee that you chair, then it is surely your responsibility to deal with such matters personally, at least it is if you want people to have confidence in its proceedings. I was even more surprised by what the letter actually said.
The Fairness Manager assured me that she had passed the letter to Mr Graf, who had asked her to reply. This is all she had to say:
As Mr Graf indicated, the Broadcasting Review Committee (“the BRC”) will be convening to consider your third request for review of Ofcom’s Decision on the above programme. To address your concern about sections 2-7 of your request for review, … I should make it clear that the BRC will have the opportunity to review all of your grounds for review as set out in your letter of 17 February. (emphasis in the original)
But I hadn’t asked Mr Graf whether the BRC would have the opportunity to review my case in total, he had told me that already. What I wanted was confirmation that they would do so. Instead of an explanation, all I had received was a restatement of the very point I had queried; in fact it seemed to have been cut and pasted from Mr Graf’s letter. Having arrived at the pinnacle of Ofcom’s complaints procedure, hoping that sanity and good faith might at last prevail, I now found that I was still in the world of smoke and mirrors which had dogged my dealings with Ofcom from the outset. Why would Ofcom not state clearly what the remit of the BRC would be?
However this letter did contain something that I was beginning to think I would never see; a copy of Channel 4′s submission. It consisted of four pages of argument, signed by a certain Mark Lambert, ‘Senior Lawyer’, and an appendix comprising some eighty-five pages of documents, parts of which were illegible.
I wrote back to the Fairness Manager patiently explaining that, unless I knew precisely what the remit of the BRC was, I could hardly draft a submission to them. I also asked for a legible version of Channel 4′s submission.
At last I got an unambiguous reply, but from the Fairness Standards Manager, not from Mr Graf:
In response to your first question, I can confirm that the Broadcasting Review Committee will consider all of your grounds for review.
Note these words carefully, because they become important right at the end of this post. Why had it taken a week and a flurry of emails to get to this point?
On 12th May 2010, over a year after AIT had been broadcast, I sent off my comments on Channel 4′s submission knowing this would, thankfully, be that last such document that I would have to draft for Ofcom. It is difficult to summarise as I worked long and hard over it; although it was long, no words were wasted and, unusually, there are none that I would wish to change now.
I was confident that no fair-minded committee could do other than find that the broadcasts of AIT had breached the Broadcasting Code, and that this was a particularly serious offence as the television companies concerned must have been aware of the risk that they were taking. They knew about the Dimmock Case.
When I had read what Channel 4 had actually said in their submission, I was astonished that this was the best that that Mr Lambert, their Senior Layer, could do. It was apparent to me that Mr Barnes had only managed to make their arguments carry any weight in his Decision Letter with great difficulty, and by being very careful in his selection and summarisation of what they had to say.
I began my comments by I pointing out that this submission only related to Channel 4′s response to Mr Barnes letter and needed to be read in conjunction with my previously submitted Grounds for Appeal, which dealt with Mr Barnes decision. Of course the task could have been done more easily and concisely had I been provided with the submission when I asked for it, and I pointed this out too, as well of reminding the committee that a full review of the case should take place.
I pointed out that the matter turned as much on the aspects of my complaint on which Channel 4 and Ofcom seemed unwilling or unable to offer arguments as on the arguments that had actually been put forward. I then provided the following summary of the issues before the BRC as I saw them:
- Ofcom’s Decision Letter of 28th January 2010 finds that the broadcasts of AIT by Channel 4 and S4C did not breach Sections 2 and 5 of the Broadcasting Code. In order for this decision to be credible it is necessary for the BRC to determine whether the following conditions are met:
- That climate change is not a matter relating to current public policy in spite of what is evident to anyone who is aware of current affairs, and in spite of the judgement in the Dimmock Case.
- That in spite of the judgement in the Dimmock Case, content that is crucial to the information conveyed by this documentary is not materially misleading.
- That in spite of this documentary being characterised in the Dimmock Case as employing exaggeration in the context of alarmism, and promoting an apocalyptic vision, while using misleading information, this is not likely to materially mislead viewers so as to cause harm or offence.
- That AIT is impartial on the subject of climate change, again in spite of the judgement in the Dimmock Case describing it as a political film, which is partisan and part of a crusade that promotes Mr Gore’s views while belittling opponent’s views.
- That a decision by Ofcom that the broadcasts of AIT breached the Broadcasting Code would prejudice the rights to freedom of expression enshrined in European legislation and enjoyed by Channel 4, the film production company and, presumably, Mr Gore too.
Neither Channel 4 (nor Ofcom) have provided convincing arguments on these issues.
If Ofcom’s decision is allowed to stand, I do not consider that Ofcom will be in compliance with the requirements of the legislation that it is charged with enforcing, or with its own procedures, either in their current form or in the version of the Guidelines for Handling of Standards Complaints ruling at the time that my complaint was made.
As expected, and in accordance with Mr Barnes letter, Channel 4′s submission dwelt long and lovingly on the right to freedom of expression, very much in this vein:
If Ofcom should determine that this film is in breach of the Code, as the claimant maintains, the film could or should not have been broadcast in the UK.
This is rubbish of course. No film can breach the Code, only the broadcaster who shows it can do that, and it seems strange that a Senior Lawyer at Channel 4 could commit such a solecism. The breach arose from Channel 4′s failure to complying with the requirement of impartiality by ensuring that ‘an appropriately wide range of significant views must be included and given due weight in each programme or in clearly linked and timely programmes’. The European Convention on Human Rights is not intended to be a licence for broadcasters to ignore the Broadcasting Code, and I explained this yet again. This issue was to play a prominent role in Ofcom’s final decision.
Channel 4 had made much of the accolades that AIT had received when it was awarded an Oscar, and even quoted Mr Justice Burton’s reference to this. They had also included pages of printouts from blogs, including comments, that praised the film. As a blogger, I am all for the blogosphere being heard, but even so I could not see how anyone would set much store by this. I invited the BRC to consider whether Channel 4 may have been blinded by the razzmatazz that AIT attracted. Had this affected their judgement, making them complacent about the actual content of the film, and its implications for compliance with the Code? Did they think that the film, and Mr Gore, were above criticism?
In lawyerly mode, Channel 4 accepted that Mr Justice Burton’s judgement was relevant to the content of the film, but proclaimed that it was not determinative of facts or binding on any decision that Ofcom might take concerning compliance with the Code. I suggested to the BRC that this was contradictory as, if the judge’s analysis of the content of the film was relevant to the content, and Ofcom took a different view of that content, then it was necessary that they should provide reasons for doing so. This they had not done.
Yet again, Channel 4 trotted out the threadbare argument that, as the Dimmock Case was concerned with the education acts, it therefore had no bearing on Ofcom’s decision. Yet again I explained that AIT could not be transformed into an accurate and impartial film simply by showing it on television rather than in a classroom.
Channel 4 made much of passages in Mr Justice Burton’s judgement that praised the production qualities of the film and accepted that much of what it said was based on the IPCC’s Assessment Reports. It seemed amusing, in a way, that they should indulge in such obvious inconsistency. Evidently the findings in the Dimmock Case could safely be relied on when cited in support of their defence, but not when I referred to other findings in the judgement that were less than helpful. I made much of this.
Most startling of all, Channel 4 managed to get through their whole submission without addressing the most vital question of all; whether AIT dealt with matters relating to current public policy. On this they were completely silent, and who could blame them?
When I finished my submission and read it through, even I was astonished at how conclusive the case against the broadcasters was. They simply didn’t have a leg to stand on, and Channel 4′s submission, which Ofcom had gone to so much trouble to withhold from me, was utterly unconvincing.
When Mr Graf had so magnanimously agreed to ‘grant’ me an appeal, and permit me to see and comment on Channel 4′s submission, he had also said that my comments would be sent to Channel 4 so that they could comment on my comments. In due course I would be allowed to see what they had to say, but only for information; I would not be permitted to respond.
I duly sent in my final submission on the 12th May 2010 and waited to see what Channel 4′s response would be. Was I mistaken in thinking that the case against them was very strong? Would they effortlessly blow it out of the water with some final unanticipated killer argument? After all, I am not a lawyer, and I was dealing with two rather eminent legal people at Ofcom and Channel 4.
In the event, their response was an anticlimax. It divided into two parts: claiming that I was wrong on certain points without providing convincing arguments to support their allegations, and shouting ever more loudly the arguments that they had made previously, and I had disputed, as though that would make their case more convincing.
Ofcom informed me that the BRC would convene to consider the matter on 29th June 2010 and, when I had not heard anything about the outcome by the end of July, I wrote to them again asking when a decision was likely to be available. The response was vague.
Finally, at 18:02 on Friday 10th September 2010 I received an email from Ofcom with the BRC’s decision and a covering letter attached. Everything about these two documents shocked me.
The letter informed me that the report was to be published in Ofcom’s Broadcast Bulletin at 10:30am on the following Monday morning. As I was due to leave for a holiday abroad early on that Monday morning, and all my time was fully committed to domestic preparations over the weekend, there was little that I could do about that. I might add that, from my own experience, it is usual for regulators to provide decisions to complainants some time in advance of their publication so that they can make any necessary preparations, like arranging press coverage. This seems to be yet another rule that Ofcom does not think should apply to them.
The letter also informed me that the BRC had ‘decided to substitute its own decision for Ofcom’s original decision’. In other words, the committee had torn up Mr Barnes decision, together with the decisions by Mr Morgan, Mr Hurcombe and Mr Foreman, which had preceded it. When I came to read the report, which devoted several pages to summarising the previous, tortuous, progress of this complaint, I could find no reference to the previous decisions having been discarded, presumably on the grounds that they did not bear scrutiny and the BRC was not prepared to try to defend them. It seemed that this was something that Ofcom were prepared to tell me privately in a letter immediately before publication of their decision, but were not prepared to admit publicly in the report.
The letter also had this to say about the remit and scope of the deliberations of the BRC:
On a final note, I know that it was a particular concern of yours that the Committee consider all of your grounds for review in their deliberations. As you will see, the decision is not presented – as previously – as a response to each of your grounds for requesting the review. This is because it follows the format of Ofcom’s Broadcast Bulletin, in which Broadcasting Review Committee decisions are normally published. However, all of your grounds have been considered.
So, after fifteen months of correspondence with Ofcom, issues that I had raised in my original complaint, and reiterated as review followed review, were not, even now, to receive a proper response because the format of the bulletin didn’t allow for that. I was simply expected to take it on trust that the BRC had considered everything. In view of my dealings with Ofcom that was asking a very great deal.
Finally I was told that the report was strictly confidential until it was published. In spite of this, and given the extraordinary findings of the BRC that it revealed, I was tempted to try and get a press release out over the weekend, but this was impractical. At the time the report was to be published, I would be rushing to catch a ferry at Portsmouth, and then I would be bobbing around in the Bay of Biscay until the Wednesday morning, after which I would be travelling to one of the remotest villages in the French Pyrenees. This did not seem to be the most appropriate time to set a train of events in motion that I would have little or no control over.
One might have expected that such a letter would have come from the Chairman of the BRC, Mr Graf, but once again it was from the Fairness Standards Manager. Am I being unreasonable in suspecting that this great personage preferred to keep as far removed from his committee’s decision as possible?
It will come as no surprise that the BRC had no fault to find with Channel 4 and S4C‘s decision to broadcast AIT, however the way in which they reached this decision is staggering. Here are the two paragraphs on which the decision depends:
Matters relating to current public policy
The Committee then turned to the question of whether the due impartiality rules might apply to the broadcast of the film because its subject matter was current public policy or because it related to current public policy.
The Committee considered that the film’s principal subject was Anthropogenic Global Warming and that this in itself was not public policy and would not therefore trigger the Code’s requirements for due impartiality for that reason.
The Committee concluded that the subject matter of the film An Inconvenient Truth – namely, that Anthropogenic Global Warming is taking place and that public attitudes needed to be changed in order for preventative action to be possible – was not a matter relating to current public policy.
I do not think that anyone outside Ofcom could be persuaded to take such conclusions seriously; they are patently absurd, and arguably unreasonable or even perverse. But this is Ofcom’s final decision and there is no provision for any further review. No other public authority has oversight of their decisions. So far as I am aware, the only recourse available is judicial review, about which I will say more in a moment.
What more is there to say about this report, which can be found here? . Once the BRC had decided that climate change does not relate to current public policy, then there was no need to consider Mr Justice Burton’s judgement or any of the arguments and evidence that I had submitted concerning the partisan and political content of AIT. The rules on impartiality set out in Section 5 of the Broadcasting Code, simply do not apply to this film or, presumably, to any other similar broadcast output on the same subject according to the broadcasting regulator.
Looking at the report in a bit more detail:
- The first sentence of the Introduction begins, ‘An Inconvenient Truth is a factual documentary … ‘. Needless to say there is no mention in the report of Mr Forman telling me the exact opposite when I made my complaint. A one-sentence summary of Ofcom’s initial response merely says, ‘Ofcom wrote to the complainant, stating, in summary, that the programme was not in breach of the Code.’ That’s a very convenient summary and, incidentally, there is no mention of the British Board of Film Classification either.
- According to Ofcom only one complaint about AIT was received, but I have a printout from the complaints log on their website showing that several were received before mine. This may explain why I got such a prompt initial decision; minds at Ofcom had already been made up and nothing as trivial as the findings of a judge in the High Court could be allowed to change them.
- According to the BRC, ‘ … the complainant believed that this programme, was in breach of Sections Two and Five of Ofcom’s Broadcasting Code …’, but of course I never said any such thing. I was very careful not to offer any opinion on the film, but only to say that Ofcom should consider Mr Justice Burton’s findings, which obviously carry far more weight than anything that I might say. Ofcom had missed that point from the outset, and evidently was not about to see it now.
- The end-card, referring ambiguously to the Dimmock Case, is mentioned in the report, but not that it only appeared after the credits had been running for nearly 2 minutes.
- At one point there is a reference to Mr Justice Dimmock, which may be an indication of the care that has been lavished on this document.
- Concerning Section 2 of the Code, dealing with misleading audiences, the BRC decided that:
- It was not the Committee’s role to agree or disagree with the findings of the Court. On its face the judgment [sic] of the Court appeared to suggest that there were specific elements of the programme that were not accurate. The Committee, therefore, considered that it was reasonable, in reaching a decision as to whether or not the film had the potential to mislead to have regard to the fact that a judge in the High Court had identified what he called errors in the film, which diverged from the IPCC5′s Fourth Assessment Report (deemed the “consensus” on climate change).
Thereafter they reverted to the old arguments, which had been a pillar of the previous decisions that they had now thrown out, that as the Dimmock Case was heard in the context of the Education Acts it had no application where the Broadcasting Code was concerned. In direct contradiction of this they then cite Mr Justice Burton saying that he had considered that the film was accurate enough to be shown in schools if suitable teaching notes were provided. So once again, the High Court’s findings are apparently good if cited by Ofcom, but not if cited by me. In any case this is a complete misreading of the judgement, which made it clear that unless teaching notes were provided that corrected the misleading information in the film and pointed out that it was partisan, then an offence would be committed. That is not the same thing at all.
By way of turning another somersault, the BRC then say that there had been no need to show the end-card mentioning the Dimmock Case as the film was not misleading such as to cause harm or offence. There is no mention of the nine errors described by Mr Justice Burton as “significant planks in Mr Gores’s ‘political’ argumentation”, or that they “arise in the context of alarmism and exaggeration in support of his political thesis”. One can only assume that Ofcom does not consider the use of exaggeration to cause alarm over something as serious as climate change, by a politician on a crusade, is not harmful. They also seem to be under the impression that if the film is shown on television rather than in schools it is magically no longer misleading, alarmist or guilty of exaggeration. Who was it that said the easiest person to convince is yourself?
So Channel 4 was cleared of any breach under Section 2 of the Code.
- The BRC had little difficulty in finding that AIT did not deal with matters of political and industrial controversy. They do not consider that there is any controversy attached to climate change.
- Finally, the BRC turn to the crux of this sorry tale; whether AIT deals with matters relating to current public policy. I’ve already quoted their conclusions above, but lets glance at the way they reached them.Their analysis of the film - and I wonder if they watched it because the report does not say so - is that it is devoted almost entirely to persuading individual citizens to take action in their own lives to reduce carbon emissions. For reasons that I, and I suspect many others, am unable to follow, the BRC are of the view that this is not a matter relating to current public policy. Presumably none of them have heard of the ban on incandescent light bulbs, The Carbon Trust, the Climate Act, advertising by government departments encouraging everyone of us to do our bit for carbon reduction in a million different ways from not flying to recycling ….. and on and on and on. All these are aspects of current public policy and barely a week goes by without a minister or government expert reminding us of the fact. But of course you cannot persuade people to act unless you first persuade them that climate change really is a problem, and most of the film is devoted to this task. And that too relates to current public policy. Indeed it underpins all public policy on climate change. But the BRC just don’t see things that way.
Does any of this matter? Well I certainly think that it does. AIT has had a massive influence on attitudes to climate change, and that in turn has allowed the government to pursue policies that would not otherwise have been possible. Yet Mr Justice Burton’s shrewd analyses of the film’s content, and the motives of the film’s star, are little known among the general public. Those who have seen the film will be left with the impression that it is an impartial and accurate representation of the dangers of climate change, not a piece of cunningly disguised political propaganda.
Furthermore, it is worth remembering that the Communications Act contains measures intended to protect the public from political manipulation by public service broadcasters. Ofcom is the watchdog designated by Parliament to ensure that the law is observed, and it is very disturbing to see a regulator with statutory powers behaving in the way that this story reveals. It is even more disturbing when you realise that they can get away with it.
Then there is the matter of cost to the taxpayer. Ofcom has chosen to defend a bad initial decision through three tiers of review. This must have required a considerable expenditure of time, and I would be very surprised if executives at Ofcom come cheap. And all this is in order to reach a decision which is totally unjustifiable and to fly in the face of the very responsibilities that the organisation is charged with.
The BRC’s decision is final, and there is no possibility of Ofcom considering the matter further. Nor, so far as I know, is there any other agency or ministry that oversees their decisions that can be appealed to. The only remedy, and I certainly think that it is in the public interest that there should be a remedy for this extraordinary and totally inexplicable decision, would appear to be an application for judicial review. It is hard to see how such an action could fail. To base a decision on the assertion that climate change is not a matter relating to current public policy is almost too ludicrous to contemplate, and British courts are not concerned with the reputations of American politicians, bureaucratic group think, the requirements of government policy, or political correctness, as the Dimmock Case showed.
There is just one problem. I was told some time ago by a barrister, who is also an MP and would be likely to know about such things, that a bargain basement judicial review action might be mounted for £30- £50,000, but it could go to double that. Legal Aid is not available. When Stuart Dimmock, who is a truck driver and presumably not wealthy, faced the same problem, he was fortunate in finding people who could and would fight a case that was clearly of public importance.
There are frequent claims by people such as Sir David King and George Monbiot that climate scepticism is a well-organised and well-funded movement. That is, of course, not true. An organisation like Greenpeace, with a budget that runs into hundreds of millions of pounds, would not have to think twice about applying for judicial review if it seemed worthwhile to do so. For a climate sceptic blogger, it is unthinkable.
A lot of work has gone into navigating this complaint through Ofcom’s tortuous procedures, and it would be nice to think that somewhere there are people who might think that the issues that it raises are important enough for them to make sure that it reaches its proper conclusion, with the ball in the net of what now appears to be an open goal. All that is needed is the funds and the will to see justice done.