Thomas Bennett

The British Broadcasting Corporation’s director general, Tim Davie, recently announced new rules on impartiality for employees. These rules prohibit BBC journalists from publishing any statements or ‘public demonstrations or gatherings about controversial issues’ – even in a personal capacity outside of working hours – that might be seen to lend support to a particular political perspective, in order to prevent accusations of bias from arising against those journalists. It has been reported, both in the Guardian and the i, that BBC employees have been expressly told that this prohibition includes protest marches organised by the Black Lives Matter movement, and by LGTBQ+ groups.

Assuming that they are as reported, these new rules are, in all likelihood, unlawful. There are two routes by which their unlawfulness may be established. I discuss each of them here in turn. (By necessity, in the limited space of a blog post, I do so only briefly, focusing on some key themes. There are, of course, nuances that would need to be explored in much more detail should any litigation on these themes arise.)

First, the BBC’s new rules give rise to ‘indirect discrimination’ against people of colour and members of the LGBTQ+ community. Indirect discrimination occurs when decisions or rules (such as these) are applied – ostensibly equally – to a class of people, but a negative effect of those decisions or rules is felt more keenly by a sub-section of that class. (For example, an employer who decides that the working day will start at 8am rather than 9am for everyone may indirectly discriminate against female employees, who are statistically more likely to have childcare responsibilities that would clash with an earlier start.) Whilst white, cisgender and heterosexual people undoubtedly attend BLM and LGBTQ+ rallies, the impact of a prohibition on attendance is likely to have a greater impact on people of colour and members of the LGBTQ+ community respectively. This would be prima facie unlawful, since race, gender reassignment, sex and sexual orientation are ‘protected characteristics’ under the Equality Act 2010; it is unlawful to discriminate against people based on protected characteristics.

The BBC, in order for these new rules to survive a legal challenge based on equality law, would need to demonstrate that the rules – and the discrimination to which they give rise – are proportionate to a legitimate aim (the legitimate aim in domestic, as opposed to European Union, law being the proper functioning of the corporation). It seems unlikely that the BBC could demonstrate this. For the prohibition is so wide-ranging that it is disproportionate to the aim of preventing employees from being open to accusations of bias. To suggest that a peaceful Black Lives Matter (BLM) rally or march (at which no organised violence or property damage takes place) against racial injustice is inherently a matter of political partiality that BBC employees must avoid in order to remain ‘impartial’ is to imply that there is a legitimate, opposite political perspective that should also be respected. But there is not. There is no legitimate, defensible political view that black lives do not matter, or that racial injustice should be maintained or enhanced. Undoubtedly people do hold those views, but they are themselves discriminatory and incompatible with democratic norms which hold that everyone is equally important.

It is perhaps obvious that the situation would be different if the BBC rules contained a narrower prohibition on, say, engaging in violence or property damage whilst attending rallies or protests. But since engaging in such acts would be illegal under general criminal law anyway, and most employment contracts regard criminal activity as grounds for termination, such a rule would be redundant in practice.

The BBC might say (though there has been no sign of such a statement yet) that there is concern that having its staff present at events at which violence or property damage occurs – even if the staff themselves take no part in the violence or property damage – amounts to tacit support for that violence or property damage. This situation, the BBC might say, would place it in the position of being perceived, through its staff, to be taking a political position on the manner in which the event has unfolded. An example might be attendance by staff at a BLM protest during which a statue of a slaver is torn down by other protestors; the BBC might say that the mere presence of its colleagues presents itself as showing support for the act of tearing down such statues, which is a matter of political controversy upon which the BBC strives for neutrality. But such an attitude places responsibility on attending BBC staff for the actions of others with whom they are, in all likelihood, wholly unconnected. It is one thing for a person to be held responsible for their part in a plan – for example when a group conspires to commit a crime, something we lawyers call ‘joint enterprise’. It is quite another for a person to be held responsible for the actions of others with whom they have no connection, and no reason to expect will commit criminal acts. And it is yet another thing for a person to be held responsible in advance for actions that others might commit, even if they never in fact do so. The BBC’s rules do all three of these things, and – at the very least – the last of them is surely to be regarded as disproportionate to its aim of preserving neutrality.

Moreover, if the BBC seeks to prevent its staff from being perceived as tacitly endorsing such acts of property damage (and it should be noted that there have been no reports in recent weeks of any further statue-razing being planned by any protest group), then that conscious decision to avoid the perception of endorsement is itself a political stance on the issue of tearing down statues. For the perception it would create is that the BBC finds tearing such statues down to be objectionable. Whether one agrees with that or not, it cannot seriously be denied that the decision to prohibit attendance at any protest, in order to avoid creating the impression of endorsing any act which might take place at that protest, is every bit as political as the decision to attend an event at which there is the possibility that such an impression might be created. It sends the message that the BBC regards all protests (by, for example, a movement like BLM) as having the potential to feature criminal conduct – which, in the context of BLM in particular raises a number of offensive tropes (most obviously, those which – quite wrongly – associate black people with a propensity to commit criminal and violent acts); this could hardly be seen as politically neutral behaviour. This is relevant because if the BBC’s aim is to preserve its appearance of neutrality, pursuing a course of action that itself sends a politically controversial message cannot be proportionate to that aim because it undermines that aim.

The second route to unlawfulness, which is a bit more complex, would be through human rights law.[1] It would require a test case, since the courts have never definitively ruled whether the BBC is bound by the Human Rights Act 1998, which only applies to ‘public authorities’. It seems likely, however, that the BBC is, at the very least, a quasi public authority, given its establishment by Royal Charter, its public service mandate and its public funding, but this would have to be established in court. If that could be established, this route becomes more straightforward. The BBC’s employees have rights under the European Convention on Human Rights to freely manifest their beliefs and conscience (Article 9), to freely express themselves (Article 10), and to freely associate with others (Article 11). Attending BLM or LGBTQ+ rallies would engage all three of these rights. Moreover, the Article 14 right to freedom from discrimination whilst exercising other Convention rights (i.e. the Articles 9, 10 and 11 rights) would also come into play. Section 6 of the Human Rights Act makes it unlawful for any public authority to act in a way that is incompatible with others’ Convention rights. Just as in the case of indirect discrimination cases, in order to restrict lawfully the Convention rights of its employees, the BBC would need to justify its rules as proportionate to a legitimate aim in order to escape liability for violating these rights. But the proportionality standard under the Convention is more exacting than under domestic (English and Welsh) law. For since the range of permissible ‘legitimate aims’ in this instance is prescribed by the Convention, it may be tricky for the BBC even to identify an arguable aim. (The only one that would appear even to be arguable is ‘the protection of the rights [and freedoms[2]] of others’.) But even if it could, it would struggle to defend the case because of the same lack of proportionality that would defeat it under the equality route, outlined above.

One practical response that that BBC might conceivably make would be to redraw the rules so that they apply expressly only to employees in public-facing roles, such as their newsreaders and other presenters. The aim behind this would be to show that, at a macro level, the measure was proportionate since the restrictions, whilst serious, would impact only a limited number of individuals. However, this would be unlikely to be sufficient to cure the defects identified above. For the point of human rights law is to secure the fundamental rights of individuals; a public authority cannot avoid responsibility for protecting individuals’ rights simply by claiming that it is only breaching the rights of a few people. This is because human rights are not like other rights – they are of such fundamental importance that they act as ‘trumps’ over other, lower-order legal interests. It is this feature of human rights that enables individuals to succeed in legal action to guard against infringements of their rights, even in instances where they are one of only a few people – or perhaps even the only person – adversely affected. The quantity of victims is not the point; the proportionality of the impact upon the victims, however small in number they might be, is the point.

It appears these new BBC rules – assuming, as I have throughout this piece, that they are in fact as they have been reported in the press – are poorly thought-out from a legal perspective. They are clearly discriminatory, and it is likely that they are unlawful because that discrimination cannot be justified. As such, it is likely that we will see some ‘clarification’ of the rules in the near future, narrowing their scope significantly. If not, we can expect legal challenges swiftly to follow.

Dr Thomas Bennett
Senior Lecturer in Law
City Law School

[1] The following human rights-based analysis would also feature in any case brought under the Equality Act 2010 in domestic (English and Welsh) courts, because the courts – as public authorities – are required to act compatibly with human rights when assessing any legal claim before them under s.6 Human Rights Act 1998. For the sake of space and simplicity, I do not elaborate further on that process here.

[2] The possible legitimate aims under Arts. 9, 10 and 11 differ slightly, but each includes a broadly similar provision regarding protecting the rights of people other than the person exercising their Convention right(s). Arts.9 and 11 include ‘the rights and freedoms of others’, whilst Art.10 refers more narrowly to ‘the reputation or rights of others’.

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