Liberal Democrats take ITV to Court

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The Liberal Democrats have issued a challenge in the High Court pleading that ITV’s decision to broadcast a debate between the UK’s two largest parties (the Conservatives and Labour) at the exclusion Lib Dem leader, Jo Swinson is unlawful.

We have not seen the grounds of the claim but this appears to be an exciting legal challenge.

So, which arguments could the Lib Dems have used? Broadly, we can look to the Ofcom code. Section 6.2 of the Ofcom Broadcasting Code (OBC) states that “due weight must be given to the coverage of parties and independent candidates during the election period.”

We are in an election period and it is arguable that due weight has not been given to the coverage of the Lib Dems by excluding them from this debate.

On one hand, one can point out that the Lib Dems are the fourth largest party in Westminster behind the SNP. However, the SNP does not stand in all seats and, conceptually, its leader cannot be the next PM. The Lib Dems stand in all seats (tactical decisions aside).

In any event, the current composition of a political party is not wholly relevant. The Ofcom Broadcasting Code (OBC) also states that “broadcasters must take into account evidence of past electoral support and/or current support”.

The Lib Dems have regularly polled ahead of Labour in recent months and, indeed, performed better than Labour and the Conservatives in the European elections. This is a General Election, you might say? Yes, but it is a General Election about Europe. The whole purpose of this election is to get the majority for the new deal negotiated with Europe by Boris Johnson.

Lastly, perhaps the Equality Act 2010 could be cited on the basis that exclusion of the Lib Dems amounts to discrimination (whether direct or indirect) on the basis of political opinion.

The argument here is that the Lib Dems are the only Party that is offering a direct remain option (i.e. revoking Article 50) whereas the two other parties are favouring leave and a people’s vote.

The problem with such an argument is that the Equality Act 2010 does not actually provide for political opinion or political stance as a protected characteristic. The protected characteristic under the Act is “philosophical belief”.

In Olivier v Department for Work and Pensions (DWP) (2013) ET Case No. 1701407/2013, an ex-DWP employee and Labour Party supporter successfully pleaded that a belief in “democratic socialism” is a philosophical belief and not just a political opinion.

This followed an earlier line of case-law in Grainger plc and ors v Nicholson [2009] UKEAT/0219/09 where it was said that support for a political party is not a “philosophical belief” but support for a doctrine underpinning the core values of a political party is a “philosophical belief”. As such, perhaps, the desire to remain in Europe amounts to such a belief under the banner of globalism or European federalism.

We await the High Court’s reaction.

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