Parties’ lawyers tell high court it would break impartiality law to allow only Labour and Tories

Excluding the Liberal Democrats and Scottish National party from this week’s televised debate would be unlawful and breach ITV’s duty to preserve political impartiality during an election, the high court has been told.

Lawyers for the Liberal Democrats and the SNP have gone to the high court to argue that it is unfair to restrict Tuesday evening’s scheduled broadcast to only the Conservative leader, Boris Johnson, and Labour’s Jeremy Corbyn, thereby denying EU remainers a voice in the live exchanges.

The case is being heard by two senior judges, Lord Justice Davis and Mr Justice Warby. The Lib Dems have also sent a letter to the BBC objecting to a similar decision by the corporation for a debate programme it will host on 6 December.

Excluding the Lib Dems would remove any strong voice representing anti-Brexit remainers from the ITV debate, Guy Vassall-Adams QC, representing the party, told the court on Monday.

“The general election has only come about because of Brexit,” he said. “The dominant issue of this election is Brexit. A number of opinion polls have consistently recorded Brexit as the most significant question. Voters are now more likely to identify as leave or remain than as supporters of one of the two main political parties.”

The party could make a complaint to the broadcasting watchdog Ofcom afterwards, Vassall-Adams said, but “by that stage the damage would be done”. He added: “TV debates are an important national event in the course of a general election campaign. This [programme] will reach every home in the country and attract millions of viewers.”

There was a record audience of 10 million in 2010, for the election debates that involved David Cameron, Ed Milliband, and Nick Clegg, he said. “TV debates are highly influential with voters. They provide a unique opportunity for viewers to see the party leaders live during a debate.”

Broadcasters are subject to Ofcom’s code, which includes a duty to preserve due impartiality and to give due weight to an appropriately wide range of significant views. “There’s no more important time to preserve impartiality than at the time of an election,” Vassall-Adams said.

ITV’s leaders’ debate would fail to achieve due impartiality, he added. “Mr Corbyn is a lifelong Eurosceptic … There will be no one in the debate who represents remain. The voice of remain has been excluded.

“The [party’s] position is that the obvious way to remedy this problem would be to include Jo Swinson, the leader of the Liberal Democrats. They are the third party nationally in the polls and the greatest electoral supporters of remain.”

The high court should not dictate to ITV who should be included in the debate, he added. It was a matter for ITV to decide by respecting its broadcasting duties. Television companies were used to rapid turnarounds in news programmes and could easily adapt the debate in time for Tuesday evening’s broadcast, he noted.

The court has agreed to hear similar representations from the SNP. The party’s leader in Westminster, Ian Blackford, was in court to take part in the case. The SNP, it is understood, is requesting an order for Tuesday’s ITV debate, in its current format, to be halted.

But one of the presiding judges said there were significant implications for such a challenge. Could it be argued that any election debate involving two parties, for example, supporting abolition of the Trident nuclear deterrent should not go ahead unless a party supporting it was present, Davis asked?

Could the SNP argue that since it was the only party advocating Scottish independence it therefore should be included?

Vassall-Adams said this challenge was exceptional because of the context of Brexit. The prime minister had been an “all-out supporter of leaving the EU”, he said, while Labour had not declared whether it would support remain or leave in another referendum. There would be no balance of views.

“Current polling suggests that most voters would now support remain,” Vassall-Adams said. “The Liberal Democrats and others supporting remain have been shut out of this case.”

Having a second programme on Tuesday evening one hour later – after I’m a Celebrity … Get Me Out of Here! – involving one-on-one interviews of other party leaders would not redress the political balance, he added.

Philip Coppel QC, for the SNP, said that lodging a complaint to Ofcom after the debate would be a useless remedy. “The harm to the SNP or Liberal Democrats will be irreversible. It will be cold comfort that some time after the general election, [the parties] receive a document upholding a complaint,” he said.



“Without the presence of anyone from the SNP, it will feed into a perception of unfairness. A stricter regime [of adherence to Ofcom’s code requiring impartiality] needs to be applied during election periods. [ITV’s decision to have only Johnson and Corbyn] is outright defiance of the code. It’s a deliberate decisions that contravenes the code.”





Opening ITV’s defence , Kieron Beale QC said that it had “given due weight to questions of impartiality”. If the court were to find that it had somehow breached the Ofcom code, he added, then ITV would “withdraw” the programmes from the schedule on Tuesday evening.



Outside the court, the SNP’s Westminster leader, Ian Blackford, said: “What’s at stake is the right of people both in Scotland and the rest of the UK to be fully informed about what’s taking place [in this election]. People are going to be sending out their postal votes [soon].”

The hearing continues.