November 25, 2019

The debate, which took place on 19 November 2019, was scheduled to be between Boris Johnson, the Prime Minister and leader of the Conservative Party, and Jeremy Corbyn, the leader of the Labour Party and of the Opposition.

The Lib Dems and the SNP argued that such a debate, which was not scheduled to include them, would be unfair to them and to the electorate and would be unlawful.

The application for judicial review came before the court the day before the scheduled debate, meaning that the court had to make a decision in great urgency. It was not, therefore, practicable for the court to give its full reasons for its conclusions immediately. Lord Justice Davis and Mr Justice Warby therefore provided a short statement of their decision and said that they would provide full details of their reasoning in writing in due course.

Davis LJ and Warby J decided that:

1. in the present context, ITV Broadcasting Ltd had not been exercising a public function, in the sense known to law, and accordingly was not amenable to judicial review; and (as a linked point)
2. having regard to the statutory scheme, the remedy available to the Lib Dems and the SNP was to lodge a complaint with Ofcom instead.

That disposed of the claims, but the Justices also said that, in any event, even if the court had had jurisdiction:

1. the decision to schedule the debate in this format was a matter for the editorial judgment of ITV, which could not be said to have displayed a want of due impartiality for the purposes of the Broadcasting Code, especially in the light of subsequent planned interviews, further debate and other programmes, which were a series of “linked” programmes. No arguable breach of the Broadcasting Code had been shown;
2. the editorial judgment was, in public law terms, a judgment properly and reasonably open to ITV. It had not taken into account irrelevant or immaterial factors or failed to take into account relevant or material factors. The decision could not be regarded as irrational or perverse. The fact that the Lib Dems and the SNP strongly and sincerely disagreed with that editorial judgment gave rise to no valid objection in law; and

• Article 3 of the 1st Protocol to the European Convention on Human Rights had no application.

The clear conclusion was that, viewed overall, the claims were not realistically arguable. Accordingly, the debate was able to go ahead lawfully. (R (Liberal Democrat Party) v ITB Broadcasting Ltd (18 November 2019) – the judgment is available in full on the Lawtel website).