Over 40 complaints were raised in relation to the broadcast of an episode of “Saturday Morning with Esther and Phil” in which two sitting Conservative MPs presented a programme comprising an interview with Jeremy Hunt, the Chancellor of the Exchequer, shortly before the announcement of the 2023 Spring Budget. Complainants alleged that the programme breached the due impartiality rules of Ofcom’s Broadcasting Code.

Ofcom’s Preliminary View was that the programme breached the requirements of Rules 5.11 and 5.12, which mandate the preservation of due impartiality on “matters of major political and industrial controversy and major matters relating to current public policy” and require broadcasters to ensure that “an appropriately wide range of significant views” are given “due weight,” and it asked GB News to make representations. Many of the arguments raised by GB News focused on the fact that the presenters challenged, and were critical of, Mr Hunt’s views and often proposed alternatives, notably in the context of tax increases/cuts and the continuation of the HS2 rail project. They mentioned the fact that one presenter noted that Mr Hunt’s proposed policies could feasibly have met the approval of a Labour Government under Jeremy Corbyn. They also argued that the studio guests were “two strongly independent figures”, one of whom had a “notable record of holding politicians to account for their views”, and that the public contributors to the programme expressed a wide range of views, despite the fact that the interview as a whole was approached “from the perspective of ‘the right.’” GB News argued that the programme was “neither pro nor anti Conservative,” with the range of opinions aired highlighting the fractures within the Conservative party, and that “the preservation of due impartiality does not require a broadcaster to include every argument on a particular subject.”

Ofcom noted that the obligation contained within the Broadcasting Code is not an absolute impartiality obligation – ‘due’ acts as an important qualification, taking into account the subject and nature of the programme. It also highlighted the important of context, including in relation to the editorial content of the programme itself, the service on which it is broadcast, and the effect on viewers who may approach the programme unaware.

It noted GB News’ right to freedom of expression (as per Article 10 of the European Convention on Human Rights) but also the fact that that right may be restricted where necessary “to achieve the positive objective of maintaining fair and equal democratic discourse on influential media platforms to the benefit of society generally.”

The fact that the programme had as its focus the broad remit of the Conservative Government’s economic and fiscal policies, so close to the announcement of the Spring Budget, and within the context of the cost of living crisis (which was the subject of debate “across the political spectrum”), as opposed to being framed more narrowly as a conversation within the Conservative Party relating to taxation issues, meant that the heighted obligations of due impartiality contained within Rules 5.11 and 5.12 would apply.

Ofcom considered that, whilst different viewpoints were presented, they were largely through a Conservative lens, with the presenters and Mr Hunt often agreeing on key policy objectives (e.g. lowering taxes) whilst disagreeing on the means by which those objectives might be achieved. Ofcom argued that there were a wide range of views existing outside the Conservative Party that weren’t given the opportunity to be aired.

Ofcom clarified that there need not be “opposing views” but that they must cover a wide range. Thus, the fact that the presenters and panellists expressed opposing views to Mr Hunt was not sufficient to demonstrate compliance with the Code – as these viewpoints were largely from within the Conservative Party, a sufficiently wide range of views had not been expressed. Comments made by one panellist relating to the consequences of tax cuts within a broader societal context were deemed by Ofcom to be inconsequential given the airtime they were allowed as a proportion of the programme as a whole.

The argument made by GB News that the presenters noted that Mr Hunt’s proposals might be more likely to win the approval of a Labour Government under Jeremy Corbyn was dismissed on the basis that not only was this speculative, but also may not have aligned with opinion from within the current (as opposed to historic) Labour Party.

In sum, whilst the analysis undertaken by the panellists, and the messages read out from viewers, did provide some alternative viewpoints, these were substantially broadly aligned with the overall Conservative Party policy of decreasing taxes (a point enunciated by Mr Hunt himself towards the start of the interview: “I want to bring down personal taxes because that is at the heart of what being a Conservative is”), and did not, therefore, represent a sufficiently broad range of viewpoints as to demonstrate compliance with Rule 5.12. All in all, the programme was “overwhelmingly reflective of the viewpoints of different strands of opinion within the Conservative Party.”

Ofcom acknowledged that GB News viewers are likely to expect opinionated programming but reiterated that this did not absolve GB News from its obligation to maintain due impartiality. In the context of GB News’ submission that it wants to take a fresh look at current affairs programming, moving away from the traditional approach of “’gotcha’ moments provided by aggressive interviewers with pre-scripted questions,” Ofcom confirmed that, whilst broadcasters retain editorial freedom as to how they structure their programming, given that GB News broadcast a programme presented by two members of one political party interviewing another member of the same political party, additional steps should have been taken in order to preserve due impartiality.

Additionally, there were “no clear, editorial linkages made in this programme to any other content which might have contained [views from other major political parties].”

All this serves as a reminder to broadcasters of the breadth of opinion required by Ofcom in order to ensure compliance with the impartiality obligations set out in the Broadcasting Code; clearly canvassing opinion from just one sector of the political spectrum will not suffice.

Ofcom also considered a potential breach of Rule 5.3, preventing politicians from being newsreaders, interviewers or reporters in news programmes other than in exceptional circumstances. Ofcom explained that there were no hard and fast rules as to when a programme will constitute a news programme (and when it will constitute current affairs), rather a number of factors that, when taken together, will be determinative. As the programme comprised a segmented pre-recorded interview, extensive analysis and discussion, and a panel of guests, Ofcom considered it a current affairs programme and therefore not within the scope of the prohibition set out in Rule 5.3. The news bulletins shown within the programme were sufficiently distinguishable from the main current affairs programming.

The story doesn’t end there for GB News, with Ofcom currently pursuing four other investigations into potential breaches by GB News of the impartiality rules of the Broadcasting Code, three of which relate to Rule 5.3; the ‘politicians as presenters’ rule. Whether this spate of investigations will result in a change to GB News’ editorial approach remains to be seen.