Damn it. I thought I had them with my “jurisdiction” argument…
Scheduling of Jerusalem: An Archaeological Mystery Story
The complainant requested that the Complaints and Appeals Board (CAB) review the decision of the BBC Trust’s Senior Editorial Complaints Adviser that the complainant’s appeal did not qualify to proceed for consideration on appeal.
The complainant had contacted the BBC after it decided to withdraw the programme Jerusalem: An Archaeological Mystery from broadcast. He had sought information about the editorial reasoning for not broadcasting the programme and who had taken the decision.
When the complainant pressed for further information, he was told:
“…we are not in a position to discuss the specific details at present. As we have said, we are talking to the director about future plans for the film and we will publish the outcome on our FAQ website at http://faq.external.bbc.co.uk/ once these plans are decided. In the meantime we regret there is no more we can add.”
The complainant had initially escalated is complaint to the BBC Trust on 3 June 2013. The Trust Unit considered that BBC Audience Services ought to give more information and, on 18 July, he was sent the following response:
“Ilan Ziv’s film about the archaeology and history of Jerusalem and surrounding areas was acquired by the BBC for transmission during a BBC Four archaeology season. It was found during the re-versioning of the film to 60 minutes in length that it covered broader issues and for that reason, it was decided to withdraw it from this particular season. The BBC is now working with the film maker on a new version of the film and will issue a further statement once that process is complete.”
The complainant remained dissatisfied. He appealed to the Trust and stated:
“…the circumstances surrounding the original axing need to be adequately explained. And of course, the more the BBC Executive procrastinates, the greater the impression they have something to hide. To re-iterate: I am seeking a full explanation of what was meant by the phrase “does not fit editorially”. This will obviously entail reference to the specific editorial criteria that the programme was considered against, and the reasons why these criteria were not considered to have been met. I think it would also be useful to know HOW these decisions were made, and by WHOM.”
Decision of the Senior Editorial Complaints Adviser
The Senior Editorial Complaints Adviser (the Adviser) carefully read the correspondence which had passed between the complainant and the BBC, and she acknowledged the strength of the complainant’s feelings. She noted that the Executive said that the programme had been acquired to supplement BBC Four’s season exploring the history of archaeology. She noted that the most recent response from the BBC had elaborated on its first reply and had explained that it was only when the film was being shortened prior to transmission that it emerged the film covered broader issues than had initially been understood and it was subsequently withdrawn from the series about archaeology.
The Adviser noted that the complainant had been told the film would be shown at a later point and had been given a webpage that would be updated once a new date had been confirmed. The Adviser considered Trustees would be likely to conclude that the complainant had been given a reasoned and reasonable response on this point and did not believe it had a reasonable prospect of success, therefore she did not consider it should be put before Trustees.
The Senior Editorial Complaints Adviser understood that the complainant felt frustrated that the BBC had not given further details about the decision. However, she considered there was no obligation on the BBC to do this. She noted that the Royal Charter and the accompanying Agreement between the Secretary of State and the BBC drew a distinction between the role of the BBC Trust and that of the BBC Executive Board, led by the Director-General. “The direction of the BBC’s editorial and creative output” was specifically defined in the Charter (paragraph 38, (1) (b)) as a duty that was the responsibility of the Executive Board, and one in which the Trust did not get involved unless, for example, it related to a breach of the BBC’s editorial standards which did not apply in this case. Decisions relating to what programmes to include within a themed series fell within the “editorial and creative output” of the BBC and were the responsibility of the BBC Executive. The issue of how much detail to provide about the reasons for such decisions was also a matter for the Executive.
Therefore the Adviser considered that it was not appropriate for the appeal to be put before Trustees on this point.
Therefore the Adviser considered the appeal did not have a reasonable prospect of success and should not be put before Trustees.
Request for review by Trustees
The complainant asked Trustees to review the decision of the Senior Editorial Complaints Adviser not to proceed with the appeal. The complainant said that the response from BBC Audience Services had not directly addressed his concerns. The complainant said that he was looking for an explanation of why the programme did not fit editorially, and this was not provided by the BBC’s response that the programme was withdrawn from BBC Four’s archaeology season because it covered broader issues.
The complainant said that by asking Audience Services to provide more information, the BBC Trust had accepted that it had jurisdiction.
The Panel’s decision
The Panel was given the complainant’s appeal to the Trust, the reply from the Senior Editorial Complaints Adviser, and the challenge to the Senior Editorial Complaints Adviser’s decision.
The Panel agreed with the Adviser that decisions relating to scheduling are matters of the direction of the BBC’s creative output and are therefore a matter for the BBC Executive and not the Trust. The Panel noted that the Trust Unit had asked the BBC to provide a further response to the complainant. The Panel was mindful that this was not a decision taken by Trustees and was separate from the question of whether the underlying complaint about the scheduling of this programme would be a matter for the Trust to consider on appeal. The Panel noted that the BBC’s complaints framework states “the Trust is the final arbiter if any question arises as to whether an appeal is for the Trust to determine or not.” Consequently, Trustees did not agree that the Trust Unit’s request that the BBC elaborate upon their previous responses at stage 1 could be construed as an assumption of jurisdiction by the Trustees themselves at the final stage of the complaints process.
Incidentally, the Panel noted that the BBC had confirmed that they plan to broadcast the programme in November 20131.
The Panel therefore agreed that the appeal did not have a reasonable prospect of success and did not qualify to proceed for consideration.
1 The programme was broadcast on BBC Four on Sunday 3 November 2013 with the title
Searching for Exile: Truth or Myth?
My prior request for a review:
Dear Ms Buckle,
Many thanks for your response of 13 September.
It will come as no surprise that I find your reasoning unsatisfactory, and I now respectfully request that the Trustees review your decision.
There is much that could be said by way of closing, but I’ll perhaps restrict myself to a couple of salient aspects.
First off, I respectfully note that your reasoning is inconsistent with the Trust’s previous response, which demanded that BBC Complaints provide me with a further response, and that such a response should “directly address [my] concerns”. These “concerns”, you’ll recall, were raised in my email of 31 May, which concluded as follows:
“I am seeking a full explanation of what was meant by the phrase “does not fit editorially”. This will obviously entail reference to the specific editorial criteria that the programme was considered against, and the reasons why these criteria were not considered to have been met. I think it would also be useful to know HOW these decisions were made, and by WHOM.”
The BBC’s most recent response, as already noted, has merely substituted the words “covered broader issues” for “did not fit editorially”. While you evidently believe that this substitution “directly addresses my concerns”, I do not believe that a reasonable person would construe this substitution, viewed in the context of the exchange as a whole, as anything but further evasion. What, pray tell, were the “broader issues” that merited a last minute axing??
Second, in response to your argument that the BBc Executive is not, in the final analysis, obliged to explain its editorial decisions, I respectfully note that such an argument is incongruous with the Trust’s email of 17 July, demanding that BBC Complaints not only respond, but respond in such a manner as to “directly address [my] concerns”. If the substantive issues arising from my complaint didn’t fall within the Trust’s remit, the Trust had no business soliciting such a response from BBC Complaints. By sending the email of 17 July, the Trust was accepting that it had jurisdiction.
I look forward to the Trustees’ considered response.