4-minute read
Dermot Feenan
LLB MA LLM Barrister-at-Law (non-practising) FRSA
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This is an update from my blog Petition to the Board of Ofcom Regarding ‘The Truth About Traveller Crime’, published on 11 May 2021.
In that blog, I referred to the petition which was launched the day before, Monday, 10 May. The petition was heavily promoted on Twitter and started to gather signatures quickly. On 12 May, I wrote to Maggie Carver, the Interim Chair of the Board of Ofcom, to advise of the petition’s existence. I provided her with a copy of the petition. I wrote that I would be grateful if the petition could be considered at the next meeting of the Board, 26 May 2021. I provided a link to the petition so that she could check on the number of people who were adding their names to the petition on a rolling basis. Finally, I advised that I’d update her on the petition the day before the meeting.
Yesterday, 25 May, I updated the Interim Chair on the then-current number of signatures on the petition (188). I also wrote that I would be grateful if she could inform me whether the Board would consider the petition the following day, and if not when.
Shortly after 6.00pm that day, I have received a response from the Interim Chair.
The response is marked confidential. Without engaging in unnecessary discussion of the ethics or legality of marking a document ‘confidential’ where such self-description may not justify protection from disclosure, I will not publish the letter or quote its content but will summarise its gist.
The Interim Chair acknowledged receipt of the petition. She also recognised the strength of the concern demonstrated in the petition.
Let’s recall that the petition consisted of 3 concerns and 5 requests to the Board of Ofcom. These were produced and escalated to the Board because of non-receipt of a response from the Chief Executive (CEO) to my enquiry dated 27 November 2020 (below).
In order to make sense of the response by the Interim Chair, I now lay out each of the concerns and requests set out in the petition, with a summary of the response, where relevant, from Ofcom and my initial analysis. I conclude this blog with a general assessment of Ofcom’s response and a setting out of the outstanding issues.
The concerns are with: (i) the ongoing delay in the investigation, (ii) the lack of satisfactory explanation for the delay, and (iii) non-response to reasonable enquiry to the CEO on the matter.
Turning to (iii), the Interim Chair informed me that Ofcom’s Group Director of Broadcasting and Online Content (Kevin Bakhurst) replied on the CEO’s behalf to my enquiry but that the sender misspelt my address: hence non-receipt. The Interim Chair apologises for the error.
The Interim Chair also provided me with Mr Bakhurst’s letter (dated 21 December 2020). I will return to that letter later in this thread. That letter is also marked confidential. I will not publish the letter or quote its content but will summarise its gist.
The Board meets today. As mentioned earlier, I asked the Interim Chair yesterday to inform me whether the Board will consider the petition today. I received no response to that question. Nonetheless, the Board has an opportunity to address the petition, which currently has 204 signatories.
The petition asks first that the Board arrange an inquiry into the petition’s concerns with a view to immediate public announcement of the status of the investigation (including estimated date of completion of the investigation).
Secondly, the petition requests that the Board arrange an explanation for the delay in the investigation. Subject to any formal response from the Board, the Interim Chair writes that this case is particularly complex.
The Interim Chair adds that the investigation has required more time; to give proper consideration to complainants’ concerns and Channel 4’s representations. She adds that the ongoing pandemic has impacted on Ofcom’s workload and resulted in unavoidable delays.
The Interim Chair’s explanation for the delay (25 May 2021) is almost the same as that given by Mr Bakhurst (21 December 2020), save that the latter explained the delay with reference to considering all potential issues and any representations from the broadcaster.
This latest explanation isn’t satisfactory. Five months on from the first explanation, we receive what appears to be an almost duplicate reply. What precisely is complex in this particular investigation, especially for the period 21 December 2020 to 25 May 2021?
If, as Ofcom say, the investigation was particularly complex in December 2020, given that concerns about this delay had been communicated in the several months previously to Ofcom, were steps taken by Ofcom to address this complexity, if so what, and if not why not?
The petition also asks, thirdly and fourthly, for the Board to arrange, respectively:
• a swift conclusion of the investigation, and
• release of a decision at the earliest.
The Interim Chair states that the investigation remains a matter of high priority, that the investigation team continue to make progress and are working to conclude and publish the investigation as quickly as possible.
The Interim Chair doesn’t provide an estimated completion date. This is troubling. Ofcom is able to provide a guideline of 50 working days on average for concluding an investigation. It has had over a year to assess complexity and its likely effect on workflow in this case.
Over 250 working days have now passed and there’s still no decision. Ofcom states that its Procedures allow – where they consider it appropriate in the interests of fairness and/or to properly carry out an investigation – to amend that time in a particular case.
That is true but the Procedures also state: ‘Any complainant or broadcaster seeking an extension to a time limit should explain in writing to Ofcom why it believes it is appropriate’ (para. 1.39). Has Channel 4 sought such extension; is Ofcom satisfied it’s ‘appropriate’?
The fifth, and final, request in the petition is that Ofcom’s Board arrange necessary revision of Ofcom’s Procedures. The Interim Chair did not respond on this matter. The request arose because the Procedures state that Ofcom aims to complete investigations in 50 working days.
My letter to the CEO, 27 November 2020, (above) showed that Ofcom is increasingly taking longer on average to conclude its investigations.
The 50 working days aim now seems way off. This investigation is taking over 5 times the average. That’s troubling.
The Procedures’ statement about aiming to conclude investigations within 50 working days gives a misleading indication to the reasonable, legitimate expectations of complainants in this present complaint (and this would also be so in any other, similarly delayed case).
Mr Bakhurst did respond on this issue, to the effect that should Ofcom consider it necessary in future to revise its Procedures it would publicly consult before doing so.
I’ll now wrap up this blog with general assessment of Ofcom’s response. First, it’s positive that Ofcom is now replying more fully than it did to initial enquiries about the investigation; though this is undoubtedly due to the persistence of those of us who have pressed Ofcom for reply, and when inadequate replies are given to keep pressing.
This approach is essential. It serves to hold those who work in a public body (here, Ofcom) accountable. It tends to ensure that individuals or organisations who have statutory responsibilities are less likely to disregard GRT people, because those with statutory responsibilities can expect to be challenged and held accountable. It also helps those from GRT backgrounds to see how those in power are subject to accountability mechanisms. This is largely why I freely publish all my work on these issues (on Twitter and on my open access blogsite), in the interests of openness and empowerment (though I do insist on the work being acknowledged). As an aside (though I think it relevant to analysis of the effectiveness and the values invested in scholarly activism on law and policy) I am, like many others, increasingly disillusioned by academics – including some working on discrimination and human rights issues – who devote significant amounts of their time to publishing academic articles that are hidden behind paywalls of for-profit publishers that exploit free labour and generate vast profit for shareholders. It’s a shameful dereliction of academics’ responsibilities as publicly-funded supposed intellectuals, especially in an environment of increasing threat to those subject to forces of racialisation.
The petition is addressed to the broadcast regulator. It is not directed at Channel 4 or the production company which made the programme. This might seem odd to some, but Ofcom now is, if you like, the main player. It will decide whether or not the programme breached the Broadcasting Code. Its decision will likely have profound consequences for GRT people (and of course for Channel 4, Hardcash and those who worked on the programme, and for broadcasting generally). It is essential that the regulator knows it is being watched closely and will continue to be held accountable.
Getting back to the responses from Ofcom: it’s also positive that the Interim Chair recognises the strength of the concern demonstrated in the petition.
It’s also positive that Ofcom’s Group Director of Broadcasting and Online Content sought to communicate Ofcom’s position in December. Both letters from Kevin Bakhurst and Maggie Carver were couched in polite and respectful language.
However, several issues remain outstanding.
(I) The explanation for the delay needs clarification and elaboration; specifically, what particular complexity justifies the continuing delay, especially after the initial explanation on 21 December 2020?
(II) When does Ofcom estimate that it will complete the investigation?
(III) Will Ofcom record the concern, now of 200+ people, that its Procedures need to be revised?
My personal view is that the petition (accessible via the link in the tweet below) should, therefore, remain open for the foreseeable future, and certainly until satisfactory responses from Ofcom are received; but I invite others’ views on this matter and will keep the issue under review.
Baroness Whitaker, Co-chair of the All-Party Parliamentary Group on Gypsies, Roma and Travellers indicated by letter (12 May 202) (linked below) to Ofcom that perceived lack of progress in the investigation meant members are ‘planning to arrange a parliamentary debate’.
Concerns about Ofcom’s ongoing delay in concluding its investigation into complaints about Channel 4’s programme ‘The Truth About Traveller Crime’ have not gone away and are unlikely to go away until the outstanding concerns reiterated in this thread are resolved.
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@ Dermot Feenan 2021