This is the fifth in a series of blogs by members of the Governance and Human Rights Research Centre at Swansea University, commenting on the final report, of the Independent Commission on the Constitutional Future of Wales.
This blog attends to how the Commission has approached the role of Broadcasting and Public Service Media, in respect of democracy and the constitutional future of Wales.
In Wales, ‘Broadcasting and other Media’ is currently a reserved power under Schedule 7A of the Government of Wales Act 2006, as amended by the Wales Act 2017. The broadcasting industry in Wales is regulated by the Office of Communications (Ofcom) with an advisory member for Wales sitting on the board. The Welsh Government has some policy responsibility for a number of areas that intersect with broadcasting, e.g. Welsh language and sport.
Proponents of devolution have long since argued that broadcasting is a crucial aspect of Welsh cultural identity. They believe that having control over broadcasting would allow Wales to better represent its own culture, language, and perspectives, rather than being dominated by content from outside Wales. In response to a House of Commons Report by the Welsh Affairs Committee, ‘Public Broadcasting in Wales (2023),’ MP’s have called for public service broadcasters to develop their digital platforms to ensure Welsh content is much more easily accessible, to prevent the ‘digital extinction’ of Welsh culture and language.
Professor Justin Lewis, director of Clwstwr and Media Cymru, provided evidence to the UK Parliament in 2022, on the governance of broadcasting in Wales, explaining that ‘unlike, for example, the German system, (it) does not reflect devolution in the UK, with the Welsh Government having no formal role in decisions that have a direct impact on BBC Wales and the Welsh TV industry…’
Despite much debate revealing a desire for greater control over broadcasting, not least of all to address the worrying ‘information deficit’ in Wales, the many practical, financial and political challenges to the devolution of broadcasting and public service media, have resulted in the historical reticence of the Welsh Government on this matter.
However, partly in consequence to the confusion caused by the broadcasting of divergent rules and laws that came to be in England and Wales, during the covid-19 pandemic, in 2021 a co-operation agreement between the labour government in Wales and Plaid Cymru, demonstrated that they are now aligned in their belief that, ‘broadcasting and communication should be devolved to Wales.’
Additionally, in recent years, with the rise of populism in the U.K. and beyond, alongside changes in the way we receive information (and dis-information) through social media, further pressing reasons for the devolution of broadcasting have come to the fore. Interference with broadcasting, media and even political and democratic processes have been sourced to malevolent forces outside of the U.K., such as Russia and China. It has become clear that existing mechanisms, which traditionally supported checks and balances in the news media within the U.K. have been undermined, and there is now an urgent need to protect trusted sources of information, to prevent further public disengagement and to defend the fundamental rights and freedoms of a pluralistic democracy.
In light of this evidential requirement for change, the final report of the Commission cites the findings published in 2023, of ‘The Expert Panel on a Shadow Broadcasting and Communications Authority’ (henceforth, Expert Panel) formed by the Welsh Government in 2022, to consider options for the future of broadcasting in Wales.
Broadcasting and the media have become an increasingly puissant topic in the framing of debates on threats to democracy. In May 2023, special rapporteurs for the UN launched their Joint Declaration on Media Freedom and Democracy, in response to what they describe as a ‘growing threat to democracy and media freedom worldwide.’
An independent report funded by the Joseph Rowntree Reform Trust, published the same year, found that in the last five years, ‘the UK has experienced a reduction in the quality of democracy,’ with ‘budget cuts to broadcast news’, and threats to the impartiality of the BBC, as the result of ‘political appointments’ within the organisation from Westminster, cited as ‘key sources of concern.’ In the terms of reference for the Expert Panel set out in 2021, the Welsh Government and Plaid Cymru went as far as to say, ‘there are also ongoing threats to, and attacks on, public service broadcasting, from the UK Conservative Government.’ This aligns with global trends from populist governments defunding pluralistic public service broadcasters, in an attempt to control the narrative.
It was not surprising therefore to see that the interim report of the Commission acknowledge the ‘international context of declining trust in democratic institutions’ and highlighted problems in Wales with ‘low levels of public knowledge and engagement with Wales’ democratic institutions and democratic backsliding.’
The second of the two main aims of the work of the commission is “ to consider and develop all progressive principal options to strengthen Welsh democracy and deliver improvements for the people of Wales.” The Expert Panel, to which the Commission ultimately deferred on this matter, outlined a number of recommendations for ‘strengthening the position of Wales,’ but made it clear that there needed to be more time spent researching and understanding the complexities of regulation and funding, and the various models that could be adopted and applied to broadcasting and public service media, in the face of a rapidly changing technological landscape.
This has led to the Commission, perhaps understandably, taking a cautious approach and maintaining that devolution of broadcasting should not occur now, but is something to be worked towards, sometime in the future. Therefore, both the approach and wording is weaker than other areas, stating merely that ‘robust work should continue on potential routes to devolution.’
Despite acknowledgment in the interim report of clear evidence of democratic backsliding, and the evidence of the ‘Expert Panel’ on the power of broadcasting in relation to the realisability of a true democracy, there seems to be little reflection in the final report of the urgency with which this matter needs to be pursued, or ‘the development of progressive principal options’ in regard to this competency.
The Commission rehashes existing frameworks of governance, including calls for a more ‘cohesive approach’ being adopted between Westminster and the Senedd, to ‘agree mechanisms for a stronger voice in Wales on broadcasting policy, scrutiny and accountability.’ In light of what appears historically, to be merely a veneer of intergovernmental collaboration, with descriptions of relations between Westminster and the Senedd in the final report highlighting the abject failure of this approach, the idea that now further attempts at the same methods, to deal with the issues identified with broadcasting in Wales, seem nowhere near adequate in tackling the pressing existential threat posed to democracy.
In response to the report of the Expert Panel, deferred to by the Commission, Dawn Bowden MS, Deputy Minister for Arts, Sports and Tourism, said that any reform in this area is going to require the legislative and financial support of the UK government and highlighted, ‘significant practical considerations arising from the Expert Panel’s central recommendation to establish a ‘Shadow Broadcasting and Communications Authority’, particularly in relation to longer term funding and its powers.’
The findings of the Commission confirm the concerns of the expert panel, clearly demonstrating an electorate that is currently poorly informed and disengaged from politics. It seems obvious that in the face of an inadequate civic education in Wales, combined with the absence of a robust framework for public service broadcasting, that there would be confusion among the public on constitutional matters. This is compounded by the consequential inability of the Welsh Government to sufficiently regulate and protect public service broadcasting, and a failure to support a news media that sufficiently serves and represents the people of Wales and their democratic needs.
Linking back to what Prof. Hoffman articulates in his blog, regarding the importance of incorporating a robust human rights framework as the cornerstone of any constitutional reforms, a sufficiently robust public service broadcasting framework, that serves the people of Wales, is equally important, as the hallmark of a healthy, fully-functioning democracy. Both Public Service Broadcasting and the press should benefit from the protection conferred by rights enshrined in Article 10 of the European Convention of Human Rights (ECHR) and in the law of England and Wales, under the Human Rights Act,1998, relating to ‘Freedom of Expression.’ Journalists can and have relied on Article 10 and even public service broadcasters have successfully appealed with the European Court of Human Rights (ECtHR) explicitly acknowledging that they can be considered as “non-governmental organisations” with the right to appeal to the Court.
However, on the 30th anniversary of World Press Freedom Day in May, 2023, the United Nations joint declaration on the matter said that they were ‘deeply concerned about the growing threats to democracy, freedom of opinion and expression, and media freedom globally, and… (a) lack of understanding of the role of the media as an essential pillar of democracy (and) human rights.’
If we are to learn anything from history, it should be that NOW is always the time to halt democratic backsliding and regressive human rights practices. Unfortunately, in respect of this, the final report of the Commission went nowhere near far enough. To ensure the successful implementation of any constitutional reforms, whilst upholding the human rights of the citizens of Wales and protecting and progressing pluralistic democracy, there is a requirement to confront people with accurate, factual reporting on relevant, local political matters. There must be balanced representation of political perspectives on Welsh issues, underscored by a full and transparent engagement with the public on constitutional matters. These inviolable aims can only be secured through good quality civic education and a robust public service broadcasting model, operating within a wider framework of a free, independent and pluralistic media and press, developed post-haste.
