by Des Freedman and Tom Mills

A licence fee worth defending?

Decriminalising the licence fee may not seem like the highest priority for a government that’s facing economic meltdown and social crisis. Nevertheless, Boris Johnson’s administration has ploughed on with its official consultation on decriminalisation and maintained its commitment to respond to comments by the summer. This seems just a little short-sighted given that COVID-19 may, as some have argued, ‘strengthened the case for the BBC’ given its potential to act as a ‘valued’ source of information about public health and a much needed purveyor of entertainment when we are (mostly) stuck in our own homes. 

The government consultation asked us to make a simple choice on decriminalisation: do we support it or do we not? This is a fake choice that fails to get to grip with the problems facing the BBC, and the need to build a far more democratic and independent media system. We are less than four months since a general election campaign, which saw extraordinary levels of partisan bias, and during which the BBC’s errors and establishment stenography shocked a lot of people on the left.

Opponents of decriminalisation claimthat the licence fee in its current form offers a unique form of political independence, the argument being that the BBC’s revenue comes not from general taxation, as with other state broadcasters, but directly from its audience, whom it seeks to represent. Decriminalisation, they point out, will simply weaken the BBC’s funding base, hand ammunition to its commercial rivals and do little to improve social justice. We will not address here the question of whether criminal sanctions for non-payment of a fine or civil pursuit of non-payers through bailiffs is more politically unacceptable. Others have done this at great length. Instead, we want to focus on the legitimacy of the licence fee itself. 

We do not agree that the licence fee affords the political independence that its more uncritical supporters like to imagine. Governments have always set the rate of the license fee, which has meant that the BBC’s major source of funding has always been highly politicised. In 2015, the Conservative Chancellor George Osborne negotiated a secret deal with the BBC’s director general, Lord Hall, prompting a former chair, Christopher Bland, to warnthat the BBC was drawing ‘closer to becoming an arm of government’. The government, more or less, forced the BBC to pay for the over-75 licence fee concession (as had been threatened in 2010) in return for a small increase in the licence fee itself (a concession which, of course, the BBC has partially abolished). This move meant involving what is supposed to be an entirely apoliticalorganisation in the delivery of welfare policy.

We do not believe that the status quo is satisfactory. The television licence fee is an outdated and regressive means of financing public media; it is regressive in that it is a flat ‘tax’ paid at the same rate by virtually all households, irrespective of their economic status, and outdated because it remains a television licence fee at a time when audio visual content is increasingly delivered online. We would like to see a more progressive mechanism: meaning one that acknowledges socio-economic differentials (such as the public service broadcasting tax in Finland or the household levy in Germany), but also one that is relevant to a digital world. We need, at the very least, a digital licence fee, payable by all households that maintains the tradition of universal funding, but which recognises important differences in the ability to pay.

Sadly, however, the legitimacy and future of the licence fee does not feature in the government consultation, which considers simply whether to decriminalise non-payment: a question which is impossible to answer without a more general debate on BBC funding (something that is not due to take place until toward the next Charter Review in 2027).

Decriminalisation: why now?

Proposals to decriminalise TV licence evasion are not new. Nearly 20 years ago, a Review of the Criminal Courts of England and Wales carried for the government recommended that ‘the use of a television without a licence should remain a criminal offence’. The government examined it again in 2015, with the then Prime Minister, David Cameron, suggesting that dropping criminal sanctions for non-payers was an ‘interesting idea’. Yet despite more than 140 MPs from different political parties signing up to an amendment to the deregulation bill on decriminalising non-payment, the government chose not to pursue decriminalisation.

In the current consultation, the government states that the underlying reasons for considering decriminalisation relate to its desire for ‘fairness and proportionality’ – its wish to ‘avoid the proliferation of unnecessary criminal offences’ and, in particular, the need to avoid a policy that disproportionately affects some of the most vulnerable groups in society. But why having previously rejected this policy is it again being considered? The government gives two reasons in the consultation document: the fact that the majority of over-75s are now due to pay for their licences (a policy, as we have already said, that it engineered), and the need to reduce the burden on the courts (even though the government acknowledges that ‘significant savings in criminal court resources are…not anticipated’).

The consultation is motivated less by a concern about the welfare of the poor and the vulnerable – the government’s record on austerity after all is, according to the British Medical Journal, linked to 120,000 excess deaths in England alone – than by a long-standing antipathy towards the public sector. This would appear to be exacerbated by some figures in government, not least the prime minister’s chief special adviser Dominic Cummings, who are said to be ‘ideological’ about the issue of decriminalisation and who hope to further weaken the BBC. 

In other words, this consultation is not taking place because of evidence-based concerns about technological developments, changes to media markets, legal considerations, or concern for the vulnerable, but rather is motivated by a desire to defund and intimidate the BBC. 

Should TV licence evasion no longer be a criminal offence? 

You can’t answer this question – the one specifically put by the government – without repeating two fundamental principles that we believe should underpin the discussion about how the BBC should be funded and where the burden should fall.

First, the BBC should continue to be publicly funded as a universal service required to provide high-quality entertainment and impartial news and information. We are, however, far from convinced that the BBC is currently doing so consistently, and have proposed a range of reforms to the BBC’s governance to address this – democratising the organisation and breaking up the London-centric managerial and editorial hierarchy. In any case, we support the idea of a universal payment mechanism for content and services that are provided without discrimination to all sections of the UK population.

Secondly, the cost of the BBC’s services should not fall disproportionately on low income groups. We want to see, as soon as possible, a funding mechanism that recognises socio-economic differentials and mitigates against both criminal and civil sanctions that are likely to target the poorest and most vulnerable sections of the population. The best way of ensuring this is to develop an independent, secure and more progressive funding system that places more responsibility on wealthy households – and potentially also on large corporations if the proceeds of a tax on digital intermediaries were used partially to fund public service media – while removing obligations, where possible, from those least able to pay. This doesn’t mean that all elements of compulsion should be abolished; just as we don’t support tax evasion, neither do we support the right of individuals to decide whether to pay for utilities that they use that bear a cost. We do, however, think that a fairer funding mechanism would help reduce the impact on the poor and vulnerable.  

In other words, we want to see a funding solution that delivers public purposes and obligations, but also protects marginalised groups. Neither of the proposals in the government’s consultation achieve that: neither the status quo, nor decriminalisation. Moreover, given the context, it is hard to escape the conclusion that the latter is motivated more by a desire to defund the BBC, than to address inequity in the enforcement regime. If the government in fact intends to alleviate the burden that the licence fee places on low income and vulnerable groups, it could provide a public subsidy of the type it withdrew from over-75s in the last Charter Renewal.  Ultimately we believe the current funding mechanism urgently needs to be reformed, but this should only be done through appropriate comprehensive public consultation and with more detailed evidence about the BBC’s actual performance.

We need more than a knee-jerk defence of, or an all-out assault on, the BBC.

You can read the full MRC submission to the government’s consultation on decriminalisation of the licence fee here.