Ofcom gets court threat from Alex Salmond's Alba Party which demands review over BBC bias

The party has lodged a complaint through its solicitors about the different criteria to debates and coverage being applied by BBC Wales where the Abolish the Welsh Assembly Party were given full participation in their discussion programme.

The regulator has previously dismissed complaints from Mr Salmond about a "virtual blackout" of his party by the public broadcaster.

Alba's legal letter states that counsel's advice is that the committee’s decision is "in error and susceptible to judicial review".

The Alba Party chief previously said that while not being included in televised Leaders’ Debates is “deplorable”, the lack of coverage has been “even worse”.

Mr Salmond accused the BBC of having “learnt nothing from their blatant bias of 2014”.

Mr Salmond said the broadcast regulator "should step in right now and put the BBC house in order".

He said: “The BBC are an affront to Scottish democracy. There have now been no less than seven opinion polls in this campaign showing an ALBA parliamentary breakthrough. The new evidence from Wales leaves them without leg to stand on in terms of their biased Scottish coverage. But BBC bosses continue to ban us from the debates.

"The BBC also continue to refuse fair coverage on the flimsiest of grounds. Yesterday (Sunday) for example in one of the most important statements of the campaign Alba women candidates rallied outside the Parliament in the declaration in support of protected sex based rights.

"The BBC claimed they couldn’t send a camera a few hundred yards because it was a Bank holiday weekend! They then interviewed Willie Rennie in the same area up a hill on his puff saying precisely zilch.

"Of course BBC presenters continue to talk about Alba, often in disparaging terms. They just don’t allow us on to answer back just as the BBC hierarchy have kept us out of the leaders debates."

Last month, Mr Salmond wrote to Ofcom and broadcasters to demand his party was included in televised leaders’ debates – but Alba was not invited to take part in the first two events.

The row escalated two weeks ago after an appearance by Mr Salmond on BBC Scotland’s The Nine following the launch of the Alba Party manifesto.

In response to questions about previous behaviour the former first minister insisted that “most fair-minded people don’t appreciate the constant attempts by the BBC to re-try the case” in which he was cleared of all criminal charges against him.

But Ofcom's election committee decided that it did not breach Broadcasting Code regulations relating to due impartiality, accuracy and undue prominence of views.

It also decided it did not breach the code in relation to the special impartiality requirements over the broadcasting of elections.

It said: "Broadcasters have editorial freedom in determining the format of election coverage and leaders’ debates.

"Under our Broadcasting Code, election programmes must comply with special impartiality requirements. This means they must preserve due impartiality and include and give due weight to an appropriately wide range of significant views and perspectives.

"Broadcasters must also give due weight to the coverage of parties during the election period, taking into account evidence of past electoral support and/or current support.

"In this case – having considered representations from the Alba Party and the BBC – Ofcom’s Election Committee concluded that the BBC’s approach to the format of the Leaders’ Debate (30 March 2021, 7.50pm) and its coverage of the election period more generally, did not raise concerns under Sections Five and Six of our Broadcasting Code."

In reaching its decision the committee considered that the BBC’s approach to considering the Alba Party’s level of current support – including the weight it has placed on an average of opinion poll evidence – "has been reasonable" during the election period so far.

The broadcast regulator said it also took into account that the BBC’s coverage to date has also given "due weight to the significant views and perspectives" held by the Alba Party.

The Alba Party are now asking Ofcom to reconsider its decision and carry out an urgent review saying the treatment of parties was "simply inconsistent".

The BBC Leaders debate featuring Abolish leader Richard Suchorzewski

It told the regulator that in Thursday of last week, the day after the committee's 'no bias' decision, the BBC broadcast the equivalent Leaders Debate as part of its coverage of the elections to the Welsh Senedd. Representatives of the Labour, Conservative, Plaid Cymru, Liberal Democrats and Abolish the Welsh Assembly parties participated in the first hour of that programme and those of Reform UK, the Green Party and UKIP were in the second, half hour.

It pointed out that the Liberals currently have one seat in the Senedd and are averaging around 4% in current polling.

The Greens had no seats and are averaging around the same.

And it pointed otu that UKIP support in Wales is so low that it has not even registered on the last two polls.

The AWAP, meanwhile was predicted to take two seats in the Senedd.

"We would submit that our clients’ polling performance, and the developing political context in Scotland, is such that it would be simply perverse to exclude them from the upcoming BBC Leaders Debate," said the letter from solicitor David Halliday of Halliday Campbell.

"A decision to do so would be simply illogical, entirely inconsistent with the treatment afforded to other parties elsewhere across the BBC’s output and simply inexplicable other than by animus towards our clients.

"What other possible explanation can be proffered for such an entirely inconsistent approach? No single example of that animus is going to be conclusive and any single example can be explained away but we would submit that that does not mean that each example can simply be ignored."

The letter continues: "Over and above that, counsel’s advice is that the Committee’s decision is in error and susceptible to judicial review.

"Counsel does not accept that the approach taken by the BBC can be separated from what is required directly by the Code as easily as the Committee decision asserts. In fact, in his view, it cannot be separated at all. His view is that this flawed approach taints the whole Committee process and makes the outcome of it unfair.

"Counsel feels that the BBC’s admission of the AWAP, a party which he [Mr Salmond] feels is comparable by analogy to our clients, into the equivalent debate in Wales is significant.

"Appendix 3 of the BBC guidance says in terms that AWAP can be given coverage "proportionate" to the four "larger parties" in Wales under certain circumstances but the BBC has failed to take a similar view of Alba.

"As a result, counsel feels that even in terms of their own flawed guidance the BBC has acted inconsistently.

"As we say, in light of all this, our clients are dissatisfied at the BBC’s continuing decision to exclude them from the upcoming Leaders Debate and we would ask that the Committee urgently reconsiders matters in light of the new material which we present and of the submissions made in this letter.

"Failing that, we will require to take our clients’ urgent instructions o the options for judicial review which counsel advises are open to them."

Abolish leader Richard Suchorzewski was a controversial pick for the April 29 Senedd election debate,  programme among viewers.

The party, which gained two members of the Senedd through their defects from Ukip,  polled between 3-8% ahead of the May 6 Welsh election.

Their primary aim is to return the powers held at the Senedd to the UK Parliament.