The BBC and Jeremy Corbyn

Yesterday I tweeted this:

And I went on to explain why I would not give any further information. But I think there are further matters I can add that would add context and meaning to my tweet.

  1. What can I say about X? My “conversation” – which was conducted entirely in writing – took place with X. X is an individual at the BBC whose seniority and sphere of work is such that it could not sensibly be suggested that X is not properly qualified to speak on such matters.
  2. How did the conversation arise? The conversation took place subsequent to Jeremy Corbyn becoming leader and in the context of a broader conversation about his treatment by the press.
  3. Was the conversation in private? It was not explicitly in private. But I understood it to be part of a private conversation. At the time I asked X whether I could make public an anonymised version. X indicated a preference for me not doing so as to do so might cause a witch hunt.
  4. Why did I tweet what I tweeted? I think it is important I respect X’s wish that nothing be said that could conceivably enable X to be identified – including the particular language used by X. But I also think it is important to put this in the public domain – in particular in light of the BBC’s response to claims that it is coding into its imagery anti-Corbyn messaging. The tweet represents my attempt to balance those two matters. [Transparency note (i) I am a vigorous critic of Corbyn, especially on the subject of his stance on the EU (ii) I have said I agree with criticisms of the BBC’s use of images of Corbyn in front of St Basil’s cathedral].
  5. Can I say anything more about the substance of the conversation? X talked explicitly and unambiguously about how criticisms of Corbyn that the BBC could not voice were deliberately coded into imagery. X did not say that this was a general policy of the BBC or that there was some institutional directive to ‘smear’ Jeremy Corbyn. X clearly understood that X’s comments were sensitive for the BBC (see 3. above). [Note: my understanding of the BBC’s news/current affairs/politics output is that it is relatively heterodox.]
  6. Given that I will not release images of the written exchanges how can they be verified? I have said that I would swear a statement that my tweet above is true. I am also prepared to consider asking a lawyer, who would be bound by a professional duty of confidentiality, to swear a witness statement saying that s/he has reviewed the written exchange between me and X and that my tweet and this blog post is accurate.

The BBC, Presenters and HMRC

The recent decision involving a former BBC Look North presenter raises a question that will be familiar to long-suffering followers of this blog: “who bears responsibility when tax avoidance schemes go wrong?” (Arrivistes may care to read this summary of the many pieces I wrote about footballers. And this, on how the professionals get away with it.)

The legal answer is straightforward.

As I explained here, the drafters of the IR35 regime intended that, if IR35 applied, the tax liability should sit with the engager (here the BBC). That made sense for several reasons: the engager were beneficiaries of the use of personal service companies (they avoided liability to employers’ NICs) and the tax can be collected from the engagers (in practice, very often it can’t be from PSCs).

But the Government of the time gave in to lobbying from engagers. And the result was the unfortunate situation we now see, where historic liabilities are shuffled onto those with the least knowledge and often without the resources to meet them.*

And alongside the legal question there is a moral one: are the presenters really to blame?

Answering that question is altogether more difficult. Some presenters will be financially sophisticated. Some will knowingly have engaged in risky tax behaviour. But a great majority will have relied on their advisers, will have been tacitly encouraged by the attitude of the BBC (‘how could the BBC be involved in tax avoidance?’) or other major broadcasters, and will have been fortified by the many years in which HMRC seemed barely to bother to apply IR35.

Is it really fair that we point the finger only at the presenter? Should the BBC escape moral obloquy? And what of the army of advisers?

Meanwhile, for those presenters who can lay reasonable claim not to be caught by IR35, further difficulties mount up.

HMRC is one actor and can behave strategically. It can choose the cases with the ‘ugliest’ fact patterns – for example, the Look North case mentioned above – and seek to establish the law by reference to those cases. Principles developed in those ‘ugly’ cases will then be applied to better fact patterns.

But the presenters are disparate. They may act in what they perceive to be their own interests rather than the collective interest. They may bear costs personally rather than pooling and sharing them – and so lack the resources to engage the best representatives. And they may not think to put their ‘best’ cases forward: will news presenters hold their cases back so that the easier categories of sports and talk presenters can go first?

These assessment whether IR35 applies involves a delicate balance of complex facts. It is far from straightforward. And it is perfectly possible – indeed it is likely – that these structural imbalances as between the disparate group of presenters, on the one hand, and HMRC, on the other, will cause whole classes of presenter who might otherwise escape liability instead to bear it.

Hard cases, as every lawyer knows, make bad law.

The weight of tax liability, moral responsibility, and the burden of bad law. All could come to fall on presenters.

*For tax liabilities accruing from the start of this tax year, we will revert to the original intention, but only in respect of public sector employers. This biased approach makes little sense. Writing on the day of his announcement, I argued that this step made little sense unless you wanted to tilt the playing field in favour of public sector outsourcers.

**Transparency note. I am professionally active in this field advising both broadcasters and presenters.