On 5th February 2020, the UK Government launched its new consultation on the decriminalisation of television licence fee evasion. Long telegraphed by the Government, the consultation examines the case for the non-payment of the licence fee to cease to be a criminal matter and considers potential options to replace it. For those who are unaware, the licence fee is the charge that all owners of televisions who wish to watch or record live television broadcasts, or access and watch content on the BBC iPlayer must pay, the proceeds of which go to the BBC to fund the creation of new content for television, radio and online services.

So what of the consultation itself? At first glance, it seems fairly solid. It gives a decent history of the recent debate over the topic, going back to the Coalition Government in 2010, acknowledges the Perry Report of 2015 which was a partially consultative independent review considering the same issue which ultimately recommended the retention of the criminalised licence fee as a fair and proportionate enforcement mechanism for the present licence fee arrangements. It makes an argument as to why the Government thinks the situation has changed and lays out alternative options with details of the arguments for them, and a promise that further consultation will be undertaken if it is decided to proceed with decriminalisation.

That is not to say that it is perfect. There are several areas where obvious omissions have been made. Although there is a detailed analysis of the merits of various alternative civil enforcement schemes, a similar analysis of the present arrangements is lacking. There is little to no engagement with the potential positives of retention of the present scheme, and it is not specifically identified as an option. Where there is engagement with potential negatives of scrapping criminal sanctions for licence fee evasion, it is skated over and often responded to with under-evidenced speculative statements about how problems ‘could’ be solved. Various near-irrelevancies are mentioned, including a seemingly gratuitous line stating that “The Government has made it clear that it is disappointed with the BBC’s decision to restrict the over 75 licence fee concession only to those in receipt of Pension Credit.” Whilst there is a potential argument that expansion of the licence fee to more pensioners might have an impact upon the way it should be regulated, lines such as this are unnecessary and invite questions over motivation.

In The Week in Parliament two weeks ago, we highlighted the likelihood of other elements of the BBC fundamentals coming under consultation over the term of this Government. It would seem we weren’t far off the mark. This weekend an article in the Sunday Times has drawn some attention amongst the media set claiming that a blueprint has been drawn up to scrap the licence fee entirely and replace it with a subscription-type service. The article cites ‘senior aides’ in Number 10 and gives details of the alleged plan. Of more interest to us was the line in the article that reports one aide as saying “We are having a consultation and we will whack it. It has to be a subscription model… the whole thing needs massive pruning back”. Is the Government running the danger of a Gunning 1 pre-determination finding in any court case by being seen to have made up its mind on licence fees irrespective of the outcome of the consultation?