By a Newsnet reporter
We left part one with the BBC's Editorial Complaints Unit having failed to respond to an attempt to escalate the complaint. After six weeks had passed and no acknowledgement was forthcoming from the ECU, the BBC Trust was approached.
Two days later and the BBC Trust responded:
"Thank you for your email of 19 June. We have spoken with the Editorial Complaints Unit and they have advised that they will send a reply to you by the end of this week. If you are unhappy with their response then it is open to you to write to us again to request an appeal."
It was now June 21st, fully five months after the broadcast that had led to the complaint. During that time an interesting hitherto unreported aspect of the January meeting in Dublin had emerged. This, you will recall, was the event at which BBC reporter Raymond Buchanan was present.
Speaking on May 24th, Lucinda Creighton revealed that the Dublin event saw member states strongly endorse the admission of new members to the EU:
"Ireland is a supporter of enlargement. We have made enlargement one of our Presidency priorities. I was very much encouraged by the strong endorsement of this decision by Member States at the informal meeting of European Affairs Ministers which I chaired in Dublin in January."
It's not an earth shattering revelation, but it nevertheless challenges the claim that Lucinda Creighton would have in any way suggested the EU should have been reduced in size by expelling Scotland.
The prompting of the BBC Trust did indeed result in yet another response from the BBC. This time the reply came as a shock.
"If your complaint had been about the Reporting Scotland report in isolation then the ECU could have looked into your complaint, but we cannot consider complaints that there has been an imbalance in the coverage of an issue across a range of output. Responsibility for that lies with the relevant area of BBC management at stage 2 of the complaints process...
I have therefore agreed with the Head of Public Policy for Scotland that he will provide you with a further response on this issue, and he tells me he will do so at the earliest opportunity."
The ECU had sat on the complaint for six weeks, then when booted up the backside by the Trust, had refused to consider it. The complaint was back at square one, dealing again with BBC Scotland.
The Head of Public Policy for Scotland finally replied on 31st July, it was now over six months since the original broadcast.
"At no point in any of the broadcast pieces is it claimed that the views of Lucinda Creighton and the UK Government are identical in all aspects. And Raymond Buchanan, at no point, asserts this. Nor did he claim, as you suggest, nor insinuate, that Scotland would be outside the EU. Consequently I cannot agree with you that he misled viewers in his report of the interview with Lucinda Creighton.
Ms Creighton has not retracted what she said; she has not complained that our reporting was inaccurate; she has not said by whom she thinks the reporting was 'misconstrued'; and BBC Scotland did not, as you suggest, impose a 'news blackout' on any subsequent remarks made by her - in fact it was discussed at length, two days after the original interview with Lucinda Creighton was broadcast, on the Sunday Politics programme (of 27 January) in a live interview, conducted by Andrew Kerr, with the Cabinet Secretary for Culture in the Scottish Government, Fiona Hyslop MSP."
At last, the BBC had at least acknowledged that complaint that there had been a news blackout of Lucinda Creighton's clarification emails. BBC Scotland were now claiming that an interview on the Sunday afternoon Politics Show that saw their presenter defend the Reporting Scotland broadcast was ‘news coverage'.
The BBC internal process had now been exhausted and, not surprisingly, they found themselves not guilty. An appeal was immediately lodged with the BBC Trust.
The initial response was not encouraging and a two week delay ensued before the Trust eventually acknowledged the appeal on 16th August, claiming it had been sent to the wrong department.
Two weeks later, on 29th August 2013, over seven months after the broadcast on Reporting Scotland, the Trust wrote to the complainant confirming the appeal would be heard:
"Further to my email of 16 August, I am writing to let you know that your complaint will now be considered by the Committee at its 7 November 2013 meeting. Their decision is likely to be ratified at their December meeting and you will be given the decision shortly afterwards."
On October 9th the Trust acknowledged the evidence submitted by both sides, the complainant and BBC Scotland. The complainant was sent PDF's of the evidence.
On November 8th, the Trust confirmed a ruling had been reached:
"I wanted to confirm that the Trustees considered your appeal at yesterday's Committee meeting. As previously indicated, the Committee's finding remains confidential until the minutes of the meeting have been ratified. This is likely to be in early December and I will write to you then to let you know the outcome."
Note that early December is given for ratification, after which the decision is no longer confidential. It was subsequently confirmed as December 5th.
December 5th came and went and there was no notification. In fact the decision, taken on November 7th, wasn't revealed to the complainant until six weeks later on December 19th.
The BBC was found to have misled viewers with their January 25th broadcast on Reporting Scotland. The explanation given by the Trust was complex and torturous in places but it was there in black and white.
There was a softening of the blow for BBC bosses as the Trust Committee found no evidence that the inaccurate nature of the broadcast was deliberate. Indeed this was something readily conceded by the complainant who acknowledged that Raymond Buchanan may not have intended to mislead.
Radio and online broadcasts were also deemed not to have broken any guidelines. This was not surprising given the limited impact of audio and the static word. However it should be noted that as of this week, the online article published by the BBC at the time of the interview still very much gives the impression that Lucinda Creighton and the Scottish Government are at odds over this issue. Note the use of the word "but" prior to giving SNP Ministers' view.
But what of BBC Scotland's claim that no news blackout of Lucinda Creighton's follow up statements was employed and that there was nothing new in her statements?
Here the Trust came down on the side of the BBC.
The Appeal Committee appeared to bend over backwards to accommodate the BBC. It should be recalled that BBC Scotland claimed an "extensive" interview that took place on the Sunday afternoon and featured Scottish Minister Fiona Hyslop, constituted news coverage.
The discussion between Hyslop and studio presenter Andrew Kerr actually saw the BBC host defend the broadcast that the Trust Committee ruled to be inaccurate. How could a discussion that saw the BBC defend a broadcast that broke their own guidelines be considered balanced and informative news?
Here is what the Appeal Committee concluded:
"The Committee agreed that there was some new information in Ms Creighton's statement about what Ms Creighton understood in relation to the Scottish Government's intended timetable for negotiations."
So the committee disagreed with BBC Scotland that there was nothing new, but added:
"It noted that BBC Scotland's judgement had been that this clarified little and did not constitute a further news story in its own right."
It's worth noting how BBC Scotland decided to interpret Lucinda Creighton's clarification emails.
Here is what Lucinda Creighton said in one of her emails:
"As SNP Westminster Leader, Angus Robertson said 'Negotiations on the terms of membership would take place in the period between the referendum and the planned date of independence', and that 'The EU would adopt a simplified procedure for the negotiations, not the traditional procedure followed for the accession of non-member countries'. I think that sums up the situation quite well. I hope this clarifies my position…"
Here is how BBC Scotland interpreted this very clear endorsement of the Scottish Government's EU timetable following a Yes vote:
"We do not think that it does [clarify her position]. In the interview she clearly says that the application for membership 'can be a lengthy process, as we see even with the very advanced and well-integrated countries like Iceland' (which is not in the EU), which she says 'has a task' in 'transforming its legislation and fitting into the European requirements for (EU) membership'.
Instead of clarifying her position, she seems now to be offering two arguments that are difficult to reconcile – that the process will be lengthy, but simplified… "Consequently we do not believe that the subsequent statement by Lucinda Creighton offered clarification."
This is staggering in the extreme and indicative of an organisation in denial. If BBC Scotland bosses are unable to discern support for the Scottish Government in Lucinda Creighton's statement then it should cause very grave concern for the remainder of the referendum coverage.
But what of the BBC's defence against the allegation it employed a news blackout. Here is what they said of the Sunday Politics Show disagreement between the hapless Andrew Kerr and Scottish Government Minister Fiona Hyslop.
"If there were substantive elements introduced by way of the Lucinda Creighton email, the Cabinet Secretary had ample time to focus on those (within the seven minutes Politics Scotland interview). That she chose not to do so was entirely her decision."
In short, it was up to Fiona Hyslop to highlight Lucinda Creighton's statements. In the space of seven minutes when continually interrupted and challenged by a presenter intent on defending a broadcast we now know was misleading, Fiona Hyslop was expected to do the BBC's job. That was the only time Lucinda Creighton's emails were mentioned on BBC Scotland.
Here is the Appeal Committee's conclusion on claims that a news blackout was employed:
"In the Committee's view, a significant opportunity to set the record straight, in so far as that had been needed, was presented to the Scottish Government on the following day.
The Committee noted that the Sunday Politics Scotland programme on 27 January 2013 carried an interview with Fiona Hyslop, Scottish Cabinet Secretary for Culture and External Affairs, whose brief included Europe. The interview, conducted by Andrew Kerr, included film of the full interview with Ms Creighton and discussion with Ms Hyslop about Ms Creighton's further statement.
In the Committee's view, Ms Hyslop had plenty of opportunity, which she employed to some extent at least, to emphasise that Ms Creighton understood the Scottish Government's timetable and that Scotland would not be ‘thrown out' of the EU."
The Appeal Committee found BBC Scotland not guilty of failing to provide adequate coverage, despite acknowledging there was new information in the emails. Astonishingly it supported the BBC's claim that the a discussion on a Sunday afternoon when few people would have been watching was "adequate" coverage.
The misleading report had been watched by half a million people who tuned in to the flagship tea time news programme. A political discussion broadcast early on a Sunday afternoon would have garnered a fraction of the audience.
Bizarrely, the committee also claimed that attempts by Raymond Buchanan to contact both Lucinda Creighton and the Scottish Government in order to further question them, also constituted coverage.
The Appeal Committee added:
"...the Committee decided that the further interview opportunities and invitations to comment that Mr Buchanan had offered, plus the extensive interview with Ms Hyslop the following day, meant that there had been no breach of the Accuracy or Impartiality guidelines."
This should give cause for alarm to both sides in the independence debate. The Trust has effectively given a green light to BBC Scotland to selectively report news, based not on what is said, but on the corporation's interpretation of what the words mean.
It's worth looking at one last statement provided by the BBC in defence of the claim it had misconstrued Lucinda Creighton's initial interview.
Many people who initially complained to the BBC would have received a response from the broadcaster in which it claimed that it was not the target of Ms Creighton's claim to have been misconstrued.
In early responses to complaints, BBC Scotland wrote:
"In a subsequent message to the Deputy First Minister, Ms Creighton said she was concerned that the interview was being 'misconstrued': she does not say by whom, but I can assure you it was not the BBC – we asked a question, she gave an answer, and we broadcast her saying it."
But that's not quite what BBC Scotland chiefs told the Trust in their evidence.
Here is an image from the official appeal document prepared by the Trust:
The BBC did indeed believe that Lucinda Creighton had alluded to Scotland being out of the EU in the event of a Yes vote. The difference between what the BBC told the Trust and what it told licence fee payers who initially complained is quite marked.
The question of course is why BBC Scotland should have said what appears to have been something completely different to the Trust. Could it be that BBC Scotland chiefs knew the broadcast was indeed misleading but sought to give the impression that they were reflecting a belief they honestly held.
This of course allowed the Trust to rule that the corporation had not knowingly misled viewers.
Finally, BBC Scotland claimed that no-one from the corporation was able to question Lucinda Creighton on the issue after she issued her clarification emails.
Newsnet Scotland can reveal that the BBC did indeed interview Lucinda Creighton on February 13th, a mere two weeks after the EU row broke. The Irish Minister was interviewed in a twenty five minute edition of the BBC political programme Hard Talk. She was not asked to clarify her stance on the EU status of Scotland after a Yes vote.
It's worth noting that if this timetable is typical of complaints relating to the corporation's coverage of the independence referendum, then we have passed the point for which complaints cannot now be addressed before the referendum takes place.
A broadcaster which has been found guilty of misleading the public over one of the most crucial issues of the independence debate and whose head of news has been accused of trying to infulence the content of political programmes after being pressurised by a Scottish Labour party official can now, effectively, do as it pleases.