C5 judicial ordeal puts brakes on Millennium venue decision

Another week, another rollover. In defiance of all the laws of chance, the National Lottery jackpot has gone unwon twice in a row for the second time in a month – something that’s only supposed to happen once every 400 years. So brace yourselves for a repeat this week of the lottery fever which swept the nation at the start of this month.

As you do so, contemplate the plight of the Millennium Commission, one of the bodies set up to distribute lottery money to good causes, and the problems it is having with the Millennium Exhibition.

This exhibition is intended to celebrate the year 2000 in fitting style, and the Commission has earmarked 100m to support it. But it is also making rather heavy weather of deciding where the exhibition will be, and who will run it. There is a reason for this, but in the meantime it has provoked a virulent war of words between the two possible sites still left in the running, the NEC in Birmingham and Greenwich in London.

Last week the Commission announced the identity of the exhibition operator, the design and communications consultancy Imagination. Imagination’s plans for the exhibition are a tightly held secret. But they are rumoured to major on the lights and lasers which are part of the company’s trademark. They are also rather more modest than some rival schemes. Now Imagination has been asked to rework its plans, originally intended for Birmingham, for the much larger site at Greenwich.

The reason it is all taking so long, given the extremely tight timetable for the exhibition (which is meant to open on December 31 1999) is, in part at least, because the Millennium Commission is terrified of a judicial review.

Everything must be done properly, and must be seen to have been done properly should a disgruntled bidder at some point in the fu-ture go to court alleging the decision was (in legal terms) irrational or taken incorrectly. The last thing the Commission wants is to see that tight timetable derailed by a lengthy legal challenge.

For an awful warning of what that can mean, the Millennium Commission need look no further than Channel 5. Last week in the High Court Virgin Television began judicial review proceedings against the Independent Television Commission over its decision to award the C5 licence to Channel 5 Broadcasting.

Virgin, the ITC and C5B were all represented. So were the other two failed bidders, UKTV and New Century TV. On the first day of the case, the combined fees and salaries of the QCs and TV executives crammed into Court 3 would have been enough to run Channel 5 for several weeks.

The case was originally scheduled to last three days. Instead there is no guarantee it will be over by the time you read this. The details of the arguments advanced by the various parties need not detain us.

But the possible consequences are important. Besides the delay caused by the case itself – which means C5B is on a go-slow on hiring staff and commissioning programmes and which threatens to delay its scheduled launch date of January 1 1997 – there is the chance of still further delays if one or other of the parties appeals against the decision (almost certain, say the lawyers).

And then there is the question of what would happen if Virgin were to win. At the time of writing I can only say that that in itself will be the subject of lengthy legal argument, possibly at a separate hearing. The likeliest outcome is that, if the court detects a flaw in the ITC’s procedures, it will simply tell the Commission to take its decision again (and you don’t have to be a died-in-the-wool cynic to conclude that the Commission would almost certainly decide that C5B was still the best company for the job).

But some of the parties will also be urging the court to strip C5B of the licence on the grounds that it was given an unfair opportunity to amend its application after the closing date. In that case, should the licence go to New Century Television – the lowest bidder and the only one besides C5B whose programme and business plans both passed the quality threshold? Or should the whole process be re-run, with the licence advertised again and everyone given a chance to rebid?

If the latter were to happen, there is no way Channel 5 could be on air next January, and arguably – given the imminent arrival of digital transmission and the continuing growth of cable and satellite – no way it could be made to pay.

The spectre of the courts forcing the ITC to readvertise Channel 5 is an unlikely scenario. But so long as it remains a possibility, you can see why other public bodies, including the Millennium Commission, are increasingly inclined to proceed with extreme caution.

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