Debating ‘Democracy’ and the Ban on Political Advertising
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00751.x |
| Author | Sarah Sackman |
| Date | 01 May 2009 |
| Published date | 01 May 2009 |
the child’s welfare.That said,however, the inevitable priceof having a threshold is
that some childrenwho might need it will not be protected.
60
Whether section 31(2) is the best way of expressing the threshold is open to
debate. But for our part, we think that the reference to ‘is su¡ering or likely to
su¡er signi¢cant harm’ in section 31(2)(a) is the best that can be achieved, but that
the attributable condition in section 31(2)(b)(i)is clearly inelegant andcould have
simply referred to a lackof reasonable care. However, were that to be so, it would
introduce a defence to‘shared carers’ whowould be able to argue that they had in
fact taken all reasonable care, notwithstanding the harm to the child, which
would re-open the Lancashire decision. On balance, therefore, we think that, in
the light of the case l aw, section 31(2) strikes the right balance as it stands.
Debating‘Democracy’ and the Ban on Political Advertising
Sarah Sackman
1
This note analyses the House of Lords decision in Animal DefendersInternationalvSecretaryof State
forCulture,MediaandSport. It argues that their Lordships’ reasoning was premised on a narrow
conception of ‘democracy as Parliament’ and seeks to challenge that view by suggesting the
courts adopt a more participatorymodel of democracy.
INTRODUCTION
The House of Lords in Animal Defenders International vSecretaryof State for Culture,
Media and Sport
2
(ADI) unanimously held that an absolute ban on political adver-
tising on television and radiowas lawful.This decision, which prevents anybody
with political objectives or wishing to advertise a political message obtaining
access to the broadcast media, hasbeen coolly received.
3
Commentators have cri-
ticised the decision for downplaying the value of free expression and for depart-
ing fromthe European Court of Human Rights’ (ECtHR) precedenton political
speech. Arguably, however, the case raises even more fundamental questions
60 Although in this respect noteHayes’suggestion for the lowering of the threshold test for a super-
vision order, n 21above,at 20^21.
1 Barrister and pupil at FrancisTaylor Building.
3 For academic criticism of the ban and the decision see for exampleC. Knight,‘Monkeying around
with Free Speech’ (2008)LQR 557;T. Lewis,‘Political Advertising and the Communications Act
2003:tai loredsuit or old blanket?’ (2005)3 EHRLR 290; A. Scott,‘‘‘A Monstrous andUnjusti¢able
Infringement’’? PoliticalExpression and the Broadcasting Ban on AdvocacyAdvertising’ (2003)66
MLR 224; A.G eddis,‘If Thy RightEye O¡end Thee, Pluck it Out: Rv BBC ex.p.ProLife Alli-
ance’ (2003)66 MLR885, 891^893.
Sarah Sackman
475
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(3) 4 63^487
To continue reading
Request your trial