R (Animal Defenders International) v Secretary of State for Culture, Media and Sport

CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/5636/2005
JudgeLord Justice Auld
Judgment Date04 Dec 2006
JurisdictionEngland & Wales
Neutral Citation[2007] UKHRR 310, [2006] EWHC 3069 (Admin)

[2006] EWHC 3069 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

QUEEN'S BENCH DIVISION

Before:

The Right Honourable Lord Justice Auld and

The Honourable Mr Justice Ouseley

Case No: CO/5636/2005

Between:
The Queen on the Application of Animal Defenders International
Claimant
and
The Secretary of State for Culture Media and Sport
Defendant

Mr Michael Fordham and Ms Shaheed Fatima (instructed by Bindmans the for the Claimant

Mr David Pannick QC & Mr Martin Chamberlain (instructed by Treasury Solicitor) for the Defendant

Lord Justice Auld

Lord Justice Auld:

Introduction

1

The issue in this case is whether a domestic statutory prohibition of political advertising on television and radio violates the human right of would-be political advertisers to freedom of expression through those media.

2

Animal Defenders International ("ADI") seeks a declaration of incompatibility under s. 4 of the Human Rights Act 1998 (the HRA") that the prohibition on political advertising on television and radio imposed by the Communications Act 2003 ("the 2003 Act") is incompatible with Article 10 of the European Convention on Human Rights ("ECHR"). ADI does not pursue its alternative claim for a declaration that the provisions containing the prohibition should be "read down" under s. 3 of the HRA, it being common ground that the wording is clear and that the claim of incompatibility is arguable.

3

The 2003 Act establishes two complementary principles governing the content of television and radio broadcasts touching on political and public affairs, neither of which has any counterpart in any of the other media. The first is a requirement of "impartiality", which is to be found in section 319(2)(c) and 320(2), in relation to "matters of political or industrial controversy" and "matters relating to current public policy", 1 and, in section 319(2)(k), as between advertisers. The second principle, which is intended to support and maintain that impartiality in the field of politics and public affairs, is to be found in sections 319(2)(g) and 321(2) and (3), in the form of an absolute prohibition on political advertising on television and radio services, except for controlled party political broadcasts mainly in election periods.

4

The Office of Communications ("OFCOM") is the body principally responsible, by virtue of sections 1 and 2 of the 2003 Act, for setting and enforcing standards as to the content of television and radio programmes. It does that by reference to "standards objectives" identified in section 319 of the Act. OFCOM has, pursuant to statutory powers, 2 contracted out its advertising standards codes function to two Committees of the advertising industry —its advertising standards codes function to the Broadcast Committee of Advertising Practice ("BCAP"), and the handling and resolution of complaints to the Advertising Standards Authority ("ASA").

5

OFCOM is directly charged, as part of its responsibility for securing the "standards objectives" in section 319, with the task, under section 319(2)(g) of preservation of the prohibition in section 321 of political advertising in radio and television services. The Broadcast Advertising Clearance Centre ("BACC"), which is funded by commercial broadcasters, acts as an informal clearing body for compliance of proposed television and radio advertisements with the law and OFCOM codes. However, the starting and finishing point for OFCOM in relation to political advertising is that, if, on a proper interpretation and application of the Act to the nature and/or source of any proposed advertisement, it constitutes political

advertising, the Act gives it no discretion in the matter, it must enforce the prohibition
6

ADI is a non-profit and non-charitable organisation, the objects of which, as its name indicates, are protection from and alleviation of suffering by animals. It campaigns with a view to effecting changes in law and public policy, against the use of animals in commerce, science or leisure. In early 2005, it began to prepare the launch of a campaign against the use of primates for the purpose of public entertainment, in particular in zoos and circuses, a campaign that it called "My Mate's a Primate". It sought to support the campaign by newspaper and television advertising and direct mail. For the purpose of a television advertisement, it instructed a marketing company to prepare and submit to the BACC for informal pre-clearance a draft script and outline for a 20 second advertisement. The proposed advertisement was of video-film showing a young girl playing a primate in a cage with a voice-over about man's ill-treatment of primates, and inviting the public to find out more by sending £10 for an information pack. The BACC, by an e-mailed message of 5 th April 2005, declined clearance, expressing the view that the proposed advertisement, whilst acceptable in content, would breach the prohibition of political advertising in section 321(2) of the 2003 Act, since ADI was a body with mainly political objects as reflected in its non-charitable status. This is how the BACC put it:

"… we only carry advertising for registered charities and this affords the stations some protection that the activities of the charity will not breach Section 4 of the ASA Code by becoming wholly or mainly political during the life of the commercial. This is because the Charity Commission only registers charities that can demonstrate that they are not wholly or mainly political and monitors their activities. Even though your proposed script did not ask for donations per se and offered a product for sale, the income generated and its subsequent use would not be regulated by any authority and the stations would be exposed to the risk that they would be carrying an unacceptable advertiser. This is not say that we suspect the intentions of this advertiser, but rather that it is a dangerous precedent to set. Likewise if any advertiser was to use income generated from a product advertised in a commercial for wholly or mainly political means it would be unacceptable under the code."

The BACC subsequently confirmed that decision.

7

The singling out in this way of political advertising in television and radio services for prohibition and control was based on Parliament's acceptance of the widely held perception that the power and pervasiveness of broadcast media over other media was such that it could give an unfair advantage to those who could afford to promote their political views over the air waves over those who could not, and, as a result, unfairly distort the democratic process. The prohibition and control, for that reason, had the general support of the Committee on Standards in Public Life ("the Neill Committee"), 3 the Joint Committee of the Houses of Parliament on Human Rights on

the Draft Communications Bill, 4 and the Electoral Commission, in its Report and Recommendations on Party Political Broadcasting.5
8

Given the regime of impartiality on matters of politics and matters of current public policy and the prohibition and control on broadcast political advertising, the latter, if it is to be effective, should be readily recognisable as such and kept quite separate from other parts of the programme service; see Article 10(1) of EC Directive 89/552/EEC.

The issue

9

The broad issue for the Court is whether the distinction between broadcast and non-broadcast political advertising, so as to prohibit the former but not the latter, is, in the words of Article 10(2) ECHR, "necessary in a democratic society … for the protection of the … rights of others", when put against one of the most fundamental of human rights for which the ECHR provides, that of freedom of expression. Presumably those "others" whose rights are candidates for protection are all those with an interest in the integrity of the democratic process, namely the community at large, not just those who may be politically disadvantaged for want of funds to advertise their cause. "Necessity" as a concept may be distinguishable from other public law notions such as reasonableness, proportionality, balance and non-discriminatory treatment, but can, depending on the context, be informed by one or more of them. Fairness and impartiality, for which sections 319 and 320 of the 2003 Act provide, extend to all those with an interest in the integrity of the democratic process, including non-political advertisers, whom section 319(2)(k) expressly shields from "undue discrimination". From those premises, it is a short step to considering, as part of the concept of Article 10(2) necessity for the prohibition of political advertising, whether it is fair or non-discriminatory in the cause of protecting the integrity of the democratic process.

10

The task for the Court on an issue of compatibility is often a crude one, that of pitting strong conflicting principles, one against the other, with a view to reaching a value judgement on whether Parliament has gone too far. It is not always practicable —certainly not with a complex statutory framework such as this – for the Court to attempt some "tailored" approach involving indicative severance or re-drafting, to say precisely how far too far. The Court is not well equipped, in the adversarial process to which it is confined, to assess the practicalities and efficacy of alternative legislative schemes with a different basis or reach. For example, as Mr David Pannick QC, for the Secretary of State pointed out, putative amendment or modification, whether by reference to the bodies or political or other public viewpoints to which the prohibition or restriction...

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