R London Christian Radio Ltd (1) (Claimants) Christian Communications Partnerships Ltd (2) Radio Advertising Clearance Centre (Defendant) Secretary of State for Culture, Olympics Media and Sport (Interested Party)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 20 April 2012 |
| Neutral Citation | [2012] EWHC 1043 (Admin) |
| Date | 20 April 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7889/2010 |
[2012] EWHC 1043 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Silber
Case No: CO/7889/2010
James Dingemans QC (instructed by Aughton Ainsworth) for the Claimant
The Defendant was neither represented nor appeared
Samantha Broadfoot (instructed by Treasury Solicitors Department) for the Interested Party
Hearing date: 28 March 2012
I. Introduction
London Christian Radio Limited ("LCR"), which runs a national radio station called "Premier Christian Radio", and Christian Communications Partnership Limited ("CCP"), which is a publisher of Christian magazines, wished to publish an advertisement on the radio asking about the marginalisation of Christians in the workplace and informing listeners that the advert is "seeking the most accurate data to inform the public debate" and to "help make it a fairer society".
They were required to obtain clearance so to be able to broadcast it from its regulatory body, which is Radio Advertising Clearance Centre ("RACC"). It checks advertisements which a radio station wishes to broadcast in order to ensure that they comply with the appropriate Code. It has refused to clear the advertisement of LCR and CCP for broadcasting because it contends that the proposed advertisement infringes the prohibitions on political advertising set out in sections 319 and 321 of the Communications Act 2003 ("the 2003 Act"). This refusal does not technically prevent the advertisement from being broadcast by LCR, but if it was to be broadcast without RACC clearance, a complaint could then be made to OFCOM that LCR was in breach of the regulatory code applicable to radio broadcasting.
LCR and CCP (collectively referred to as "the claimants") challenge this refusal. They contend that their advertisement does not fall within the statutory ban on political advertising set out in the 2003 Act, but they submit that if it does, then the ban is incompatible with the claimants' rights under Article 10 of the ECHR if it cannot be read down pursuant to the provisions of section 3(1) of the Human Rights Act 1998 (" HRA") so as to be given effect in such a way as to be consistent with the claimants' Article 10 rights.
The RACC has adopted a consistent position of neutrality on the substantive challenge and so it has played no part in these proceedings. The Secretary of State of Culture, Olympics, Media and Sport ("the Secretary of State"), who is the Minister with overall responsibility for broadcasting, has been joined as an Interested Party and he opposes this application. It must be stressed that it has not been suggested in any way that the stance of the Secretary of State is in any way anti-Christian or that his reasoning would not apply to any other religion. Indeed nothing in this judgment is meant to preclude advertisements by bodies such as the claimants in, for example, newspapers.
Sales J made a conditional order granting the claimants permission to proceed on 17 June 2010, but by operation of his directions that matter was relisted and permission was then granted by Collins J on 14 December 2011.
II. The Parties
LCR runs Premier Capital Christian Radio, which has been broadcasting since 1995 under a licence issued by the Office of Communications and its stated mission is to: —
"convey…the significance of the life, teaching, death and resurrection of Jesus Christ as recorded in the Scripture and in historic creeds in the Christian faith".
CCP is an associated company and the publisher of three magazines, namely first, Christianity, which aims "to find news and articles of Christians and those interested in the Christian faith from across the denominational spectrum"; second, Youthwork the United Kingdom's most widely read magazine for Christian youth workers; and third, Christian Marketplace, which is a magazine for retailers and suppliers in the Christian publishing world. The majority of shares in both claimants are owned by Premier Christian Medium Trust, which is a registered charity.
RACC is a private body funded by commercial radio stations whose role is to grant or to withhold clearance in advance of broadcasts to certain types of proposed radio advertisements.
III. The Statutory Framework
The Office of Communications ("OFCOM") is a public body established by Parliament and it exercises functions under the 2003 Act.
Section 319 of the 2003 Act provides insofar as is material that:—
"(1)It shall be the duty of OFCOM to set, and from time to time to review and revise, such standards for the content of programmers to be included in television and radio services as appear to them best calculated to secure the standards objectives.
(2)The standards objectives are—
….
(g) that advertising that contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services; …"
Section 321(2) of the 2003 Act defines "political advertising" in this way:—
"For the purposes of section 319(2) (g) an advertisement contravenes the prohibition on political advertising if it is—
(a) An advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;
(b) an advertisement which is directed towards a political end; or
(c) an advertisement which has a connection with an industrial dispute".
It is common ground that of the different and alternative definitions in section 321(2) of the 2003 Act, it is only section 321(2) (b), which is relevant to the present application. Section 321(3) explains how section 321(2) is to be construed and it provides that:—
"(3) For the purposes of this section objects of a political nature and political ends include each of the following—
(a) influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;
(b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere or otherwise influencing the legislative process in any country or territory;
(c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;
(d)influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;
(e) influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;
(f) influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;
(g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends".
Section 312(3) of the 2003 Act states that "objects of a political nature and political ends include" and the matters then set out are the only matters relied on by the Secretary of State in this case. So I need not consider if any other matters have to be considered.
RACC is governed by a Code which provides that:—
"4.6 'Special Category' of Advertisements ….need particular care. They must be sent [before being broadcast] to the RACC for central clearance…
4.7. Special Categories are…
Political, Industrial and Political Controversy Matters…
4.9 stations must take responsibility to ensure that only RACC – approved output, where applicable, is broadcast."
IV. The Chronology and the Issues.
On 28 May 2010, LCR submitted to RACC a paid advertisement for clearance in advance of being broadcast. The proposed advertisement stated that:—
"We are CCP. Surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalized in the work place. We are concerned to get the most accurate data to inform the public debate. We will then use this data to help make a fairer society. Please visit [CCP's website] and report your experiences."
It was explained by Mr Peter Kerridge the Chief Executive of LCR in his witness statement that :—
"The purpose of the advertisement was to gather accurate information from Christians in order to verify an initial survey carried out by CCP as to the extent of discrimination against Christians in the workplace. If this information corroborated the initial research, this would be used to inform, encourage and to equip Christians to deal with such matters, to raise it with the Equalities Commission and the Government and to inform the public and raise awareness generally that Christians are being marginalised in the workplace and that there is not the same level of respect and tolerance towards Christians and Christian values and belief as there is for other groups, which, in a pluralistic society, is not acceptable, fair or democratic".
An exchange of emails followed in which RACC asked what were:—
"the goals and purposes of CCP. If for example, they would be using the data to lobby government, then they would have fallen foul of the ban on 'political' advertising".
LCR confirmed that the data information gathered would be published and it would have implications for the Government and bodies such as the Equal Opportunity Commission.
RACC replied that:—
"…for clearance, RACC needs to establish that the advertiser is not a body wholly or mainly of a political nature and...
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