Pro-Life Alliance v BBC
| Jurisdiction | UK Non-devolved |
| Judge | LORD WALKER OF GESTINGTHORPE,LORD HOFFMANN,LORD SCOTT OF FOSCOTE,LORD NICHOLLS OF BIRKENHEAD,LORD MILLETT |
| Judgment Date | 15 May 2003 |
| Neutral Citation | [2003] UKHL 23 |
| Court | House of Lords |
| Date | 15 May 2003 |
[2003] UKHL 23
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Millett
Lord Scott of Foscote
Lord Walker of Gestingthorpe
HOUSE OF LORDS
My Lords,
Television broadcasters must ensure, so far as they can, that their programmes contain nothing likely to be offensive to public feeling. This 'offensive material restriction', as it may be called, is a statutory obligation placed on the independent broadcasters by section 6(1)(a) of the Broadcasting Act 1990. The BBC is subject to a comparable, non-statutory obligation under paragraph 5.1(d) of its agreement with the Secretary of State for National Heritage. This appeal concerns the operation of the offensive material restriction in the context of a party election broadcast. It is common ground that nothing in the present case turns on the fact that the obligation on independent television companies is statutory in form, whereas the obligation on the BBC is contained in an agreement.
The factual and regulatory background to the case is set out fully in the speeches of my noble and learned friends Lord Hoffmann and Lord Walker of Gestingthorpe. I need not repeat it. Suffice for me to say, ProLife Alliance is a political party registered under the Political Parties, Elections and Referendums Act 2000. It campaigns for 'absolute respect for innocent human life from fertilisation until natural death.' Among its principal policies is the prohibition of abortion. In May 2001 ProLife Alliance fielded enough candidates for the June 2001 general election to entitle it to make one party election broadcast in Wales. The transmission was scheduled for a little under five minutes.
Early in May 2001 ProLife Alliance submitted a tape of its proposed broadcast to BBC, ITV, Channel 4 and Channel 5. The major part of the proposed programme was devoted to explaining the processes involved in different forms of abortion, with prolonged and graphic images of the product of suction abortion: aborted foetuses in a mangled and mutilated state, tiny limbs, a separated head, and the like. Unquestionably the pictures are deeply disturbing. Unquestionably many people would find them distressing, even harrowing. Representatives of each broadcaster refused to screen these pictures as part of the proposed broadcast. The broadcasters did not then, or at any stage, raise any objection regarding the proposed soundtrack. ProLife Alliance was not prevented from saying whatever it wished about abortion. The objection related solely to still and moving pictures of aborted foetuses.
On 22 May 2001 ProLife Alliance commenced judicial review proceedings against the BBC. At an expedited hearing, on 24 May Scott Baker J refused permission to proceed with the challenge. ProLife Alliance then submitted two further versions of the proposed broadcast to BBC, ITV and S4C. These are the broadcasters which split transmission of their services between the different parts of the United Kingdom. In the two revised versions the images of the foetuses were progressively more blurred. Neither was acceptable. On 2 June a fourth version was submitted and unanimously approved. This version replaced the offending pictures with a blank screen bearing the word 'censored'. The blank screen was accompanied by a sound track describing the images shown on the banned pictures. This version was broadcast in Wales on the evening of the same day. Five days later, on 7 June, the general election took place.
In January 2002 an appeal by ProLife Alliance was heard by the Court of Appeal, comprising Simon Brown, Laws and Jonathan Parker LJJ. The court granted permission to proceed with the judicial review challenge. The court treated the hearing in the Court of Appeal as the substantive hearing, and allowed the appeal: see [2002] 3 WLR 1080. The court made a declaration that the BBC's refusal to broadcast ProLife Alliance's party election broadcast was unlawful.
Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts. The courts, as independent and impartial bodies, are charged with a vital supervisory role. Under the Human Rights Act 1998 they must decide whether legislation, and the conduct of public authorities, are compatible with Convention rights and fundamental freedoms. Where there is incompatibility the courts must grant appropriate remedial relief.
In this country access to television by political parties remains very limited. Independent broadcasters are subject to a statutory prohibition against screening advertisements inserted by bodies whose objects are of a political nature. The BBC is prohibited from accepting payment in return for broadcasting. Party political broadcasts and party election broadcasts, transmitted free, are an exception. These 'party broadcasts' are the only occasions when political parties have access to television for programmes they themselves produce. In today's conditions, therefore, when television is such a powerful and intrusive medium of communication, party broadcasts are of considerable importance to political parties and to the democratic process.
The foundation of ProLife Alliance's case is article 10 of the European Convention on Human Rights. Article 10 does not entitle ProLife Alliance or anyone else to make free television broadcasts. Article 10 confers no such right. But that by no means exhausts the application of article 10 in this context. In this context the principle underlying article 10 requires that access to an important public medium of communication should not be refused on discriminatory, arbitrary or unreasonable grounds. Nor should access be granted subject to discriminatory, arbitrary or unreasonable conditions. A restriction on the content of a programme, produced by a political party to promote its stated aims, must be justified. Otherwise it will not be acceptable. This is especially so where, as here, the restriction operates by way of prior restraint. On its face prior restraint is seriously inimical to freedom of political communication.
That is the starting point in this case. In proceeding from there it is important to distinguish between two different questions. Once this distinction is kept in mind the outcome of this case is straightforward. The first question is whether the content of party broadcasts should be subject to the same restriction on offensive material as other programmes. The second question is whether, assuming they should, the broadcasters applied the right standard in the present case.
It is only the second of these two questions which is in issue before your Lordships. I express no view on whether, in the context of a party broadcast, a challenge to the lawfulness of the statutory offensive material restriction would succeed. For present purposes what matters is that before your Lordships' House ProLife Alliance accepted, no doubt for good reasons, that the offensive material restriction is not in itself an infringement of Pro-Life Alliance's convention right under article 10. The appeal proceeded on this footing. The only issue before the House is the second, narrower question. The question is this: should the court, in the exercise of its supervisory role, interfere with the broadcasters' decisions that the offensive material restriction precluded them from transmitting the programme proposed by ProLife Alliance?
On this ProLife Alliance's claim can be summarised as follows. A central part of its campaign is that if people only knew what abortion actually involves, and could see the reality for themselves, they would think again about the desirability of abortion. The disturbing nature of the pictures of mangled foetuses is a fundamental part of ProLife Alliance's message. Conveying the message without the visual images significantly diminishes the impact of the message. A producer of a party broadcast can be expected to exercise self-control over offensiveness, lest the broadcast alienate viewers whose interest and support the party is seeking. Here, it was common ground that the pictures in the proposed programme were not fictitious or reconstructed or 'sensationalised'. Nor was the use of these images 'gratuitous', in the sense of being unnecessary. The pictures were of real cases. In deciding that, even so, the pictures should not be transmitted the broadcasters must have misdirected themselves. They must have attached insufficient importance to the context that this was a party election broadcast. Any risk of distress could have been safeguarded by transmitting the programme after 10 pm with a suitably explicit warning at the beginning of the programme.
In my view, even on the basis of the most searching scrutiny, ProLife Alliance has not made out a case for interfering with the broadcasters' decisions. Clearly the context in which material is transmitted can play a major part in deciding whether transmission will breach the offensive material restriction. From time to time harrowing scenes are screened as part of news programmes or documentaries or other suitable programmes. Doubtless party broadcasts fall on the side of the somewhat indistinct line where a point being made may be expected to be illustrated with appropriate pictures, unpleasant as well as pleasant. For instance, a broadcast on behalf of a party opposed to war may be expected to illustrate the horrors of war with a picture of a gruesome war scene. The same may be true of a programme produced by those opposed to capital punishment. That...
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