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

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD SCOTT OF FOSCOTE,LORD CARSWELL,LORD BINGHAM OF CORNHILL,BARONESS HALE OF RICHMOND,LORD NEUBERGER OF ABBOTSBURY
Judgment Date12 Mar 2008
Neutral Citation[2008] UKHRR 477,[2008] UKHL 15

[2008] UKHL 15

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Carswell

Lord Neuberger of Abbotsbury

R (on the application of Animal Defenders International)
(Appellants)
and
Secretary of State for Culture, media and Sport
(Respondent)

Appellants:

Michael Fordham QC

Shaheed Fatima

(Instructed by Bindman & Partners)

Respondents:

David Pannick QC

Martin Chamberlain

(Instructed by Treasury Solicitors)

LORD BINGHAM OF CORNHILL

My Lords,

1

In these proceedings the appellant, Animal Defenders International, seeks a declaration under section 4 of the Human Rights Act 1998 that section 321(2) of the Communications Act 2003 is incompatible with article 10 of the European Convention on Human Rights as given effect in this country by the 1998 Act. The section is said to be incompatible as imposing an unjustified restraint on the right to freedom of political expression. The Queen's Bench Divisional Court (Auld LJ and Ouseley J) refused to make a declaration of incompatibility ( [2006] EWHC 3069 (Admin), [2007] EMLR 158) but granted a leapfrog certificate under section 12(1) of the Administration of Justice Act 1969 and the House granted the appellant leave to appeal.

2

The appellant is a non-profit company whose aims include the suppression, by lawful means, of all forms of cruelty to animals, the alleviation of suffering and the conservation and protection of animals and their environment. It campaigns against the use of animals in commerce, science and leisure, seeking to achieve changes in law and public policy and to influence public and parliamentary opinion towards that end. Because of its campaigning objectives it is not eligible for registration as a charity.

3

In 2005 the appellant launched a campaign entitled "My Mate's a Primate" with the object of directing public attention towards the use of primates by humans and the threat presented by such use to the survival of primates. The campaign was to include newspaper advertising, direct mailshots, and also an advertisement on television.

4

The appellant's advertising agents prepared an advertisement which they submitted to the Broadcast Advertising Clearance Centre ("BACC"), an informal body funded by commercial broadcasters to monitor proposed advertisements for compliance with the governing law and current codes of practice. On 5 April 2005 BACC declined to clear the advert on the ground that its transmission would breach the prohibition on political advertising in section 321(2) of the 2003 Act, the appellant being a body with mainly political objects as defined by the Act. This decision was confirmed by BACC on 6 May 2005. No objection has ever been raised to the content of the advertisement, which was entirely inoffensive but consistent with the aims of the appellant. The appellant issued its application for judicial review on 4 August 2005. It is accepted that the Secretary of State for Culture, Media and Sport, as the minister with overall responsibility for broadcasting, is the appropriate respondent.

Statutory control of broadcasting

5

Until enactment of the Television Act 1954, radio and television broadcasts in the United Kingdom were transmitted by the British Broadcasting Corporation, a body committed to a high ideal of public service broadcasting. Then, as now, the BBC broadcast no paid advertising. The 1954 Act opened the market to independent broadcasters dependent for their finance on advertising revenue. The Independent Television Authority was established to provide or arrange for the provision of programmes, and it was the duty of the Authority under section 3 to satisfy itself that, so far as possible, the programmes maintained a proper balance in their subject matter and a high general standard of quality, presented the news (in whatever form) with due accuracy and impartiality, preserved due impartiality on the part of the persons providing the programmes as respects matters of political or industrial controversy or relating to current public policy and, lastly, included no matter designed to serve the interests of any political party; but this last provision was subject to the qualification that it should not prevent the inclusion in programmes of relays of the whole (but not some only) of a series of BBC party political broadcasts, or the including in programmes of properly balanced discussions or debates where the persons taking part expressed opinions and put forward arguments of a political character. The Authority was obliged by section 4 to secure that the rules in the Second Schedule to the Act were complied with in relation to any advertisements, and one of these rules was that

"No advertisement shall be permitted which is inserted by or on behalf of any body the objects whereof are wholly or mainly of a religious or political nature, and no advertisement shall be permitted which is directed towards any religious or political end or has any relation to any industrial dispute."

6

It is unnecessary to refer to the series of statutes pertaining to wireless telegraphy and broadcasting enacted over the succeeding half century, save to observe that the principles summarised above were consistently preserved and given effect: see R v Radio Authority, Ex p Bull [1996] QB 169, [1998] QB 294. The 2003 Act is a very comprehensive measure, running to over 400 sections and 19 schedules. Chapter 4 of Part 3 contains regulatory provisions and sections 319-328 are directed to programme and fairness standards for television and radio. By section 319 the Office of Communications ("OFCOM"), a supervisory body established by section 1 of the Act, is required to set standards to achieve a number of objectives, among them that news is reported with due impartiality and accuracy and, in subsection (2)(g), that advertising which contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services. Section 320 requires that programmes should, within a given programme or over a number of programmes taken as a whole or a series, preserve due impartiality in relation to matters of political or industrial controversy and matters relating to current public policy. Section 321(2) is central to this appeal. It provides:

"(2) 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."

Thus an advertisement may fall foul of the prohibition in section 319(2)(g) either because of the character of the advertiser or because of the content and character of the advertisement. Section 321 continues in (3):

"(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."

An exception is provided in subsection (7) for advertisements of a public service nature inserted by government departments and party political or referendum campaign broadcasts covered by later provisions of the Act.

7

In enacting the 2003 Act, Parliament paid close attention to the important decision of the European Court of Human Rights in VgT Verein gegen Tierfabriken v Switzerland (2001) 34 EHRR 159, a decision given on 28 June 2001, to which it is now necessary to turn.

VgT

8

In VgT the court found a violation of article 10 of the European Convention, which so far as material to this case provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the … rights of others …"

9

The facts in VgT were very similar to those in the present case. The applicant was an association dedicated to the protection of animals, with particular emphasis on animal experiments and industrial animal production. In reaction to television commercials broadcast by the meat industry it prepared a TV advertisement contrasting the behaviour of pigs in their natural environment with their treatment in the course of industrial production. The theme of the advert was "eat less meat, for the sake of your health, the animals, and the environment" and the content of the advert was not...

To continue reading

Request your trial
69 cases
  • Salman Butt v Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 26 July 2017
    ...Government's evident view is of particular weight; R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312 is an example, and binding, upheld (just) by the ECtHR (2013) 57 EHRR 21. The guidance pursued the legitimate aims of prot......
  • Maurice Arnold Tomlinson v Television Jamaica Ltd and Others
    • Jamaica
    • Supreme Court
    • 15 November 2013
    ...the right to use another's property to propagate one's views. England and Wales 246 In the case of R (On the application of Animal Defenders International) v Secretary of State for Culture [2008] 1 AC 1312, the applicant sought to say that the refusal to accept their advertisement for broa......
  • R (WJ) (China) v Secretary of State for the Home department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 19 April 2010
    ...although cf Lord Scott and Baroness Hale in R(Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15. 47 The Secretary of State was entitled to take account of the claimant's appalling immigration history and the fact that effectively what the claim......
  • Cameron Mathieson, a deceased child (by his father Craig Mathieson) v Secretary of State for Work and Pensions
    • United Kingdom
    • Supreme Court
    • 8 July 2015
    ...in the saving of administrative costs. The courts accept this argument – but only within reason. In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312, Lord Bingham accepted at para 33 that hard cases which fell on the wro......
  • Request a trial to view additional results
1 firm's commentaries
  • Government confirms British Bill of Rights proposals will not involve leaving the ECHR
    • United Kingdom
    • LexBlog United Kingdom
    • 19 May 2016
    ...in a way that is not consistent with Parliament’s intention. In R (Animal Defenders) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312, Lord Bingham recognised that the HRA gave domestic effect to the ECHR rights and requires the courts to take into account any Strasbourg d......
8 books & journal articles
  • Horizontal Effect and the Constitutional Constraint
    • United Kingdom
    • The Modern Law Review Nbr. 74-6, November 2011
    • 1 November 2011
    ...of State for the Home Department [2005] UKHL 31; [2005] 2AC 296 at [25] (emphasisadded).113 See note 35 above.114 Animal Defenders [2008] UKHL 15 at [53] (emphasis added).Horizontal Effect© 2011 TheAuthors. The Modern Law Review © 2011The Modern Law Review Limited.898 (2011) 74(6) MLR gener......
  • Judicial Responses to Bright Line Rules in Social Security: In Search of Principle
    • United Kingdom
    • The Modern Law Review Nbr. 72-3, May 2009
    • 1 May 2009
    ...9 ].177 Evans vAmicusHealthcareLtd [2004] EWCACiv 727;[2004] 2 FLR 766 at [66] (Thorpe and SedleyLJJ).178 n 174 a b o ve a t [ 8 6] .179 [2008] UKHL15; [2008] 2 WLR781.Emma Laurie405r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.(2009) 72(3) ing’ on radio and telev......
  • How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist's Assessment
    • United Kingdom
    • The Modern Law Review Nbr. 74-2, March 2011
    • 1 March 2011
    ...2003, subsequentlyheld compatiblewith the Convention rights in R (Animal DefendersInternational)vSecretaryof StateforCulture,MediaandSport[2008] UKHL 15.70 Hiebert, n 68 above; F. Klug and H.Wildbore,‘Breaking New Ground: the Joint Committee onHuman Rights and the Roleof Parliament in Human......
  • Regulating Political Donations by Companies: Challenges and Misconceptions
    • United Kingdom
    • The Modern Law Review Nbr. 75-6, November 2012
    • 1 November 2012
    ...United vFederal Election Commission (2010) 130 S.Ct. 876. For discussion of thejudgement, see Bebchuck and Jackson,n 39 above.123 [2008] UKHL 15; [2008] 1 AC 1312.124 ibid at [28].125 ibid at [48].126 See n 120 above.127 See K. Ewing, Money, Politics and Law: A Study of Electoral Finance Re......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT