Joint Committee on Draft Communications Bill Report


230. Paragraph 2(1) of Part 2 of Schedule 2 to the Broadcasting Act 1990 imposes a general disqualification on religious bodies and officers of religious bodies from holding broadcast licences. Sub-paragraph (2), however, allows the ITC to license certain television services (other than public service television services) owned by religious bodies and the Radio Authority to license analogue local radio services owned by religious bodies, if they consider it appropriate. Sub-paragraph (3) requires the ITC and the Authority to issue guidance on the principles they will apply in determining whether it is appropriate to issue a licence in accordance with sub-paragraph (2). The current guidance by the Radio Authority indicates that it will have regard to a body's capacity to adhere to the Authority's programme, advertising and sponsorship codes, the compatibility of the body's aims or practices with those codes and the accessibility of the body's rites and observances to the general public.[431]

231. The Government proposes to enable OFCOM, having regard to guidance which OFCOM itself will prepare, to issue licences for religious bodies to operate digital television programme services and certain other services, including local digital radio services. The prohibitions would remain for public service television licences, analogue and digital national radio licences and ownership of digital multiplexes. The Secretary of State would be able to repeal or amend these restrictions by means of secondary legislation subject to affirmative resolution.[432]

232. The Christian organisations from which we heard evidence raised three main concerns about the state of the law as it would stand if the Government's proposals were agreed to - the nature and operation of regulatory discretion in granting licences where religious ownership is permitted, the types of licence for which discretionary grant would remain impossible, and the general desirability and compatibility with Convention rights of the continuing restrictions.

233. The first argument of the Centre for Justice and Liberty and the Evangelical Alliance was that the Radio Authority had interpreted the meaning of "appropriate" in granting licences in the permitted categories more narrowly than Parliament intended. They contended that the rules as operated were discriminatory in two ways: first, the operation of the rules implied an assumption that religious owners were susceptible to breaches of codes with statutory force when other applicants were not subject to the same assumption; second, the rules extended to individuals on grounds of their faith as well as to religious bodies. It was suggested to us that the effect of the appropriateness provision as currently interpreted was to place a gospel music service at a disadvantage compared with stations providing other types of music. As Gareth Littler of the Centre for Justice and Liberty put it: "we are happy to be regulated, but we are not happy to be banned or disqualified or treated as disqualified persons".[433]

234. The second area of concern related to the services for which a religious body or the officer of such a body will remain unable to gain a licence even at the discretion of OFCOM. Where spectrum is scarce and the number of services limited, it is held by the Government to be unacceptable to allow the service to be acquired by a religious body that happens to be the highest bidder. This argument applies most clearly in the case of the single speech-based national analogue radio licence.[434] The Evangelical Alliance accepted the rationale for this restriction.[435] The main focus of criticism was the continuing prohibition on religious ownership of national digital radio licences.[436] With twenty digital radio services already authorised and more to follow, the Centre for Justice and Liberty questioned the applicability of the spectrum scarcity argument to national digital radio.[437] Richard Allan MP and Chris Harris, writing in our online forum, also queried the validity of restrictions in areas where spectrum scarcity was no longer clear cut. The Evangelical Alliance considered that a service providing religious music could certainly be justified on national digital radio.[438]

235. The final concern related to the desirability and compatibility with Convention rights of the general prohibition as applied both to religious bodies and to individuals. An application for consideration by the European Court of Human Rights of the general disqualification was held to be inadmissible in 2000, and the disqualification considered to be justified. This led the Radio Authority to view the existing and proposed prohibition on national radio licences as legally sound.[439] The Centre for Justice and Liberty thought that the decision on admissibility was based on incomplete information and that the legality would be open to further challenge; these arguments find at least some support in the recent Report of the Joint Committee on Human Rights.[440]

236. The central contention of the religious organisations from whom we heard is that broadcasting by religious individuals and organisations should be regulated through the normal licensing regime rather than a general prohibition and a discretionary relaxation determined by the regulator. A participant in our online forum, Robert Beveridge, made the suggestion that additional licensing requirements might be applied to religious organisations. We put this suggestion to the Centre for Justice and Liberty, who responded positively to the idea.[441]

237. A difficult balance needs to be struck in determining the limits to be placed on religious ownership of broadcast licences. Tessa Jowell told us that the Government's policy was "shaped first and foremost by spectrum scarcity".[442] Where licence allocation among eligible persons in an environment of spectrum scarcity is determined principally by payment, we consider that real difficulties might arise if any religious organisation meeting certain criteria could apply. The determining role of spectrum scarcity is, however, much less clear when applied to national digital radio licences compared with national analogue radio licences or national digital multiplexes. The case for retention of the general prohibition on religious ownership of national digital radio licences, and for the compatibility of that prohibition with Convention rights, has not been established by the Government to our satisfaction. We recommend that the Government give these matters further consideration before presentation of the final Bill.

238. With regard to the discretion for the regulator to grant licences to certain religious bodies and officers of religious bodies, there may be ways in which the operation can be improved through new legislation. We recommend that the Government consider the case for permitting OFCOM, in consultation with religious organisations, to impose licence conditions on religious owners of a kind not applying to other licences, as an additional assurance against breach of licence conditions. We further recommend that the Government include on the face of the Bill criteria against which decisions by OFCOM about the appropriateness of religious ownership would be judged. One advantage of this proposal is that it would allow Parliament an opportunity to debate more fully the circumstances in which religious ownership of certain television and radio licences is appropriate.

431   Radio Authority Guidelines for Religious OwnershipBack

432   Clause 264 (2), (3) and (5); Media Ownership Rules, paras 6.1.6-6.1.8; Policy, para 9.3.3. Back

433   Ev 262, section 2; Q 758; contributions to online forum from JP and M Wilson. Back

434   Q 995, Policy, paras 9.3.3, Back

435   Memorandum submitted by Evangelical Alliance; See also Q748. Back

436   Ev 262; Memorandum submitted by Evangelical Alliance. Back

437   Q 749. Back

438   Memorandum submitted by Evangelical Alliance; Q 743. Back

439   Q 74; JCHR, para 18. Back

440   Q 750; Ev 261; JCHR, para 18. Back

441   Q 762; Ev 287-288. Back

442   Q 997. Back

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