(III) RESTRICTIONS ON RELIGIOUS OWNERSHIP |
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.
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.
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".
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.
The Evangelical Alliance accepted the rationale for this restriction.
The main focus of criticism was the continuing prohibition on
religious ownership of national digital radio licences.
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.
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.
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.
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.
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.
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".
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 Ownership. Back
Clause 264 (2), (3) and (5); Media Ownership Rules, paras
6.1.6-6.1.8; Policy, para 9.3.3. Back
Ev 262, section 2; Q 758; contributions to online forum from JP
and M Wilson. Back
Q 995, Policy, paras 9.3.3, 18.104.22.168. Back
Memorandum submitted by Evangelical Alliance; See also Q748. Back
Ev 262; Memorandum submitted by Evangelical Alliance. Back
Q 749. Back
Memorandum submitted by Evangelical Alliance; Q 743. Back
Q 74; JCHR, para 18. Back
Q 750; Ev 261; JCHR, para 18. Back
Q 762; Ev 287-288. Back
Q 997. Back