The Joint Committee on Human Rights has agreed to the following Report:
DRAFT COMMUNICATIONS BILL
The Background to and Structure of the Draft Bill
- The Draft Communications Bill was published in May 2002, accompanied by explanatory notes, a full explanation of the Government's policy objectives, and a draft regulatory impact assessment. Other relevant documents are, or shortly will be, available on the Internet. The draft Bill was preceded by a period of consultation following the publication of the White Paper in 2000. The draft Bill takes account of the fruits of the consultation.
- The central plank in the Government's plans is to introduce a single regulator for the electronic communications sector, covering all forms of broadcasting and telecommunications (including access to the Internet). The object is to permit a coherent, holistic, strategic, and flexible approach to be adopted to the regulation of the entire sector, in which the shapes of the technologies and of the markets are rapidly shifting, and the divisions between different media of communication are quickly breaking down. The Office of Communications Act 2001, passed earlier in this session of Parliament, paved the way for this by authorising the establishment of the single regulator, to be known as OFCOM, but did not attempt to set out the functions and powers of OFCOM. The draft Communications Bill represents the Government's proposals for giving substance to the role of OFCOM.
- In outline, the Bill proposes that OFCOM should take over the regulatory functions currently exercised by
- OFTEL in relation to the telecommunications industry,
- the Independent Television Commission in respect of allocation of licences, and issuing of guidance on programme standards and content, for independent television broadcasters on Channel 3 and Channel 5,
- the Radio Authority in respect of allocation of licences, and issuing of guidance on programme standards and content, to independent radio broadcasters,
- the Broadcasting Standards Commission in respect monitoring standards of, and dealing with complaints about, broadcast programmes, and
- the Secretary of State in respect of licensing of wireless telegraphy.
Like the regulatory bodies from which it would inherit its functions, OFCOM would be a public authority for the purposes of section 6 of the Human Rights Act 1998, and so would be required to act compatibly with Convention rights under that Act (unless compelled by primary legislation, which could not be interpreted compatibly with the Convention rights, to do otherwise).
- The draft Bill does not merely propose transferring existing powers to a newly unified regulator. Significant changes are proposed in the substance of a number of powers and responsibilities. A number of further elements in the Government's plans remain under consideration, and will be published later. The draft Bill as a whole is the subject of detailed consideration by the ad hoc Joint Select Committee on the Draft Communications Bill, which is expected to publish its Report on 31 July 2002. We have limited our consideration to the draft Bill to its human rights implications of the draft Bill. Baroness Whitaker, having declared an interest as Deputy Chairman of the Independent Television Commission, took no part in the deliberations leading to the adoption of this Report.
- The main human rights implications seem to us to relate to the following matters
- Electronic communications: the powers of OFCOM to impose penalties on telecommunication service providers may give rise to ECHR Article 6 issues (paragraphs 6-12);
- Electronic communications: the power of OFCOM to set conditions for electronic communication suppliers to comply with (paragraph 13);
- Electronic communications: the power of OFCOM to require services to be made available over electronic communications networks (the 'must-carry' provisions) engage the right of the owners of the networks and providers of services to the enjoyment of their possessions under ECHR Protocol No. 1, Article 1, and freedom of expression under ECHR Article 10 (paragraphs 14-16);
- Electronic communications: powers for OFCOM to require people to provide information to it may engage the right to a fair hearing under ECHR Article 6 and the right to respect for private life under ECHR Article 8 (paragraphs 17-22);
- Wireless telegraphy: special powers for the Secretary of State to intervene on public safety, public health or national security grounds raise issues relating to the right to enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (paragraph 23);
- Wireless telegraphy: in performing its 'spectrum allocation' functions, OFCOM may require people to provide information on pain of a penalty. This may engage the right to a fair hearing under ECHR Article 6 and the right to respect for private life under ECHR Article 8 (paragraph 24);
- Wireless telegraphy: provisions relating to the seizure and forfeiture of apparatus engage the right to a fair hearing under ECHR Article 6 and the right to the enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (paragraphs 25-29);
- Regulation of independent television: powers for OFCOM to require providers to broadcast corrections or apologies, to impose penalties, and to revoke licences of service providers engage the rights of providers under ECHR Articles 6 and 10, and Article 1 of Protocol No. 1 (paragraphs 30-33);
- Regulatory provisions: the requirements in relation to holders of broadcasting licences with a public service remit, the enforcement powers of OFCOM, and the power of the Secretary of State to require OFCOM to direct licence holders to broadcast announcements, engage the right to freedom of expression under ECHR Article 10 and the right to enjoyment of property under Article 1 of Protocol No. 1 to the ECHR (paragraphs 34-43);
- Regulatory provisions: the disqualification of particular groups from holding licences, and the retention of the prohibition on political advertising, engage ECHR Articles 9 and 10 (paragraphs 44-56);
- Regulatory provisions: the powers of OFCOM in relation to changes of control of licensees providing Channel 3 services may engage the right to the enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (paragraph 57);
- Licensing of receivers: the powers of entry to premises under warrant, etc., engage the right to respect for private and family life and the home under ECHR Article 8 (paragraph 58).
The Electronic Communications Issues
Powers to impose penalties on electronic communication service providers
- The proposed approach is not to require providers of electronic communication networks, services or designated associated facilities to be licensed. However, they would be required under clause 23 to give advance notice to OFCOM before starting to provide them or make them available. OFCOM would then maintain a register of providers (clause 25). If a person provided a network, service or facility without having given notice in contravention of clause 23, OFCOM would be able to notify the person, allowing him to make representations (clause 26). If satisfied that the person is or has been in contravention of clause 23, OFCOM would be able to give an enforcement notification requiring the person to provide the necessary information.
- Clause 28 would allow OFCOM to impose a penalty of up to £10,000 for contravention of clause 23. The money would be payable to OFCOM. There would be no hearing before an independent and impartial tribunal before the penalty was imposed. Under clause 28(1), (6) and (7), before imposing a penalty OFCOM would have to have given a notification to the service provider under clause 26 giving an opportunity to the provider to make representations, the time for making representations would have to have expired, and OFCOM would have had to take account of any representations received. It would be open to the provider to appeal to the Competition Appeal Tribunal against the imposition of the penalty. That being so, the procedural arrangements, taken as a whole, seem to us to satisfy the requirements of the duty of act fairly at common law and, so far as they apply, those of due process under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter 'ECHR').
- Under clause 29, OFCOM would be empowered to fix administrative charges to providers. Clause 32 would allow OFCOM to impose a penalty for non-payment of administrative charges, the penalty being up to twice the annual charge. Under clauses 33 and 34, OFCOM would be allowed to suspend or restrict the entitlement of a service or network provider to continue to provide networks or services, if satisfied that the provider had seriously and repeatedly failed to pay the charges. Clause 29(6) would require OFCOM to give the provider an opportunity to make representations and to propose steps to remedy the situation, but only after the order suspending or restricting the network or service provision had been made and, probably, had come into force. In the meantime, it would be an offence to provide the networks or services while suspended, or in breach of a restriction imposed by OFCOM (clause 34(1)), and OFCOM could impose severe penalties (under clauses 34(6) and 74-78) for contravening any conditions imposed by a direction made under clause 33.
- We are concerned about the absence of procedural safeguards for the rights of network and service providers before a suspension or restriction is imposed for failure to pay administrative charges. The power to impose penalties under clauses 74-78 is draconian, and the draft Bill does not indicate the scale of the penalties which could be imposed. The effect could be to put the provider out of business, at least temporarily, and an direction under clause 33 could also have a crippling effect on the provider's customers, many of whom might rely on the network or service for business purposes. At common law, the duty to act fairly would normally require a public authority to give a reasonable opportunity to make representations, and to consider any representations properly, before suspending a person or imposing conditions on the way in which he or she could carry on business. The express provision in clause 33(6) for OFCOM to allow people to make representations after the event might well be interpreted as impliedly excluding any common law duty to invite representations beforehand. The common law principles are reinforced by the duty to provide a fair hearing before an independent and impartial tribunal in the determination of civil rights and obligations and criminal charges, under Article 6(1) of the ECHR.
- There could be circumstances of exceptional urgency in which it might be appropriate to relax the stringency of these requirements, but clause 33 does not make any mention of a need to show that there are such exceptional circumstances. In view of the severity of the consequences of OFCOM's intervention for the provider and his or her customers, we doubt whether an appeal to the Competition Appeal Tribunal, which would lie under clause 140, would adequately protect the vital rights and interests of the provider and third parties so as to rectify the absence of fairness at the initial decision-making stage. In our view, save in cases of exceptional urgency the provider should be given a statutory right to make representations before OFCOM takes the dramatic step of imposing conditions on, or suspending, the provider's freedom to provide the network or service.
- These provisions would also engage rights under Article 1 of Protocol No. 1 to the ECHR, which provides
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
In an earlier Report, the Committee noted that the requirement for any interference to be in the public interest and subject to the conditions provided for by law and by the general principles of international law
... requires that there be 'a reasonable relationship of proportionality between the means sought to be employed and the aim sought to be achieved', demanding that a proper balance be struck between the public interest and the rights of the property owner....One aspect of the balance between individual rights and public interests is the observance of safeguards to ensure that any interference with a right is properly justified. Ideally, there would be a judicial hearing at which the [public authority] would have to satisfy the tribunal that the interference with property rights would be justified, and the owner of property would have an opportunity to challenge the argument and the evidence advanced to support it.
- While a serious threat to a legitimate public interest may possibly justify lesser safeguards in cases of real urgency, the draft Bill contemplates the suspension or restriction of service or network provision as the standard (rather than exceptional) way of dealing with serious delay in paying administrative charges. A direction under clause 33 would not only interfere with the rights of the provider, but would also be likely to interfere with the right of users of the network or service to receive and impart information and ideas under ECHR Article 10. It would not normally be appropriate to allow such a direction to be given without prior representations; nor would it strike a fair balance between the rights of the provider and the public interest (which includes the interests of users of the service or network in question), particularly as there would be no independent prior evaluation of the case for imposing a restriction or preventing a provider from operating.
- However, in this case we think that the giving of directions without seeking prior representations is likely to be justifiable, for the following reasons
- the Government is likely to be able to establish a public interest in maintaining a register of providers,
- previous proceedings to recover the charges, and the imposition of penalties under clause 32, will have failed to persuade the provider to pay the charges,
- the ex post facto appeal to the Competition Appeal Tribunal would be likely to offer an independent review of the decision,
- both OFCOM and the Tribunal would be public authorities within the meaning of section 6 of the Human Rights Act 1998, and so would act unlawfully insofar as their decisions or actions were incompatible with a Convention right, and
- a further appeal on points of law would lie to the Court of Appeal or, in Scotland, the Court of Session.
In the light of these considerations, we think it likely that the provisions in clause 33 of the draft Bill would be held to be compatible with Article 6 of, and Article 1 of Protocol No. 1 to, the ECHR.
- Clause 35 would permit OFCOM to set conditions which would bind the provider. The conditions would make it possible for OFCOM to exercise a significant regulatory function in respect of registered providers, by way of conditions, Codes of Practice, or orders (clauses 38-42). This could engage the right to enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR. In our view, the purposes for which conditions could be imposed under those clauses are legitimate public interest and general interest purposes, for which it would be permissible to interfere with rights under Article 1 if other requirements of the Article were met. Whether any interference with that right is justifiable would therefore depend on the nature and impact of any conditions which were imposed. As OFCOM is a public authority for the purposes of section 6 of the Human Rights Act 1998, such conditions would be lawful only if they were compatible with Convention rights, including the principle of proportionality. That being so, there seems to us to be no significant risk of incompatibility.
The 'must-carry' provisions
- The 'must-carry provisions' in clause 49, by forcing the owners of the networks and providers of services to carry material not of their choosing, engage their right to the enjoyment of their possessions under ECHR Protocol No. 1, Article 1 (since they affect the use to be made of the owners' property), and their right to freedom of expression under ECHR Article 10 (since those rights are affected when one requires someone to promulgate messages which are not their own).
- With regard to Article 1 rights, the requirement to carry particular services would advance a legitimate aim in the general interest, namely the enhancement of public access to public service broadcasts. It would be likely to be impose relatively little cost on the service provider, and would substantially enhance the ability of the public to enjoy their right (under ECHR Article 10) to receive information and ideas regardless of frontiers. If the 'must-carry' requirement were to become particularly burdensome, so that its imposition in respect of a particular provider ceased to represent a fair balance between the rights of the provider and the general interest, it would be possible to appeal to the Competition Appeal Tribunal under clause 140, with a further appeal to the Court of Appeal or Court of Session on a point of law. On those appeals, the Tribunal and the court, as public authorities under section 6 of the Human Rights Act 1998, would be bound to give effect to all Convention rights, and so would have a duty to avoid any potential violation of Article 1. We therefore consider that interferences with rights under Article 1 would be likely to be held to be justified, and there would be an effective remedy in the event of the interference becoming excessively burdensome..
- In the same way, we consider that the requirement would be compatible with the right to freedom of expression, being justified under Article 10(2). Clause 49 is sufficiently clear to meet the 'prescribed by law' test under Article 10(2). Enhancing access to public service broadcasts would be a legitimate aim under that paragraph, protecting the right of members of the public to receive information and ideas, which also helps to maintain a democratic society. It seems to us that it would be reasonable to decide that there is a need to maximise the range of media through which people can access public service information and ideas. If Parliament were to take that view, the 'must-carry' requirement would be a proportionate response to the need, as long as it does not impose an excessive burden on network providers.
- Furthermore, the must-carry provisions would have to be given effect in a non-discriminatory way. As they fall within the ambit of the rights under ECHR Article 10 and Article 1 of Protocol No. 1 (although, for the reasons given in the preceding paragraphs, we consider that any interference with those rights is likely to be justifiable), they would have to be implemented ways which would ensure that there would be no violation of Article 14:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
That would provide additional safeguards for people affected by the must-carry provisions.
Powers for OFCOM to require people to provide information
- The draft Bill would give power to OFCOM to require people to provide specified information under clause 94 for the purpose of helping OFCOM to assist a party (other than an operator of an electronic communications network or service) to any proceedings in which there falls to be determined a question arising under or in connection with the electronic communications code (under Sch. 2 to the Telecommunications Act 1984, as it would be amended by clause 82 of and Schedule 3 to the draft Bill), or any restriction or condition to which the Code applies (see clause 93(2)). The clear intention is that any information would be used for the purposes of those proceedings. There is nothing in the clause to prevent OFCOM from requiring another party to the proceedings to reveal information which might prejudice that party's case. There are some protections. Clause 94(3) gives adequate protection for the privilege against self-incrimination and for items subject to legal professional privilege. Nevertheless, clause 93 would be capable of engaging (a) the right to a fair hearing under ECHR Article 6, and (b) and the right to respect for private life under ECHR Article 8. These rights are considered in the next five paragraphs.
- The right to a fair hearing under Article 6(1) is treated by the European Court of Human Rights as including a principle of 'equality of arms': the parties to litigation in the determination of a criminal charge or a civil right or obligation must not be put in a position where one has significant advantages in terms of the ability to put his or her case compared to the other. If a public authority such as OFCOM can intervene to support one party to litigation, and make available to that party information obtained by the use of coercive powers which are not available to the other party, there is a real risk of violating the principle of equality of arms. In our view, the Bill should contain provisions to ensure that, in a case in which OFCOM exercised its powers under clause 93 and allowed one party to benefit from the exercise of the powers, similar powers would be made available to other parties in order to preserve the principle of equality of arms. We hope that an appropriate provision will be inserted before the Bill is presented to Parliament.
- The right to respect for private life under ECHR Article 8(1) protects both personal and business information and communications. In order to justify an interference with the right by a public authority, the interference must (under Article 8(2)) be shown to be (a) in accordance with the law, (b) serving one of the legitimate aims enumerated in Article 8(2), and (c) necessary in a democratic society for that purpose. As interpreted by the Court, 'in accordance with the law' imports requirements of legal certainty and legal accessibility; 'necessary in a democratic society' means that the public authority must show by appropriate evidence that (i) there is a pressing social need for action, and (ii) the interference with the right is proportionate to the benefit to be gained from the outcome sought.
- Clause 94 would probably satisfy the 'in accordance with the law' requirement, although allowing OFCOM require information 'by a notification given in such manner as they consider appropriate' (clause 94(1)) would appear to permit notification to be given by way of (for example) a general call for information in a newspaper advertisement rather than by bringing the requirement directly to the notice of the person concerned. We consider that legal certainty requires that the notification should be addressed specifically to the person from whom information is sought. Clause 94(1) should be amended accordingly.
- Furthermore, clause 94 does not specify the legitimate aim which a requirement for information would serve. Nor does it delimit the circumstances in which the power could be used in such a way as to allow the Committee to be satisfied that any use of the power would be 'necessary in a democratic society'. We have serious doubts as to the ability of clause 94 to ensure that the power to require information would be used in a proportionate way and in response to a pressing social need. It is noteworthy that the clause does not require OFCOM to have reasonable grounds to believe that any violation of a relevant provision of a Code has taken place before requiring someone to provide information, or that the information is necessary for the purpose in contemplation, or that other means of getting the information have been tried and failed, or would be inevitably unlikely to succeed. The clause does not even expressly direct the attention of OFCOM to these matters as factors to be taken into consideration.
- In our view, there is a serious risk that this clause would facilitate violations of Article 8. The Government may be taking the view that OFCOM, as a public authority, would be acting unlawfully (by virtue of section 6 of the Human Rights Act 1998) if it required someone to provide information under clause 94 in circumstances which did not satisfy the requirements of ECHR Article 8. However, this would be of little assistance to a person subject to the requirement. He or she would be able to ascertain the legality of the requirement to provide information only by taking legal action to force OFCOM to reveal its reasons for thinking that the demands of Article 8(2) were met. We reiterate our frequently expressed view that conditions should be included on the face of the Bill to ensure that people would be able to ascertain with reasonable confidence, at an early stage, whether a requirement to provide information was lawful. This would also help to ensure that any requirement would be 'in accordance with the law', in the sense of being based on law which is reasonably certain and accessible to the person affected by it. We suggest that an additional sub-clause along the following lines should be inserted in clause 94 after sub-clause (1)
"( ) However, no notification may be given under subsection (1) unless
(a) OFCOM have reasonable grounds to believe
(i) that a violation of the electronic communications code has taken place,
(ii) that the person to whom the notification is addressed has information which is necessary for the proper investigation of the suspected violation, and
(iii) that the person to whom the notification is addressed would be able to provide the information without a disproportionate expenditure of financial or other resources; and
(i) OFCOM and the party mentioned in clause 93 have tried unsuccessfully, using due diligence, to obtain the information in other ways, or
(ii) OFCOM have reasonable grounds to believe that other means of obtaining the information would fail."
- Broadly similar considerations seem to us to apply in respect of the power in clause 98 to require information for the enforcement of obligations of electronic communications service providers. What is more, when information is provided pursuant to a requirement made under clause 98, the restrictions on the power (see clause 99) do not even provide protection against violations of the privilege against self-incrimination or the right to legal professional privilege, which (as the House of Lords recently held) is a fundamental, substantive right in English legal procedure. In view of the fact that a failure to provide the information could lead to significant penalties under clause 102, or even to the suspension or restriction of a person's entitlement to provide a network or services under clause 103 (which would also engage the right to enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR), we regard this as a serious matter. We have strong doubts about the compatibility of these provisions with Article 6(1) and Article 8 of, and Article 1 of Protocol No. 1 to, the ECHR. In our view, clause 99 should contain protection for the privilege against self-incrimination and material subject to legal professional privilege, and should also include a provision such as that suggested above for insertion into clause 94.
Special powers for the Secretary of State
- The powers in clause 106 to suspend or restrict a service provider's freedom to provide a service on public safety, public health or national security grounds raise issues relating to the right to enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR. The clause does not require that the Secretary of State, before intervening, should have reasonable grounds to believe (or even to suspect) that it is necessary to do so: the test is entirely subjective. This is wholly unsatisfactory, as the Committee pointed out in its Second Report of 2001-02 on the Anti-terrorism, Crime and Security Bill and in its Seventeenth Report of 2001-02 on the Nationality, Immigration and Asylum Bill. As a result, it is impossible to be confident that a fair balance would be struck (as required by Article 1 of Protocol No. 1) between the rights of the providers and the general interest. Although an appeal would be available under clause 140 to the Competition Appeal Tribunal, this would be an ex post facto protection. Furthermore, it is not clear that this tribunal would provide adequate protection after the event. It is uncertain whether a Competition Appeal Tribunal would have sufficient expertise in the fields of national security, public health and public safety to be able to provide an effective appeal. Its adequacy would be particularly limited in relation to national security matters if that Tribunal (unlike the Special Immigration Appeals Tribunal or the Proscribed Organisations Appeal Tribunal) were to feel itself unable to receive and assess the information on which the Secretary of State made his or her judgment. We are concerned that this leaves people without adequate safeguards against arbitrary decisions affecting their Convention rights. The Bill should contain proper controls on the exercise of this power, and they should be included on the face of the legislation in order to guide decision-makers and to make the law sufficiently clear and accessible to allow those subject to any suspension or restriction to assess its lawfulness.
The Wireless Telegraphy Issues
Power to require people to provide information
- In performing its 'spectrum allocation' functions, OFCOM would be allowed, by clause 128, to require people to provide information on pain of a penalty. There is no express provision for protection for the privilege against self-incrimination or for items subject to legal professional privilege. Nor is there express protection for other confidential information. This could engage the right to a fair hearing under ECHR Article 6 if the information disclosed under coercion could be used in criminal proceedings against the person disclosing it. It seems from the provisions that information could be used in that way. In addition, the lack of protection for confidential information engages the right to respect for private life under ECHR Article 8, and raises similar considerations to those discussed in paragraphs 20-25 above. We draw attention to our concerns in relation to the human rights impact of these provisions, and recommend that appropriate safeguards should be put in place.
Forfeiture of wireless telegraphy apparatus
- Clause 137 and Schedule 6 would allow the forfeiture of apparatus seized in pursuance of a warrant granted under the Wireless Telegraphy Act 1949, section 15(1), or in the exercise of a power conferred by the Telecommunications Act 1984, section 79(3). These are concerned with apparatus which is the subject of an order under section 7 of the Wireless Telegraphy Act 1967 restricting its custody or control (see Schedule 6, paragraph 1(2) to the draft Bill). The provisions engage the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR. In addition, the weakness of the due process requirements attendant on such forfeitures may engage the right to a fair hearing before an independent and impartial tribunal in the determination of a person's civil rights, under ECHR Article 6(1).
- Interference with possessions. The requirements of Article 1 of Protocol No. 1 to the ECHR have been noted above, paragraph 10. As the purpose of the forfeiture of restricted apparatus would be to prevent a person from having custody or control of it in breach of a legal restriction, it would be likely to serve a legitimate public or general interest objective within the meaning of the Article. However, a number of factors could well lead to the conclusion that the forfeiture would be disproportionate in certain circumstances, failing to strike a fair balance between the general interest and the rights of people with interests in the apparatus.
- Schedule 6 would allow a person to contest the forfeiture of seized apparatus, but paragraph 5(1)(b) contemplates that the person would have to give notice of a claim within one month of the seizure if no notice of the seizure has been given. The one month time limit, imposed on someone who has not had notice of the seizure, seems draconian, particularly if the person is someone who has a proprietary interest in the apparatus but was not in possession of it at the time of the seizure. The arrangements in such cases would be in danger of failing to provide adequate safeguards for the rights of people with interests in the apparatus, particularly if they are innocent third parties, and could well fail the 'fair balance' or proportionality test.
- Where notice of a claim that the apparatus is not subject to forfeiture is given under paragraphs 4 and 5 of Schedule 6, paragraph 7 provides that OFCOM must (not may) bring proceedings for forfeiture before a court, and that the court shall (not may) condemn the apparatus as forfeited if it finds that the apparatus was liable to forfeiture at the time of the seizure. There is no scope for either OFCOM or the court to consider (i) the proportionality of forfeiture in the light of factors such as the blameworthiness of the claimant, or (ii) the impact of developments after the time of seizure on the justification for forfeiting the apparatus. In short, the regime could well fail the proportionality test in the same way as the penalty and forfeiture regimes did in the Roth case and the Lindsay case.
- Protection for third party interests may be further compromised by the requirement in Schedule 6, paragraph 11(1) that the claimant or his or her solicitor must make his oath that the seized apparatus 'was, or was to the best of his knowledge or belief, the property of the claimant at the time of the seizure.' A court may decide that any interest in the property would make the apparatus, for this purpose, the property of the claimant, but it is not inevitable that the court would reach this conclusion. Again, the weakened protection for third party interests may lead to the regime failing the proportionality test.
- The requirement that the claimant should give security for costs (paragraph 11(2)) may threaten the principle of equality of arms (ECHR Article 6(1)), and would in any case significantly weaken the protection for the rights of the claimant, casting further doubt on the capacity of the regime to satisfy the 'fair balance' test under Article 1 of Protocol No. 1.
- The Government has not so far indicated why it considers that the forfeiture provisions are compatible with Article 6 rights, or what safeguards it intends to introduce to secure compatibility. Nor has it explained why it considers that the provisions would not be likely to violate the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1. We have serious concerns about these matters. In our view, the Government needs to give urgent consideration to them, perhaps including in the Bill safeguards such as those currently being considered by Parliament as part of the Nationality, Immigration and Asylum Bill to take account of the decision in Roth.
- Due process. As noted above, the requirement that the claimant should give security for costs (paragraph 11(2)) may threaten the principle of equality of arms under ECHR Article 6(1). In addition, paragraph 14 of Schedule 6 would establish a statutory presumption that the seizure of the apparatus was lawful. The presumption would be rebuttable, but the claimant would bear the burden of establishing unlawfulness. This seems to us to be unacceptable. Presumptions of regularity or legality are legitimate, within limits, where the act is done by an impartial, judicial authority, and is carried out in public. There is no place for such a presumption in relation to an act which is likely to be carried out by representatives of a body (OFCOM) which, as well as being non-judicial, has a financial interest in the seizure and forfeiture, and where the seizure is likely to have been carried out behind closed doors and in the absence of independent observers or even, perhaps, of the owner of the apparatus. Under these circumstances, where there may have been no witnesses to the seizure, it is, in our view, strongly arguable that imposing a presumption of legality may well prevent the owner from having any chance of challenging the lawfulness of the process, denying him or her the right to a fair hearing under ECHR Article 6(1).
- We draw attention to the risk that these provisions may lead to a violation of the right to a fair hearing under ECHR Article 6(1), and recommend that the procedure be reconsidered and a more Convention-compliant procedure adopted.
Regulation of Independent Television and Access Radio
- The general scheme of the draft Bill is that OFCOM would take over the supervisory and regulatory functions of the Independent Television Commission and the Radio Authority, and the Broadcasting Standards Commission under the Broadcasting Acts 1990 and 1996. The BBC would continue to be self-regulatory, and OFCOM would have a relatively limited range of responsibilities in relation to the Welsh Authority, which would continue to regulate S4C. OFCOM would be responsible for allocating Channel 3 licences, would issue guidance on programme content, would report on compliance by broadcasters with the obligations of their public service remit, and would adjudicate on complaints about unfair treatment and invasion of privacy (but not standards: see clause 219(2)). OFCOM would have enforcement powers. However, the general scheme is one of self-regulation by the industry, in accordance with guidance issued by OFCOM, which would monitor performance. Only if a broadcaster consistently failed to comply with obligations would OFCOM take on a detailed regulatory function in respect of that broadcaster.
- As well as the right to peaceful enjoyment of possessions (including broadcasting licences) under Article 1 of Protocol No. 1 to the ECHR, broadcasters are exercising the right to freedom of expression under Article 10 of the ECHR and Article 19 of the ICCPR. ECHR Article 10 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 authorities 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
ICCPR Article 19 provides
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided for by law and are necessary:
(a) For respect of the rights and reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
- For present purposes, the following features of those provisions and their interpretation are significant.
- Broadcasting makes an important contribution both to the freedom of broadcasters to impart information and ideas, and to the right of other people in society to receive (and, under the ICCPR, to seek) information and ideas, without regard to frontiers.
- Both the ICCPR and the ECHR recognise that the right to freedom of expression carries with it duties and responsibilities, and may therefore be restricted, as long as the restrictions satisfy certain specified requirements.
- As one aspect of this, the ECHR expressly (in the last sentence of Article 10(1)) and the ICCPR impliedly (as interpreted by the Human Rights Committee) accepts that licensing of broadcasting enterprises is permissible, although both the European Court of Human Rights and the Human Rights Committee have made it clear that this does not give an unfettered freedom to the State. This means that, although any licensing regime is capable of engaging the right to freedom of expression, we can start with a presumption that a licensing and regulation regime will not be intrinsically likely, as such, to violate the right.
- Because any licensing system interferes with freedom of expression, it must be justifiable by reference to the criteria in ECHR Article 10(2): it must be prescribed by law, and necessary in a democratic society for one of the legitimate aims enumerated there. As freedom of expression is a particularly important right, the European Court of Human Rights exercises strict supervision over licensing requirements, and requires states to establish the necessity for any restriction convincingly, by reference to appropriate supporting evidence. In considering applications for licences, the state must not act arbitrarily or in a discriminatory way.
- When one turns from the licensing of broadcasters to the regulation of the content of programmes, one finds that the power of the State to interfere with the freedom of broadcasters is very much more limited, and that any interference must be shown to be strictly justified under the terms of ECHR Article 10(2) and ICCPR Article 19(3). This would, for example, permit controls to ensure fairness and respect for privacy (protection of the rights of others) and to prevent incitement to crime, so long as the controls were prescribed by law, directed to a pressing social need, and demonstrably proportionate to the aim sought to be achieved. On the other hand, the enforcement of any code on the portrayal of sexual conduct would need to ensure that regulation was justified by reference to one of the permitted purposes, while regulation of taste and decency might face problems in establishing a pressing social need.
- In particular, the Court and the Human Rights Committee have given a very high value to freedom to communicate information and ideas on matters of political significance. This flows from the fact that any interference must be shown to be 'necessary in a democratic society' for one of the prescribed legitimate purposes. The Court and the Committee regard freedom of political communication as essential to a democratic society, and an activity to which journalists and broadcasters make an essential contribution.
- In the light of these principles, there seem to be a number of points at which the proposals in the draft Bill (several of which merely maintain the position under the 1990 and 1996 Acts, which were of course passed before the Human Rights Act 1998 came into force and this Committee came into existence) engage Convention rights.
1 Cm. 5508-I (London: The Stationery Office, 2002) Back
2 The draft Communications Bill-The Policy, Cm. 5508-II (London: The Stationery Office, 2002) Back
3 Cm. 5508-III (London: The Stationery Office, 2002) Back
4 London: The Stationery Office, 2002 Back
5 See Cm. 5508-II, Annex A, pp. 66-67 Back
6 Department of Trade and Industry and Department of Culture, Media and Sport, A New Future for Communications (London: TSO, 2000) Back
7 Clause 2 of and Sch. 1 to the draft Bill Back
8 In particular, see Cm. 5508-III, p. 39, para. 7.4.5 in relation to whether Ministers should have powers to direct OFCOM as to the specifics of radio spectrum management tools. The draft Bill also as yet contains nothing on cross-media ownership and a number of other important matters Back
9 See Cm. 5508-III, p. 33, para. 6.3.1 Back
10 Article 6(1) of the ECHR provides-"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." Back
11 Allan Jacobsson v. Sweden (No. 1), Eur. Ct. HR, Judgment of 25 October 1989, Series A, No. 163, at §§ 51, 55 Back
12 Tenth Report, Session 2001-02, Animal Health Bill, HL Paper 67/ HC 542, paras. 11-12 Back
13 See R. v. Special Commissioner and another, ex parte Morgan Grenfell & Co Ltd  UKHL 21, HL Back
14 International Transport Roth GmbH and others v. Secretary of State for the Home Department  EWCA Civ 158, CA; Lindsay v. Customs and Excise Commissioners  1 WLR 1766, CA Back
15 Groppera Radio AG and others v. Switzerland, Eur. Ct. HR, judgment of 20 June 1989, Series A, No. 173 at § 61 Back
16 Informationsverein Lentia v. Austria, Eur. Ct. HR, judgment of 24 November 1993, Series A, No. 276, at § 35 Back
17 Autronic AG v. Switzerland, Eur. Ct. HR, judgment of 22 May 1990, Series A, No. 178, at § 61 Back
18 Verein Alternatives Lokalradio Bern and Verein Radio Dreeyeckland Basel v. Switzerland, App. No. 10746/84, Eur. Commn. HR, admissibility decision of 16 October 1986, 49 DR 126 Back
19 See Broadcasting Act 1996, s. 108 Back