The section 19(1)(b) statement.
11. It is the first time since the system of making
statements under section 19 of the Human Rights Act 1998 began
in December 1998 that a Bill, on first introduction to Parliament,
has carried a section 19(1)(b) statement rather than a statement
of compatibility under section 19(1)(a). Instead, the Secretary
of State for Culture, Media and Sport, the Rt. Hon. Tessa Jowell
MP, has made the following statement under section 19(1)(b) of
the Human Rights Act 1998
I am unable (but only because
of clause 309) to make a statement that, in my view, the provisions
of the Communications Bill are compatible with the Convention
rights. However, the Government nevertheless wishes the House
to proceed with the Bill.
The reason for making such a statement on this Bill
is that the Government has decided to maintain, in clause 309,
the existing ban on political advertising and sponsorship in the
broadcast media, despite recognising that the European Court of
Human Rights has held in Vgt Verein Gegeng Tierfabriken v.
Switzerland[11]
that a blanket ban violated the right to freedom of expression
under ECHR Article 10. In our report on the Draft Bill, 'we noted[12]
that the decision in that case established
58. ... that a ban on nationally
broadcasting political advertising in Switzerland violated Article
10. That case related to an advertisement encouraging people to
eat less meat and urging protection for animals....
59. The Court accepted that the ban advanced the
protection of the rights of others, within Article 10(2), by preventing
financially strong groups from obtaining a political advantage,
and securing the independence of the broadcaster, as well as preventing
undue commercial influence over politics and providing for 'a
certain equality of opportunity between the different forces of
society', and also to support the press, which remained free to
carry political advertisements.[13]
However, the Court decided that the ban had not be shown to be
'necessary in a democratic society' within the meaning of Art.
10(2).
60. Although the Swiss ban applied only to national
broadcasting, not to local broadcasting (the United Kingdom ban
extends to both), the Court held that the ban was disproportionate
to the legitimate aim, arguing that where expression is political,
the State's margin of appreciation in justifying an interference
with it is reduced,[14]
and the fact that the ban did not extend to political advertising
in the press suggested that the need for the ban was not particularly
pressing.[15] The judgement
also argued that the group in question (an animal rights group)
was not particularly powerful economically or politically, so
(even if the ban could be justified in respect of some potential
advertisers) it was not justifiable in relation to the particular
advertiser.[16] That
being so, the Court was of the view that the ban had not been
shown to be justified, either generally or in the particular case.
61. The Court would appear to suggest by this judgement
that: States are unlikely to be able to justify controls on political
broadcasting as easily as controls on other kinds of broadcasting;
that a general justification for having a regulatory regime for
political advertising on television will no longer necessarily
justify a ban on all political advertising on radio and television,
unless it can be justified by reference to the 'necessity in a
democratic society' test; and that, even if the regulatory regime
as a whole can be justified in general, States must now be able
to justify each application of the ban to individual advertisers
by showing that banning that advertiser, or that advertisement,
is proportionate to the overall need to regulate political advertising
in general.
12. We noted that this did not mean that there could
be no controls over political advertising on television and radio,
but only that any control must be shown to be justified by reference
to the criteria set out in ECHR Article 10(2).[17]
It was implicit in the Court's judgment that avoiding discrimination
against less favoured or less well-funded viewpoints was a legitimate
objective under Article 10(2). The question, in each case, was
whether the restriction went further than can be shown to be necessary
to achieve the goal. While observing that it would be a formidable
challenge to put the compromise hinted at by the Courta
more circumscribed ban applied more discriminatinglyin
statutory form, and accepting that there was some room to doubt
the applicability of the Court's decision to the ban proposed
in the United Kingdom,[18]
we recommended that the Government should seek restrictions short
of an outright ban which could be shown to advance one of the
legitimate aims in Article 10(2), and to be a proportionate and
non-discriminatory way of pursuing that aim as required by Article
10(2) both alone and taken together with Article 14.[19]'
13. The Government does not explain, in the Explanatory
Notes, why it has decided not to include such lesser restrictions
but rather to risk incompatibility. Instead, it says
The fact that the Minister
made a statement under section 19(1)(b) of [the Human Rights Act
1998] does not, however, mean that the Government believes the
ban would necessarily be found to be incompatible if the ban were
to be challenged in the United Kingdom courts or to be considered
by the European Court of Human Rights.[20]
This seems to indicate that the Government would
be likely to argue in court for a limitation, or the overruling,
of the decision in Vgt Verein Gegeng Tierfabriken v. Switzerland.
14. We regret that the Government, in taking this
action, felt no need to offer a fuller explanation of the reasons
for it in the Explanatory Notes.[21]
However, we recognise that it may sometimes be legitimate to use
section 19(1)(b) and to legislate in ways which are known to be
potentially incompatible with Convention rights. It is likely
that this was the view of Parliament when it was considering the
Bill that became the Human Rights Act 1998. Had it not taken that
view, there would have been no point in including section 19(1)(b)
in the Act. Of course, initially Parliament must decide whether
such legislation is justified, and later the courts must decide
whether the legislation is indeed incompatible with Convention
rights. The question for us, at this stage, is whether to advise
each House that the Government's approach is justified in relation
to this Bill.
15. While we accept that introducing legislation
accompanied by a section 19(1)(b) statement is not necessarily
unjustifiable, we consider that it requires strong justification
as a matter of principle. Our preliminary view is that Parliament's
consideration of the Bill, and specifically clause 309 of it,
should be based on the following factors
- making a section 19(1)(b) statement does not
evince a lack of respect for human rights standards. It shows
that the Government is taking the task of assessing the human
rights implications of its legislation seriously, and considers
that there are reasons (which it should be ready to share with
Parliament) for considering that it is desirable in the public
interest to take the risk of incompatibility;
- this may be justifiable if its reasons for taking
the risk of incompatibility are sufficiently compelling and are
consistent with the general objective of maintaining respect for
rights;
- section 19(1)(b) makes it clear that it is the
Government, not the individual Minister, who takes the responsibility
for inviting Parliament to consider a Bill notwithstanding a substantial
risk that it is incompatible with a Convention right. In other
words, this is a matter for which the Government as a whole is
collectively responsible to Parliament;
- a section 19(1)(b) statement does not mean that
the Government considers that the provision in question would
be held to be incompatible with a Convention right. It only means
that the Minister is unable to say, with the requisite level of
confidence,[22]
that the provision is compatible;
- it follows that, where a section 19(1)(b) statement
is made, the Government remains free to argue in subsequent litigation
that the provision in question is actually compatible with Convention
rights;
- where the Government is prepared to do that,
and to amend the Act if it is held to be incompatible, it evinces
an appropriate level of respect for human rights, as long as its
reasons for taking the risk of incompatibility in the first place
are sufficiently compelling and are consistent with the general
objective of maintaining respect for rights.
16. Unfortunately, as noted above, the Explanatory
Notes do not explain the reasons for taking the step, the grounds
for thinking that those reasons are compelling, or the reasons
for thinking that the step is consistent with the general objective
of maintaining respect for rights. We have therefore written
to the Secretary of State to asking the Government to explain
more fully its reasons for concluding that it would be impossible
to introduce transparent controls on political advertising which
would be proportionate to the legitimate aim pursued and would
secure a fair balance between competing rights and interests.
We draw the matter to the attention of each House.
Other human rights issues
17. There are five other issues, identified in the
paragraphs which follow, on which the Government has not changed
its position, despite the Committee's invitation to it to reconsider.
18. Refusal to include express protection for
the privilege against self-incrimination and items subject to
legal privilege. In our report on the Draft Bill, we pointed
out the lack of such protection, and suggested that it led to
a risk of incompatibility with ECHR Articles 6 and 8.[23]
The Government's response is
Such provision is not necessary
to ensure that the privileges in question (created under common
law) are fully protected. The widespread use of such provisions
could paradoxically have the effect of weakening the protection
accorded to them, by suggesting that in legislation where such
express provision is absent, Parliament did not intend the privilege
to receive full protection.[24]
19. In fact, that is exactly the approach that the
courts have traditionally taken. Judges have assumed that the
common law privileges are excluded by a statutory scheme which
does not expressly import them. It is as yet unclear whether the
Human Rights Act 1998 will make any difference to this approach.
We have consistently taken the view that appropriate safeguards
for Convention rights should be made manifest on the face of legislation,
rather than relying on courts or administrators to read them into
the legislation by applying the duty to act compatibly and to
read and give effect to legislation in a compatible manner under
sections 6 and 3 respectively of the 1998 Act.
20. We have therefore written to the Secretary
of State, impressing on her once again the importance of including
appropriate protections for human rights on the face of the Bill.
We draw the matter to the attention of each House.
21. Penalties and other sanctions on broadcasters:
procedural safeguards. In our report on the Draft Bill, we
recommended that the Bill should provide significantly better
procedural safeguards where broadcasters are to be liable to fines
or revocation and suspension of licences, in order to meet ECHR
Article 6 standards.[25]
The Government rejects this, and is content to rely on OFCOM to
'establish appropriate internal procedures for handling alleged
breaches of conditions and for giving practical effect to broadcasters'
rights to have a reasonable opportunity to make representations...'
The Government considers that 'there is no reason to think that
OFCOM will fail in that respect, and there could be disadvantages
in tying OFCOM's hands by laying down statutory procedures that
could deprive them of valuable flexibility. Such procedures, coupled
with the availability of judicial review, would in the Government's
view be found to meet the standards set by Article 6.'[26]
22. In our report on the Draft Bill, we wrote
Judicial review is unlikely
to provide an effective remedy for improper decision-making by
OFCOM, because the subjective nature of OFCOM's judgment would
make it difficult to assess the quality of the decision, beyond
taking a view as to whether it was wholly irrational (the Wednesbury
ground of judicial review). We do not consider that the procedural
safeguards would meet Article 6 standards.[27]
This is equally true of the equivalent provision
in the Bill (clause 230). We have therefore written to the
Secretary of State raising the matter once again, taking account
of the absence of a reasoned response from the Government to our
concern about the adequacy of judicial review in this context.
We draw the matter to the attention of each House.
23. Direction by a Minister to a broadcaster via
OFCOM to include announcements in their services. In our report
on the Draft Bill, we thought that this power, now in clause 324
of the Bill, should be made more specific in order to provide
adequate safeguards for the rights to freedom of expression (ECHR
Article 10) and peaceful enjoyment of possessions (Article 1 of
Protocol No. 1).[28]
The Government disagrees, considering it to be 'neither necessary
nor appropriate further to delimit the exercise of the power',
since (i) section 6 of the Human Rights Act 1998 would compel
the Minister to act compatibly with Convention rights, and (ii)
it would be impossible exhaustively to set out the circumstances
in which the power could be used.[29]
It is our settled view that powers conferred by Bills should
be subject to sufficient safeguards, and be appropriately delimited,
on the face of the Bill to provide adequate security for Convention
rights. As safeguards can usually be provided without exhaustively
defining the circumstances in which a provision might operate,
we have written to the Secretary of State raising the matter once
again. We draw the matter to the attention of each House.
24. Ownership of broadcasting licences by religious
bodies. In our report on the Draft Bill, we suggested that
allowing religious organisations to hold licences for local radio
broadcasting, but not for national radio or any television broadcasting,
brought into question the justification for interfering with their
rights under ECHR Article 10 which had been upheld by the European
Court of Human Rights in respect of the blanket ban under current
legislation.[30]
The Government takes the view that the aim of the provisions has
not changed,[31]
and that 'the less wide-ranging ban proposed by the Bill pursues
a legitimate objective in a proportionate manner and is compatible
with the ECHR.'[32]
25. The Government has not offered any detailed explanation
for its view that a ban on owning any television broadcasting
licence, but only on owning national (not local) radio broadcasting
licences, is a response to a pressing social need so as to be
'necessary in a democratic society' for the purpose of establishing
a justification for interfering with freedom of expression under
ECHR Article 10.2. We have therefore written to the Secretary
of State asking for an explanation of this point. We draw the
matter to the attention of each House.
26. Other provisions of the Bill seem to us to raise
no human rights issues significant enough to be drawn to the attention
of either House at this time.
1 First Report, Session 2001-02 Homelessness Bill,
HL Paper 30/HC 314; Second Report, Session 2001-02, Anti-Terrorism,
Crime and Security Bill, HL Paper 37HC 372; Third Report,
Session 2001-02, Proceeds of Crime Bill, HL Paper 43/HC
405; Fourth Report, Session 2001-02, Sex Discrimination (Election
Candidates) Bill, HL Paper 44/HC 406; Fifth Report, Session
2001-02, Anti-Terrorism, Crime and Security Bill: Further Report,
HL Paper 51/HC 420; Eighth Report, Session 2001-02, Tobacco
Advertising and Promotion Bill, HL Paper 59/HC 474; Ninth
Report, Session 2001-02 Scrutiny of Bills: Progress Report,
HL Paper 60/HC 475; Tenth Report, Session 2001-02, Animal Health
Bill, HL Paper 67/HC 542; Eleventh Report, Session 2001-02,
Proceeds of Crime Bill, HL Paper 75/HC 596; Twelfth Report,
Session 2001-02, Employment Bill, HL Paper 85/HC 645; Thirteenth
Report, Session 2001-02, Police Reform Bill, HL Paper 85/HC
645; Fourteenth Report, Session 2001-02, Scrutiny of Bills:
Private Members' Bills and Private Bills, HL Paper 93/HC 674;
Fifteenth Report, Session 2001-02, Police Reform Bill: Further
Report, HL Paper 98/HC 706; Sixteenth Report, Session 2001-02,
Scrutiny of Bills: Further Progress Report, HL Paper 113/HC
805; Seventeenth Report, Session 2001-02, Nationality, Immigration
and Asylum Bill, HL Paper 132/HC 961; Eighteenth Report, Session
2001-02, Scrutiny of Bills: Further Progress Report, HL
Paper 133/HC 962; Twenty-first Report, Session 2001-02, Scrutiny
of Bills: Further Progress Report, HL Paper 159/HC 1141; Twenty-third
Report, Session 2001-02, Nationality, Immigration and Asylum
Bill: Further Report, HL Paper 176/HC 1255; Twenty-fourth
Report, Session 2001-02, Adoption and Children Bill: As Amended
by the House of Lords on Report, HL Paper 177/HC 979; Twenty-sixth
Report, Session 2001-02, Scrutiny of Bills: Final Progress
Report, HL Paper 182/HC 1295. Back
2
Department of Trade and Industry and Department of Culture, Media
and Sport, A New Future for Communications (London: TSO,
2000). Back
3
Cm. 5508-I (London: The Stationery Office, May 2002), published
together with explanatory notes: The draft Communications Bill-The
Policy, Cm. 5508-II; an explanation of the Government's policy
objectives: Cm. 5508-III; and a draft regulatory impact assessment. Back
4
Nineteenth Report of Session 2001-02, Draft Communications
Bill, HL Paper 149, HC 1102 Back
5
Report of the Joint Committee on the Draft Communications Bill,
Session 2001-02, HL Paper 169-I/HC 876-I Back
6
Nineteenth Report, op cit., para. 10; clauses 38, 96,
97, 109, 136 and 137 of the Bill; Explanatory Notes, para. 878 Back
7
Nineteenth Report, op cit., paras. 20-24 and 27; clauses
115, 132, 133, 166 and 186 of the Bill; Explanatory Notes, para.
882 Back
8
Nineteenth Report, op cit., para. 26 Back
9
Nineteenth Report, op cit., paras. 34, 36; clause 177
of and Sch. 7 to the Bill; Explanatory Notes, para. 884 Back
10
Nineteenth Report, op cit., para. 42; Explanatory Notes,
para. 888 Back
11
Ap No. 24699/94, judgment of 28 June 2001 Back
12
Nineteenth Report, op cit., paras. 58-61 Back
13
See paras. 60-61 of the judgment Back
14
ibid., paras. 70-71 of the judgment Back
15
ibid., para. 74 Back
16
ibid., para. 75 Back
17
Nineteenth Report, op cit., para. 62 Back
18
ibid., para. 63 Back
19
ibid., para. 64 Back
20
Explanatory Notes, para. 633. Back
21
Before this report was agreed, a fuller explanation had been
placed in the Library of the two Houses by the Secretary of State
in the form of a letter to Derek Wyatt MP; it is reproduced at
Appendix 6. Back
22
The standard employed is that it is more likely than not to be
held to be compatible Back
23
Nineteenth Report, op cit., para. 25 Back
24
Explanatory Notes, op cit., para. 883 Back
25
Nineteenth Report, op cit., para. 47 Back
26
Explanatory Notes, op cit., para. 890 Back
27
Nineteenth Report, op cit., para. 44 Back
28
Nineteenth Report, op cit., para. 50 Back
29
Explanatory Notes, paragraph 895. The Government notes that
the power has so far been used only once: ibid. Back
30
Nineteenth Report, paras. 52-57, discussing United Christian
Broadcasters v. United Kingdom, Ap No. 44802, inadmissibility
decision of 7 November 2000 Back
31
Explanatory Notes, para. 901 Back
32
ibid., para. 902 Back