Joint Committee On Human Rights First Report

Memorandum in Response to Nineteenth Report of the Joint Committee on Human Rights (Published on 19 July)

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 (paragraph 10)

Although we consider that the clause as currently drafted is compliant with the European Convention on Human Rights (ECHR), we agree that as a matter of good practice a right to make representations in these circumstances would be desirable. We have therefore amended the Bill accordingly.

The implications for rights to a fair hearing, to respect for private life, and to enjoyment of possessions, of OFCOM's proposed power to require people to provide information for certain purposes (paragraphs 19-25 and 27)

The Committee was concerned about the ECHR-compatibility of clauses 93 and 94 (paragraphs 19-24). On reflection, we agree that the powers provided in clause 94 of the draft Bill are not absolutely essential, and have therefore removed the clause.

The Committee recommended that clauses 98 and 99 (clauses 13 1-133 in the Bill as introduced) should be amended to provide protection against self-incrimination and for items subject to legal professional privilege (paragraph 25). We do not consider that it is necessary to include express protection for these purposes. Such a provision is not necessary to ensure that the privileges in question (which were created under the common law) are fully protected. The House of Lords in R. v. Special Commissioner, exparte Morgan Grenfell & Co Ltd [2002] UKUL 2], 3ALL ER 1 have already underlined the importance of legal professional privilege and the limited circumstances in which it can be abrogated by statute in the absence of an express provision to that effect. The widespread use of such a provision could paradoxically have the effect of weakening the protection accorded to them, by strengthening the argument that, in the absence of an express provision, Parliament did not intend the privilege to receive full protection.

In any event, section 6 of the Human Rights Act already secures the effect that enabling powers set out in legislation, or other executive powers, must be exercised compatibly with the requirements of the Act, unless the legislation in question expressly provides to the contrary. We therefore consider that it is not necessary to provide that new powers proposed in legislation are to be exercised compatibly with the requirements of the Act and it is generally undesirable to do so because it could cause confusion as to the effect of section 6 of the 1998 Act.

The Committee was also concerned about the power in clause 128 for OFCOM to require people to provide information on wireless telegraphy issues (paragraph 27). We have therefore omitted this provision from the Bill. We have, however, included a more limited alternative provision enabling OFCOM to require information from wireless telegraphy users when needed for statistical purposes. We do not think that this new provision will give rise to any of the concerns raised by the Committee.

The adequacy of safeguards against abuse of the power of the Secretary of State to suspend or restrict a service provider's freedom to provide a service on public safety, public health or national security grounds (paragraph 26)

Although we are of the view that the clause as currently drafted is sufficient to ensure that the Secretary of State must take all necessary interests into account before making a direction, for reasons of good drafting practice we have amended the clause to provide expressly that the Secretary of State, before making a direction under this clause, is required to have reasonable grounds for believing that it is necessary to do so.

The lack of appropriate safeguards against abuse of the power to forfeit seized wireless telegraphy apparatus (paragraphs 28-36)

We have amended the procedure for forfeiture of restricted apparatus to meet the Committee's concerns. The amended procedure will require OFCOM to exercise discretion before bringing proceedings and to return the apparatus if they decide not to proceed. The court has also been given discretion about whether to condemn the equipment and whether to order security. Exercise of these discretions will necessarily involve consideration of proportionality and balance in accordance with the Convention. We have also removed the possibility of forfeiture proceedings without notice, since there are no circumstances in which it would be appropriate for notice not to be given.

The power of OFCOM to require broadcasters to broadcast corrections and apologies (paragraphs 41-42)

We believe that the provision as drafted is compatible with the ECHR because, as the Committee recognised, it serves a legitimate purpose. In addition, the power incorporates a right for the broadcaster to make representations to OFCOM before a direction is given, and permits him or her to distance him or herself from the apology by announcing that it is being given pursuant to a direction. In any event, OFCOM, as a public authority, would be required by the Human Rights Act 1998 to exercise the power in a manner compatible with the broadcaster's rights under Article 10.

Nevertheless, having regard to the JCHR's concerns, we have amended the Bill so that it will replace the power to direct that an apology be given with a power to direct that OFCOM'S findings on a licence contravention be published. We have retained the power to order a correction to be broadcast. We will also change similar powers in existing legislation.

The absence of procedural safeguards connected with the power of OFCOM to impose conditions on, and suspend the licences of, service providers in certain circumstances (paragraphs 43-46)

This concerns the providers of broadcasting services. We understand the Committee's concerns, and have carefully considered their view that the procedural safeguards do not meet the standards imposed by Article 6 of the ECHR. We do not, however, agree with the Committee on this point. We accept that at least some OFCOM decisions in the areas mentioned by the Committee are likely to engage licensees' rights under Article 6 and that OFCOM will need 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. However, we believe 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.

The breadth of the power of the Secretary of State to require OFCOM to broadcast announcements (paragraph 50)

This power has been available since the start of broadcasting and we are aware of only one case of its exercise in living memory. It is important that Ministers should ultimately have the opportunity to make announcements important to public well-being and these could in principle extend beyond those only concerned with national security. In exercising this power, Ministers would of course have to act in compliance with Convention rights and it should be noted that broadcasters are explicitly enabled to state clearly that the announcement is a ministerial announcement and therefore are able to dissociate themselves from editorial responsibility. We believe that these provide sufficient safeguards and significantly mitigate any interference with their rights under Article 10.

The compatibility with Articles 9 and 10 of the ECHR of the proposed provisions allowing religious groups to hold licences for local radio broadcasting, but not for national radio or television broadcasting (paragraphs 52-57)

The Government has considered this question carefully in the light of the representations it has received. The Government's aim is to ensure that limited spectrum is distributed so as to satisfy as many viewers/listeners as possible, so that everyone's beliefs are equally respected. For example, where there are few if any constraints on spectrum, as in the case of cable or satellite broadcasting, religious bodies can already hold licences.

The draft Bill clauses on media ownership published in July would have allowed OFCOM to award religious bodies TV licences for digital programme services, digital additional services and restricted services. As regards radio, OFCOM would have been able to award local digital sound programme licences. This would have been in addition to those that religious bodies could already hold under the Broadcasting Act 1990. Those reforms are retained in the Communications Bill that has now been presented to Parliament.

In addition, however, the Bill as introduced would permit religious bodies to hold national digital sound programme licences. This is in line with our policy of allowing religious bodies to hold broadcasting licences where there is sufficient spectrum. The recent decision by Freeview to include radio services on the digital TV multiplexes formerly operated by ITV Digital (which did not include radio services) means that significantly more spectrum is available for radio, and that there is no longer a strong case for maintaining the ban on religious bodies holding national digital sound programme licences. Where spectrum is extremely limited, as (for example) in the case of national analogue radio services, the restriction on religious bodies holding any of the three available licences is retained. We are satisfied that the remaining restrictions are compatible with the Convention.

The compatibility with Article 10 of the ECHR of the proposed duty on OFCOM to do all it can to ensure the prohibition of any political advertisement on television and radio (paragraphs 58-64)

We are very grateful to the Committee for its helpful consideration of this issue. As the Explanatory Notes to the draft Bill (Cm 5508-II) indicate, the Government is aware that the case of Vgt Verein gegen Tierfabriken v. Switzerland casts doubt on whether the ban on political advertising (which the Bill would re-enact) is compatible with the ECHR. We note the Committee's view that the legitimate objective of securing equality of opportunity for political expression in the broadcast media justifies restrictions on political advertising, and that the utmost caution should be exercised in changing the present statutory position (as set out in sections 8 and 92 of the Broadcasting Act 1990).

With the Committee's observations in mind, the Government has followed the Committee's recommendation to examine ways in which workable and Convention-compatible restrictions could be included in the Bill. We have in particular considered an alternative regime based on specific prohibitions, such as banning all party political advertising, and all political advertising of any kind around the time of elections or referenda, coupled with other rules to avoid the predominance of any particular point of view, to provide visual or audible identification of political advertisements, and to control the scale of political advertising in terms both of broadcasting time and the proportion of advertising revenue that a broadcaster is permitted to derive from political advertising. We have concluded that it would be very difficult to make such a scheme workable, and that in any event it would fall significantly short of the present outright ban and allow a substantial degree of political advertising to be broadcast.

It has not been possible to make a statement of compatibility in relation to the Bill (by reason only of the re-enactment of the ban) and the decision to proceed with a Bill containing these provisions is an exceptional one that has been taken only after the most careful deliberation, and a full examination of the legal arguments and policy alternatives. However, the Government firmly believes that there is a very strong case that the present ban is consistent with the ECHR, even in light of the Swiss case. It is for that reason that the Government wishes Parliament to consider the Bill in spite of not being able to make a compatibility statement in respect of these provisions. If the ban was challenged, we would defend the ban robustly before the domestic courts or in Strasbourg. The Government would, of course, reconsider its position if a domestic court decided that the ban was, contrary to those arguments, incompatible, and would of course alter its policy if the Strasbourg Court found against it.

The ban will apply to any advertisement inserted by or on behalf of a body whose objects are wholly or mainly of a political nature, any advertisement which is directed towards a political end, and any advertisement which has any connection with an industrial dispute. The Bill will define what for this purpose is meant by "objects of a political nature and political ends", to make clear the scope of the ban.

The lack of safeguards attaching to the issue and execution of warrants to search for unlicensed television receivers (paragraph 66)

We are satisfied that the powers that the Committee refer to comply with the ECHR as they stood in May's draft Bill. Section 3 of the Human Rights Act 1998 requires statutory provisions to be read (so far as possible) in a manner that complies with the Convention, and section 6 will require the BBC and OFCOM to exercise their powers in this respect in a manner that complies with the Convention. In addition, under section 67(9) of the Police and Criminal Evidence Act 1984, persons other than police officers must adhere to the relevant Codes published under that Act (so far as they are applicable to them) and observe the safeguards that the Codes provide.

Nevertheless, we have decided (as a matter of good drafting practice) to amend the Bill to include some express pre-conditions on the issue of warrants under what was formerly clause 243 (now clause 352). We can see the case for providing a greater degree of clarity on the face of the Bill in this particular instance, especially because the BBC or OFCOM will very often be seeking to use these powers in relation to domestic premises.

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