Joint Committee On Human Rights Fourth Report


38. We have already reported our preliminary views on the Communications Bill, and drawn attention to the questions raised with the Government about its human rights implications.[34] We received a memorandum from the Department of 22 November 2002 dealing with the human rights implications of the Bill.[35] We also received a copy of a letter, dated 10 December 2002, sent by the Secretary of State for Culture, Media and Sport, to Mr. Derek Wyatt MP in response to a question about the ban on political advertising on television and radio. Attached to this letter was an explanatory note by the Department of Culture, Media and Sport on the matter.[36] The Government responded on 9 January 2003 by way of a letter sent jointly by the Secretary of State for Culture, Media and Sport, and the Minister of State for e-Commerce and Competitiveness, Mr. Stephen Timms MP.[37] We now report on our further consideration of the Bill in the light of that correspondence.

39. We raised five matters in particular with the Government, namely—

  • a request for fuller reasons for the decision to include in the Bill a continuation of the prohibition of political advertising on radio and television, despite being unable to state (under section 19 of the Human Rights Act 1998) that the Minister was satisfied that it would be compatible with Convention rights;

  • a perceived weakness on protection for the privilege against self-incrimination and for items subject to legal professional privilege in the Bill;

  • the adequacy of procedural safeguards for broadcasters against fines or the revocation or suspension of licences;

  • the compatibility with Convention rights of the power of a Minister to direct a broadcaster, via OFCOM, to include announcements in their services; and

  • the compatibility with ECHR Article 10 of restrictions on the right of religious bodies to hold licences to broadcast.

Political advertising

40. In our First Report,[38] we set out six factors which we provisionally thought were relevant to an assessment by Parliament of the propriety of proceeding to legislate in a way that would give rise to an acknowledged risk of incompatibility with a Convention right. Taking those matters into account, and in the light of the correspondence mentioned above,[39] we are satisfied that—

  • in any litigation about the ban on political advertising and sponsorship in the broadcast media under clause 309 of the Bill, the Government would argue that the decision in Vgt Verein Gegeng Tierfabriken v. Switzerland should not be followed, or alternatively that the decision does not necessarily entail the incompatibility of clause 309 with the right to freedom of expression under ECHR Article 10, and that such an argument would have a reasonable chance of success;

  • the Government would feel obliged to amend the law if that particular provision were held by the European Court of Human Rights, after argument, to be incompatible with Article 10, and would consider its position if a court in the United Kingdom were to make a declaration of incompatibility under section 4 of the Human Rights Act 1998; and

  • in the meantime, pending the opportunity to advance before the courts its arguments relating to the compatibility of a ban with Article 10, the Government has good reasons for believing that the policy reasons for maintaining the ban outweigh the reasons for restricting it, particularly as it would be difficult to produce a workable compromise solution.

41. We are satisfied that the course of action taken by the Government in introducing the Communications Bill with a statement under section 19(1)(b) of the Human Rights Act 1998, rather than a statement of compatibility under section 19(1)(a), does not evince a lack of respect for human rights, and is legitimate in the circumstances.

42. However, we record our disagreement with the suggestion in the letter of 9 January that it is inappropriate to include in the Explanatory Notes to Bills anything that could be seen as justifying the Government's policy, rather than explaining the provisions of the Bill. We think that an assessment of a Bill's human rights implications has more in common with the regulatory impact assessment which is routinely included in Explanatory Notes. We draw attention once again to the guidance to Departments issued by the Lord Chancellor's Department, and reiterate that in our view it represents good practice.[40]

The privilege against self-incrimination and items subject to legal privilege

43. We drew the Department's attention to the fact that the absence of express safeguards relating to the privilege against self-incrimination and items subject to legal privilege might give rise to a risk of violating rights under ECHR Articles 6 (right to a fair hearing, including right to remain silent) and 8 (right to respect for private life and correspondence). We observed that courts often seem to have assumed that the common law privileges are excluded by a statutory scheme which appears to be inconsistent with them and does not expressly import them.[41]

44. The Government's response is that it would be confusing and superfluous to include on the face of the Bill protections which would be co-extensive with the protection guaranteed by the Human Rights Act 1998. We consider that it is good practice to ensure that adequate procedural and other safeguards for human rights are provided on the face of the legislation to which they apply, in order that people may know with reasonable foreseeability and accessibility the circumstances in which officials may interfere with their rights lawfully. We have consistently taken the view that, normally, it is not safe to rely on courts or administrators to read protections 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. We draw this matter to the attention of each House.

Penalties and other sanctions on broadcasters: procedural safeguards

45. In our Nineteenth Report of 2001-02 on the Draft Communications 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.[42]

46. This is equally true of the equivalent provision in the Bill (clause 230). We therefore asked the Government to explain why it considered that judicial review would provide sufficient procedural safeguards to ensure that the standards of fair hearing imposed by ECHR Article 6 would be met.

47. The Government's response is, essentially, (a) that there is no reason to think that OFCOM will fail to provide for an adequate procedure to safeguard the right to a fair hearing under Article 6, and (b) that case-law supports the view that appropriate internal procedures with the back-up of judicial review are capable of meeting the requirements of Article 6.1. Particular attention is drawn to: (i) the specialised nature of the broadcasting field; (ii) the fact that broadcasting regulators rarely have to determine questions of 'primary fact', that is questions of fact which do not involves issues of judgment or law; and (iii) the relatively high intensity of review used by courts in cases where Convention rights are engaged.

48. We accept that these factors, so far as they turn out to be applicable in these cases, might avoid a person whose rights are threatened from being left without a remedy. However, we regard the Department's argument as somewhat speculative, particularly in relation to factor (ii) above (which will depend on the circumstances of individual cases) and factor (iii) above (in relation to which we merely observe that the case-law on this is far from settled, and that we may expect a lower intensity of review in fields within the specialised expertise of the primary decision-maker: compare factor (i)). Furthermore, we are not satisfied that the Bill as drafted gives adequate guidance to OFCOM to ensure that adequate safeguards for Convention rights will be put in place. We draw these matters to the attention of each House.

Direction to a broadcaster to include announcements in their services

49. We asked the Government to justify the absence from clause 324 of the Bill of any criteria governing the exercise of the power of the Minister to give directions to broadcasters. The Government replied that the power to direct broadcasters to carry vital announcements critical to public well-being is desirable and defensible in terms of broadcasters' rights under ECHR Article 10 (freedom of expression) and P1/1 (right to peaceful enjoyment of possessions). It would not be possible in advance to define the circumstances in which it might be necessary to exercise the power. The Government pointed out that the power, which is of long standing, has been rarely used, and then only with great care.

50. We regret that the Government feels unable to delimit the power in any way. It should at least be possible to include in the Bill a limitation to circumstances in which the Government is satisfied that an announcement is critical to public well-being. As it stands, the unrestricted discretion seems to us to be inconsistent with the principle of legal certainty which provides an important foundation for human rights. We recommend that the Government should reconsider its decision, and we draw the matter to the attention of each House.

Ownership of broadcasting licences by religious bodies

51. We asked the Government whether allowing religious organisations to hold licences for local radio broadcasting, but not 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.[43] Currently, there is a total ban on such organisations holding broadcasting licences, justified as necessary to prevent discrimination between religious organisations in circumstances where opportunities to broadcast were limited by the nature of the medium. We were interested to know why it was now thought to be appropriate to allow religious organisations to hold licences for local but not national radio broadcasting, and not for television.

52. The Government has now explained that the opportunities for local broadcasting are now more freely available, and has pointed out that the Bill would also allow religious organisations to hold both local and national digital radio licences, reflecting the larger number of digital licences now available. As only three national analogue radio licences are available, there remains a need to ensure that the limited spectrum is used in a way that satisfies as many listeners as possible and avoids unfair discrimination between religions.[44]

53. We take the view that the Government's response sufficiently indicates reasons for thinking that the position adopted in clause 335 of the Bill is unlikely to lead to a violation of rights under Article 10 of the ECHR, or Article 14 (non-discrimination) taken together with Article 10. The regulation under clause 335 can legitimately be argued to serve a legitimate aim of protecting the rights of others, to advance a pressing social need to ensure that the television and radio spectra are used fairly and effectively, and to go no further than necessary for that purpose. Any discrimination between religious organisations can be legitimately argued to be rationally and objectively justified, and proportionate to a legitimate purpose, for the same reasons.

34   Joint Committee on Human Rights, First Report of 2002-03, Scrutiny of Bills: Progress Report, HL Paper 24, HC 191, pp. 6-12, paras. 9-26, and Ev 17-Ev 20 Back

35   This was reproduced as Appendix 4 to our First Report of this Session, op cit, Ev 14-17 Back

36   This was reproduced as Appendix 6 to our First Report of this Session, op cit, Ev 20-Ev 24 Back

37   The correspondence is reproduced in an appendix to this report, Ev 20-Ev 22 Back

38   See pp. 9-10, para. 15 Back

39   See also the debate in during the Committee Stage, Standing Committee E, Official Report, 20th Sitting, 28 January 2003, cc. 794-797 Back

40   See our Third Report of Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 41, HC 375, p. 7, para. 4, and the Lord Chancellor's Department Website at Back

41   See, e.g., R. v. Director of the Serious Fraud Office, ex parte Smith [1993] 1 AC 1, HL. Cp. R. v. Hertfordshire County Council, ex parte Green Environmental Industries Ltd. [2002] 2 AC 412, HL Back

42   Nineteenth Report of Session 2001-02, Draft Communications Bill, HL Paper 149, HC 1102, para. 44 Back

43   ibid., paras. 52-57, discussing United Christian Broadcasters v. United Kingdom, App. No. 44802, inadmissibility decision of 7 November 2000 Back

44   In the letter from the Secretary of State to Mr. Wyatt, it was also explained that there is continuing litigation in the European Court of Human Rights against the United Kingdom over the prohibition on religious organisations holding broadcasting licences, but pointed out that the first decision in these cases had gone in favour of the United Kingdom. Back

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