Regina v. British Broadcasting Corporation (Appellants) ex parte Prolife Alliance (Respondents)
70. Even assuming that the Alliance broadcast had been an ordinary PEB, relevant to the general election, I do not think it would have been unreasonable to require it to comply with standards of taste and decency. They are not particularly exacting and, as I have said, take into account the political context and the importance to the political party in getting its message across. But the rationale for having such standards applies to political as well as to any other broadcasts; the standards are part of the country's cultural life and have created expectations on the part of the viewers as to what they will and will not be shown on the screens in their homes.
71. Is there anything in European law which suggests that a taste and decency requirement would be regarded as unreasonable or discriminatory? In the VgT case the court made it clear that it was not considering a case in which the objection to an advertisement was that its content was offensive: see paragraph 76 at p. 177. And at this point it is also relevant to consider the response of the ECHR to the complaint of the Alliance about the rejection of its PEB in the 1997 election. On 26 June 2000 the Registrar of the ECHR wrote to the Alliance saying that "in accordance with the general instructions received from the Court" he drew their attention to "certain shortcomings" in the application. The indication given by the Registrar was that the court might consider that the taste and decency requirements were not an "arbitrary or unreasonable" interference with their access to television. Subsequently the court, after noting that the Alliance had been informed of "possible obstacles" to the admissibility of the application, rejected it as not disclosing "any appearance of a violation of the rights and freedoms set out in the Convention..."
72. The Court of Appeal treated this decision as an aberration to which no attention should be paid. But, like Scott Baker J., I think that it is very significant. The test applied in the letter from the Registrar, namely, whether the restriction on the content of the PEB was "arbitrary or unreasonable", seems to me precisely the test which ought to be applied. It is more in accordance with the jurisprudence of the ECHR and a proper analysis of the nature of the right in question than the fundamentalist approach of the Court of Appeal.
73. In my opinion therefore, there is no public interest in exempting PEBs from the taste and decency requirements on the ground that their message requires them to broadcast offensive material. The Alliance had no human right to be invited to the party and it is not unreasonable for Parliament to provide that those invited should behave themselves.
74. There is a good deal of discussion in the judgment of Laws LJ about whether "deference" should be paid to the decision-makers. As Andrew Geddis points out in the article from which I have quoted, Laws LJ treated the broadcasters as having decided to censor the Alliance broadcast and dismissed their argument that they were trying to apply statutory standards of taste and decency. But the question I am now addressing is whether Parliament was entitled to require PEBs to comply with standards of taste and decency and so the relevant decision-maker is Parliament.
75. My Lords, although the word "deference" is now very popular in describing the relationship between the judicial and the other branches of government, I do not think that its overtones of servility, or perhaps gracious concession, are appropriate to describe what is happening. In a society based upon the rule of law and the separation of powers, it is necessary to decide which branch of government has in any particular instance the decision-making power and what the legal limits of that power are. That is a question of law and must therefore be decided by the courts.
76. This means that the courts themselves often have to decide the limits of their own decision-making power. That is inevitable. But it does not mean that their allocation of decision-making power to the other branches of government is a matter of courtesy or deference. The principles upon which decision-making powers are allocated are principles of law. The courts are the independent branch of government and the legislature and executive are, directly and indirectly respectively, the elected branches of government. Independence makes the courts more suited to deciding some kinds of questions and being elected makes the legislature or executive more suited to deciding others. The allocation of these decision-making responsibilities is based upon recognised principles. The principle that the independence of the courts is necessary for a proper decision of disputed legal rights or claims of violation of human rights is a legal principle. It is reflected in article 6 of the Convention. On the other hand, the principle that majority approval is necessary for a proper decision on policy or allocation of resources is also a legal principle. Likewise, when a court decides that a decision is within the proper competence of the legislature or executive, it is not showing deference. It is deciding the law.
77. In this particular case, the decision to make all broadcasts subject to taste and decency requirements represents Parliament's view that, as the Annan Committee put it (paragraph 16.3), "public opinion cannot be totally disregarded in the pursuit of liberty". That seems to me an entirely proper decision for Parliament as representative of the people to make. For the reasons I have given, it involves no arbitrary or unreasonable restriction on the right of free speech.
The decision by the broadcasters
78. If, as I think, Parliament was entitled to impose standards of taste and decency which were meant to be taken seriously, the next question is whether the broadcasters acted lawfully in deciding that the Alliance PEB did not comply. Mr Anderson has not suggested that the decision letter of 17 May 2001 shows that the broadcasters misunderstood the guidelines or failed to take into account the political importance of the images to the Alliance. They made it plain that they did. He says that the rejection of the broadcast is sufficient in itself to show that they must have made some unspecified error of law.
79. In my view the only route by which one can arrive at such a conclusion is that of the Court of Appeal, which is to say that the broadcasters were not entitled to apply standards of truth and decency at all. But I have already explained why I do not think that this route is legitimate. Once one accepts that the broadcasters were entitled to apply generally accepted standards, I do not see how it is possible for a court to say that they were wrong.
80. Public opinion in these matters is often diverse, sometimes unexpected and in constant flux. Generally accepted standards on these questions are not a matter of intuition on the part of elderly male judges. The researches into public opinion by the BSC and the broadcasters would be superfluous if this were the case. And I attach some importance to the fact that Mrs Sloman, who was the principal decision-maker for the BBC, and Mrs Richards, the Controller of BBC Wales, are women. In deciding which members of the public would be likely to find the images offensive, I would imagine that one constituency the broadcasters would have had in mind was the 200,000 women who, for one reason or another, according to the Alliance evidence, have abortions every year. Although people often speak of "abortion on demand", having an abortion is something which few women undertake lightly. It is often a traumatic emotional experience. I would therefore hesitate a good deal before saying that the broadcasters must have been wrong in saying, as they did, that the images would be offensive to very large numbers of viewers.
81. I would therefore allow the appeal and restore the judgment of Scott Baker J, whose judgment, if it were not for that of the Court of Appeal, I would have been content to adopt as my own. For the same reasons, I think it was lawful for the BBC to refuse to broadcast the second and third versions of the programme.
82. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead. Although for a long time of the contrary view, I am persuaded that for the reasons he gives the judgment of the Court of Appeal is unsustainable. I would therefore allow the appeal.
LORD SCOTT OF FOSCOTE
83. I have had the advantage of reading in draft the opinions on this appeal of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Walker of Gestingthorpe. I gratefully adopt their exposition of the facts and law underlying this appeal but, to my regret, I find myself unable to join my noble and learned friends in the conclusion that they have reached.
84. The short issue in the case is whether the broadcasters, the BBC and the ITV companies, acted lawfully in declining to transmit the television programme submitted to them by the ProLife Alliance as the Alliance's desired party election broadcast for the purposes of the 2001 general election.
85. It is accepted that the broadcasters' refusal to transmit the ProLife Alliance's programme engages Article 10 of the European Convention on Human Rights. Article 10 guarantees "the right to freedom of expression" which includes "freedom to impart information and ideas without interference by public authority " The licensing of broadcasting, whether by radio or television, is however expressly authorised and in this country unlicensed broadcasting is not permitted. So it is not open to the ProLife Alliance, or to anyone else, to make private arrangements for the broadcasting of the programmes of their choice.
86. It is this feature of television broadcasting that engages Article 10. The right to impart information and ideas does not necessarily entitle those who desire to do so to be supplied with the means or facilities necessary to enable the information to be conveyed to the desired audience. A person who has written a book or a play cannot insist on having it published by a publisher, or placed on someone else's bookstall, or, if a play, staged in someone else's theatre. But radio and television broadcasting are different. Licences are required. And licences are granted on conditions that impose restrictions as to the contents of programmes that can be broadcast. So Article 10 is engaged.
87. It follows that, in the present case, the ProLife Alliance is entitled to say that the criteria applied to its desired party election programme by the broadcasters in deciding whether or not to accept the programme should be no more severe than are
88. I have set out in full the Article 10(2) heads under which restrictions on Article 10 rights can be justified notwithstanding the obvious inapplicability of most of the heads to the reasons why the Alliance's proposed programme was rejected. I have done so because it seems to me helpful to notice their comprehensive character. The application of restrictions allegedly in the public interest but not justifiable under any of these heads would, in my opinion, constitute a breach of Article 10 rights.
89. The licences under which the BBC and the ITV companies are permitted to broadcast impose conditions relating to the content of the programmes that can be broadcast. In the case of the BBC the conditions are contained in paragraph 5 of an Agreement dated 25 January 1996 between the BBC and the Secretary of State. The paragraph requires the BBC to do all that it can to secure that all programmes it broadcasts
Section 6(1) of the Broadcasting Act 1990 imposes a restriction to the same effect on the ITV companies. It provides that
90. It is these conditions on which the BBC and the ITV broadcasters respectively rely in justifying their refusal to broadcast the Alliance's desired party election programme. There is plainly nothing in the programme which could be said to be likely to encourage or incite to crime or to lead to disorder. The justification for the refusal is based, therefore, on the broadcasters' opinion that the programme "offends against good or decency or is likely to be offensive to public feeling". In the debate before your Lordships reliance was placed by the broadcasters particularly on the requirement that nothing must be broadcast that is likely to be offensive to public feeling.
91. It was not contended by counsel for the Alliance that a restriction barring the televising of a programme likely to be offensive to public feeling was, per se, incompatible with Article 10. Nor should it have been. The reference in Article 10(2) to the "rights of others" need not be limited to strictly legal rights the breach of which might sound in damages and is well capable of extending to a recognition of the sense of outrage that might be felt by ordinary members of the public who in the privacy of their homes had switched on the television set and been confronted by gratuitously offensive material.
92. Nor, as my noble and learned friend Lord Nicholls of Birkenhead has pointed out, was it contended before your Lordships that the content of party election broadcasts should be subject to any textually different restrictions from those applicable to other programmes (see paras 9 and 10 of his opinion). The requirement that broadcasts should not offend good taste and decency or be offensive to public feeling is not necessarily an Article 10 breach in relation to party election broadcasts any more than it is in relation to programmes generally. The issue, therefore, on the present appeal is a narrow one. It is whether the rejection by the broadcasters of this particular programme, the purpose of which was to promote the cause of the Alliance at the forthcoming general election, was a lawful application by the broadcasters of the conditions by which they were bound. To put the point another way, was their rejection of the Alliance's desired programme necessary in a democratic society for the protection of the right of home-owners that offensive material should not be transmitted into their homes?
93. The issue is one that is fact-sensitive. The relevant facts seem to me to be these
(1) The ProLife Alliance is against abortion.
(2) Its candidates at general elections stand on a single issue, namely, that the abortion law should be reformed so as either to bar abortions altogether or, at least, to impose much stricter controls than at present pertain. This is a lawful issue and one of public importance.
(3) The Alliance's desired programme was factually accurate. Laws LJ described what was shown in the programme thus
There was no dissent from this description.
(4) Laws LJ went on to describe what was shown in the programme as " . certainly disturbing to any person of ordinary sensibilities". This, too, was not disputed.
(5) It was accepted that, if the programme was to be transmitted, it would have to be transmitted in the late evening, and be preceded by an appropriate warning.
(6) Television is of major importance as a medium for political advertising. That this is so has throughout been recognised on all sides.
94. The decision to refuse to broadcast the programme was communicated to the Alliance by a letter of 17 May 2001 from the BBC. The letter said that the BBC, and the ITV broadcasters, had concluded that "it would be wrong to broadcast these images which would be offensive to very large numbers of viewers". Was this a conclusion to which a reasonable decision maker, paying due regard to the Alliance's right to impart information about abortions to the electorate subject only to what was necessary in a democratic society to protect the rights of others, could have come?
95. In my opinion, it was not. The restrictions on the broadcasting of material offending against good taste and decency and of material offensive to public feeling were drafted so as to be capable of application to all programmes, whether light entertainment, serious drama, historical or other documentaries, news reports, party political programmes, or whatever. But material that might be required to be rejected in one type of programme might be unexceptionable in another. The judgment of the decision maker would need to take into account the type of programme of which the material formed part as well as the audience at which the programme was directed. This was a party election broadcast directed at the electorate. He, or she, would need to apply the prescribed standard having regard to these factors and to the need that the application be compatible with the guarantees of freedom of expression contained in Article 10.
96. The conclusion to which the broadcasters came could not, in my opinion, have been reached without a significant and fatal undervaluing of two connected features of the case: first, that the programme was to constitute a party election broadcast; second, that the only relevant criterion for a justifiable rejection on offensiveness grounds was that the rejection be necessary for the protection of the right of homeowners not to be subjected to offensive material in their own homes.
97. The importance of the general election context of the Alliance's proposed programme cannot be overstated. We are fortunate enough to live in what is often described as, and I believe to be, a mature democracy. In a mature democracy political parties are entitled, and expected, to place their policies before the public so that the public can express its opinion on them at the polls. The constitutional importance of this entitlement and expectation is enhanced at election time.
98. If, as here, a political party's desired election broadcast is factually accurate, not sensationalised, and is relevant to a lawful policy on which its candidates are standing for election, I find it difficult to understand on what possible basis it could properly be rejected as being "offensive to public feeling". Voters in a mature democracy may strongly disagree with a policy being promoted by a televised party political broadcast but ought not to be offended by the fact that the policy is being promoted nor, if the promotion is factually accurate and not sensationalised, by the content of the programme. Indeed, in my opinion, the public in a mature democracy are not entitled to be offended by the broadcasting of such a programme. A refusal to transmit such a programme based upon the belief that the programme would be "offensive to very large numbers of viewers" (the letter of 17 May 2001) would not, in my opinion, be capable of being described as "necessary in a democratic society . for the protection of . rights of others". Such a refusal would, on the contrary, be positively inimical to the values of a democratic society, to which values it must be assumed that the public adhere.
99. One of the disturbing features of our present democracy is so-called voter-apathy. The percentage of registered voters who vote at general elections is regrettably low. A broadcasters' mind-set that rejects a party election television programme, dealing with an issue of undeniable public importance such as abortion, on the ground that large numbers of the voting public would find the programme "offensive" denigrates the voting public, treats them like children who need to be protected from the unpleasant realities of life, seriously undervalues their political maturity and can only promote the voter-apathy to which I have referred.
100. For these reasons the decision of the BBC and the other broadcasters to refuse to transmit the Alliance's desired programme was, in my opinion, a decision to which no reasonable decision maker, applying the standards prescribed by paragraphs 5.1(d) of the BBC Agreement and section 6(1)(a) of the 1990 Act, and properly directing itself in accordance with Article 10, could have come. I find myself in full agreement with the Court of Appeal and would dismiss this appeal.
LORD WALKER OF GESTINGTHORPE
101. The respondent to this appeal, the ProLife Alliance ('the Alliance') is an organisation which campaigns for 'absolute respect for innocent human life'. It is opposed to abortion, euthanasia, destructive embryo research and human cloning. It is common ground that it is a respectable organisation working within the democratic process and it does not engage in or encourage violent protest.
102. The Alliance is also a political party registered under Part II of the Political Parties, Elections and Referendums Act 2000 ('the 2000 Act'). It participated on a small scale in the general election in 2001, as it had done in 1997. This appeal is concerned with the refusal of the British Broadcasting Corporation ('the BBC') and other terrestrial television broadcasters (Channel 3, Channel 4, and Channel 5) to transmit a party election broadcast on behalf of the Alliance in the form of the programme produced by the Alliance. The BBC is the sole appellant in your Lordships' House but it can be seen as acting on behalf of all the broadcasters.
103. The Alliance wished to show, by graphic images, what it described as the terrible truth about abortion. The broadcasters declined to transmit the programme, in three successive edited versions, on the grounds that it offended good taste, decency and public feeling. The Alliance complains that this decision infringed its right to freedom of expression under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention'). I will set out the familiar terms of article 10:
104. I must summarise the framework of regulation of television broadcasting, including party political broadcasts ('PPBs') and party election broadcasts ('PEBs'). The framework is partly statutory and partly non-statutory, since the BBC was established (in 1927) by Royal Charter rather than by Act of Parliament (although it derived its original monopoly position in radio from a licence under the Wireless Telegraphy Acts 1904 to 1926, and its original monopoly in television broadcasting from a licence granted in 1935; the television monopoly continued until the coming into force of the Television Act 1954). Whereas the independent terrestrial television broadcasters ('the independents') are regulated mainly by and under the Broadcasting Act 1990 ('the 1990 Act') as supplemented and amended by the Broadcasting Act 1996 ('the 1996 Act') the BBC is regulated mainly by its Royal Charter and by successive agreements (the latest dated 25 January 1996) between the Secretary of State for National Heritage and the BBC. The functions of the Independent Television Commission ('the ITC') are limited to the independents, whereas the Broadcasting Standards Commission ('the BSC') established by the 1996 Act has functions in relation to the BBC as well as the independents. These include (under section 110(2)(b) of the 1996 Act) adjudicating on complaints about standards of taste and decency. But the powers of the BSC do not included imposing any prior restraint on what is to be broadcast.
105. By section 6(1) of the 1990 Act the ITC is required to do all that it can to secure that in every service licensed by it,
The following paragraphs of section 6(1) impose comparable requirements in respect of accuracy and impartiality in news programmes, impartiality in programmes dealing with political or industrial controversy, responsibility in religious programmes, and the prohibition of subliminal images. 'Programme' is widely defined in section 202. By section 7 the ITC is required to draw up a code giving guidance on standards and practice, especially in relation to the portrayal of violence. The ITC has produced a code known as the ITC Programme Code.
106. Very similar provisions are included in the agreement dated 25 January 1996 between the Secretary of State and the BBC. Para. 5.1 of the agreement is very similar to section 6(1) of the 1990 Act, and para. 5.1(d) (in relation to offensive material) is for all practical purposes identical with section 6(1)(a). The BBC Producers' Guidelines provide the counterpart of the ITC Programme Code. Mr Pannick QC (for the BBC) accepts for the purposes of this appeal that the BBC is a public authority, without making any wider concession as to its status in different contexts.
107. Party political broadcasts have been a feature of public life in the United Kingdom for about 80 years on radio, and for about 50 years on television. Their longevity recognises the peculiar power of radio and television to communicate with the electorate in their own homes (or wherever else they may be listening to the radio or watching television). Such broadcasts are in a special position and raise special problems, since the broadcasters' usual duties of fairness and balance cannot apply. A broadcast made by a political party must be expected to be partisan. However it is not in dispute that the prohibition on offending good taste, decency or public feeling applies to them.