Judgments - R (On The Application of Animal Defenders International) V Secretary of State For Culture, Media and Sport (Respondent)

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23.  Mr David Pannick QC, for the respondent, based his argument in part on some observations of the European Court in Murphy v Ireland (2003) 38 EHRR 212 and more particularly on a series of propositions which found favour with Ouseley J in this case.

24.  The applicant in Murphy was a pastor attached to an evangelical protestant centre based in Dublin. He wished to broadcast an advertisement for a video to be shown by the centre during the week before Easter 1995, but the broadcast was stopped by the Independent Radio and Television Commission because section 10(3) of the Radio and Television Act 1988 prohibited the broadcasting of any advertisement directed towards any religious or political end or having any relation to an industrial dispute. The applicant applied for judicial review against the Commission and the attorney general, but failed in the High Court and the Supreme Court. A bill was introduced in the Dáil to amend section 10(3) of the 1988 Act, but the amending bill never became law. The Minister for Arts, Heritage, Gaeltacht and the Islands opposed the amendment, noting the great power of the radio and television media, but resisting the proposal that Commission officials should distinguish between acceptable and unacceptable advertisements. He pointed to the difficulty of framing a selective ban and to the distinction between religious advertising and advertising for goods and services. When the Irish government introduced its own bill, section 10(3) was largely preserved but was extended to digital and other broadcasting services. In its judgment the European Court referred to the governing legislation and summarised the parties’ respective arguments. It considered (para 67) that member states enjoyed a wider margin of appreciation in relation to matters of morals and religion as compared with restrictions on political speech or debate on matters of public interest, and on that ground distinguished VgT. The court considered (para 69) that the potential impact of the medium of expression in question was an important factor in assessing the proportionality of an interference, and acknowledged that the audio-visual media have a more immediate and powerful effect than the print media. The court paid attention to the peculiar characteristics and sensitivity of religious broadcasting (paras 70-73), but noted that the prohibition concerned only the audio-visual media (para 74): these, as the applicant, the government and the court all agreed, had a more immediate, invasive and powerful impact than other media, but the applicant was free to advertise the same matter in any of the print media, or at public meetings and other assemblies. Moreover the prohibition applied only to advertising. The applicant retained the same right as any other citizen to participate in programmes on religious matters, but advertising tended to be partial, and was not subject to the broadcaster’s duty of impartiality, so that the purchase of advertising time would lean in favour of unbalanced usage by religious groups with larger resources. The court considered these (para 75) to be highly relevant reasons justifying the Irish state’s prohibition. The court did not consider that the government’s aims could have been achieved by a more limited prohibition because (para 76) a complete or partial relaxation would sit uneasily with the nature and level of religious sensitivities already mentioned and with the principle of neutrality in the broadcast media: a provision which allowed the filtering of adverts by the state or a state organ on a case by case basis would be (para 77) difficult to apply fairly, objectively and coherently. Even a limited freedom to advertise would benefit a dominant religion (para 78) more than religions with fewer adherents and smaller resources, and jar with the object of promoting neutrality in broadcasting and of ensuring a level playing field for all religions in the medium considered to have the most powerful impact. The court noted (para 81) that there appeared to be no clear consensus among member states as to the manner in which religious broadcasting should be controlled. In the result, the court unanimously found that there had been no violation of article 10.

25.  In his judgment in the Divisional Court Ouseley J accepted (para 85) that it was for the respondent to justify its interference with the appellant’s right to advertise, that the aim of the legislation (para 86) was capable of providing justification and that (para 87) the test was one of necessity, not reasonableness: a high level of justification was required to justify interference with political expression, the state’s margin of appreciation being relatively narrow. In considering justification, the judge thought it quite clear (paras 90-91) that the broadcast media were more pervasive and potent than other media, and that therefore (para 92) a proper distinction could be drawn between the broadcast and non-broadcast media. He accepted (para 94), as Mr Fordham had done, that political advertising at election times was properly controlled, to prevent wealthier parties or groups exerting undue influence on the course of political debate. But similar considerations applied outside election periods (para 96) and (para 98) no sensible distinction could be drawn between political parties and other groups with discernibly political ends. The judge gave examples (para 100) of causes strongly supported by single issue groups, among them opposition to UK membership of the euro, those supporting the ban on fox-hunting, those for or against abortion and civil partnerships or those protesting against the war in Iraq. Auld LJ (para 80) gave climate change and immigration as further examples. Ouseley J concluded (para 101) that no sensible distinction could be drawn in practice between one so-called political party or group and another so-called social advocacy group in this context. He considered (para 102) that the restriction reinforced the aim that there should be no political advertising by anyone through the back door. The distinctions possibly contemplated by the European court in VgT (paras 103-104) were not in his opinion workable, or reconcilable (paras 105-106) with the broadcaster’s important duty of impartiality. He concluded (para 108) that the justification for the legislation was clearly made out. But did it meet the exacting Convention standard (para 108)? He concluded that it did (para 109) because it supported democracy by denying an undesirable advantage to those best able to pay. No lesser restriction would suffice (para 110). There was not always (para 111) a clear distinction between religious and political issues, all media other than television and radio were open to the appellant (para 112), the legislature was entitled and obliged to balance competing interests (para 113) and Parliament had expressed a considered view, having grappled with the human rights implications of the ban (para 114). This was a field in which Parliament was best fitted to make a judgment (paras 115-116). VgT did not compel a contrary conclusion (paras 118-121), and the comparative material relied on was inconclusive (paras 123-124). He summarised his conclusion in para 125 of his judgment:

“In summary, the necessity for restrictions on political/social advocacy broadcast advertising outside elections periods has been convincingly shown. It is necessary to protect the rights of others through preventing undue access to the broadcast media based on willingness and ability to pay. At root it supports the soundness of the framework for democratic public debate. The broadcast media remain pervasive and potent throughout the period between elections. The suggested distinction between political parties or groupings and social advocacy groups does not reflect the true political impact of all such advertising. The completeness of the prohibition avoids arbitrary and anomalous distinctions in practice. The European Court of Human Rights’ decision in Vgt offers no useful guidance. Whether the decision of Parliament in enacting s. 321 of the Communications Act 2003 is seen as strong evidence for the necessity for the prohibition in an area of its primary experience and expertise or as a judgment in an area where a wider margin of discretion should be accorded to it, its decision should be respected by the courts. It is not incompatible with the ECHR.”

The issue

26.  There is much common ground between the parties to this appeal. Thus it is accepted that section 319 and 321 of the 2003 Act constitute an interference with the appellant’s exercise of its right to free expression, and article 10 of the Convention is engaged. It is accepted that this is a restriction prescribed by law and has the legitimate aim of protecting the rights of others, namely their democratic rights. The only issue is whether the restriction is necessary in a democratic society. And even here there is common ground. For a restriction to be necessary there must be a pressing social need for it, and it is for the member state which imposes the restriction to justify it. While the right to freedom of expression is not absolute, and no one has a right of access to the airwaves, the importance of free expression is such that the standard of justification required of member states is high and their margin of appreciation correspondingly small, particularly where political speech is in issue. The problem here is not one which can be resolved by exercise of the interpretative power given to the courts by section 3 of the 1998 Act. All this is agreed. Yet the importance of this case to the functioning of our democracy is in my view such as to call for the rehearsal of some very familiar but fundamental principles.

27.  Freedom of thought and expression is an essential condition of an intellectually healthy society. The free communication of information, opinions and argument about the laws which a state should enact and the policies its government at all levels should pursue is an essential condition of truly democratic government. These are the values which article 10 exists to protect, and their importance gives it a central role in the Convention regime, protecting free speech in general and free political speech in particular.

28.  The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated. It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.

29.  I do not think the full strength of this argument was deployed in VgT. And in that case the applicant was seeking to respond, with a wholly inoffensive advertisement, to commercials broadcast by the meat industry. In the present case also the proposed advertisement is wholly inoffensive, and one may be sympathetic to the appellant’s aims or some of them. But the issue must be tested with reference to objects with which one may not be sympathetic. Hypothetical examples spring readily to mind: adverts by well-endowed multi-national companies seeking to thwart or delay action on climate change; adverts by wealthy groups seeking to ban abortion; or, if not among member states of the Council of Europe, adverts by so-called patriotic groups supporting the right of the citizen to bear arms. Parliament was entitled to regard the risk of such adverts as a real danger, none the less so because legislation has up to now prevented its occurrence.

30.  The question necessarily arises why there is a pressing social need for a blanket prohibition of political advertising on television and radio when no such prohibition applies to the press, the cinema and all other media of communication. The answer is found in the greater immediacy and impact of television and radio advertising. This was recognised by the European Court in Jersild v Denmark (1994) 19 EHRR 1, para 31, and again in Murphy in the passages referred to in para 24 above, although the court appeared to discount the point somewhat in para 74 of its judgment in VgT. Here, the chief executive of the appellant in her evidence has described television and radio as “the most influential advertising option” and stated that “Moving images are an enormously effective way of getting across evidence of social and environmental problems, and giving the public the chance to participate in change". Plainly, this application is made precisely because television and radio are judged to be the most effective advertising media. I share the view of Ouseley J in para 90 of his judgment “that it is not really a matter of serious debate but that the broadcast media is more pervasive and potent than any other form of media".

31.  Since, in principle, no restriction may be wider than is necessary to promote the legitimate object which it exists to serve, it is necessary to ask whether any restriction on political advertising less absolute than that laid down in sections 319 and 321 would suffice to meet the mischief in question. The possibility suggests itself of regulating political advertising by time or frequency or expenditure or by the nature and quality of the adverts in question. It is, I think, unnecessary to explore this possibility in detail, for four main reasons. First, Mr Fordham for the appellant has not, clearly advisedly, advanced such an argument although, as I understand, he did so below. Secondly, it is difficult to see how any system of rationing or capping could be devised which could not be circumvented, as, for instance, by the formation of small and apparently independent groups pursuing very similar political objects. In its judgment in Murphy, para 77, the European Court recognised the difficulty of invigilating religious adverts fairly, objectively and coherently on a case by case basis and exactly the same difficulty would arise here, perhaps even more embarrassingly. It is hard to think that any such system would not accord excessive discretion to officials, and give rise to many legal challenges. Thirdly, the important duty of broadcasters to present a fair, balanced and reasonably comprehensive cross-section of public opinion on the issues of the day across the range of their programmes, hard as it is to discharge in any event, would be rendered even harder to discharge if account had to be taken of what might well be a considerable volume of political advertising. Fourthly, despite an express request by the Joint Human Rights Committee to consider compromise solutions, the government judged that no fair and workable compromise solution could be found which would address the problem, a judgment which Parliament accepted. I see no reason to challenge that judgment.

32.  While television and radio are, as noted above, the preferred media for advertising, it is not irrelevant that all other media are open to the appellant: newspapers and magazines, direct mailshots, billboards, public meetings and marches. The appellant may also contribute to broadcast programmes and radio phone-ins. The European Court attached little weight to this consideration in VgT, paras 74, 77, but did so in Murphy, para 74. In my opinion, this is a factor of some weight. The case is quite unlike that in Bowman v United Kingdom (1998) 26 EHRR 1, para 47, where the legislative provision in question was held to operate, for all practical purposes, as a total barrier to Mrs Bowman’s communication of her views.

33.  The weight to be accorded to the judgment of Parliament depends on the circumstances and the subject matter. In the present context it should in my opinion be given great weight, for three main reasons. First, it is reasonable to expect that our democratically-elected politicians will be peculiarly sensitive to the measures necessary to safeguard the integrity of our democracy. It cannot be supposed that others, including judges, will be more so. Secondly, Parliament has resolved, uniquely since the 1998 Act came into force in October 2000, that the prohibition of political advertising on television and radio may possibly, although improbably, infringe article 10 but has nonetheless resolved to proceed under section 19(1)(b) of the Act. It has done so, while properly recognising the interpretative supremacy of the European Court, because of the importance which it attaches to maintenance of this prohibition. The judgment of Parliament on such an issue should not be lightly overridden. Thirdly, legislation cannot be framed so as to address particular cases. It must lay down general rules: James v United Kingdom (1986) 8 EHRR 123, para 68; Mellacher v Austria (1989) 12 EHRR 391, paras 52-53; R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800, para 29; Wilson v First County Trust (No 2) [2003] UKHL 40, [2004] 1 AC 816, paras 72-74; R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, paras 41, 91. A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.

34.  If, as in VgT, a body with aims similar to those of the applicant in that case or the appellant in this had grounds for wishing to counter the effect of commercial advertising bearing on an issue of public controversy, it would have strong grounds for seeking an opportunity to put its case in the ordinary course of broadcast programmes. The broadcaster, discharging its duty of impartiality, could not ignore such a request. But that is not this case. A question of compatibility might arise if a body whose objects were wholly or mainly of a political nature sought to broadcast an advertisement unrelated to its objects, or if an advertisement were rejected as of a political nature or directed towards political ends when it did not fall within section 321(3)(a), (b), (c), (d), (e) or (g) but only within section 321(3)(f). But the present is not such a case. The appellant’s proposed advertisement was, as one would expect, consistent with its objects and, as the appellant’s chief executive makes plain in her evidence, its object is to persuade Parliament to legislate. If such a limited challenge were to arise, there might well be scope for resort to section 3 of the 1998 Act, agreed to be inappropriate in the present case.

35.  In Murphy, para 81, the European Court observed that there appeared to be no clear consensus between member states as to the manner in which to legislate for the broadcasting of religious advertisements and that there appeared to be no uniform conception of the requirements of the protection of the rights of others in the context of the legislative regulation of the broadcasting of religious advertising. The same may be said of political advertising. While the laws of some states, notably the Scandinavian states and Ireland, appear to resemble those of the UK, those of some other states do not. The European Court has regarded such a lack of consensus as tending to widen the margin of appreciation enjoyed by member states: Petrovic v Austria (1998) 33 EHRR 307, para 38; Stambuk v Germany (2002) 37 EHRR 845, para 40. There is here no settled practice among European states, and it may be that each state is best fitted to judge the checks and balances necessary to safeguard, consistently with article 10, the integrity of its own democracy.

36.  For these reasons, reflecting those of Ouseley J and, in the main, those of Auld LJ, I conclude that the ban on political advertising in sections 319 and 321 is necessary in a democratic society and so compatible with the Convention. I would accordingly dismiss this appeal. The respondent seeks no order for costs, and none will be made.

37.  I cannot, with regret, concur in all that my noble and learned friend Lord Scott of Foscote says in paras [44] - [45] of his opinion. It is true, of course, that the 1998 Act gave domestic effect to the Convention rights defined in section 1 and that, under section 2, the obligation of the courts is to take into account any Strasbourg decision, not to follow it as a strictly binding precedent. But section 6(1) makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. The House has held that in the absence of special circumstances our courts should follow any clear and constant jurisprudence of the Strasbourg court, recognising that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court: R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20. As the law now stands, I see little scope for the competition between conflicting interpretations which my noble and learned friend appears to envisage.

LORD SCOTT OF FOSCOTE

My Lords,

38.  I have had the great advantage of reading in advance the opinion of my noble and learned friend Lord Bingham of Cornhill on this appeal and am in respectful agreement that, for the reasons he gives, this appeal should be dismissed. There are, however, two aspects of the appeal on which I want to add a few words of my own.

39.  The appellant, ADI, commenced the proceedings that have led to this appeal by making a claim for judicial review, prompted by the decision by the Broadcasts Advertising Clearance Centre that ADI’s proposed advertisement, part of its “My Mate’s a Primate” campaign, was a political advertisement for the purposes of sections 319 and 321 of the Communications Act 2003. It was a political advertisement because, first, ADI is a body “whose objects are wholly or mainly of a political nature” (s.321(2)(a)), second, the proposed advertisement was “… directed towards a political end” (s.321(2)(b)), and, third, “objects of a political nature and political ends” include, inter alia, “bringing about changes of the law …” (s.321(3)(b), “influencing public opinion on a matter … of public controversy” (s.321(3)(f) and “promoting the interests of a … group of persons organised … for political ends” (s.321(3)(g). ADI has accepted that these legislative provisions require its proposed advertisement to be treated as a political advertisement for the purposes of sections 319 and 321 of the 2003 Act and that the broadcasting of the advertisement in the television or radio media is accordingly prohibited. So the relief sought by ADI is now confined to a declaration under section 4 of the Human Rights Act 1998 that the statutory prohibition is incompatible with its right under article 10 of the Convention to freedom of expression.

40.  The Divisional Court refused to make the declaration and I, in agreement with all your Lordships, would do so too. It is not in dispute that the statutory prohibition of political advertising does constitute a restriction on ADI’s “freedom of expression” and that article 10 of the Convention is therefore engaged. It is common ground, also, that the critical issue is whether the Secretary of State has shown that the restriction is “necessary in a democratic society … for the protection of the rights of others …". For the reasons given by Lord Bingham, on which I cannot and shall not attempt to improve, restrictions on the ability of organisations like ADI, whose raison d'être is to bring about changes in the law, to promote their objects by means of television or radio advertisements are necessary in order to try to ensure a level playing field for the promotion or defence of political ideas and policies and thereby to protect the rights of the public to a fair functioning of an important part of the democratic process. A restriction that prohibits the broadcasting of ADI’s desired advertisement seems to me well within the margin of appreciation that must be accorded to Parliament.

41.  I do not think, however, that your Lordships in dismissing this appeal, should be taken to be franking sections 319 and 321 against any possible attack made on article 10 grounds. The width of the statutory prohibition is remarkable. It would appear, for example, to withhold from ADI, or from any organisation whose objects were wholly or mainly to bring about changes in the law, the ability to place for broadcasting an advertisement with no political content whatever, eg. to attend a car boot sale, or an advertisement with an entirely neutral political content, eg. to encourage voters to vote at an election. Moreover, a good deal of commercial advertising is likely to be objectionable to the principles of some section of the viewing public. For example, the broadcasting of an advertisement encouraging people to patronise some particular zoo or circus would be likely to offend ADI and its supporters; the broadcasting of an advertisement encouraging people to eat burgers of various sorts would be likely to offend organisations that disagree with the manner in which beef cattle are reared or slaughtered or both; the broadcasting of advertisements encouraging people to buy a turkey for Christmas dinner would be likely to offend organisations who want the intensive rearing of poultry banned; and so on. Why should these organisations not counter the broadcasting of advertisements that offend their principles with the broadcasting of their own advertisements promoting their principles? It was not suggested that the purpose of ADI’s “My Mate’s a Primate” campaign was to counter the broadcasting of advertisements promoting any zoo or zoos in which primates are kept in cages but if that had been the case the arguments justifying the statutory prohibition might have been difficult.

 
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