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

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42.  I conclude, therefore, that there may be respects in which sections 319 and 321 are incompatible with article 10. But the power to make a declaration of incompatibility under section 4 of the 1998 Act is a discretionary power. And as a general rule the discretion ought not, in my opinion, to be exercised unless the circumstances of the case in which the question of making the declaration arises show that the legislative provision in question has affected a Convention right of the applicant for the declaration in a manner that is incompatible with that right. Hypothetical examples of ways in which the legislative provision might be incompatible with a Convention right should not, in my opinion, suffice. Your Lordships’ conclusion on this appeal is that the effect of sections 319 and 321 in prohibiting the broadcasting of ADI’s desired advertisement is not incompatible with ADI’s article 10 rights.

43.  The other matter on which I want to comment concerns the VGT case (2002) 34 EHRR 159, fully reviewed by Lord Bingham in paragraphs 8 to 12 of his opinion. Heavy reliance on the VGT case was placed by Mr Fordham QC, counsel for ADI. The European Court’s decision was, he submitted, indistinguishable from the present case. The applicant, VGT, was, like ADI, an association whose aim was the protection of animals. VGT desired to have broadcast an advertisement about the manner in which piglets were reared. The advertisement was rejected by the Swiss authorities on the ground of its political character. The European Court concluded that the Swiss government had not demonstrated in a “relevant and sufficient” manner why the prohibition was necessary (para.75). The European Court considered the VGT case in Murphy v Ireland (2003) 38 EHRR 212 and, although concluding in Murphy that the ban on religious advertising with which the case was concerned did not interfere with the applicant’s article 10 rights, did not distinguish or qualify its reasoning in the VGT case. The VGT case went back before the European Court on a subsequent application, consequential upon the Swiss Federal Court’s refusal to revise its domestic judgment that had prompted the original application to the European Court, and in a judgment delivered on 4 October 2007 the European Court held that there had been a new and further violation of the applicant’s article 10 rights. However, as Mr Pannick QC, counsel for the Secretary of State, has pointed out (para.32 of his printed Case), judgments of the European Court are closely focused on the facts of particular cases that “makes it perilous to transpose the outcome of one case to another where the facts are different” (per Lord Bingham in R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307 at 342 D/E) and I would not, for my part, assume from the VGT case that the European Court would disagree with your Lordships’ conclusion that the statutory ban on the broadcasting of ADI’s “political” advertisement does not infringe ADI’s article 10 rights.

44.  The result of the present appeal to this House shows, therefore, no more than the possibility of a divergence between the opinion of the European Court as to the application of article 10 in relation to the statutory prohibition of which ADI complains and the opinion of this House. The possibility of such a divergence is contemplated, implicitly at least, by the 1998 Act. The 1998 Act incorporated into domestic law the articles of the Convention and of the Protocols set out in Schedule 1 to the Act. So the articles became part of domestic law. But the incorporated articles are not merely part of domestic law. They remain, as they were before the 1998 Act, articles of a Convention binding on the United Kingdom under international law. In so far as the articles are part of domestic law, this House is, and, when this House is eventually replaced by a Supreme Court, that court will be, the court of final appeal whose interpretation of the incorporated articles will, subject only to legislative intervention, be binding in domestic law. In so far as the articles are part of international law they are binding on the United Kingdom as a signatory of the Convention and the European Court is, for the purposes of international law, the final arbiter of their meaning and effect. Section 2 of the 1998 Act requires any domestic court determining a question which has arisen in connection with a Convention right to take into account, inter alia, “any judgment, decision, declaration or advisory opinion of the European Court of Human Rights” (ss.(1)(a)). The judgments of the European Court are, therefore, not binding on domestic courts. They constitute material, very important material, that must be taken into account, but domestic courts are nonetheless not bound by the European Court’s interpretation of an incorporated article.

45.  It is, in my opinion, important that that should be so and that its importance is not lost sight of. As Lord Bingham observed in Brown v Stott [2003] 1 AC 681 at 703 -

“… the case law of the European court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept”

And, per Lord Hoffmann in R (Alconbury Developments Ltd) v Environment Secretary [2003] 2 AC 295 at 327

“The House is not bound by the decisions of the European Court and, if I thought that the Divisional Court was right to hold that they compelled a conclusion fundamentally at odds with the distribution of powers under the British constitution, I would have considerable doubt as to whether they should be followed”

The importance of the maintenance of reasonable statutory restrictions on political advertising makes these remarks particularly pertinent.

46.  Section 4 of the 1998 Act empowers the court to make a declaration of incompatibility if satisfied that the legislative provision in question “is incompatible with a Convention right". Does that mean incompatible with a Convention right as interpreted by the European Court and binding on the United Kingdom under international law? Or does it mean incompatible with a Convention right as interpreted by the domestic courts of this country? An important purpose of a declaration of incompatibility is, as I see it, to draw the attention of the government, Parliament and the United Kingdom public to an inconsistency between the provision of domestic legislation in question and the rights under domestic law conferred on the applicant for the declaration by the article of the Convention in question. However another purpose of a declaration of incompatibility would be to draw the attention of the government and Parliament to an inconsistency between the legislative provision in question and the international law obligations of the United Kingdom as a signatory of the Convention. If it were to be the unfortunate case that a divergence emerged between the opinion of the European Court and the opinion of this House (or, later, the Supreme Court) as to the application or scope of one or other of the articles of the Convention that have become part of our domestic law, it might become necessary for a decision to be taken as to which purpose should be regarded as the prime purpose. They could not both be achieved. But I do not think that problem arises in this appeal

BARONESS HALE OF RICHMOND

My Lords,

47.  There was an elephant in the committee room, always there but never mentioned, when we heard this case. It was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States of America. Enormous sums are spent, and therefore have to be raised, at election times: it is estimated that the disputed 2000 elections for President and Congress cost as much as US$3 billion. Attempts to regulate campaign spending are struck down in the name of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press": see particularly Buckley v Valco, 424 US 1 (1976). A fortiori there is no limit to the amount that pressure groups can spend on getting their message across in the most powerful and pervasive media available.

48.  In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. “Within the sphere of democratic politics, we confront each other as moral equals” (Ackerman and Ayres, Voting with Dollars, 2003, p 12). We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.

49.  So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality. There are aspects of the ban on broadcasting political advertisements which no-one disputes: in particular, advertising by candidates for election, or by political parties, whether or not at election times. But this case is about advertising by a particular interest group which campaigns for changes in the law.

50.  The proposed advertisement shows an animal’s cage, in which a chained girl gradually emerges from the shadows into view; the screen goes black and the following messages appear: “A chimp has the mental age of a 4 year old"; “Although we share 98% of our genetic makeup they are still caged and abused to entertain us"; “Please help us to stop their suffering by making a donation today"; the final shot is of a monkey in a cage in exactly the same position as the girl was in. It takes little imagination to understand how powerful this would be, much more powerful than a static image on a bill-board or printed page, and beamed into every households in the land where anyone was watching commercial television at the time. It is also clearly part of a campaign for change in the law, and thus prohibited by sections 319(2)(g), 321(2)(b), and 321(3)(b), as well as by sections 319(2)(g) and 321(2)(a), which prohibit any advertising by bodies whose objects are wholly or mainly of a political nature.

51.  For all the reasons which my noble and learned friend, Lord Bingham of Cornhill, has so eloquently and comprehensively given, I agree that the ban as it operates in this case is not incompatible with the appellants’ Convention rights. It is a balanced and proportionate response to the problem: they can seek to put their case across in any other way, but not the one which so greatly risks distorting the public debate in favour of the rich. There has to be the same rule for the same kind of advertising, whatever the cause for which it campaigns and whatever the resources of the campaigners. We must not distinguish between causes of which we approve and causes of which we disapprove. Nor in practice can we distinguish between small organisations which have to fight for every penny and rich ones with access to massive sums. Capping or rationing will not work, for the reasons Lord Bingham gives.

52.  Nor do I think that the decision in the VgT case should lead us to any different conclusion. All Strasbourg decisions are fact-specific. Similar though the organisations were, the advertisements were rather different: “eat less meat” is a different message from “help us to stop their suffering". Important arguments which were given less weight in VgT were accepted in Murphy. If anything, the need to strike a fair balance between the competing interests is stronger in the political than in the religious context. Important though political speech is, the political rights of others are equally important in a democracy. The issue is whether the ban, as it applies to these facts, was proportionate to the legitimate aim of protecting the democratic rights of others. As Lord Bingham has demonstrated, Government and Parliament have recently examined with some care whether a more limited ban could be made to work and have concluded that it could not. The solution chosen has all-party support. Parliamentarians of all political persuasions take the view that the ban is necessary in this democratic society. Any court would be slow indeed to take a different view on a question such as this. There may be room for argument at the very margins of the rule, for example, in banning any advertisement of any kind by a political body, or in banning any advertisement by anyone of matters of public controversy. But that is not this case.

53.  I also share the view expressed by Lord Bingham in paragraph 37 of his opinion. The Human Rights Act 1998 gives effect to the Convention rights in our domestic law. To that extent they are domestic rights for which domestic remedies are prescribed: Re McKerr [2004] UKHL 12, [2004] 1WLR 807.But the rights are those defined in the Convention, the correct interpretation of which lies ultimately with Strasbourg: R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20. Our task is to keep pace with the Strasbourg jurisprudence as it develops over time, no more and no less: R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153, para 106. This cautious approach to the interpretation of the Convention rights has been criticised, mainly on the ground that “the Convention is a floor and not a ceiling". It represents the minimum and not the maximum protection that Member States should provide. There is, of course, nothing to stop our Parliament from legislating to protect human rights to a greater extent than the Convention and its jurisprudence currently require; nor is there anything to prevent the courts from developing the common law in that direction. But we are here concerned with whether an Act of the United Kingdom Parliament is compatible with the Convention rights: if prima facie it is not, Parliament has given us the duty, if possible, to interpret it compatibly with those rights (Human Rights Act 1998, s 3(1)); and if that is not possible, the power to declare it incompatible (s 4). I do not believe that, when Parliament gave us those novel and important powers, it was giving us the power to leap ahead of Strasbourg in our interpretation of the Convention rights. Nor do I believe that it was expecting us to lag behind. The purpose, in my view, of a declaration of incompatibility is to warn Government and Parliament that, in our view, the United Kingdom is in breach of its international obligations. It is then for them to decide what, if anything, to do about it.

54.  Hence, for the reasons given by Lord Bingham, with which I entirely agree, I would dismiss this appeal.

LORD CARSWELL

My Lords,

55.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Bingham of Cornhill. For the reasons which he gives I too would dismiss the appeal.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

 
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