|Judgments - R (On The Application of Animal Defenders International) V Secretary of State For Culture, Media and Sport (Respondent)
HOUSE OF LORDS
 UKHL 15
on appeal from:  EWHC 3069 (Admin)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R (on the application of Animal Defenders International) (Appellants) v Secretary of State for Culture, media and Sport (Respondent)
Lord Bingham of Cornhill
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
Michael Fordham QC
(Instructed by Bindman & Partners)
David Pannick QC
(Instructed by Treasury Solicitors)
17-18 DECEMBER 2007
WEDNESDAY 12 MARCH 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of Animal Defenders International (Appellants) v Secretary of State for Culture, Media and Sport (Respondent)
 UKHL 15
LORD BINGHAM OF CORNHILL
Statutory control of broadcasting
"No advertisement shall be permitted which is inserted by or on behalf of any body the objects whereof are wholly or mainly of a religious or political nature, and no advertisement shall be permitted which is directed towards any religious or political end or has any relation to any industrial dispute."
"(2) For the purposes of section 319(2)(g) an advertisement contravenes the prohibition on political advertising if it is
(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;
(b) an advertisement which is directed towards a political end; or
(c) an advertisement which has a connection with an industrial dispute."
Thus an advertisement may fall foul of the prohibition in section 319(2)(g) either because of the character of the advertiser or because of the content and character of the advertisement. Section 321 continues in (3):
"(3) For the purposes of this section objects of a political nature and political ends include each of the following
(a) influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;
(b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;
(c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;
(d) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;
(e) influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;
(f) influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;
(g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends."
An exception is provided in subsection (7) for advertisements of a public service nature inserted by government departments and party political or referendum campaign broadcasts covered by later provisions of the Act.
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, for the protection of the rights of others "
"75 Moreover, it has not been argued that the applicant association itself constituted a powerful financial group which, with its proposed commercial, aimed at endangering the independence of the broadcaster; at unduly influencing public opinion; or at endangering the equality of opportunity between the different forces of society. Indeed, rather than abusing a competitive advantage, all the applicant association intended to do with its commercial was to participate in an ongoing general debate on animal protection and the rearing of animals. The Court cannot exclude that a prohibition of 'political advertising' may be compatible with the requirements of Article 10 of the Convention in certain situations. Nevertheless, the reasons must be 'relevant' and 'sufficient' in respect of the particular interference with the rights under Article 10. In the present case, the Federal Court in its judgment of 20 August 1997, discussed at length the reasons in general which justified a prohibition of 'political advertising'. In the Court's opinion, however, the domestic authorities have not demonstrated in a 'relevant and sufficient' manner why the grounds generally advanced in support of the prohibition of political advertising also served to justify the interference in the particular circumstances of the applicant association's case."
The court pointed out (para 77) that the applicant had no means other than through the Swiss Radio and Television Company of reaching the entire Swiss public and was not concerned (para 78) with the mechanics of programming. It concluded (para 79) that the ban was not necessary in a democratic society and so violated article 10.
The 2003 Act
"Alternative to the current ban
7 Given the UK's commitment to human rights, officials were asked to examine how the ban might be substantially maintained, but in a manner compliant with the ECHR. In particular, consideration was given to an alternative regime based on specific prohibitions, such as banning all party political advertising and all political advertising around the time of elections or referendums; coupled with other rules to avoid the predominance of any particular point of view on one channel, 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.
8 The conclusion was reached, taking account of legal advice, 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 across a number of channels"
While the government recognised that it might have to change its position in the light of court decisions, it did not believe the bill to be incompatible. The VgT case was summarised, as were counsel's reasons for advising that there was a very strong case for holding the ban to be compatible with the Convention.
"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."
The government believed there to be a very strong case that the existing ban was compatible with the Convention, and made plain that the ban would apply to any advertisement inserted by or on behalf of a body whose objects were wholly or mainly of a political nature, any advertisement directed towards a political end and any advertisement having any connection with an industrial dispute.
The competing arguments
"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."
LORD SCOTT OF FOSCOTE
" 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  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.
BARONESS HALE OF RICHMOND
LORD NEUBERGER OF ABBOTSBURY