Joint Committee On Human Rights First Report


5. LETTER FROM THE CHAIRMAN TO RT HON TESSA JOWELL MP, SECRETARY OF STATE, DEPARTMENT FOR CULTURE, MEDIA AND SPORT

COMMUNICATIONS BILL (HC BILL 6)

The Committee is considering whether to report to each House on the above Bill. It has carried out an initial examination of this Bill, and has formed the provisional opinion that the Bill is in most respects compatible with relevant human rights obligations. The Committee was very pleased to note the careful consideration given by the Government to its Nineteenth Report of 2001-02. It has also taken account of the comments in your memorandum in response, enclosed with the letter of 22 November 2002 from you and Patricia Hewitt, and of your comments in the House of Commons on 3 December 2002 on your statement made under section 19(1)(b) of the Human Rights Act 1998. The Committee would, however, be grateful for your comments on the following points.



1. The section 19(1)(b) statement and clause 309 of the Bill

The Bill is the first to have carried, on first being introduced to Parliament, a section 19(1)(b) statement rather than a statement of compatibility under section 19(1)(a) of the Human Rights Act. The position the Government takes in the Explanatory Notes to the Bill, your memorandum to the Committee, and your comments in the House of Commons all make it clear that the Government has not taken this step lightly. They suggest 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;

    —  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 1989;

    —  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 feels 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.

Your memorandum for the Committee states, 'the Government firmly believes that there is a very strong case that the present ban is consistent with the ECHR, even in light of the Swiss case.' In the House of Commons, you said, 'By denying powerful interests the chance to skew political debate, the current ban safeguards the public and democratic debate, and protects the impartiality of broadcasters.' The JCHR acknowledged these and similar concerns in its report on the draft Bill, and urged the utmost caution in moving from the present statutory position. However, deliberately to invite Parliament to legislate where there is a risk of incompatibility is a serious step which requires full justification. It is important for Parliament to be clear about the reasons being advanced for inviting it to proceed to consider the Bill in these exceptional circumstances. The Committee therefore invites you to set out in greater detail the reasoning which led the Government to conclude—

    (i) that a partial ban could not be devised which would protect against the potential dangers outlined in your statement; and

    (ii) that a total ban could be held to be a proportionate response to a pressing social need for one of the legitimate purposes under ECHR Article 10.2.

2. Refusal to include express protection for the privilege against self-incrimination and items subject to legal privilege.

The lack of such protection was pointed out in the Committee's report on the Draft Bill, with the suggestion that it led to a risk of incompatibility with ECHR Articles 6 and 8.[122] The Government's response is:

    Such provision is not necessary to ensure that the privileges in question (created under common law) are fully protected. The widespread use of such provisions could paradoxically have the effect of weakening the protection accorded to them, by suggesting that in legislation where such express provision is absent, Parliament did not intend the privilege to receive full protection.[123]

But in recent decades, 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.[124] The Committee has consistently taken the view that appropriate safeguards for Convention rights should be made manifest on the face of legislation, rather than relying on courts or administrators to read them 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.

In the light of these considerations, the Committee seeks an explanation as to why the Government considers that these provisions contain sufficient safeguards adequately to protect the privilege against self-incrimination and legal professional privilege (rights entitled to respect by virtue of ECHR Articles 6.1 and 8, as well as the common law).

3. Penalties and other sanctions on broadcasters: procedural safeguards.

The Committee recommended that the Bill should provide significantly better procedural safeguards where broadcasters are to be liable to fines or revocation and suspension of licences, in order to meet ECHR Article 6 standards.[125] The Government rejects this, and is content to rely on OFCOM to 'establish appropriate internal procedures for handling alleged breaches of conditions and for giving practical effect to broadcasters' rights to have a reasonable opportunity to make representations...' The Government considers that 'there is no reason to think that OFCOM will fail in that respect, and there could be disadvantages in tying OFCOM's hands by laying down statutory procedures that could deprive them of valuable flexibility. Such procedures, coupled with the availability of judicial review, would in the Government's view be found to meet the standards set by Article 6.'[126]

In our Nineteenth Report, 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.[127]

This is equally true of the equivalent provision in the Bill (clause 230).

The Committee seeks an explanation as to why the Government considers that judicial review would provide sufficient procedural safeguards to ensure that the standards of fair hearing imposed by ECHR Article 6 would be met.

4. Direction by a Minister to a broadcaster via OFCOM to include announcements in their services.

In our Nineteenth Report of 2001-02, we expressed the view that this power, now in clause 324 of the Bill, should be made more specific in order to provide adequate safeguards for the rights to freedom of expression (ECHR Article 10) and peaceful enjoyment of possessions (Article 1 of Protocol No. 1, hereafter P1/1).[128] The Government disagrees, considering it to be 'neither necessary nor appropriate further to delimit the exercise of the power', since (i) section 6 of the Human Rights Act 1998 would compel the Minister to act compatibly with Convention rights, and (ii) it would be impossible exhaustively to set out the circumstances in which the power could be used.[129]

The Committee seeks an explanation as to: (a) why the Government considers that safeguards could not be provided without exhaustively defining the circumstances in which a provision might operate, and (b) why it would be impossible or inappropriate to attempt to ensure that powers are subject to sufficient safeguards and appropriately delimited to provide adequate safeguards for Convention rights under ECHR Article 10 and P1/1.

5. Ownership of broadcasting licences by religious bodies.

In our Nineteenth Report of 2001-02, we suggested that 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.[130] The Government takes the view that the provisions are compatible with Article 10, because (i) the aim of the provisions has not changed,[131] and (ii) 'the less wide-ranging ban proposed by the Bill pursues a legitimate objective in a proportionate manner and is compatible with the ECHR.'[132]

The Government has not offered any detailed explanation for its view that a ban on owning any television broadcasting licence, but only on owning national (not local) radio broadcasting licences, is a response to a pressing social need so as to be 'necessary in a democratic society' for the purpose of establishing a justification for interfering with freedom of expression under ECHR Article 10.2. The Committee seeks a fuller explanation for the distinction made in the Bill between licences for local and national radio broadcasting in relation to religious organisations.

6. Representations.

Finally, the Committee would be grateful for a description of any other representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

The Committee would be grateful for a response to its questions by 9 January, so that it may report its conclusions before the Bill is reported from standing committee.

10 December 2002



122   Nineteenth Report, para. 25 Back

123   Explanatory Notes, para. 883 Back

124   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

125   Nineteenth Report, para. 47 Back

126   Explanatory Notes, para. 890 Back

127   Nineteenth Report, para. 44 Back

128   Nineteenth Report, para. 50 Back

129   Explanatory Notes, paragraph 895. The Government notes that the power has so far been used only once: ibid Back

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

131   Explanatory Notes, para. 901 Back

132   ibid., para. 902 Back


 
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