5. LETTER FROM THE CHAIRMAN TO RT HON
TESSA JOWELL MP, SECRETARY OF STATE, DEPARTMENT FOR CULTURE, MEDIA
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
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
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
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.
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.
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.
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:
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.
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.'
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.
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,
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.
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
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
Government takes the view that the provisions are compatible with
Article 10, because (i) the aim of the provisions has not changed,
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.'
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.
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
Explanatory Notes, para. 883 Back
See, e.g., R. v. Director of the Serious Fraud Office, ex
parte Smith  1 AC 1, HL. Cp. R. v. Hertfordshire
County Council, ex parte Green Environmental Industries Ltd.
 2 AC 412, HL Back
Nineteenth Report, para. 47 Back
Explanatory Notes, para. 890 Back
Nineteenth Report, para. 44 Back
Nineteenth Report, para. 50 Back
Explanatory Notes, paragraph 895. The Government notes that
the power has so far been used only once: ibid Back
Nineteenth Report, paras. 52-57, discussing United Christian
Broadcasters v. United Kingdom, App. No. 44802, inadmissibility
decision of 7 November 2000 Back
Explanatory Notes, para. 901 Back
ibid., para. 902 Back