Joint Committee On Human Rights First Report



During the Second Reading debate, you intervened with a question about the ban on political advertising on television and radio and I promised to place an explanatory note in the Library of the House: I attach a copy of that note.

I am sending a copy of this letter and the explanatory note also to the other Hon Members who intervened on the subject of ECHR compliance—George Osborne, Richard Allan, John Whittingdale and Martin Smyth—and should also like to take the opportunity to clarify the position in relation to other cases being considered in Strasbourg.

I can confirm that the UK Government is not aware of a challenge in the Strasbourg court to any comparable ban on broadcast advertising in another state and that it is only the judgement in the Swiss case which has led to any doubt about whether the UK's ban would survive a challenge in both the domestic and the Swiss courts. You may have noted the comment by the Joint Committee on Human Rights that, although they would have liked certainty that our arrangements would survive challenge, they saw merit in waiting for the jurisprudence in this area to mature further before deciding on the appropriate legislative response.

John Whittingdale raised a separate question about the current restriction on religious broadcasters owning licences being challenged in the European Court of Human Rights. That is indeed the case. The Government was challenged in the European Court of Human Rights by United Christian Broadcasters ("UCB"). Although the case was found to be inadmissible and the Government succeeded, it is still in dispute with UCB over matters arising from that litigation. In particular, UCB have alleged that the Government misled the Court in the evidence which it gave, and the Government has submitted a detailed rebuttal.

The European Court of Human Rights has received a further separate application, number 11072 which was referred to by Martin Smyth, against the UK from the "Centre for Justice and Liberty", based partly on the facts of the UCB case. It is presently a matter for the Court as to whether this application is admissible; the Court has not yet requested observations from the Government. At this stage in the proceedings, the application does not cause us to doubt that clause 335 is compatible with the ECHR. We have taken legal advice and consider that the retention of the disqualification for religious bodies to the extent proposed by the Bill is compatible with the ECHR.

A copy of this letter and attachment is also going to Patricia Hewitt, to Jean Corston and the Chairmen and members of Standing Committee E and to the Clerk to the Committee. I am placing a copy in the libraries of both Houses.

10 December 2002



The draft Communications Bill of May 2002 proposed to re-enact the ban on political advertising in the broadcast media which has been in place since the 1950s, at the start of commercial broadcasting in the UK.

2.  A case in the European Court of Human Rights which found against an apparently similar ban in Swiss law ("the Swiss case") has called into question whether the UK ban is compatible with the Convention. Details of the Swiss case are below.

3.  The UK's ban has enjoyed wide and cross-party support and was strongly supported by the Neill Committee in its fifth report published in 1998. The pre-legislative scrutiny committee and the Joint Committee on Human Rights, when examining the draft Bill, also expressed support of the principles behind the ban, but urged the Government to examine ways of ensuring that the UK ban was Convention-compatible.

4.  The Government did this and took appropriate advice over the options. The conclusion was that a more certainly Convention-compatible ban could not be achieved by small changes in the ban. It would require a significant shift in the approach to the prohibition and would open the way at the very least to substantial advertising by lobby groups and issue campaigners.

5.  It was clear, however, that there is a very strong case that the ban is consistent with the ECHR, and the Government therefore decided to ask Parliament to proceed with the Bill with the ban intact. A summary of the legal advice received is below.

6.  Clause 309 of the Bill would therefore re-enact the ban (currently to be found in the Broadcasting Act 1990) on advertisements inserted by or on behalf of any body whose objects are wholly or mainly of a political nature, any advertisement which is directed to any political end, and any advertisement which has any connection with an industrial dispute. It also defines what is meant for this purpose by "objects of a political nature and political ends", so as to ensure that that the expression is given a wide legal interpretation. The provision does not prevent the broadcasting of an advertisement of a public service nature by or on behalf of a Government department, or a party political broadcast.

The 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.

Compatibility statement

9.  In introducing the Bill, the Government must make a statement as to whether the Bill is compatible with the ECHR. The approach agreed across Government is that a "statement of compatibility", under Section 19(1)(a) of the Human Rights Act 1998, should be made only if it is more likely than not that the Bill's provisions would withstand a legal challenge on human rights grounds in both the domestic courts and the European Court of Human Rights. The Government was advised that, while there were very strong arguments that could be advanced in favour of the UK's prohibition being compliant with the ECHR and a firm possibility that, if there were a challenge, the Courts would be persuaded not to follow the judgement in the Swiss case, nevertheless, because of the Swiss case, it was not possible to conclude that it was "more likely that not" that the UK's ban would be found to be compatible in both the domestic courts and the European Court.

10.  Accordingly, the Minister in charge of the Bill made a statement under section 1 9(1)(b) of the Human Rights Act 1998 in respect of the Bill, in the following terms—

    "I am unable (but only because of clause 309) to make a statement that, in my view, the provisions of the Communications Bill are compatible with the Convention rights. However, the Government nevertheless wishes the House to proceed with the Bill."

11.  This does not mean that the Government believes the Bill to be incompatible.

12.  While the Government saw no viable policy alternative which would substantially protect broadcasting from substantial amounts of political advertising, if there were a successful challenge to the ban in the domestic courts the Government would reconsider the position, and would certainly propose to amend the legislation if the European Court of Human Rights found against the UK in any challenge specifically concerning the UK ban. But, for the present, the Government proposed to roll forward the current ban.

The Swiss Case

13.  The case of Vgt Verein gegen Tierfabriken v Switzerland ("the Swiss case"), which was decided in June 2001, concerned an association concerned with the protection of animals, with particular emphasis on animal experiments and industrial animal production. As a reaction to various television commercials of the meat industry, the applicant association prepared a television advertisement lasting 55 seconds and consisting of two scenes, described in the report of the case as follows:

    "The first scene of the film showed a sow building a nest for her piglets in the forest. Soft orchestrated music was played in the background, and the accompanying voice referred, inter alia, to the sense of family which sows had. The second scene showed a noisy hall with pigs in small pens, gnawing nervously at the iron bars. The accompanying voice stated, inter alia, that the rearing of pigs in such circumstances resembled concentration camps, and that the animals were pumped full with medicaments. The film concluded with the exhortation: 'eat less meat, for the sake of your health, the animals, and the environment! ...'"

14.  On 3 January 1994 the applicant association, wishing this film to be broadcast in the programmes of the Swiss Radio and Television Company, sent a video-cassette to the then Commercial Television Company responsible for television advertising.

15.  On 10 January 1994 the Commercial Television Company informed the applicant association that it would not broadcast the commercial in view of its "clear political character". The Company pointed out that it would be possible as an alternative in a film to emphasise an adequate rearing of animals and to inform viewers that they were free to inquire into the origin of the meat which they were buying.

16.  The applicant association refused to change the advertisement and then pursued its case through the various national fora available to consider it. Having failed to have the decision overturned, they took their case to the European Court of Human Rights which, in June 2001, decided that the Swiss ban on political advertising in radio and television broadcasting (apparently similar to that in the Broadcasting Act 1990) was contrary to Article 10 of the Convention.

17.  The main points of the judgement were—

    (a)  the applicant's freedom of expression needed to be balanced against the reasons for the ban advanced by the Swiss Government, which included protecting the public from the pressures of powerful financial groups and undue commercial influence, providing for an "equality of opportunity" between the different forces of society, ensuring the editorial independence of broadcasters from powerful sponsors, and supporting the Press;

    (b)  while accepting that powerful financial groups can gain an advantage which could undermine freedom of expression, and that radio and television had greater immediacy than other media, the Court concluded that since the ban applied only to radio and television, the claimed "need" for a ban did not seem sufficiently pressing to justify an interference with political freedom of expression;

    (c)  the Court said that a ban might be permissible in some situations, but not where (as here) the applicant was not a powerful financial group, and was simply seeking to participate in an on-going debate about animal welfare (a matter of public controversy);

    (d)  the Court rejected the argument that there were alternative means of broadcasting open to the applicant, because none extended to all of Switzerland.

18.  The Court therefore concluded that the political advertising ban was not "necessary in a democratic society" and so could not be justified according to the criteria in Article 10(2) of the Convention.

Summary of Counsel's Advice

19.  Counsel's advice was that there is a very strong case that the ban is consistent with the Convention, but in the light of recent Strasbourg case-law, it would not be possible to satisfy the Government's own test that a compatibility statement can be made only where the legal judgment is that it is more likely than not that its provisions will stand up to any challenge on Convention grounds before both the domestic courts and the Strasbourg court.

20.  The Government sought Counsel's advice regarding the effect of the Swiss case on the compatibility with the Convention of the ban on political advertising contained in the Broadcasting Act 1990. Counsel advised that, but for the Swiss case, there is a very strong case that it would be consistent with Article 10 for domestic law to prohibit political advertising. He also expressed the view that the judgment of the European Court of Human Rights in the Swiss case was unconvincing and that there were strong arguments to justify a domestic court and the European Court itself not following that decision in the present context.

21.  The main points of Counsel's advice in coming to this view related to the following factors:

    (a)  the fundamental importance of maintaining impartiality in the broadcast media because of its reach, immediacy and influence;

    (b)  to allow advertising by political bodies, or advertisements of a political nature, would conflict with the principle of impartiality, allow powerful groups to buy influence by buying airtime, and deprive broadcasters of protection from political advertisers seeking to exert editorial influence over other programmes in the service;

    (c)  special treatment for broadcasting in this respect is supported by considerations of spectrum restrictions, the third sentence of Article 10(1) (permitting broadcasting licensing) and the Television Without Frontiers Directive;

    (d)  recent independent consideration has supported the ban: e.g. the Neill Committee and the Joint Committee on Human Rights;

    (e)  the criticism that the ban applies to political bodies rather than looking at the nature of each advertisement is unjustified, because any advertisement by such a body will tend to promote its interests (if only by promoting name recognition or fund-raising), because it would be inherently difficult and uncertain to say whether or not the content of a particular advertisement was "too political", and because (in the light of supporting factors) Parliament is acting within its discretionary area of judgment in focusing on the nature of the body, rather than the nature of the advertisement, to pursue its objective of impartiality.

22.  Counsel's explanation as to why he found the reasoning in the Swiss case to be unpersuasive, included the following points:

    (a)  the Strasbourg Court's "puzzling" conclusion that the concerns which the ban sought to address (e.g. stopping powerful groups from having undue influence) were not "pressing" in light of the fact that the ban did not cover other forms of media;

    (b)  the Court accepted that a prohibition on political advertising could be permissible in certain circumstances, but Counsel pointed out that there is authority that general ("bright line") rules can be justified, even if they can produce hard cases at the margins;

    (c)  the Court gave insufficient weight to the fact that other forms of publicity (e.g. newspapers, leaflets, hoardings) were available.

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