Joint Committee On Human Rights Fourth Report

8. Joint letter from Rt Hon Tessa Jowell, Secretary of State, Department for Culture, Media and Sport and Mr Stephen Timms MP, Minister of State for e-Commerce and Competitiveness, Department of Trade and Industry, to the Chair


Thank you for your letter of 10 December seeking further comments on some elements of the Government's response to your Committee's report on the Communications Bill

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

You asked us to set out in greater detail the reasoning behind our decision to ask Parliament to proceed with consideration of the Bill despite the fact that we had (but only because of clause 309) been unable to make a statement under section 19(1)(a) of the Human Rights Act that the Bill met the test of compatibility that the Government has set.

As the Committee has noted, the decision to retain the ban on political advertising has been taken by the Government only after the most careful consideration of the various alternatives and that the making of a section 19(1)(b) statement indicates no lack of respect for human rights standards: the Government takes these very seriously.

You will be aware of my statement to the House on Second Reading and you will now have seen my letter to Derek Wyatt. which must have crossed with yours, covering an Explanatory Memorandum which set out in some detail the reasoning, and legal advice, behind our decision that we should proceed with the Bill with the ban on political advertising in the broadcast media in place. I hope that this meets the Committee's concerns.

The Committee's Progress Report expresses some regret that the Government did not offer a full explanation for its decision in the Explanatory Notes to the Bill. The Government did indeed consider putting more into the Explanatory Notes, but concluded that it would not have been appropriate to do so. A fuller explanation would necessarily have included material that could have been seen as justifying the policy to which the Bill gives effect, rather than just explaining the Bill's provisions. The Government's argument for maintaining the ban on political advertising as a matter of policy is integral to its argument for the bans compatibility with Convention rights. Explanatory notes are published by the House not the Government and the Government has always accepted that it is not appropriate for them to be used to present the Government's case for the Bill's provisions.

2. The privilege against self incrimination and items subject to legal privilege

There is in our view already sufficient protection against self-incrimination and legal professional privilege without the need to include express provision in the Bill. As we explained to the Joint Select Committee in our response to its report on the draft Bill, such a provision is not necessary to ensure that the privileges in question (which were created under the common law) are fully protected. We take the view that where a proposed safeguard is co­extensive with the protection guaranteed by the Human Rights Act, the safeguard need not be repeated in the subsequent Bill. The Human Rights Act applies to all legislation. It would be confusing and superfluous to draft on the basis that its provisions do not apply to a particular Bill, or that they need repetition in order to take effect.

As we further explained the government does not believe that it would be sensible to adopt a practice of drafting Bills in a way that expressly limits all enabling powers, or other executive powers, so that they may not be exercised incompatibly. That limitation is achieved unambiguously by section 6 of the Human Rights Act, so that an act done under the purported authority of an Act of Parliament that enables but does not require it will be unlawful. If Parliament wishes a decision­maker to act incompatibly, the Bill will have to make that intention very clear; but where compatibility is intended, we believe it is redundant to say so.

3. Penalties and other sanctions on broadcasters: procedural safeguards

The Committee has asked for further details as to why the Government considers that judicial review provides sufficient procedural safeguards to ensure that the standards of fair hearing imposed by Article 6 of the ECHR have been met. It has previously expressed the view, reiterated in its letter of 10 December, that:

"judicial review is unlikely to provide an effective remedy for improper decision making by OFCOM, because the subjective nature of OFCOM's judgement would make it difficult to assess the quality of the decision, beyond taking a view as to whether it was wholly irrational".

It has asked for an explanation as to why the Government considers that judicial review would provide sufficient procedural safeguards.

The Government accepts that some of OFCOM's decisions may engage the rights of licence holders under Article 6 of the ECHR. We fully expect that OFCOM will establish appropriate internal procedures for handling alleged breaches of conditions, and for giving practical effect to their obligation to afford broadcasters a reasonable opportunity to make representations. However, we see no reason to think that OFCOM will fail in that respect, and consider that there could be significant disadvantages in tying OFCQM's hands by laying down statutory procedures that could deprive them of valuable flexibility.

Recent case law (including the Alconbury decision [2001] 2 WLR 1389 and Begum v. London Borough of Tower Hamlets [2002] EWCA Civ 239) supports our view that appropriate internal procedures, coupled with the availability of judicial review, would be found to meet the standards set by Article 6. Of particular relevance is the fact that broadcasting is a specialised area, which can give rise to issues of public policy and call for expert judgment, and that the broadcasting regulators are rarely called upon to determine disputed questions of primary fact. We would also suggest that the intensity of review in judicial review proceedings that is now contemplated by the courts in appropriate cases should serve to meet the Committee's concerns that the subjective nature of OFCOM's judgements would make judicial review ineffective.

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

As set out in our previous response to the Committee, the Government considers that it is clear that the power conferred by this provision may be exercised only in accordance with the criteria and protections provided under the ECHR, and in particular Article 10 and Article 1 of the First Protocol. It is the Government's view that Ministers should have the power to make announcements which are critical to public well­being, and that it would not be possible exhaustively to define in advance the circumstances in which the power might need to be exercised. Certainly, these could extend beyond matters relating to national security. The care with which the power has been exercised is illustrated by the fact that we are aware of only one case of its exercise in the last 35 years. It is also notable that its use in that instance, which related to terrorism in Northern Ireland, was successfully defended including in the Strasbourg court.

5. Ownership of broadcasting licences by religious bodies

The Committee has asked for a fuller explanation of the distinction between licences for national and local radio broadcasting in relation to religious organizations. The Government's policy is that religious organisations should not be permitted to hold licences where the opportunities to broadcast are particularly limited, in order to ensure that limited spectrum is used in a way that satisfies as many viewers and listeners as possible, and to avoid unfair discrimination between religions. Where the opportunities to broadcast are more plentiful, religious organisations may apply for licences.

There is currently spectrum capacity for only three national analogue radio licences, and the Broadcasting Act 1990 requires the Radio Authority to do all it can to ensure that one of those consists mainly of spoken material, and that another is a music station that does not play pop music. Thus, the opportunities for national analogue radio broadcasting are severely constrained, and the Government believes that its justification for disqualifying religious organisations from holding such licences is strong.

In any one local area, there are varying numbers of services available: most areas have between one and three local stations, but London (for example) has eighteen. However few local stations are available, in all localities the national services will offer alternative sources of listening. In these circumstances, the Government considers that it is right to allow religious organisations to hold local licences. The Bill also removes the ban on religious ownership of local and national digital radio licences (reflecting the much larger number of the tatter now available). This, together with the existing freedom to hold licences for cable and satellite services, helps further to establish the proportionality of the remaining religious ownership restrictions.

In relation to television broadcasting services, religious bodies will, under the Bill provisions, be able to hold digital television programme service licences and can already hold licences for satellite and cable channels, but will remain unable to hold digital terrestrial multiplex licences or licences to provide the nationwide analogue television broadcasting services (including the regional Channel 3 licences) or analogue television additional services, since spectrum constraints severely limit the number of such licences.

We hope that this explains more fully why we came to the conclusions we did on these issues, having considered the full analysis in the Committee's nineteenth Report.

9 January 2003

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