Judgments - Regina v. British Broadcasting Corporation (Appellants) ex parte Prolife Alliance (Respondents)

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    34. Section 4 of the Programme Code contains the rules for PPBs and PEBs. PPBs are offered to the major parties in Great Britain (the Labour, Conservative and Liberal Democrat parties and, in Scotland and Wales respectively, the Scottish National Party and Plaid Cymru) at the time of key events in the political calendar such as the Queen's Speech, the Budget and the party conferences. PEBs are of course offered at the time of elections. In the 2001 general election, the major parties were each offered a separate series of PEBs in each of the four nations of the United Kingdom. A smaller party could qualify for a PEB for transmission in the territory of any nation if it fielded candidates in at least one-sixth of its seats. This meant that a party could qualify if it put up 88 candidates in England, 12 in Scotland, 6 in Wales and 3 in Northern Ireland.

    35. In a report published in 2003, the Electoral Commission considered whether there was a public interest in providing more opportunities for broadcasts by smaller parties. It concluded that there was not, and noted two concerns about the allocation of PEBs. First, it said in a Discussion Paper published in December 2001:

    "The effective raising of the threshold for smaller parties to qualify for PEBs, from 50 seats to one-sixth of contested seats, was made partly in order to deter organisations from fielding candidates so as to qualify for a PEB for their own publicity purposes rather than for genuine electoral purposes. It remains the case, however, that the estimated commercial value of the free airtime far exceeds the cost of lost candidate deposits in one sixth of seats. Should we be concerned by the possibility of this scenario? If so, what measures could be taken to provide additional disincentive?"

    36. Secondly, in its Report and Recommendations, published in 2003, it said:

    "We are concerned that election broadcasts should inform electors' voting intentions. At the present time, and until such a time as transmission signals are far more fragmented and localised, most broadcasting media reach mass audiences. For independent candidates and for parties fielding candidates in a small number of constituencies, those constituencies would be only one very small part of the overall audience of a PPB. For the vast majority of viewers and listeners, therefore, there would be no opportunity to vote for that candidate or party and so the PPB would be irrelevant in terms of providing information to inform voting intentions."

    Programme standards and PEBs

    37. In requiring the application of standards of taste and decency, section 6(1)(a) of the 1990 Act makes no distinction between PEBs and other programmes. It applies to all programmes broadcast by a licensed service and section 202 defines "programme", in relation to any service, as including "any item included in that service". The agreement between the BBC and the Secretary of State similarly makes no distinction.

    38. There is a provision in the Communications Bill (clause 311(7)(b)) which some have read as showing an intention to exclude PEBs from the standards of taste and decency. I do not propose to try to construe it; first, because it is not yet law and secondly because the Department of Culture, Media and Sport has written to the BBC to confirm that it is the government's intention that such standards should continue to apply to PPBs and PEBs and that the clause may be amended to make this clear.

    39. Both the BBC and the independent broadcasters therefore accept that they remain responsible for compliance with standards of taste and decency by the PEBs which they transmit. Paragraph 4 of the BBC Producers' Guidelines says:

    "The content of party political broadcasts, party election broadcasts and Ministerial broadcasts (together with Opposition replies) is primarily a matter for the originating party or the government and therefore is not required to achieve impartiality. The BBC remains responsible for the broadcasts as publisher, however, and requires the parties to observe proper standards of legality, taste and decency."

    40. Likewise, paragraph 4.2 of the ITC Programme Code says:

    "Editorial control of the contents of [PPBs and PEBs] normally rests with the originating political party. However, licensees are responsible to the ITC for ensuring that nothing transmitted breaches the Programme Code, notably the requirements on matters of offence to good taste and decency set out in Section 1...Licencees should issue parties with general guidelines on the acceptability of content...These guidelines, which are agreed between all relevant broadcasters, are designed to reconcile the editorial standards of the broadcaster, and audience expectations, with the freedom of political parties to convey their political messages."

    41. The Guidelines issued by the broadcasters for the 2001 election said that PEBs had to comply with the ITC Programme Code and the BBC Producers' Guidelines relating to taste and decency and the codes concerning fairness and privacy "having regard to the political context of the broadcast". Accuracy, on the other hand, is entirely a matter for the political party making the broadcast.

    The ProLife Alliance Broadcast

    42. The 2001 general election was not the first time that the Alliance had produced a PEB which the broadcasters rejected. The same thing had happened in the 1997 election. On that occasion their application for leave to apply for judicial review was dismissed by Dyson J. By the time a renewed application was made to the Court of Appeal, the election was over and the Court of Appeal refused to entertain the application on the ground that it would serve no useful purpose. The Alliance then made a complaint to the European Court of Human Rights. I shall return to these proceedings later.

    43. When it came to the 2001 election, therefore, both the Alliance and the BBC were aware that programme standards might be an issue. The Alliance submitted its tape on 1 May 2001. On 10 May the BBC's Chief Political Adviser, Mrs Anne Sloman, wrote to say that she had viewed the film together with representatives from ITV, Channel 4 and Channel 5 and that they all considered that the "shots of aborted foetuses and of mutilated foetuses" did not comply with the BBC Guidelines or the ITC Code.

    44. The Alliance wrote on 13 May enclosing written submissions arguing its case. The BBC's decision was conveyed in a letter from the Litigation Department dated 17 May 2001, which included the following passages:

    "We can confirm that Anne Sloman's letter of 10 May represents the views of the BBC, ITV, Channel 4 and Channel 5. Having viewed the video, each broadcaster individually came to the same conclusion that the broadcast would be offensive and so was not acceptable. We have met again to reconsider the matter in the light of your written submissions and we have again watched the video...

    Some of the images are unacceptable in themselves because they are likely to be offensive to public feeling, in particular the images of aborted foetuses mostly in "a mangled and mutilated state"...

    Some images of aborted foetuses could in principle be acceptable depending on the context in which they appear. What is unacceptable in your client's broadcast is the cumulative effect of several minutes primarily devoted to such images...

    In reaching our conclusions, we have certainly taken into account the importance of the images to the political campaign of the ProLife Alliance. We have also proceeded on the basis that we should seek the minimum changes necessary to ensure compliance with the obligations of the BBC...

    We have had regard to the guidelines on taste and decency, prevailing standards of taste and decency, broadcasters' criteria on the portrayal of violence, and public interest considerations, as well as all the other points made in your client's letter of 13 May and the accompanying written submissions. But none of these factors leads us to conclude other than that it would be wrong to broadcast these images which would be offensive to very large numbers of viewers. None of the broadcasters regarded this as a case at the margin. We all regard it is a clear case in which it would plainly be a breach of our obligations to transmit this broadcast.

    We have considered whether (as you suggest in your written submissions) the images could be broadcast after 10 pm, with a warning for viewers. It is our judgment that the images are so offensive that it would not be appropriate to take that course in this case."

    The application for judicial review

    45. The Alliance applied for permission to apply for judicial review of the decision in the letter of 17 May. The application came before Scott Baker J. who dismissed it on 24 May. He considered whether the BBC had properly applied the standards of taste and decency which it was enjoined to apply by clause 5.1 of its agreement with the Secretary of State. What were generally accepted standards of taste and decency were matters on which untutored opinion could differ but the broadcasters were particularly experienced in making such decisions. They received feedback from the public about what they broadcast. He referred to the right of free speech in article 10.1 of the European Convention but said that it was qualified in article 10.2 by reference to the rights of others, which in his opinion included the right of viewers not to be confronted with offensive material in their own homes. He bore in mind that since the Human Rights Act 1998 the duty of the court is not necessarily confined to deciding whether an administrative decision is irrational. Interference with human rights can be justified only to the extent permitted by the Convention. In this case, however, the issue was whether the BBC had properly carried out its duty under the agreement to balance the rights of the Alliance against those of the viewers. The judge thought that "even with the most anxious scrutiny" it was impossible to conclude that the BBC's decision was near the margin, let alone irrational.

    Subsequent developments

    46. After the hearing before Scott Baker J, the Alliance submitted two more versions of their broadcast, both of which were rejected on similar grounds. This time Mrs Sloman consulted her colleagues at BBC Wales, including the Controller, Ms Menna Richards. Again there was unanimity in rejecting them. Finally the Alliance submitted a sound track without any images and this was broadcast on 2 June. Polling day was 7th June. The 6 Alliance candidates in Wales received a total of 1,609 votes, or 0.117% of the total votes cast in the principality: see Andrew Geddis, What future for political advertising on the United Kingdom's television screens? ("Political advertising") [2002] Public Law 615, 618.

    The Court of Appeal

    47. After the election, the Alliance appealed to the Court of Appeal (Simon Brown, Laws and Jonathan Parker LJJ). The appeal was allowed.

    48. Laws LJ said that Scott Baker J. had been wrong to treat the case as falling within the "conventional jurisprudence" of judicial review. This was a "profoundly mistaken approach". The real question was whether the considerations of taste and offensiveness upon which the broadcasters acted were a "legal justification for the act of censorship" involved in banning the proposed PEB: see p. 1090. Given the importance of free political speech, was a refusal on grounds of offensiveness necessary and proportionate in a democratic society? Laws LJ rejected the suggestion that in deciding this question the court should show "deference" to the broadcasters. The weight to be given to their views was "modest at best": p. 1097. What mattered was "the court's constitutional responsibility to protect political speech." That meant that the court had to decide for itself whether censorship could be justified. Laws LJ thought that considerations of taste and decency would "very rarely" be an adequate ground for interfering with free political speech at an election time. Perhaps if there was "gratuitous sensationalism and dishonesty": p. 1099. But mere offensiveness of true images was not enough. Simon Brown LJ gave a judgment in similar terms and Jonathan Parker LJ agreed.

    Two questions or one?

    49. The effect of the Court of Appeal's judgment was that instead of starting by accepting, as the judge had done, that the regulatory framework required the BBC not to screen a PEB unless it complied with generally accepted standards of taste and decency and then going on to ask whether the BBC had properly applied those standards, the Court of Appeal elided the two stages by asking whether it was consistent with freedom of speech for the BBC to apply such standards at all.

    50. Andrew Geddis, in his valuable article Political Advertising, from which I have already cited, expressed (at p. 621) his doubts about this reasoning:

    "In essence, the court found that the broadcasters acted unlawfully by allowing the shock and disgust that the Alliance's PEB might cause to the viewing public to outweigh that party's right to express its political message in its chosen form. Thus, the broadcasters' failure properly to carry out a full proportionality review - to ask if the social evil to be avoided justified the extent of the infringement on the Alliance's rights - meant, in the court's eyes, that the broadcasters had illegitimately exercised their judgment with regard to the taste and decency obligations.

    The problem with the court's analysis is that it is not clear how, in a legal sense, the broadcasters were really at fault. Simply put, they were not empowered by their legal instructions to conduct the kind of full proportionality inquiry that the Court of Appeal required of them. It is true that the very diffuseness of the broadcasters' taste and decency obligations allowed them a degree of leeway in the exercise of their judgment. And the broadcasters did (quite properly) consider the Alliance's right of political expression when carrying out this exercise. However, the broadcasters still had to abide by the overarching legal instructions laid down for them, either by Parliament (via the Broadcasting Act and the ITC) or by the Secretary of State...(via the BBC's agreement). These instructions were clear, if not always easy to apply: the broadcasters must decide if a programme meets their taste and decency obligations; and if it does not, then they must not screen it...

    The Court of Appeal's decision effectively rewrote the broadcasters' obligations to read something like "nothing is to be included in [a broadcaster's] programmes which offends against good taste or decency or...public feeling except in the case of PEBs". Therefore, while the broadcasters bear the brunt of the court's blame for not properly implementing their obligations as rule appliers, the real force of the court's judgment actually is directed at the rule-makers' failure to exempt PEBs from the broadcasters' taste and decency obligations."

    51. I agree. In my opinion there are two questions to be asked. First, was Parliament entitled by section 6(1)(a) to impose on PEBs a need to comply with taste and decency standards which were meant to be taken seriously? Secondly, if it was, did the broadcasters properly apply those standards. I shall examine both of these questions.

    Can taste and decency standards be applied to PEBs?

    (a)  Is this an issue?

    52. The Alliance has never argued that section 6(1)(a) of the 1990 Act, in its application to PEBs, is inconsistent with its rights under article 10 of the Convention. But this is lip-service, because the thrust of its submissions, which found favour in the Court of Appeal, is that the statute should be disregarded or not taken seriously. The exceptional cases in which the Court of Appeal thought standards of taste and decency might be applicable, namely "gratuitous sensationalism and dishonesty", have nothing to do with taste and decency. Both would require the BBC to exercise an editorial control over the political content of the broadcast which it expressly disavows. It is for the political party to vouch for the accuracy of its programme and decide whether its material is necessary for its purpose and not "gratuitous". The BBC is neither entitled nor required to express a view on these matters. It assumes that the material included in the PEB is both necessary and true. It has to decide whether it should nevertheless not be broadcast on the ground that it offends against generally accepted standards of taste and decency.

    53. I therefore propose to consider the relationship between provisions such as section 6(1)(a) and Article 10 of the Convention.

    Freedom of political speech

    54. I am fully conscious of the importance of free political speech. But I think that the Court of Appeal failed to make some important distinctions.

    (a)  The nature of the right under article 10

    55. First, the primary right protected by article 10 is the right of every citizen not to be prevented from expressing his opinions. He has the right to "receive and impart information and ideas without interference by public authority".

    56. In the present case, that primary right was not engaged. There was nothing that the Alliance was prevented from doing. It enjoyed the same free speech as every other citizen. By virtue of its entitlement to a PEB it had more access to the homes of its fellow citizens than other single-issue groups which could not afford to register as a political party and put up six deposits.

    57. There is no human right to use a television channel. Parliament has required the broadcasters to allow political parties to broadcast but has done so subject to conditions, both as to qualification for a PEB and as to its contents. No one disputes the necessity for qualifying conditions. It would obviously not be possible to give every grouping which registers as a political party a PPB or PEB. The issue in this case is about the condition as to contents, namely that it should not offend against standards of truth and decency.

    58. The fact that no one has a right to broadcast on television does not mean that article 10 has no application to such broadcasts. But the nature of the right in such cases is different. Instead of being a right not to be prevented from expressing one's opinions, it becomes a right to fair consideration for being afforded the opportunity to do so; a right not to have one's access to public media denied on discriminatory, arbitrary or unreasonable grounds.

    59. A recent example of the application of this principle is the decision of the Privy Council in Benjamin v Minister of Information and Broadcasting [2001] 1 WLR 1040. Mr Benjamin was host of a phone-in programme on government-controlled Anguilla Radio. The government suspended his programme because he had aired a politically controversial question (whether Anguilla should have a lottery) on which the government wished to stop discussion. Lord Slynn of Hadley (at p. 1048, paras 26, 27) accepted that Mr Benjamin had no primary right to broadcast. But he did have a right not to have his access to the medium denied on politically discriminatory grounds. Lord Slynn (at p 1052) described the government's action as "arbitrary or capricious". This is something which very much engages the freedom of political speech protected by article 10.

    60. The same approach can be found in the jurisprudence of the European Court of Human Rights ("ECHR"). In Haider v Austria (1995) 83 DR 66 the Commission rejected the complaint of Mr Haider, the Austrian politician, that (among other things) his opinions had not been given enough time on television, as manifestly unfounded. It said (at p. 74):

    "The Commission recalls that article 10 of the Convention cannot be taken to include a general and unfettered right for any private citizen or organisation to have access to broadcasting time on radio or television in order to forward his opinion, save under exceptional circumstances, for instance if one political party is excluded from broadcasting facilities at election time while other parties are given broadcasting time."

    61. The emphasis, therefore, is on the right not to be denied access on discriminatory grounds. In Huggett v United Kingdom (1995) 82A DR 98 the Commission considered a complaint about the criteria for allocating PEBs in the 1994 European Parliament elections. Mr Huggett was an independent candidate who did not qualify. The Commission also rejected the complaint as manifestly unfounded because there was no "arbitrariness or discrimination" in the application of the criteria.

    62. In my opinion, therefore, the Court of Appeal asked itself the wrong question. It treated the case as if it concerned the primary right not to be prevented from expressing one's political views and concluded that questions of taste and decency were not an adequate ground for censorship. The real issue in the case is whether the requirements of taste and decency are a discriminatory, arbitrary or unreasonable condition for allowing a political party free access at election time to a particular public medium, namely television.

    (b)  Contents conditions

    63. The problem about conditions relating to the content of the broadcast, as opposed to conditions depending on such matters as the number of candidates fielded or votes obtained in the last election, is that they run a much greater risk of being considered discriminatory. After all, the goverment in Benjamin's case may be said in effect to have imposed a condition for access to the radio which related to the contents of the broadcast: the broadcaster should not discuss matters to which the government objected. But this was discriminatory on objectionable grounds. So conditions which concern the contents of the programmes which will be accepted for broadcasting must be carefully examined to make sure that they are truly neutral between different points of view, or that any lack of neutrality can be objectively justified.

    64. That was the question in the recent controversial ECHR case of VgT Verein Gegen Tierfabriken v Switzerland (2002) 34 EHRR 159, which concerned the prohibition of political advertising by section 18(5) of the Swiss Federal Radio and Television Act. An animal rights association complained that the television authority had rejected as "political" its advertisement depicting commercial pig rearing as cruel and urging people to eat less meat, when it had accepted commercials from the meat industry extolling the pleasures of pork and bacon. As a matter of common sense, the association's complaint was not without merit. The Swiss government argued that no one had a right to television time and that the primary right under article 10 was not engaged. But the court took the view that for practical purposes it was. Prima facie, anyone was entitled to whatever television time for commercials he could afford to buy. Therefore a refusal to allow anyone a commercial on the grounds of the content of his broadcast was a discrimination which had to be justified. The court decided that there was no sufficient justification for discriminating against political advertising "in the particular circumstances of the applicant association's case": para. 75 at p. 177. This is a guarded, if somewhat opaque, decision. The court expressly said that such a prohibition might be compatible with article 10 "in certain situations." But the Secretary of State cautiously regarded the decision as a reason for being unable to certify that the proposed continuation of the UK ban on political advertising in clause 309 of the Communications Bill is compatible with the Convention.

    (c)  Are conditions as to taste and decency discriminatory?

    65. A condition concerning standards of taste and decency is neutral in the sense that applies across the board to all political parties wishing to broadcast PPBs. Until the Alliance produced its proposed PEB in the 1997 election, it does not appear to have caused difficulty to any political party. But the Alliance says that it is discriminatory against a party which feels the need to breach the standards in order to get its message across. That is true.

    66. The question then is whether it can be objectively justified. In deciding this question, it must first be borne in mind that the quality of the article 10 right is different from that which was in issue in the VgT case. This is not a case in which the Alliance was exercising a right to buy television time which was prima facie open to everyone in order to express its views on whatever subject it thought fit. The BBC and Parliament have decided that in the public interest free television time should be made available to political parties for PEBs because they consider that this would advance the democratic interest in encouraging an informed choice at the ballot box.

    67. In deciding whether a condition as to the content of a PEB is unreasonable or discriminatory, it is therefore in my opinion relevant to consider whether it has any impact upon the particular democratic interest which offering the PEB was intended to advance. For example, if political parties are given PEBs in connection with a referendum on whether we should join the Euro, it would be unreasonable to attach much weight to an objection by the Alliance that standards of taste and decency prevented them from using their PEB to best effect in advocating the case against abortion. The subject is unrelated to the democratic interest in providing a PEB.

    68. Although it may be said that all questions of social and economic policy are open to discussion in a general election, the Alliance PEB was quite unrelated to the specific policy of encouraging an informed choice at the ballot box. Their views were of electoral concern, at any rate theoretically, to the voters in only six of the Welsh constituencies. And the results, which were not wholly unpredictable, showed that they were of concern to very few of those voters. In any case, abortion is not in this country a party political issue. It has for many years been the practice to allow members of Parliament a free vote on such issues. So, despite the reference by the Court of Appeal (at p. 1097) to the "cockpit of a general election", the Alliance broadcast had virtually nothing to do with the fact that a general election was taking place. The election merely gave it an opportunity to publicise its views in a way which would have been no more or less effective at any other time.

    69. My Lords, I think that it is necessary to bring some degree of practicality and common sense to this question. The Electoral Commission, in its 2003 report (at p. 36), expressed its concern about this aspect of the Court of Appeal's decision:

    "While we too would attach considerable weight to freedom of expression for political parties, especially during election campaigns, we are not convinced that this calls for PEBs to be exempted from the normal standards applied to all other broadcast material. It is not, in our view, realistic to conclude that the electorate necessarily stands to benefit from PPBs being outside the normal controls. In addition, we would be concerned if incentive was provided for organisations to register as political parties and field sufficient candidates in order to qualify for PPBs which would not only provide access to the media that would not otherwise be available but would enable material to be broadcast that would not otherwise be allowed."

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