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

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    134. Lord Steyn then referred to some valuable academic work and observed,

    "The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various Convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence ex parte Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights".

    135. Lord Steyn then referred to the outcome of the Smith case in the European Court of Human Rights and continued,

    "In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.

    The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell [2000] PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood [2001] 1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18 "that the intensity of review in a public law case will depend on the subject matter in hand." That is so even in cases involving Convention rights. In law context is everything".

    Lord Bingham of Cornhill agreed with Lord Steyn and Lord Cooke of Thorndon. Lord Cooke, in a short speech, went further and suggested that the day would come when it would be more widely recognised that Wednesbury was an unfortunately retrogressive decision in English administrative law. Lord Hutton agreed with Lord Bingham and Lord Steyn. Lord Scott of Foscote agreed with Lord Bingham and Lord Cooke.

    136. The valuable academic work referred to by Lord Steyn in Daly has also been discussed in detail by Lord Hope in R v Shayler [2003] 1 AC 247-284-7 (paras 72-79). Finally (as to the authorities bearing on this part of the case) I would refer to the dissenting judgment of Laws LJ in International Transport Roth Gmbh v Secretary of State for the Home Department [2002] 3 WLR 344, 376-8 (which he must have written at much the same time as he was writing his judgment in the case now under appeal). The whole passage is of great interest but I will highlight four principles which Laws LJ put forward (with the citation of appropriate authority) for the deference which the judicial arm of government should show to the other arms of government:

    (1) (at p 376) "greater deference is to be paid to an Act of Parliament than to a decision of the executive or subordinate measure";

    (2) (at p 377) "there is more scope for deference 'where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified' (per Lord Hope in ex parte Kebilene)";

    (3) (at p 377) "greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts";

    (4) (at p 378) "greater or less deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts".

    137. The second of these principles is certainly applicable in the present case and is of the greatest importance. Striking a fair balance between individual rights and the general interest of the community is inherent in the whole of the Convention: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69. The other three points made by Laws LJ are thought-provoking but I do not find them particularly helpful in determining this appeal, for several reasons. In this case (as in many cases raising human rights issues) responsibility for the alleged infringement of human rights cannot be laid entirely at the door of Parliament or at the door of an executive decision-maker. Responsibility for the alleged infringement is as it were spread between the two (this is a point made by Mr Andrew Geddis in an article at [2002] PL 615, 620-3). Moreover the court's (or the common law's) role as the constitutional guardian of free speech is a proposition with which many newspaper publishers might quarrel (see the observations of Lord Steyn in Reynolds v Times Newspapers Limited [2001] 2 AC 127, 210-1, although in recent years your Lordships' House has fully recognised the central constitutional importance of free speech). A third difficulty is that the principles stated by Laws LJ do not allow, at any rate expressly, for the manner (which may be direct and central, or indirect and peripheral) in which Convention rights are engaged in the case before the court.

    138. My Lords, this is an area in which our jurisprudence is still developing, and we have the advantage of a great deal of published work to assist us in finding the right way forward. I have obtained particular assistance from Understanding Human Rights Principles, edited by Mr Jeffrey Jowell QC and Mr Jonathan Cooper (2001) and from the very full citations in the third (2001) edition of Judicial Review Handbook by Mr Michael Fordham. Fordham's survey in para. 58.2 appears to me to give a useful summary of where we seem to be going. Under the heading "Latitude and Intensity of Review" he writes:

    "Hand in hand with proportionality principles is a concept of 'latitude' which recognises that the Court does not become the primary decision-maker on matters of policy, judgment and discretion, so that public authorities should be left with room to make legitimate choices. The width of the latitude (and the intensity of review which it dictates) can change, depending on the context and circumstances. In other words, proportionality is a 'flexi-principle'. The latitude connotes the appropriate degree of deference by court to public body. In the Strasbourg (ECHR) jurisprudence the concept of latitude (called 'the margin of appreciation') comes with a health warning: it has a second super-added deference (international court to domestic body) inapt to domestic judicial review (domestic court to domestic body). This means that Human Rights Act review needs its own distinct concept of latitude (the 'discretionary area of judgment'). The need for deference should not be overstated. It remains the role and responsibility of the Court to decide whether, in its judgment, the requirement of proportionality is satisfied".

    There is also an interesting recent article by Mr Richard Edwards which I shall return to.

    139. So the Court's task is, not to substitute its own view for that of the broadcasters, but to review their decision with an intensity appropriate to all the circumstances of the case. Here the relevant factors include the following.

    (1) There is no challenge to the statutory (or in the case of the BBC quasi-statutory) requirement for exclusion of what I have (as shorthand) called offensive material. That requirement is expressed in imprecise terms which call for a value-judgment to be made. The challenge is to the value-judgment made by the broadcasters.

    (2) Their remit was limited (for reasons not inimical to free speech) to a single decision either to accept or to reject the programme as presented to them. In making that decision the broadcasters were bound (in accordance with their respective codes) to have regard to the special power and pervasiveness of television.

    (3) Although your Lordships do not know the identities of all those involved in the decision, Ms Sloman is undoubtedly a broadcaster of great experience and high reputation. There is no reason to think that she and the others involved failed to approach their task responsibly and with a predisposition towards free speech. No doubt is cast on the good faith of any of them.

    (4) Free speech is particularly important in the political arena, especially at the time of a general election. That is why specific arrangements are made for PEBs, but the fact that PEBs are not immune from the general requirement to avoid offensive material is only a limited restriction on free speech, and it applies equally to all political parties. There was no arbitrary discrimination against the Alliance.

    (5) The effect of the decision was to deprive the Alliance of the opportunity of making a broadcast using disturbing images of the consequences of abortion. The Alliance still had (and used) the opportunity to broadcast its chosen text, and it was still at liberty to use a variety of other means of communicating its message. In that respect article 10, although engaged, was not engaged as fully as if there had been some total ban.

    140. Most of these points call for no further elaboration but I should say a little more about the last two. Part of the Alliance's complaint (and one which carried considerable weight with the Court of Appeal) was that the Alliance was uniquely disadvantaged by the prohibition on offensive material, because it (alone of all the makers of PEBs) wanted to shock viewers with the realities of abortion. The Alliance could say, no doubt correctly, that it alone was being prevented from putting across its message in its chosen way. It is however possible to imagine that some other party campaigning on a single issue might be in a similar position: as was said in Becker v Federal Communications Commission (1996) 95 F 3d75, 87,

    "the political uses of television for shock effect is not limited to abortion . . . ('Other subjects that could easily lead to shocking and graphic visual treatment include the death penalty, gun control, rape, euthanasia and animal rights.')"

    But I would not regard this as making the restriction on offensive material arbitrary or discriminatory in any relevant sense. Images such as those in the Alliance's video, transmitted into hundreds of thousands of homes, would indeed have extraordinary power to stir emotions and to influence opinions. But that is the justification for imposing on the broadcasters responsibility for excluding offensive material. It cannot be a free-standing reason for disregarding the prohibition as discriminatory against those who (for whatever well-intentioned reasons) wish to shock television viewers.

    141. I do therefore see force in Mr Pannick's submission that the Court of Appeal came close to overlooking the fact that PEBs are not immune from the requirement for offensive material to be excluded. I also see some force in his criticism that the Court of Appeal attached too much importance to the disturbing images which the Alliance wished to transmit for their shock effect. Most important of all, I think (with very great respect to the Court of Appeal) that although not avowedly engaged in a merits review, they did in fact engage in something close to that. Although my opinion has fluctuated, in the end I do not think that it has been shown that the broadcasters' decision, even if reviewed with some intensity, was wrong. I would therefore allow the appeal.

    142. After making some progress in the preparation of this speech I have had the great advantage of reading the speech of my noble and learned friend Lord Hoffmann, and his insights have assisted me to the conclusion which I have eventually reached as to the outcome of the appeal.

    143. I add a footnote in relation to the article by Mr Edwards, Judicial Deference under the Human Rights Act (2002) 65 MLR 859. This draws extensively on Canadian human rights jurisprudence and discusses the notion of human rights legislation as formalising a constitutional dialogue between different branches of government, with each branch being in a sense accountable to the other (see Iacobucci J in Vriend v Alberta [1998] 1 SCR 495, paras 138-9). The article is critical of the British judiciary for being over-deferential and insufficiently principled in its approach to proportionality under the Human Rights Act.

    144. As to deference, I would respectfully agree with Lord Hoffmann that (simply as a matter of the English language) it may not be the best word to use, if only because it is liable to be misunderstood. However the elements which Mr Edwards puts forward as his basis for a principled approach (at pp 873-80, largely drawing on Canadian jurisprudence: legislative context; the importance of the Convention right in a democracy; mediation between different groups in society; respect for legislation based on considered balancing of interests; recognition of "holistic" policy areas which are not readily justiciable; and respect for legislation representing the democratic will on moral and ethical questions) appear to me by no means dissimilar from the principles which do emerge from Daly and other recent decisions of your Lordships' House. The Wednesbury test, for all its defects, had the advantage of simplicity, and it might be thought unsatisfactory that it must now be replaced (when human rights are in play) by a much more complex and contextually sensitive approach. But the scope and reach of the Human Rights Act is so extensive that there is no alternative. It might be a mistake, at this stage in the bedding-down of the Human Rights Act, for your Lordships' House to go too far in attempting any comprehensive statement of principle. But it is clear that any simple "one size fits all" formulation of the test would be impossible.

    145. For these reasons I would allow this appeal.

 
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