BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Christian Radio Ltd & Anor, R (on the application of) v Radio Advertising Clearance Centre [2013] EWCA Civ 1495 (19 November 2013)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1495.html
Cite as: [2013] EWCA Civ 1495, [2014] 1 WLR 307, [2014] WLR 307, [2013] WLR(D) 445

[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2014] 1 WLR 307] [View ICLR summary: [2013] WLR(D) 445] [Help]


Neutral Citation Number: [2013] EWCA Civ 1495
Case No: C1/2012/1209

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION.
ADMINISTRATIVE COURT
MR JUSTICE SILBER
CO78892010

Royal Courts of Justice
Strand, London, WC2A 2LL
19th November 2013

B e f o r e :

MASTER OF THE ROLLS
LORD JUSTICE RICHARDS
and
LORD JUSTICE ELIAS

____________________

Between:
THE QUEEN ON THE APPLICATION OF LONDON CHRISTIAN RADIO LIMITED & ANR
1st Appellant
- and -

CHRISTIAN COMMUNICATIONS PARTNERS
2nd Appellant
- and -

RADIO ADVERTISING CLEARANCE CENTRE
Respondent
- and -

SECRETARY OF STATE FOR CULTURE MEDIA AND SPORT
Interested Party

____________________

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Aidan O'Neill (instructed by Aughton Ainsworth) for the First and Second Appellants
Samantha Broadfoot (instructed by Treasury Solicitors) for the Interested Party

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Master of the Rolls:

  1. London Christian Radio Limited ("LCR") runs a national radio station called "Premier Christian Radio". Christian Communications Partnership Limited ("CCP") is a publisher of Christian magazines. CCP wished to publish an advertisement on LCR's radio station about the marginalisation of Christians in the workplace. The advertisement that it wished to place was in these terms:
  2. "We are CCP. Surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalised in the work place. We are concerned to get the most accurate data to inform the public debate. We will then use this data to help make a fairer society. Please visit CCPmagazines.co.uk and report your experiences."
  3. Under the relevant regulatory scheme, the proposed advertisement was considered by the Radio Advertising Clearance Centre ("RACC") who concluded that clearance to broadcast the advertisement could not be given because its broadcast would be contrary to the prohibition on political broadcasting. Its decision was the culmination of exchanges between it and CCP. For example, on 28 May 2010, the RACC asked CCP for confirmation "whether or not CCP's aims and objectives, or the motive of its radio campaign, can be said to be directed towards a 'political end'….If the advertiser or its ad seeks to influence Government or Government policy in any way, it would be an unacceptable ad under the BCAP Ad Code". CCP's response on the same day was that it would be taking the findings "and using these to influence of change Government policy". The RACC later sent CCP questionnaires whose object was to assist it in deciding whether the advertisement was directed towards a political end.
  4. In an email dated 9 December 2011, the RACC informed CCP that the advertisement, as currently worded, could properly be said to be "directed towards a political end". It said:
  5. "To explain our reasoning, we feel that it is explicit from the wording of the ad that [CCP] considers that many Christians are increasingly marginalised in the work place and note that the ad goes then states [sic] that the data being asked for will be used both "to inform the public debate" and "to help make a fairer society". Our common sense interpretation of these phrases, in this particular context, is that the advertiser intends to use the information provided to influence or change Government policy to help address the unfairness. It seems to us, therefore, that the ad itself, when taken as a whole, is directed towards a 'political' end as defined by the Comms Act and, in turn, is in breach of all or some of the BCAP Code Rule 7.2.2(b), (c), (d) and (f). For the avoidance of any doubt, even if the ad were capable of being read in the 'neutral' way you suggest, our view would remain that it would be directed towards a political end in light of the express indications of CCP's intentions with regard to the information sought."
  6. In these proceedings, the appellants challenged this decision on the grounds that (i) the advertisement was not "directed towards a political end" within the meaning of section 319(2)(b) of the Communications Act 2003 ("the 2003 Act"); and (ii) the prohibition was an unlawful interference with their rights under article 10 of the European Convention on Human Rights ("the Convention"). They sought a declaration that the broadcast would not contravene sections 319 and 321 of the 2003 Act and a declaration under section 4 of the Human Rights Act 1998 ("HRA") that these sections are incompatible with article 10 of the Convention.
  7. Silber J rejected both grounds. They appeal with the permission of Laws LJ. I should say at once that they no longer seek to argue that section 319(2)(b) is incompatible with article 10 of the Convention.
  8. The relevant legislative material

    "Section 319:
    (1) It shall be the duty of OFCOM to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives.
    (2) The standards objectives are—
    … (g) that advertising that contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services…
    Section 321:
    …(2) For the purposes of section 319(2)(g) an advertisement contravenes the prohibition on political advertising if it is —
    (a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;
    (b) an advertisement which is directed towards a political end; or
    (c) an advertisement which has a connection with an industrial dispute.
    (3) For the purposes of this section objects of a political nature and political ends include each of the following —
    (a) influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;
    (b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;
    (c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;
    (d) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;
    (e) influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;
    (f) influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;
    (g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends.
    …(7) Provision included by virtue of this section in standards set under section 319 is not to apply to, or to be construed as prohibiting the inclusion in a programme service of —
    (a) an advertisement of a public service nature inserted by, or on behalf of, a government department; or
    (b) a party political or referendum campaign broadcast the inclusion of which is required by a condition imposed under section 333 or by paragraph 18 of Schedule 12 to this Act."

    Political impartiality in broadcasting

  9. A fundamental feature of broadcasting regulation in the United Kingdom is that impartiality in broadcast services is maintained. This is achieved by three regulatory mechanisms:
  10. (i) the imposition of special requirements of impartiality by section 320 of the 2003 Act;
    (ii) the provision of free party political election broadcasts for political parties: see section 333 of the 2003 Act; and
    (iii) the prohibition on political advertising by sections 319(2)(g) and 321 of the 2003 Act.
  11. The justification for the prohibition on political advertising was described by Lord Bingham in Animal Defenders v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312. At para 28, he said:
  12. "The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated. It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising."
  13. Lady Hale said much the same at para 51.
  14. This justification was upheld by the Grand Chamber of the ECtHR in the same case: (Application No 48876/08), 22 April 2013. It is sufficient to set out what the majority said in their judgment at para 122:
  15. "The risk of abuse is to be primarily assessed by the domestic authorities … and the Court considers it reasonable to fear that this option would give rise to a risk of wealthy bodies with agendas being fronted by social advocacy groups created for that precise purpose. Financial caps on advertising could be circumvented by those wealthy bodies creating a large number of similar interest groups, thereby accumulating advertising time. The Court also considers rational the concern that a prohibition requiring a case-by-case distinction between advertisers and advertisements might not be a feasible means of achieving the legitimate aim. In particular, having regard to the complex regulatory background, this form of control could lead to uncertainty, litigation, expense and delay as well as to allegations of discrimination and arbitrariness, these being reasons which can justify a general measure (…). It was reasonable therefore for the Government to fear that the proposed alternative option was not feasible and that it might compromise the principle of broadcasting impartiality, a cornerstone of the regulatory system at issue."

    The judgment

  16. The judge first considered whether the RACC's failure to sanction the use of the advertisement infringed the claimants' rights under article 10 of the Convention. He concluded that the prohibition on political advertising set out in sections 319 and 321 of the 2003 Act did not infringe CCP's article 10 rights. It was therefore unnecessary to consider whether section 3(1) of the HRA could be invoked in order to read and give effect to sections 319 and 321 in a way which was compatible with article 10.
  17. He then addressed the question whether the advertisement was "directed towards a political end" within the meaning of section 321(2)(b). He held that the question had to be looked at objectively and without reference to the view of the advertiser. He concluded at para 59:
  18. "Applying the objective test, then I am satisfied that even after applying the anxious scrutiny test, the advertisement was seeking to obtain information and it stated that such information would be used "to inform the public debate" and "to help make a fairer society". This information, which it was seeking, would be used so as to try to make changes to society. These activities would fall well within first section 321(3)(b) by "bringing about changes of the law…or otherwise influencing the legislative process"; or second section 321 (3)(c) by "informing the policies or decisions of person on whom public functions are conferred"; or third section 321(3)(d) by "influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom; or fourth section 321(3)(f) by influencing public opinion on a matter in which the United Kingdom is a matter of public controversy". I should add that in any event, if the intent and motive of the advertisers were relevant, then as explained by the claimants and as set out earlier in this judgment in [16], [18] and [21]), the advertisement would be directed to achieving ends falling within the restrictions set out in section 321(3)(b), (c), (d) and (f)."

    The issues

  19. The grounds of appeal identify three issues: (i) whether, as a matter of ordinary construction, the advertisement was "directed towards a political end"; (ii) whether, taking account of the interpretative obligation set out in section 3(1) of the HRA, the advertisement was "directed towards a political end; and (iii) whether the appellants were limited to a rationality challenge to the decision as to whether the advertisement was "directed towards a political end".
  20. The first issue: the meaning as a matter of ordinary construction

    CCP's case

  21. Mr O'Neill QC submits that the intention and motive of the advertiser is irrelevant. Section 321(2)(b) requires the focus of the regulator (and the court) to be exclusively on the language of the advertisement: the question is whether the advertisement as worded is directed towards any of the prohibited ends set out in section 321(3). He says that the Secretary of State interprets section 321(2)(b) as if it read "an advertisement which is, or is intended to be, directed towards a political end". This amounts to a re-writing of the provision. It would impermissibly expand the scope of the statute in an area concerning the fundamental constitutionally protected rights of free speech. In this context, Mr O'Neill relies on the well-known "principle of legality" that, in the face of ambiguity, a statutory provision must be construed in a manner which favours the protection of fundamental rights. He says that the broader interpretation of section 321(2)(b) contended for by the Secretary of State would permit the State to ban an advertisement not for what it actually says, but on the basis of "what the advertiser says it hopes it might be able to do (in this case, lobby Government) depending on the response to this advertisement": I quote from para 4.12 of Mr O'Neill's speaking note.
  22. He submits that, as a matter of ordinary statutory construction, the proposed advertisement is not directed towards an end that can properly be described as "political" at all. He says that the message of the advertisement is not one of seeking to change or influence Government policy. Rather, the message confirms the importance of existing law and Government policy which seeks to outlaw discrimination in the workplace on grounds of religion or belief.
  23. The dictionary meaning of "political" is "(a) of or concerning the state or its government, or public affairs generally..."; and "politics" is defined as "(a) the art and science of government(b) public life and affairs as involving authority and government" (Concise Oxford English Dictionary, 9th edition). The common thread is the state, or governmental authority and its exercise. Mr O'Neill points out that all but one of the seven examples given in the non-exhaustive list contained in section 321(3) expressly refers to some aspect of the political process: elections, legislation, governmental power and political parties. The single exception is the reference in paragraph (f) to "a matter of public controversy". Mr O'Neill submits that the advertisement did not relate to a matter of public controversy since the "matter" had not crystallised as one on which the public is divided: the mere assertion that many Christians believe that they are being marginalised in the workplace and (implicitly) that this is or may be unfair is insufficient.
  24. He also submits that the implicit assumption in the judge's reasoning was that a person who seeks by unspecified means to make society fairer in some respect must intend to do so through the medium of politics. But this is wrong. State-led, law-led approaches are but one way of trying to secure fairness. There is nothing in the proposed advertisement that would lead a reasonable listener to think that this is the way CCP intends to achieve its aims. He adds that the weakness of the judge's approach (which is supported by Ms Broadfoot on behalf of the Secretary of State) is highlighted by the failure of any attempt to identify the law which is sought to be changed (section 321(3)(b)); the government policy sought to be influenced (section 321(3)(c)); or the policy of a person on whom public functions have been conferred sought to be influenced (section 321(3)(d)).
  25. Discussion of the first issue

  26. My starting point is that I consider that the judge was right to hold that the question whether an advertisement is directed towards a political end should be determined objectively by an examination of the text of the advertisement alone. The motives of the advertiser are irrelevant. So too is his intention unless it is expressed or is implicit in the language of the advertisement itself. Like the judge, I reach this conclusion for three reasons. First, this seems to me to be the clear effect of the language of the statute. The words "an advertisement which is directed towards a political end" invite attention to the subject-matter of the advertisement and not the motives or intentions of the advertiser. What matters is the effect of an advertisement on political debate. The question is whether it will frustrate the statutory aim of ensuring that, so far as practicable, the playing field of political debate is level. The motives of an advertiser cannot affect the playing field of the debate; and the advertiser's intentions cannot do so either unless they are revealed explicitly or implicitly in the text of the advertisement. Secondly, if regard were to be had to the motives and intentions of the advertiser, then, as the judge pointed out, the mere fact that an advertiser could show that he did not intend his advertisement to be directed towards a political end would mean that the advertisement could not be prohibited even if objectively if was directed towards a political end. That would make no sense and would frustrate the clear object of the statute. Thirdly, if the regulator were required to investigate the motives and intentions of the advertiser, the question whether an advertisement contravened the prohibition would become a potentially complex and time-consuming enquiry. That is unlikely to have been intended by Parliament.
  27. With that introduction, I turn to Mr O'Neill's submissions. Mr O'Neill argues for a narrow construction of "political". In my view, the wide scope of the examples given in section 321(3) does not support a narrow construction. In particular, the reference in section 321(3)(f) to "a matter of public controversy" is inconsistent with a narrow interpretation of "political". I cannot accept the strained and artificially restrictive interpretation of section 321(3)(f) for which Mr O'Neill contends (para 15 above). In any event, the list set out at section 321(3) is not exhaustive.
  28. Mr O'Neill makes the point that the advertisement did not identify any changes in the law that it considered to be necessary to achieve that end. But that does not matter. As Ms Broadfoot points out, one way to make a fairer society might be to change the law to strengthen the protection of Christians in the workplace. But that is not the only way. Another way of achieving the stated goal might be to persuade public sector employers to make adjustments to their policies (for example timetabling shifts on Sundays) or lobbying the Equality and Human Rights Commission to investigate this alleged type of discrimination. These are all matters which fall within section 321(3)(b), (c) and (d).
  29. Moreover, the narrow construction of "political" for which Mr O'Neill contends is inconsistent with the decision in the Animal Defenders case. The applicant NGO in that case campaigned against the use of animals in commerce, science and leisure and sought to achieve changes in law and public policy and to influence public and parliamentary opinion to that end. As part of its campaign, it wished to broadcast a television advertisement. The advertisement was banned under section 321(2) of the 2003 Act on the grounds that the applicant was a body whose objects were "wholly or mainly of a political nature" within the meaning of section 321(2)(a). The applicant sought a declaration that section 321(2) was incompatible with article 10 of the Convention. One of the arguments it advanced was that the prohibition was too widely drawn and disproportionate because it caught advertisements which were not "political" in the narrow sense, but were more properly described as "social advocacy". The House of Lords accepted the premise of the argument (ie that the prohibition caught advertisements which were "social advocacy"); but they held that the legislation was a proportionate interference with the applicant's article 10 rights. By a majority, the Grand Chamber agreed. If the narrow interpretation had been accepted, a judicial review challenge of the prohibition would have succeeded on that ground and there would have been no need to consider whether the (wider) interpretation was compatible with article 10 of the Convention. Lord Bingham gave hypothetical examples at para 29 of "social advocacy" which were "essentially political" (para 28):
  30. "adverts by well-endowed multi-national companies seeking to thwart or delay action on climate change; adverts by wealthy groups seeking to ban abortion; or, if not among member states of the Council of Europe, adverts by so-called patriotic groups supporting the right of the citizen to bear arms."
  31. Both the House of Lords (per Lord Bingham at para 31) and the majority of the Grand Chamber (para 122) upheld the Government's argument that there was no clear and workable distinction between political parties and social advocacy bodies and that a less restrictive alternative to the provisions was not feasible and would compromise the principle of broadcasting impartiality.
  32. I would also accept the submission of Ms Broadfoot that political speech is an inherently wide concept. I would endorse the observations of Professor Barendt, Freedom of Speech (Oxford OUP, 2005 p 161):
  33. "In principle….[political speech] should not be confined to communications which directly concern the conduct of government or which seek to influence electoral choices. That would be much too narrow. It would privilege speech on matters raised by political parties and candidates. The public is entitled to discuss a wide range of topics, irrespective of whether they are taken up by government and political parties. 'Political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about".
  34. Next, I deal with the submission based on the "principle of legality" that section 321(2)(b) should be interpreted restrictively because it involves an interference with the fundamental right of freedom of speech. I accept that a power conferred by Parliament in general or ambiguous terms should not be construed as authorising the doing of acts which interfere with fundamental rights. I also accept that freedom of speech is a fundamental right. But as this court said in AJA and others v Commissioner of Police for the Metropolis [2013] EWCA Civ 1342 at para 28:
  35. "The principle of legality is an important tool of statutory interpretation. But it is no more than that. When an issue of statutory interpretation arises, ultimately the question for the court is always to decide what Parliament intended. "
  36. Section 321(2)(b) is expressed in words of ordinary language. They are not general or ambiguous words such as those which were considered in the "principle of legality" cases. The whole point of sections 319 to 328 of the 2003 Act is to provide fair standards for television and radio. That necessarily involves interfering with freedom of speech in the public interest. As was explained in the Animal Defenders case, there is a real public interest in ensuring, so far as practicable, that political debate on radio and television is conducted impartially and on a level playing field. That was the policy reason for the prohibition on political advertising. An artificially narrow interpretation of section 321(2) would frustrate that policy.
  37. A question was also raised during argument as to whether an advertisement "directed" towards a political end must on its face seek to advance a political end or whether it is sufficient that the advertisement is linked in some way to a possible future communication of that kind. The point might be illustrated in the following way. Suppose that an advertisement states that there is some evidence that Christians may be suffering from being marginalised in the workplace and that the advertiser is seeking data to ascertain whether this is in fact the case. An advertisement expressed in such terms is not on its face directed towards the political end of improving the position of Christians in the workplace or any other political end. I would accept that such an advertisement is entirely neutral and is not "directed" towards a political end. The fact that the advertiser might use the data at a later stage to seek to influence a change would not make the advertisement one which was directed to that political end unless one adopted the subjective approach which I have earlier rejected (para 17 above). An example of an advertisement not falling within the scope of section 321(2)(b) would be an advertisement by an academic who stated that he or she was doing research and wanted the data solely for the purposes of that research.
  38. In my judgment, the advertisement with which we are concerned is quite different from such examples. The language of the advertisement itself is directed to the political end of making a fairer society by reducing or eliminating the marginalisation of Christians in the workplace. First, the advertisement states that it was placed by CCP which is a publisher of Christian magazines. Although it is not a body whose objects are wholly or mainly of a political nature, the fact that it is a publisher of Christian magazines is relevant. It is not a body that would appear to be neutral, such as an academic sociologist or historian. Secondly, the advertisement states that surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalised in the workplace. This is a strong statement of how Christians perceive the situation and one from which the advertiser does not distance itself. The fact that CCP goes on to say that it is "concerned" to get "the most accurate data" implies that the data that already exists are accurate, but that it wants something more accurate. Thirdly, the advertisement states that CCP wants the more accurate data in order to "inform the public debate". In other words, it is not seeking the data for the purposes of research or informing the public about a matter of general interest. It wants the data to inform a debate in the public arena. The most obvious purpose of a public debate would be to address a matter of public importance. Fourthly (and crucially), the advertisement says: "we will then use this data to help make a fairer society". CCP does not say that it will assess the data to see whether it supports the impression already obtained from previous surveys. If that had been the purpose of obtaining the additional data, it might have been difficult to say that the advertisement was directed to a political end. Rather, it is implicit in the advertisement that CCP is confident that the more accurate data will support the case that Christians are being marginalised in the workplace; and the advertisement explicitly states that the data will be used to help to make a fairer society ie by reducing or eliminating the marginalisation. In short, the underlying message of the advertisement is that there is an existing unfairness in society in the form of the marginalisation of Christians in the workplace, which CCP is saying should be changed.
  39. For these reasons, I consider that the advertisement is on its face supportive of a campaign which was of a political nature. I would, therefore, reject Mr O'Neill's submissions on the first issue.
  40. The second issue: the meaning in the light of section 3 of the HRA

  41. Mr O'Neill accepts that he cannot challenge the 2003 Act for incompatibility with the Convention. The decision of the Grand Chamber of the ECtHR in Animal Defenders determined that the prohibition of political advertising on radio and television is compatible with article 10. But Mr O'Neill submits that the appellant is free to complain that a decision prohibiting the broadcasting of a particular advertisement is incompatible with the Convention. He relies principally on article 10. He accepts that the present case is not one of "religious advertising": the appellants are not trying to promote a particular religious message. It follows that article 9 has no direct application in the present case. But he says that the principles which derive from article 9 should be taken into account in the approach to article 10 in the context of the present case.
  42. Mr O'Neill submits that section 3(1) of the HRA contains two obligations: (i) legislation is to be read in a way which is compatible with Convention rights; but (ii) it is also to be given effect in a way which is compatible with Convention rights: see Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 per Lord Rodger at para 107.
  43. This distinction may have real and practical content, for example, where a statutory discretion is conferred on a public authority. Such an authority is under an obligation to exercise the discretion in a way which is compatible with Convention rights. But we are not concerned with an exercise of discretion. What is at issue here is the question of the true meaning of a statutory provision which has been authoritatively held to be compatible with the Convention. In these circumstances, I have difficulty in seeing how article 10 has a part to play in the debate. The Grand Chamber did not say that the statutory provisions under scrutiny were compatible with article 10 only because they could be interpreted in a particular Convention-compliant way. It is to be assumed that they were satisfied that the provisions were compatible if they were construed in accordance with our normal domestic principles of statutory interpretation.
  44. In any event, if Mr O'Neill's submission is no more than that section 321(2)(b) should be construed narrowly on the grounds that any interference with article 10 rights needs to be justified, then, mutatis mutandis, this is the same argument as the "principle of legality" argument that I have considered in relation to the first issue at paras 23 and 24 above.
  45. The third issue: were the appellants limited to a rationality challenge?

  46. At paras 60 and 61, the judge gave an additional free-standing reason for dismissing the application. He said that "the appropriate decision-maker on the issue of whether the advertisement should be cleared was the RACC". Applying what Lord Mustill said in R v Monopolies and Mergers Commisssion ex parte South Yorkshire Transport Limited [1993] 1 WLR 23, 32-33, he held that this was a case where the relevant criterion was:
  47. "so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case, the court is entitled to substitute its own opinion for that of the person to whom the decision has been only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] AC 14".
  48. He said that the decision of the RACC could not conceivably be regarded as so aberrant that it could not be classed as rational.
  49. Mr O'Neill submits that this was the wrong approach. He submits that the question whether an advertisement is directed towards a political end is a hard-edged question of mixed fact and law which, in the event of a dispute, is for the court itself to decide. The role of the court is not limited to a review of the lawfulness of the decision of the RACC.
  50. We were referred to R v Radio Authority, Ex parte Bull [1998] QB 294, a decision of this court on an issue arising under the Broadcasting Act 1990 which was similar to the issue in the present case. It was accepted in that case that the role of the court where there was a judicial review challenge to a decision of the Radio Authority was one of review. But the contrary does not seem to have been argued and there is no discussion in the judgments as to whether that was the correct approach.
  51. I am inclined to the view that the question whether CCP's advertisement was directed towards a political end was one for the court to decide. It seems to me that the issue here is not one of evaluation or judgment. Either the advertisement was directed towards a political end or it was not. No questions of degree are raised such as were in issue in the South Yorkshire Transport case. But I do not find it necessary to express a concluded view about this. For the reasons I have given, I consider that CCP's advertisement was directed towards a political end. If the role of the court were restricted to reviewing the lawfulness of the RACC's decision, I would hold that the RACC was fully entitled to reach the conclusion that it reached, although I have expressed my reasons for that conclusion in a somewhat different way.
  52. Conclusion

  53. For all these reasons, I would dismiss this appeal.
  54. Lord Justice Richards:

  55. I agree with the judgment of the Master of the Rolls and would dismiss the appeal for the reasons he gives.  Although Elias LJ takes a different view of the matter, I do not think it useful for me to set out detailed reasons of my own since they would only restate less felicitously the substance of what has been said by the Master of the Rolls.  But the essential point, as it seems to me, is that the judgment of the Master of the Rolls reflects and gives effect to the ordinary meaning of the words "directed towards a political end", whereas Elias LJ introduces what I respectfully consider to be an unwarranted gloss on those words by focusing on the "immediate effect" or "immediate aim" of the advertisement (paras [49]-[50]) and in restating the question in the ways he does at paras [54].
  56. Lord Justice Elias:

  57. I gratefully adopt the factual background set out in the judgment of the Master of the Rolls, and I will not repeat the relevant legislative provisions. But I have the misfortune to disagree with the analysis of the law adopted by my Lords the Master of the Rolls and Richards LJ. I would uphold the appeal and declare that the advertisement does not contravene the ban on political advertising. I will briefly explain my reasons.
  58. The proposed advertisement was as follows:
  59. "We are CCP. Surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalised in the work place. We are concerned to get the most accurate data to inform the public debate. We will then use this data to help make a fairer society. Please visit CCPmagazines.co.uk and report your experiences."
  60. I start with the reason why the RACC considered that the advertisement contravened the prohibition on political advertising in section 321(2)(b) . Before reaching its decision there was correspondence between CCP and the RACC in which, amongst other matters, the RACC focused on the future use of the data collected as a result of the advertisement. RACC asked how it would be used "to inform public debate" or "to help make a fairer society." The CCP replied that the data would be provided to interested groups including the Equality and Human Rights Commission and the All Party Parliamentary Group "Christians in Parliament".
  61. RACC was not satisfied with these answers and gave its reasons for concluding that this advertisement constituted unlawful political advertising:
  62. "To explain our reasoning, we feel that it is explicit from the wording of the ad that [CPP] considers that many Christians are increasingly marginalised in the work place and note that the ad goes then states [sic] that the data being asked for will be used both "to inform the public debate" and "to help make a fairer society". Our common sense interpretation of these phrases, in this particular context, is that the advertiser intends to use the information provided to influence or change Government policy to help address the unfairness. It seems to us, therefore, that the ad itself, when taken as a whole, is directed towards a 'political' end as defined by the Comms Act and, in turn, is in breach of all or some of the BCAP Code Rule 7.2.2(b), (c), (d) and (f). For the avoidance of any doubt, even if the ad were capable of being read in the 'neutral' way you suggest, our view would remain that it would be directed towards a political end in light of the express indications of CCP's intentions with regard to the information sought."
  63. RACC then helpfully explained how in its view the advertisement could be rendered lawful:
  64. "However, to help ensure that the ad cannot be said to be "directed towards a political end", thereby bringing it within the BCAP Code, we advise the removal of the phrase "to inform public debate" and the line "We will then use the data to help make a fairer society."
    With these amendments, I confirm that the RACC can clear the ad."
  65. In my judgment it is plain that focus here is solely on the future use of the information. There is no finding that the advertisement, as it stands and quite independently of the future use of data, is seeking to achieve a political end. If that were so it would have been unnecessary for questions to be asked as to how the data would subsequently be used. The finding is that because the clear inference from the advertisement itself is that the information being sought will be used for a political purpose in the future, it falls within the terms of section 321(2)(b).
  66. The appellants had submitted to the regulator, as they did to us, that the phrases to which RACC took objection were neutral and did not entitle RACC to draw the inference that any information acquired would be used for a political purpose. RACC clearly rejected that submission. However, the last sentence of the reasons also focuses on future intention; it says that even if the inference as to future intention could not properly be drawn from the terms of the advertisement itself, the express indications of future intention demonstrated that the information would be used to advance political ends and the advertisement would thus still be prohibited as political advertising.
  67. I respectfully agree with the RACC that the only legitimate inference from the words actually used is that the information will be used in future to advance political ends. Personally, I am also inclined to accept that if what is prohibited includes the future use of information for a political end, it is legitimate for the regulator to have regard to extrinsic evidence of future intention. I do not see why the advertisement should be acceptable simply because that intention is not clear from the advertisement itself.
  68. It seems to me that Silber J, like the regulator, also understood the objection to the advertisement to be the future use of the information obtained as a result of the advertisement (para 59). The critical point in his analysis was that "this information, which it was seeking, would be used so as to try to make changes in society". He does not say, and in my judgment did not find, that this advertisement itself was trying to make changes in society; merely that it was a precursor to such activity in the future.
  69. However, I part company with the regulator, Silber J and my Lords on the issue whether the section, properly construed, does allow the regulator to focus on the future actions of the advertiser. The critical question is what the phrase "directed towards a political end" means. The regulator has simply assumed that it includes any advertisement whose purpose is to facilitate an attempt in the future to achieve a political end, such as by influencing debate or government policy. My Lords have concluded, as I understand it, that they were right to adopt that approach on the basis that it is a natural meaning of the phrase to consider the purpose of an advertisement by reference to future action which naturally arises out of it.
  70. I respectfully disagree. I do not think that the words, read in context, fairly bear that meaning. I do not dispute that the phrase "directed towards a political end" can in an appropriate context include looking at future events. But it can also be construed more narrowly to focus on the immediate effect of the advertisement: does the advertisement itself, without reference to future action, itself seek to achieve a political end? In my judgment there are strong pointers that this is the proper and appropriate meaning of the phrase in the context of this particular legislation.
  71. First, on any view the principal purpose of the section is to prohibit advertisements whose immediate aim is to achieve a political end i.e. one of the objectives in section 321(3) (and perhaps others, since these are not exhaustive of what may constitute political ends). As Lord Bingham observed in R (Animal Defenders International) v Secretary of State for Culture, Medial and Sport [2008] 1 AC 131, in a passage reproduced by the Master of the Rolls (para.7), the purpose of the legislation is for listeners "to be protected against the potential mischief of partial political advertising". So the meaning to be given to the phrase "directed towards" must at the very least embrace advertisements which themselves can fairly be described as "partial political advertising". The phrase cannot simply involve focusing on the future; it must include advertisements whose immediate aim is to send a partial political message.
  72. It follows that if "directed towards" can include advertisements which, whilst themselves not seeking to attain political ends, are designed to facilitate those ends in the future, then this must be a secondary or additional meaning. However, I see no justification in the mischief of the legislation for adopting this wider construction so as to ban such advertisements. If an advertisement does not itself constitute a partial political message, why should it be banned? There is, in my view, no obvious public interest in preventing someone through advertising gaining information which may be used in future to advance a political cause, provided of course that future influence is wielded in ways which do not contravene the legal prohibitions on political speech. The concern of the 2003 Act is not with partial advertising in all circumstances but merely partial advertising by broadcasters.
  73. In my judgment, the justification for a narrower construction is reinforced by the consideration that the effect of the ban is to interfere with freedom of speech. Any restriction ought not to be read more broadly than is necessary to protect a legitimate interest, in this case preventing partial political communications from being broadcast. It is only the curbing of that mischief which justifies that interference and prevents the provisions from constituting a breach of the right to freedom of expression under Article 10, or indeed of the common law principle of legality referred to by The Master of the Rolls.
  74. Moreover, if Parliament wished to ban adverts which merely facilitated, actually or potentially, political ends being achieved in the future, it could have made this clear by adopting the term "connected with" which is used in section 321(2)( c) in relation to collective disputes. Those words are wider than "directed towards" and would have made the draftsman's intentions clear.
  75. On my construction of the phrase, it is unnecessary, and indeed inappropriate, to consider the intention of the advertiser whether by inference from the advertisement itself or from extrinsic sources. Future intentions are simply irrelevant. The only issue is whether, considered objectively and by focusing solely on the advertisement, the listener is being subjected to a partial political message. Section 321(3) indicates that the answer to that question is determined by asking whether the purpose is in some way to influence policies or political outcomes. Is there an attempt to influence the listener towards a particular viewpoint? The fact that the purpose is to enable the advertiser in future to seek to exert such influence and operate as a more effective pressure group does not in my judgment amount to an infringement of section 321(2)(b).
  76. As I have said, RACC did not in my view directly consider this question; indeed, by indicating how the advertisement could be rendered lawful, it seems to me that it thought that the advertisement considered on its own and without reference to the way in which data would be used in the future would not have fallen foul of the ban.
  77. I confess that I have found this question more difficult, but on balance I think that if future intentions are ignored, the advertisement does not contravene section 321(2)(b). In my view the advertisement provides information about the views of active Christians (which RACC satisfied itself had a proper foundation in evidence) and it seeks information about the experiences of other Christians. I respectfully agree with the conclusion of the Master of the Rolls, for the reasons he gives in paragraph 26, that the only fair reading of the advertisement is that it was intended to be in support of a campaign which is of a political nature. The natural inference from the advertisement is that the CCP itself considers that Christians are not treated fairly in the workplace and it will use the information acquired to try to alter that. Where I differ from him is on the narrow question whether this alone brings the advertisement within section 321(2)(b) where the actual campaign itself will be waged in the future. I do not think it does because it seems to me that there is nothing in this advertisement itself which is at this stage seeking to influence others to the same view. I accept that merely giving information can in some contexts amount to a partial political message but I do not accept that it does so here.
  78. Accordingly, I would uphold the appeal and declare the advertisement lawful.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1495.html