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||Neutral Citation Number:  EWHC 1043 (Admin)
||Case No: CO/7889/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||20 April 2012
B e f o r e :
MR JUSTICE SILBER
|| The Queen on the application of
LONDON CHRISTIAN RADIO LIMITED (1)
CHRISTIAN COMMUNICATIONS PARTNERSHIPS LIMITED (2)
||- and -
||RADIO ADVERTISING CLEARANCE CENTRE
||SECRETARY OF STATE FOR CULTURE, OLYMPICS MEDIA AND SPORT
James Dingemans QC (instructed by Aughton Ainsworth) for the Claimant
The Defendant was neither represented nor appeared
Samantha Broadfoot (instructed by Treasury Solicitors Department) for the Interested Party
Hearing date: 28 March 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE SILBER:
- London Christian Radio Limited ("LCR"), which runs a national radio station called "Premier Christian Radio", and Christian Communications Partnership Limited ("CCP"), which is a publisher of Christian magazines, wished to publish an advertisement on the radio asking about the marginalisation of Christians in the workplace and informing listeners that the advert is "seeking the most accurate data to inform the public debate" and to "help make it a fairer society".
- They were required to obtain clearance so to be able to broadcast it from its regulatory body, which is Radio Advertising Clearance Centre ("RACC"). It checks advertisements which a radio station wishes to broadcast in order to ensure that they comply with the appropriate Code. It has refused to clear the advertisement of LCR and CCP for broadcasting because it contends that the proposed advertisement infringes the prohibitions on political advertising set out in sections 319 and 321 of the Communications Act 2003 ("the 2003 Act"). This refusal does not technically prevent the advertisement from being broadcast by LCR, but if it was to be broadcast without RACC clearance, a complaint could then be made to OFCOM that LCR was in breach of the regulatory code applicable to radio broadcasting.
- LCR and CCP (collectively referred to as "the claimants") challenge this refusal. They contend that their advertisement does not fall within the statutory ban on political advertising set out in the 2003 Act, but they submit that if it does, then the ban is incompatible with the claimants' rights under Article 10 of the ECHR if it cannot be read down pursuant to the provisions of section 3(1) of the Human Rights Act 1998 ("HRA") so as to be given effect in such a way as to be consistent with the claimants' Article 10 rights.
- The RACC has adopted a consistent position of neutrality on the substantive challenge and so it has played no part in these proceedings. The Secretary of State of Culture, Olympics, Media and Sport ("the Secretary of State"), who is the Minister with overall responsibility for broadcasting, has been joined as an Interested Party and he opposes this application. It must be stressed that it has not been suggested in any way that the stance of the Secretary of State is in any way anti-Christian or that his reasoning would not apply to any other religion. Indeed nothing in this judgment is meant to preclude advertisements by bodies such as the claimants in, for example, newspapers.
- Sales J made a conditional order granting the claimants permission to proceed on 17 June 2010, but by operation of his directions that matter was relisted and permission was then granted by Collins J on 14 December 2011.
II. The Parties
- LCR runs Premier Capital Christian Radio, which has been broadcasting since 1995 under a licence issued by the Office of Communications and its stated mission is to: -
"convey…the significance of the life, teaching, death and resurrection of Jesus Christ as recorded in the Scripture and in historic creeds in the Christian faith".
- CCP is an associated company and the publisher of three magazines, namely first, Christianity, which aims "to find news and articles of Christians and those interested in the Christian faith from across the denominational spectrum"; second, Youthwork the United Kingdom's most widely read magazine for Christian youth workers; and third, Christian Marketplace, which is a magazine for retailers and suppliers in the Christian publishing world. The majority of shares in both claimants are owned by Premier Christian Medium Trust, which is a registered charity.
- RACC is a private body funded by commercial radio stations whose role is to grant or to withhold clearance in advance of broadcasts to certain types of proposed radio advertisements.
III. The Statutory Framework
- The Office of Communications ("OFCOM") is a public body established by Parliament and it exercises functions under the 2003 Act.
- Section 319 of the 2003 Act provides insofar as is material that:-
"(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 programmers 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) of the 2003 Act defines "political advertising" in this way:-
"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".
- It is common ground that of the different and alternative definitions in section 321(2) of the 2003 Act, it is only section 321(2) (b), which is relevant to the present application. Section 321(3) explains how section 321(2) is to be construed and it provides that:-
"(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".
- Section 312(3) of the 2003 Act states that "objects of a political nature and political ends include" and the matters then set out are the only matters relied on by the Secretary of State in this case. So I need not consider if any other matters have to be considered.
- RACC is governed by a Code which provides that:-
"4.6 'Special Category' of Advertisements ….need particular care. They must be sent [before being broadcast] to the RACC for central clearance…
4.7. Special Categories are…
Political, Industrial and Political Controversy Matters…
4.9 stations must take responsibility to ensure that only RACC – approved output, where applicable, is broadcast."
IV. The Chronology and the Issues.
- On 28 May 2010, LCR submitted to RACC a paid advertisement for clearance in advance of being broadcast. The proposed advertisement stated that:-
"We are CCP. Surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalized 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 [CCP's website] and report your experiences."
- It was explained by Mr Peter Kerridge the Chief Executive of LCR in his witness statement that :-
"The purpose of the advertisement was to gather accurate information from Christians in order to verify an initial survey carried out by CCP as to the extent of discrimination against Christians in the workplace. If this information corroborated the initial research, this would be used to inform, encourage and to equip Christians to deal with such matters, to raise it with the Equalities Commission and the Government and to inform the public and raise awareness generally that Christians are being marginalised in the workplace and that there is not the same level of respect and tolerance towards Christians and Christian values and belief as there is for other groups, which, in a pluralistic society, is not acceptable, fair or democratic".
- An exchange of emails followed in which RACC asked what were:-
"the goals and purposes of CCP. If for example, they would be using the data to lobby government, then they would have fallen foul of the ban on 'political' advertising".
- LCR confirmed that the data information gathered would be published and it would have implications for the Government and bodies such as the Equal Opportunity Commission.
- RACC replied that:-
"…for clearance, RACC needs to establish that the advertiser is not a body wholly or mainly of a political nature and that its ad is not directed towards a political end".
- RACC asked whether CCP's aims and objectives, or the motive of its radio campaign could be said to be directed towards "a political end". It also stated that based on the minimal information which it had received, RACC could not see how it could be put on air, because if an advertiser or an advertisement sought to influence Government or Government policy in any way, then it would be an unacceptable advertisement under the Code.
- The response of LCR was that although it was not a body of "a wholly or mainly political nature", it would be taking its findings and using them to influence or change Government policy. RACC reiterated in response on 30 May 2010 that if CCP's advertisement "seeks to influence or change Government policy, this renders the ad unacceptable under the BCAP Ad code".
- There was some uncertainty as to whether RACC had actually taken a decision and after further consideration, RACC refused to give its consent in a decision dated 9 December 2011 and which stated that:-
"To explain our reasoning, we feel that it is explicit from the wording of the ad that [the Second Claimant] considers that many Christians are increasingly marginalised in the work place and note that the ad goes then states that the data are 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 BCAP Code Rule 7.2.2(b) ['bringing about changes of the law … or otherwise influencing the legislative process … '], (c) ['influencing the policies or decisions of local, regional or national governments, … '], (d) ['influencing the policies or decisions of persons on whom public functions are conferred … '] and (f) ['influencing public opinion on a matter which … is a matter of public controversy']. 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 the light of the express indications of [the Second Claimant]'s intention with regard to the information sought."
- The claimants seek in these proceedings:-
i) a declaration that to broadcast the advertisement would not contravene section 319 and 321 of the 2003 Act because it is not "directed towards a political end"; alternatively
ii) a remedy by which their right of freedom of expression under Article 10 of the European Convention on Human Rights needs to be read and given effect to under section 3(1) of the Human Rights Act 1998 ("HRA") in such a way as to be compatible with this right; and in the further alternative
iii) a declaration under section 4(2) of the HRA that section 321(2)(b) of the 2003 Act is incompatible with the claimant's rights under article 10 of the ECHR in so far as it prohibits the broadcasts the prohibited advertisement.
- The claimants contend first that broadcasting the proposed advertisement would not contravene the statutory prohibition set out in section 321(2)(b) of the 2003 Act as being "an advertisement which is directed towards a political end"; but second, that even if its advertisement fell within that statutory prohibition, it was incompatible with the claimants' rights under article 10 of the ECHR if it could not be construed and given effect to in such a way as to be compatible with the claimants' rights under Article 10. There is a dispute as to how the court should construe the advertisement and in particular whether it is a hard-edged question of fact or whether it has to be considered in a different way in the light of the claimant's article 10 rights (see R (Gaunt) v Office of Communications  WLR 663, 667  per Sir Anthony May P).
- It is appropriate first to consider whether the failure to sanction the use of the advertisement infringed the claimants' article 10 rights because the conclusion on this issue may be relevant on how the restriction set out in section 321(2)(b) of the 2003 Act should be construed.
V. Did RACC's failure to sanction the use of the advertisement infringe the Claimants' Article 10 Rights?
- Article 10 of the ECHR provides that:-
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".
- It is not in dispute that the claimants' article 10 rights are engaged and that these are very important and well-established rights. Indeed in Steel and Others v United Kingdom (1998) 28 EHRR 603, freedom of expression was said to constitute "101. an essential foundation of democratic society and one of the basic conditions for its progress and for each individual's self-fulfillment". The only issue is whether those rights have not been infringed because of what is said in article 10(2). There is agreement between the parties that the restrictions which are set out in sections 319(2) (g) and 321(2) of the 2003 Act constitute "restrictions... as are prescribed by law" and the issue is whether they are "necessary in a democratic society".
- The word "necessary" has been considered by the Strasbourg Court in the case of Sunday Times v UK (1979) 2 EHRR 245 when it explained that:-
"59. The Court has already had the occasion in its above-mentioned Handyside judgment to state its understanding of the phrase "necessary in a democratic society", the nature of its functions in the examination of issues turning on that phrase and the manner in which it will perform those functions.
The Court has noted that, whilst the adjective "necessary", within the meaning of Article 10 (2) (art. 10-2), is not synonymous with "indispensable", neither has it the flexibility of such expressions as "admissible", "ordinary", "useful", "reasonable" or "desirable" and that it implies the existence of a "pressing social need" (p. 22, para. 48)…"
- Lord Bingham made the same point in R v Shayler  1 AC 247  he emphasised the main point that any restriction of freedom of expression must be "proportionate to the legitimate aim pursued", which was a view shared by Lord Hope -. He went on to explain that the question whether there was permissible interference with the claimant's Article 10 rights required anxious scrutiny. There has been substantial authority on the application of the words "necessary in a democratic society" to restrictions on broadcasters. I will mention some of the cases briefly although they will have to be considered in the light of a recent decision in the House of Lords in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport  1 AC 131. As I will explain in the next paragraph there is a conflicting decision of the Strasbourg Court. It is common ground that this court is in those circumstances bound by the decision of the House of Lords in Animal Defenders on the basis explained in Leeds City Council v Price  1WLR 1825. For the purpose of completeness, I should add that the Grand Chamber in Strasbourg heard an appeal in the Animal Defenders case in March 2012, but counsel have agreed that I should not delay giving this judgment pending the handing down of Grand Chamber's judgment. No doubt if the decision of the House of Lords is held to be wrong, the claimants can make another application to RACC.
- In VgT Verein Gegen Tierfabriken v Switzerland (2002) 34 EHRR 4, the applicant asked a television company to broadcast an advertisement that was hostile to commercial pig rearing. The television company declined to do so on the grounds that Swiss law prohibited "political advertising". This decision was upheld by the Swiss courts and it was accepted by the Strasbourg Court that the advertisement did constitute "political advertising", which was "prescribed by law". The Strasbourg Court concluded that the article 10 rights of the applicant had been infringed, because insufficient grounds had been advanced to justify the interference with the article 10 rights of the applicant.
- This case has been the subject of much comment. It was described by Lords Lester and Pannick as being "controversial" (Human Rights Law and Practice (2nd Edition) 2004) Paragraph 4.10.26). In the Animal Defenders' case, Lord Bingham noted that the VgT Verein Gegen Tierfabriken case (supra) was considered by the Joint Human Rights Committee in its Fourth Report of Session 2002-03 (Feb 2003) who concluded that in introducing the Bill which became the 2003 Act, the government "envisaged no lack of respect for human rights and was legitimate in the circumstances". The Government did not give a certificate.
- In R (Pro-Life Alliance) v British Broadcasting Corporation  1 AC 185, Lord Hoffmann described the VgT judgment as "a guarded, if somewhat opaque, decision. The Court expressly said that such a prohibition [against political advertisments] might be compatible with Article 10 'in certain situations'" .
- In the same case, Lord Walker explained on the VgT judgment that it "does not, with respect, give full or clear reasons for what seems to be a far-reaching conclusion" . In the Animal Defenders case, Lord Bingham said of the argument that restriction on the right of free expression
" 28…must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.
29. I do not think that the full force of this argument was deployed in VgT".
- Lord Scott  and Baroness Hale  both pointed out first that Strasbourg decisions are fact-specific and that the decision in VgT would not have led to any decision in the Animal Defenders case other than that the prohibition on political broadcasting was not incompatible with Article 10.
- In Murphy v Ireland (2004) 38 EHHR 13, the Strasbourg Court had to consider a prohibition of a broadcast of an advertisement in Ireland but on the facts of the case it was held that:-
"82. … given the margin of appreciation accorded the State in such matters the Court considers that the state has demonstrated that there were "relevant and sufficient" reasons justifying the interference of the applicant's freedom of expression within the meaning of article 10 of the convention".
- In the Animal Defenders case, the claimant was a body which campaigned against "the use of animals in commerce, science and leisure seeking to achieve changes in law and public policy and to influence public and Parliamentary opinion towards that end" . It sought to place a television advertisement, which directed public attention towards the use of primates by humans and the threat presented by such use to the survival of primates.
- The appropriate advertising authority (which was the equivalent for television of the role played by RACC for giving clearance for radio advertisements) declined to clear the advertisement for transmission on the grounds that it was "an advertisement which is inserted by or on behalf of the body whose objects are wholly or mainly of a political nature" (see section 321(2) (a) of the 2003 Act). The claimants then sought a declaration that section 321(2) was incompatible with Article 10 of the ECHR. The House of Lords unanimously declined to grant such a declaration.
- The Appellate Committee in that case accepted, as the parties do in this case, first that the restrictions placed by sections 319 and 321 of the 2003 Act constituted an interference with the exercise of its right to free expression and second that this restriction is prescribed by law . It then proceeded to state that the legislation had a legitimate aim which was the protection of rights of others which included the right to be protected against the potential mischief of partial political advertisement  and . This was explained by Lord Bingham in this way:-
"28. 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."
- Lord Bingham proceeded to state that for the restriction to be necessary, there had to be a pressing social need for it and that it was for the State to justify the restriction. He pointed out first that the "broadcast media is more pervasive and potent than any other form of media"  and second that that "no fair and workable compromise solution could be found which would address the problem [of partial political advertising]" . Lord Bingham explained that there was a pressing social need for a blanket prohibition of political advertising on television on radio because of the "great immediacy and impact of television and radio advertising" .
- Baroness Hale, who agreed with Lord Bingham, also noted  that Government and Parliament had recently examined with care whether a more limited ban could be made to work but concluded that they could not do so. This point was also made in paragraph 12 of the Secretary of State's Explanatory Notes on Political Advertising.
- Lord Bingham and Baroness Hale also explained that it was "not irrelevant" that other media advertising was open to the claimant such as newspapers and magazines, direct mail shots and billboards ( and ). Lord Bingham considered the weight to be accorded by the Courts to the judgment of Parliament in enacting sections 319 and 321 in maintaining the political ban before he concluded that it was to be "given great weight" . He then explained that:-
"35..First, it is reasonable to expect that our democratically-elected politicians will be peculiarly sensitive to the measures necessary to safeguard the integrity of our democracy. It cannot be supposed that others, including judges, will be more so. Secondly, Parliament has resolved, uniquely since the 1998 Act came into force in October 2000, that the prohibition of political advertising on television and radio may possibly, although improbably, infringe article 10 but has nonetheless resolved to proceed under section 19(1)(b) of the Act. It has done so, while properly recognising the interpretative supremacy of the European Court, because of the importance which it attaches to maintenance of this prohibition. The judgment of Parliament on such an issue should not be lightly overridden".
- For those reasons, the Appellate Committee concluded that the prohibitions on political advertising in sections 319 and 321 of the 2003 Act were justified as being necessary in a democratic society and therefore compatible with article 10 ( per Lord Bingham;  per Lord Scott of Foscote;  per Baroness Hale of Richmond;  per Lord Carswell; and  per Lord Neuberger of Abbotsbury).
- The evidence upon which those conclusions were reached was essentially the witness statement of Mr Andrew Ramsay, who was the Director General of the Department of Culture, Media and Sport at the time of the Animal Defenders case. His evidence was also exhibited and relied on by the Secretary of State in the present case.
- It is right that it should be explained that Lord Bingham  envisaged the possibility that a question of compatibility could arise if an advertisement fell solely within section 321(3)(f) which relates to "influencing public opinion on the matter which, in the United Kingdom, is a matter of public controversy".
- Baroness Hale also accepted at paragraph 52 that:-
"…There may be room for argument at the very margins of the rule, for example, in banning an advertisement of any kind by a political body or in banning an advertisement by anyone of matters of public controversy. But that is not this case".
- The similarities between the present case and the Animal Defenders case are striking, because first they both concerned restrictions on broadcasting political advertisements set out in the same Act; second, they both dealt with bans on political advertising; and third they both relied on the evidence of Mr Ramsay on the issue of whether the ban was "necessary" for the purposes of Article 10(2). In addition, in the present case as in the Animal Defenders case, there was other media advertising open to the claimants. As I have explained in paragraph 7 above, the second claimant CCP is a publisher of three magazines in which it could have included the advertisment.
- No submission has been put in front of me which indicates in any way that in the present case, the reasoning of Animal Defenders should not be followed or that it should be distinguished.
- Mr Dingemans drew my attention to a case decided after the Animal Defenders case, which was the Strasbourg Court's decision in TV Vest AS and Rogland Pensjonistparti v Norway (2009) 48 EHRR 51, in which the applicant, a television broadcasting company, had broadcast advertisements for a small political party "the Pensioners Party". Under Norwegian law, political advertising was prohibited and the applicant was fined. It appealed unsuccessfully to the Supreme Court in Norway. The Strasbourg Court, however, held that there had been a violation of article 10 because:-
"78... there was not, in the Court's view, a reasonable relationship proportionality between the legitimate aim pursued by the prohibition of political advertising and the means deployed to achieve that aim. The restriction which the prohibition and the imposition of the fine entailed on the applicant's exercise of their freedom of expression cannot therefore be regarded as having been necessary in a democratic society.. for the protection of the rights of others, notwithstanding the margin of appreciation available to the national authorities. Accordingly, there has been a violation of article 10 of the Convention."
- I therefore conclude that Animal Defender case, which is binding on the court notwithstanding the VgT case referred to in paragraph 30 above and the TV Vest case referred to in paragraph 48 above (see Leeds City Council v Price  1 WLR 1826) means that restrictions which are set out in section 319(2)(g) of the 2003 Act constitute not merely in the language of Article 10 (2) "restrictions.. as are prescribed by law" and but also restrictions which are "necessary in a democratic society". It is noteworthy that in the Pro Life case, Lord Hoffmann made it clear  that radio and television advertising was an area where a degree of control was to be expected and this was followed by the Court of Appeal in R (Gaunt) v Ofcom  1 WLR 2355 .
- There is a further reason why I should hold that the Interested Party can rely on Article 10(2) and that is because as Lord Bingham explained in the Animal Defenders case, there is a substantial margin of appreciation or deference owed to the Secretary of State. So if, which is not the case, I had been in any doubt about whether there had been an infringement on the claimant's article 10 rights, I would have come to the conclusion that such deference would have led to a conclusion that the claimant's article 10 rights had not been infringed.
- The basis of that conclusion is that respect is owed by the judiciary to "the recent and closely decided considered judgment of the democratic assembly" see R (Countryside Alliance) v Attorney General  1 AC 719  per Lord Bingham with whom Lord Hope agreed ). Lord Bingham explained that:-
"45… The degree of respect to be shown to the considered judgment of a democratic assembly will vary according to the subject matter and the circumstances. But the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament".
- In James v United Kingdom (1986) 8 EHRR 123, the Strasbourg Court stated that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one. This is precisely the position in the present case, because the provisions in the 2003 Act with which this case is concerned deal with social policies of great importance. So the margin of appreciation, which is allowed by the Courts to the 2003 Act, is a further reason why the claimants' article 10 rights have not been infringed.
- For those reasons, the ban on political advertising on the radio set out in sections 319 and 321 of the 2003 Act does not infringe the claimants' Article 10 rights. Therefore, it is unnecessary to consider whether section 3(1) of the HRA can be used in such a way so as to ensure that the provisions in section 319 and 321 are read and given effect so as to be compatible with the claimants' rights under Article 10.
VI. Does the advertisement constitute "political advertising" so that it cannot be included on any radio programme?
- It is common ground that the only relevant provision in section 321(2) is sub-paragraph (b), which prohibits an advertisement "which is directed towards a political end". The case for the claimant is that the proposed advertisement (which has been set out in paragraph 15 above) is not as a matter of ordinary construction "directed towards a political end".
- Mr. Dingemans contends that section 321(2) (b) requires the Court to focus on the advertisement itself with the result first that the question whether an advertisement falls within it depends on the content of the advertisement itself and second that in consequence the motive or object of the advertiser in placing the advertisement is irrelevant. He submits the advertisement does not fall in any of the categories in section 321(3), which has been set out in paragraph 12 above. Thus he says that the content of the advertisement cannot fall within first sub-paragraph (b), because it is not concerned with "bringing about changes of the law" nor second is it capable of falling within sub paragraph (c) because it is not capable of "influencing the policies and decisions of local, regional or national governments"; nor third is it capable of falling within sub paragraph (d) by "influencing the policies or decision of persons on whom public functions are conferred by or under the law of the United Kingdom".
- The claimants' case is that the advertisement consists solely of a statement of fact relating to what surveys have shown that active Christians consider to be the case, a request for information and finally statement that the use to which the information will be put is expressed in the blandest terms "to help making a fairer society". In other words, the case for the claimants is that the advertisement shows first that the advertiser is interested in hearing from people, who have experience of Christians being marginalised in workplaces and second that CCP will use this information in some unspecified way and so that even if the advertisement might be political, this is not the aim of the advertisement itself.
- The case for the Secretary of State is that the advertisement falls fairly and squarely within section 321(2)(b) because the words "directed towards" in section 321(2)(b), include the intention of the person placing the advertisement or put in another way those words show that the aim of the advertiser is of critical importance. In response, it is said by Mr Dingemans that the case for the Secretary of State means rewriting section 321(2)(b) so that it covers (with the new words underlined) "an advertisement the motive of which is directed towards a political end".
- In my view, the question has to be looked at objectively without considering the view of the advertiser for three reasons. First, the purpose of the ban on political advertising is to ensure that the public are protected from this form of advertising, irrespective of the views or motives of the advertiser and this is the mischief to which the statute is seeking to respond. Second, if the motive of the advertiser was of decisive or of crucial importance, the mere fact that an advertiser could show that he did not intend to bring about one of the consequences set out in section 321(3) of the 2003 Act would mean that the advertisement might have to be cleared, even though it would have the inevitable effect of falling in one of the categories. That cannot have been the legislative intent. Third, there is nothing in the wording of the legislation, which shows that the intent of the advertiser has any relevance. So neither the mischief covered by section 321 nor its wording show that the intent or motive of the advertiser has any relevance.
- 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 ,  and ), the advertisement would be directed to achieving ends falling within the restrictions set out in section 321(3)(b), (c), (d) and (f).
- Accordingly, this application has to be dismissed but there is an additional free-standing reason for that decision because until now I have been approaching the issue on whether on an objective basis, the advertisement will contravene the statutory prohibition. The additional reason is that I agree with Ms Broadfoot that while the meaning of the statutory provision is ultimately a question for the court, the approach to be adopted must be in accordance with the guidance of Lord Mustill in R v Monopolies and Mergers Commission ex parte South Yorkshire Transport Limited  1 WLR 23 at 32-33, where he said that:-
"Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be 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 entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v. Bairstow  AC 14. The present is such a case. Even after eliminating inappropriate senses of "substantial" one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement. Approaching the matter in this light I am quite satisfied that there is no ground for interference by the court, since the conclusion at which the commission arrived was well within the permissible field of judgment. Indeed I would go further, and say that in my opinion it was right."
- No good reason has been put forward as to why this approach should not be adopted, especially as I have already concluded that Article 10 has not been infringed which means that it is unnecessary to consider whether that I have to adopt a different approach as advocated by Mr. Dingemans if that Article had been infringed. To my mind, the appropriate decision-maker on the issue of whether the advertisement should be cleared was the RACC and their decision to refuse to clear the advertisement could not conceivably be regarded in Lord Mustill's words to be "so aberrant that it cannot be classed as rational". So the decision of the RACC cannot be impugned. I am quite satisfied that RACC did give anxious scrutiny in this case.
- Notwithstanding the thoughtful submissions of Mr. Dingemans, this application must be rejected.
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