Saturday 28 April 2012

Political advertising and why we don't want it on TV and radio

London Christian Radio Ltd & Another v Radio Advertising Clearance Centre [2012] EWHC 1043 (Admin)

The claimants, a registered charity, run the radio station "Premier Christian Radio" and also publishes three Christian periodicals. It wished to broadcast a radio advertisement inviting members of the public to contact the station with their stories of marginalisation of Christians in the workplace. Listeners were to be told that the advert was "seeking the most accurate data to inform the public debate" and to "help make it a fairer society."

In its submission to the RACC the claimants confirmed the purpose of gathering the information, amongst others, was "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."

The defendant, the RACC, refused permission to broadcast the advert on the basis that it infringed the prohibition on political advertising.

The challenge

The claimants challenged this decision in judicial review, seeking a declaration that the advert was not political, or in the alternative that the prohibition was a breach of its right to freedom of expression under Article 10 of the European Convention. [23]

The law

Section 321(2) of the Communications Act 2003 provides, inter alia, that "an advertisement contravenes the prohibition on political advertising if it is an advertisement which is directed towards a political end."

Section 321(3) goes on to explain that "political ends" includes, inter alia, "bringing about changes of the law … influencing the policies of local, regional or national governments … influencing public opinion on a matter of public controversy."

Article 10

The judge, Mr Justice Silber, dealt first with the Article 10 arguments, because success for the claimant on this article would inform the interpretation of section 321. Article 10 states:

  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 was common ground that Article 10 was engaged, and that the broadcast restriction was a matter prescribed by law. The only point in argument was whether the restriction was "necessary in a democratic society." [27] "Necessary" implies the existence of a "pressing social need," [28] the response to which must be "proportionate to a legitimate aim." [29]

The most recent UK case law on section 321 is a House of Lords decision in the case R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15. The learned judge described  the similarities between ADI and the present case as "striking," [46] and that no reason had been put before him not to follow it.

ADI

The legitimate aim of the legislation was "the protection of rights of others, which included the right to be protected against the potential mischief of partial political advertisement."

From para 28 of ADI:

"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 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 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."

The pressing social need was that "the broadcast media is more pervasive and potent than any other form of media … and no fair and workable compromise solution could be found which would address the problem of partial political advertising." [39]

Other relevant factors in ADI were that parliament had recently addressed the matter and not come up with a workable alternative itself, [40] and the court should therefore give "great weight" to the opinion of parliament. Furthermore other options for advertising through newspapers, magazines, direct mail shots and billboards were available. [41]

It is notable that the decision in ADI was unanimous. [42] However, it is under challenge and would imminently be heard in the Grand Chamber of the European Court of Human Rights. Nevertheless, in the meantime the High Court is bound by the decision of the House of Lords in ADI. [29] The Article 10 argument therefore failed.

Was the advertisement political?

The claimant argued firstly that the court should consider the strict wording of the advert itself, and secondly that the motive or objective of the advertiser was irrelevant. [55] The advertisement was merely a "statement of fact" with the use to which any information gleaned stated in "the blandest terms." [56]

The defendant argued that the advertisement fell "fair and square" within the prohibition, and that the words "directed towards" in section 321 include the intention of the advertiser. In response the claimants counter-argued that this amounted to re-writing the legislation to prohibit "an advertisement the motive of which is directed towards a political end." [57]

The learned judge dismissed the advertiser's motive as irrelevant for three reasons: [58]

(i) the purpose of the prohibition is to protect the public "irrespective of the views or motives of the advertiser."
(ii) otherwise if an advertiser could demonstrate he lacked the prohibited intent, an advertisement might have to be cleared for broadcast that otherwise would be refused permission.
(iii) the legislation is silent on the matter of advertiser's intent.

As it happens, the judge was satisfied in any event that the advertisement, by virtue of the words, "to inform the public debate" and "to help make a fairer society," was indeed directed to making changes to society. The application for judicial review would therefore be dismissed.

Comment

As explored elsewhere in the judgment, the European Court's view on political advertising is in a state of flux. ADI was due to be heard in the Grand Chamber in March 2012 and the outcome is awaited.

One notable characteristic of the European Court is that it has tended to set its face against blanket bans on matters judged on the test of proportionality. For example, the blanket ban on prisoners voting (Hirst no 2 v UK [2005] ECHR 681) was considered a disproportionate measure.

However, recent case law suggests that the European Court is more amenable to following UK jurisprudence when it has been fully considered in the House of Lords/Supreme Court. Additionally, the prohibition on political broadcast advertising was given recent and due consideration in parliament while debating the Communications Act, whereas the lack of such parliamentary consideration was criticised in the Hirst decision.

There is therefore every reason for the European Court to uphold the UK position in ADI, whether as a matter of reasoned principle or by way of the 'margin of appreciation.'

The ban on political broadcast advertising goes against the grain of freedom of speech, and against the normal presumption that open and free argument of issues will tend towards identifying the best outcomes.

Nevertheless, it is a necessary evil, for the simple reason that it is so much more amenable to abuse. As the House of Lords ruled in ADI, the broadcast media is much more pervasive, and might I add persuasive, (particularly in visual format), that notions of "right" and "truth", at least in a received sense, will indeed be available to the highest bidder.

Slippery slope arguments aren't generally the most attractive; it would be much better to have a set of principled but permissive rules rather than a blanket ban, and the facts of this case appear innocuous enough. Nevertheless, the dangers in this area are manifest and the consequences serious – I cite merely the current and perennial arguments over political party funding.

Neither parliament nor the courts have been able to come up with a better solution than to treat everyone the same - which isn't so unprincipled a solution after all. It would, of course, be very different if other forms of media were not available.


Thursday 26 April 2012

Shot with their own gun

So teachers in Catholic secondary schools across England have allegedly been urged to encourage their pupils to sign a petition against civil gay marriage. Not unexpectedly, secular, humanist and gay groups are outraged. The Catholic Education Service (CES) confirms that it circulated the recent Archbishops' letter on marriage to Catholic schools. Its does not deny having encouraged pupils to sign the petition, but its brief press release clarifies that the petition is not open to those under 16 years of age and that it will make schools aware of this.

It has been suggested that this action breaches the schools' duties under the Equalities Act 2010 not to discriminate against homosexual children, and that may very well be so. However, in my opinion the clearer and more powerful argument is found in ss406 and 407 of the Education Act, which provide as follows:

"406. The local education authority, governing body and head teachers shall forbid … the promotion of partisan political views in the teaching of any subject in the school.

407. The local education authority, governing body and head teacher shall take such steps as are reasonably practicable to secure that where political issues are brought to the attention of pupils while they are

(a) in attendance at a maintained school, or
(b) taking part in extra-curricular activities which are provided or organised for registered pupils at the school by or on behalf of the school

they are offered a balanced presentation of opposing views."

A few years ago, the Department for Education provided all secondary schools in England with a copy of Al Gore's climate change movie, "An Inconvenient Truth." (AIT) A special webpage was also provided with guidance on how to present the film and suggestions for discussion afterwards.

Despite enjoying overwhelming consensus in the scientific world, human-induced climate change is still controversial, with some scientists dissenting from the mainstream view accepted by the IPCC. This is the backdrop to the film's promotion in schools being challenged in judicial review – the case of Stuart Dimmock v Secretary of State for Education and Skills [2007] EWHC 2288 (Admin).

While the court upheld the decision to supply schools with the movie, the judge, Mr Justice Burton, was critical of the Secretary of State in two ways. Firstly, in a number of instances in the film Mr Gore had presented evidence that went beyond the scientific consensus. The guidance was altered by the Secretary of State during the course of the litigation, such that teachers were properly briefed on these instances and advised how to present them in a balanced way to pupils. That part of Dimmock does not concern the CES matter as far as I am aware.

The second concern in Dimmock was the fact that the film went beyond simple documentary. Its wider purpose was to persuade viewers of the need to act on the information, personally, corporately and politically.

What, then, is deemed to be political? The learned judge drew on the definition of political activity from charitable trusts law [4]. A bona fide charitable trust cannot have objectives that are political, defined in McGovern v Attorney General [1982] Ch 321 @340 as purposes:
  • to procure changes in the laws of this country; or
  • to procure a reversal of government policy.
amongst other possible purposes.

The raising of a petition against civil gay marriage falls fair and square into the second category, as it is government policy to introduce a Bill. While it is true that Government is consulting, the consultation is not on the "if" question but on the "how" question of implementation.

However, the petition also logically falls within the first category too. Campaigning for a law change and campaigning against a law change are two sides of the same coin. It would be both illogical and hopelessly confusing to try to distinguish the two activities, inevitably devolving to a chicken and egg situation.

So we can assume the CES issue is political. What then defines partisan? Here the learned judge in Dimmock was persuaded by counsel for the claimant's argument that partisanship comprises the following characteristics [11]:
  1. A superficial treatment of the subject matter typified by portraying factual or philosophical premises as being self-evident or trite with insufficient explanation or justification and without any indication that they may be the subject of legitimate controversy; the misleading use of scientific data; misrepresentations and half-truths; and one-sidedness.
  2. The deployment of material in such a way as to prevent pupils meaningfully testing the veracity of the material and forming an independent understanding as to how reliable it is.
  3. The exaltation of protagonists and their motives coupled with the demonisation of opponents and their motives.
  4. The derivation of a moral expedient from assumed consequences requiring the viewer to adopt a particular view and course of action in order to do "right" as opposed to "wrong."
The Catholic position on marriage, as expressed by the Archbishops, does appear to present the matter as self-evident, not even acknowledging opposing views such that pupils could arrive at an independent understanding. It also appears to derive a moral consequence, and the inclusion of the information about the petition implies a course of action – although we'll look at that aspect presently.

It was accepted in Dimmock that education would be "bland," and deny pupils the opportunity to engage with arguments with which they might vehemently disagree, if they were never exposed to partisan political issues. "The statute cannot possibly mean that s406 is breached whenever a partisan political film is shown to pupils in school time," as the learned judge said.

So the presentation of partisan political material is not per se unlawful, although it should clearly put the "local education authority, governing body and head teachers" on notice of its implications. It is the promotion of such material that crystallises the unlawfulness of the action. "What is forbidden by the statute is, as the side heading makes clear, 'political indoctrination'." Presentation of itself, then, is not "irremediably a promotion of those partisan political views." [12]

How, then, can such a presentation be rescued? The answer lies in s407, and the need for balance. Here there is some wriggle-room, since the balance needs only pass the test of "reasonably practicable." In the Dimmock case, where the overwhelming scientific consensus was in support of the main thrust of AIT, this was met by simply pointing out that some scientists dissent from the mainstream view. Balance in that context did not mean "equal air-time," [14] or that the two views must be presented as equally valid – in fact a balanced presentation would tend to demonstrate where arguments were weak. [15] The essence of the requirement is the need to present the matter in a "fair and dispassionate" manner. [16]

In the CES situation then, given that the Archbishop's letter asserts that governments do not have the authority to redefine marriage, it would be extremely surprising if an alternative position was expressed alongside, let alone one presented in such a way as to allow weaknesses to be exposed.

The presentation, then, appears to fall foul of s406 and is unlikely to have been rescued by the presentation of a balancing argument according to s407.

Nevertheless, as the CES points out in its press release, relgious organisations do have an exemption from certain equalities duties and are allowed to teach their doctrines on matters like sexuality that would be unlawful for normal state schools. It is conceivable, therefore, that its teaching on the Catholic view of marriage is permissible, and the presentation of the Archbishops' letter without other viewpoints could be rescued from unlawfulness on this basis. I say conceivable, because I think there is a strong argument for saying that the letter itself bridges the gap between religious doctrine and political activity.

Certainly it does set out the broad thrust of the Catholic theology of marriage. While this may be unpalatable to many, it is lawful to teach this in Catholic schools. However, the controversy in question here is not a religious one. As has been pointed out by the government, churches will not be affected by this potential change in the definition of marriage, which will provide for civil gay marriage only. Not only that, but churches will be expressly forbidden from carrying out such ceremonies. And yet the Archbishops feel it is incumbent on individual Catholics, as Catholics, to oppose the policy. 

However, the real clincher here is the issue surrounding the petition, which cannot be rescued in the same way as the teaching of religious doctrine. It is unashamedly a political act and clearly falls foul of the fourth Dimmock criteria for partisanship: "The derivation of a moral expedient from assumed consequences requiring the viewer to adopt a particular view and course of action in order to do 'right' as opposed to 'wrong.'"

This would be unlawful to promote in any school, and it would be unlawful for the same reasons no matter whether the petition was expressed in favour of civil gay marriage or against it.

It is quite conceivable that headteachers in individual schools be challenged in judicial review for their decision to make pupils aware of this material and petition. The British Humanist Association has said it will support any child or parent who wishes to make such a challenge. It would be poetic justice indeed if litigation resulted in a mandatory order obliging such schools to make their children aware of the alternative arguments – maybe even the existence of other petitions. Perhaps a justified exception to the old adage that "two wrongs don't make a right."

As the title says: shot with their own gun.

Postscript:

Just to confirm, although these are church-run schools we are considering here, they are paid for out of general taxation. See Department for Education.

Update 29/04/12:
Just been reminded of a post on UK Human Rights blog about the Equalities Act issues of this situation, which I don't go into above.

Saturday 7 April 2012

Eyes closed, hands together

NSS & Bone v Bideford Town Council
[2012] EWHC 175 (Admin)


Surprising case, not so much in the result but in the reasoning. Mr Bone, an ex-councillor, objected to prayers at the start of council meetings. They were voluntary but on the official agenda, with the practical consequence that non-Christians had the choice to either present themselves after prayers or sit through them and do their best to ignore them.


The legal point


The claimants argued the case on several grounds: ultra vires the Local Government Act 1972, discrimination under the Equality Act 2006, and breach of Article 9 and 14 of the European Convention on Human Rights.


At first glance one might assume the human rights argument would be the obvious one to succeed, as it is a freedom of religion matter. However, that argument would suffer from the fact there are two stages to prove - first of all to prove that Article 9 and/or 14 is engaged, and then to consider the countervailing arguments in Article 9(2) because freedom of thought, conscience and religion is not an absolute right. The judge doesn't spend a lot of time analysing this because he decided the case on the ultra vires point. However it reads to me as if he didn't accept that Article 9 was engaged, which means the argument failed at the first step.


There are two potential stages to arguing the discrimination point. Both direct and indirect discrimination on the basis of religion are unlawful, but the claimants only argued for indirect discrimination per s45 Equality Act. In order to make good this claim, Mr Bone would have to demonstrate that he was placed at disadvantage compared with his believing colleagues. The judge did not accept that his choice between absenting himself, for which there was no practical penalty as absences were not recorded until after prayers, or his feelings of embarrassment at their religious practice, was a disadvantage amounting to discrimination. [68]


And so the case turned on whether the council had lawful power to engage in prayer as an official part of its meeting. Section 111 of the Local Government Act provides as follows:


Subsidiary powers of local authorities.
(1) Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing ... which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.
So potentially a three stage test: do the prayers facilitate something, are they conducive to something or are they incidental to something?


Herein the judge found a contradiction. The meeting was one to which elected councillors are summoned to attend. Within that context, a practice that fell within the threefold definition could not then be voluntary. [25]
"I do not see that it can be calculated to facilitate, or be conducive to or incidental to formal public Council deliberations as a whole, for the majority to include as part of their formal deliberations a ceremony from which some absent themselves or feel themselves to be excluded, perhaps under protest or in resentment." [27]
 This was, I would suggest, the ratio decidendi of the case, however the judge went a little further:
"As a general point, although I deal separately with the question of discrimination and human rights, I do not think that the 1972 Act, dealing with the organisation, management and decision-making of local Councils, should be interpreted as permitting the religious views of one group of Councillors, however sincere or large in number, to exclude or, even to a modest extent, to impose burdens on or even to mark out those who do not share their views and do not wish to participate in their expression of them. They are all equally elected Councillors." [30]
 He also reiterated the words of Lord Justice Laws in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880:
"The precepts of any one religion, and belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of another. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.
So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection for such a belief's content in the name only of its religious credentials. Both principles are necessary conditions for a free and rational regime." [22]
Not that it should make any difference, but Lord Justice Laws is himself a "devout Christian."


The religious argument


This is short. The judge identified a contradiction laying at the heart of the council's reasoning but there is another. The saying of prayers was kept a formal part of business as an agenda item. Those not wishing to take part were granted the option of not attending, with no formal consequence if they exercised this privilege. This option was granted because those wishing to pray recognised that it is wrong to force religious practice on another person - it is voluntary.


Why could the Christians not voluntarily pray before the formal part of the meeting started and remove the prayer item from the agenda, attendance early to the meeting being self-evidently voluntary? Such a small gesture to entirely avoid this unseemly litigation.


Addendum


Obviously since then matters have moved on as the Local Government Minister, Eric Pickles, signed an order giving wide sweeping powers to local council and has promised to reiterate this in the new Localism Act. Should there be a future case, it would be interesting to see if the judge's obiter remarks in NSS & Bone [30, quoted above] would be cited as authority to quash them again. Even Bideford Town Council seems unsure whether the new power goes far enough.