In our March 2002 early warning we reported on the Court of Appeal decision in the application for judicial review by the Pro-Life Alliance Party. The Pro-Life Alliance won that Appeal.
The facts leading up to the Court of Appeal decision were as follows. The Alliance had registered as a political party and participated in the General Election of 2001 standing on the single issue of abortion. It produced a party election broadcast which the BBC and other broadcasters refused to show because it contained graphic images of abortion. The refusal was based on the failure of the Alliance’s broadcast to comply with the BBC Producer’s Guidelines or the ITC Programme Code regarding taste and decency. The Alliance had applied to the High Court for a judicial review, arguing that the decision infringed its right to free speech under Article 10 of the European Convention on Human Rights, and had lost at first instance.
The BBC appealed from the Court of Appeal to the House of Lords, which on 15 May allowed its appeal. The decision which the BBC (and the other terrestrial broadcasters) had taken was that to broadcast the images contained in the Alliance’s proposed broadcast “would be offensive to very large numbers of viewers.” Reversing the Court of Appeal, the House of Lords found that the decision by the BBC not to transmit a party election broadcast by the Alliance was lawful.
Four of the five Lords of Appeal gave full judgments, and not only was their reasoning not always consistent with each other, but there was also a strong dissenting judgment from Lord Scott. Two of the majority of the Lords of Appeal admitted that they had wavered in their decision, so difficult was it to balance the competing legal and policy issues before them.
Lord Nicholls concluded that when one differentiated between two separate issues, “the outcome of this case is straightforward.” The first was whether the content of party broadcasts should be subject to the same restriction on offensive material as other programmes. The second was whether (assuming it should be subject to such a restriction) the broadcasters had applied the right standard in the present case. Lord Nicholls stated that only the second of these questions fell to be decided, and concluded that “the broadcasters’ application of the statutory criteria cannot be faulted.”
Lord Hoffman conducted a detailed analysis of the history of the relevant regulatory framework, and adopted the same two question approach as Lord Nicholls, while framing them slightly differently. Unlike Lord Nicholls, he did address the first question, and concluded that taste and decency restrictions were appropriate for party broadcasts. He then found that it was not possible to say that the decision taken by the broadcasters on that basis was wrong.
Lord Walker considered carefully the rights of the Alliance under Article 10 of the European Convention, which guarantees freedom of speech, but concluded that in this case the right of a citizen “not to be shocked or affronted by inappropriate material transmitted into the privacy of his home” took precedence.
Lord Scott (dissenting) considered that the broadcasters may take account of the type of programme as well as the audience which was to view it, and the need to comply with the stipulations of Article 10. He approved the Court of Appeal’s conclusion that the broadcasters’ refusal to broadcast the programme could not be justified by virtue of the restrictions which Article 10 itself allowed on the rights to freedom of expression.
The issues which the House of Lords addressed in its judgment are of the utmost importance in the spheres of politics: the rights of individuals to express themselves, and the rights of individuals to be protected from certain forms of expression which might shock or offend them. As the difficulties experienced by the Lords of Appeal in grappling with these problems makes clear, none of the questions which they addressed have easy answers.