CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 22 avril 2013

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margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:10pt }     GRAND CHAMBER             CASE OF ANIMAL DEFENDERS INTERNATIONAL v. THE UNITED KINGDOM   (Application no. 48876/08)                     JUDGMENT       STRASBOURG   22 April 2013       This judgment is final but it may be subject to editorial revision. In the case of Animal Defenders International v. the United Kingdom, The European Court of Human Rights sitting as a Grand Chamber composed of:   Dean Spielmann, President,   Nicolas Bratza,   Françoise Tulkens,   Josep Casadevall,   Nina Vajić,   Ineta Ziemele,   Elisabeth Steiner,   Päivi Hirvelä,   George Nicolaou,   András Sajó,   Zdravka Kalaydjieva,   Mihai Poalelungi,   Nebojša Vučinić,   Kristina Pardalos,   Vincent A. De Gaetano,   Julia Laffranque,   Helen Keller, judges,   and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 7 March 2012 and 20 February 2013, Delivers the following judgment which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 48876/08) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Animal Defenders International, a non-governmental organisation (“NGO”) based in London (“the applicant”), on 11 September 2008. 2.     The applicant was represented before the Court by Ms T. Allen, a solicitor practicing in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. Sornarajah, of the Foreign and Commonwealth Office. 3.     The applicant complained about the prohibition on paid political advertising by section 321(2) of the Communications Act 2003. 4.     The application was allocated to the Fourth Section of the Court (Rule   52 §   1 of the Rules of Court). On 21 January 2011 the Court decided to communicate the application to the Government. It also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). On 29 November 2011 the Chamber decided to relinquish jurisdiction to the Grand Chamber. 5.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 6.     The applicant and the Government each filed a memorial on the admissibility and merits. 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 7 March 2012 (Rule 59 § 3).   There appeared before the Court: –     for the Government Mr   A. Sornarajah,   Agent, Mr   M. Chamberlain ,   Counsel , Ms   E . Van Heyningen, Ms   S. White,   Advisers; –     for the applicants Mr   H. Tomlinson QC , Mr   A. O’Neill QC ,   Counsel , Ms   T. Allen ,   Adviser , Ms   J. Creamer ,   President of the applicant organisation.   The Court heard addresses by Mr Chamberlain and Mr Tomlinson. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant NGO campaigns 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 to that end. 1.       The prohibited television advertisement 9.     In 2005 the applicant began a campaign called ‘My Mate’s a Primate’ which was directed against the keeping and exhibition of primates and their use in television advertising. As part of the campaign, the applicant wished to broadcast a 20-second television advertisement. The proposed advertisement opened with an image of an animal’s cage in which a girl in chains gradually emerged from the shadows. The screen then went blank and three messages were relayed in sequence: “A chimp has the mental age of a four year old”; “Although we share 98% of our genetic make-up they are still caged and abused to entertain us”; and “To find out more, and how you can help us to stop it, please order your £10 educational information pack”. In the final shot, a chimpanzee was in the same position as that of the girl. 10.     The proposed advertisement was submitted to the Broadcast Advertising Clearance Centre (“the BACC”) for a review of its compliance with relevant laws and codes.   On 5 April 2005 the BACC declined to clear the advertisement. The objectives of the applicant were “wholly or mainly of a political nature” so that section 321(2) of the Communications Act 2003 (“the 2003 Act”) prohibited the broadcasting of the advertisement. This decision was confirmed on 6 May 2005. The advertisement could and can be viewed on the internet. 2.     The High Court ([2006] EWHC 3069) 11.     On 19 October 2005 the applicant issued proceedings seeking a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“the HRA”) arguing that the prohibition on political advertising on television and radio imposed by the 2003 Act was incompatible with Article 10 of the Convention. The only contested issue was whether the prohibition could be considered “necessary in a democratic society”. 12.     An affidavit from the Director General of the Department of Culture, Media and Sport (“DCMS”) dated 16 December 2005 was submitted on behalf of the State. It detailed how impartiality was a fundamental feature of the regulatory regime applicable to broadcasting and why it was considered that political advertising was incompatible with impartiality. It explained that a less restrictive prohibition was impracticable by describing the review process which began in 1999 (see paragraphs 37-55 below) noting that the relevant bodies consulted had supported the prohibition and it considered this answered the applicant’s arguments. Controls on broadcast media were justified given the unique nature of the medium and since there were other media available to the applicant. The affidavit referred to other States with similar provisions (Ireland, Denmark, Sweden and Norway), concluding that, in countries which had allowed paid political advertising, there remained “significant practical problems” in running such a system particularly in being able to guarantee equal access to all parties where the political landscape was characterised by multiple parties, where parties/broadcasters circumvented rules on time/funding limits on paid political advertising and where there was confusion over what constituted “political” advertising. 13.     On 4 December 2006 the High Court (Auld LJ and Ousley J) dismissed the applicant’s claim. Both judges considered the prohibition to have been widely defined. Ousley J observed that it covered “a continuum of political activity and intensity from party political activity at election time to the pursuit by non-political bodies at any time of particular interests of public concern”. While political expression was a highly prized form of expression, both found the interference justified. 14.     Both judges rejected reliance on VgT Verein gegen Tierfabriken v.   Switzerland (no. 24699/94, ECHR 2001 ‑ VI) which they found turned on its facts. Auld LJ found the 2003 Act to have had a number of ameliorating features not present in the scheme at issue in VgT, including a relaxation of controls on the timing and content of political and election broadcasts. They relied on the criticisms of the VgT judgment in R (ProLife Alliance) v BBC ([2003] UKHL 23), Ousley J finding that it was not possible to discern the basis of the VgT judgment. Both judges doubted the relevance of Murphy v.   Ireland ( no. 44179/98, ECHR 2003 ‑ IX (extracts)): it did not concern political advertising and they were not convinced by the observation therein that the margin of appreciation for restrictions on political advertising might be narrower than those on religious advertising. 15.     Both judges underlined the caution to be exercised by the courts as regards Parliament’s policy and legislative choices. Auld LJ reiterated that: “ ... in such matters of social and political judgment, the executive and legislative authorities - particularly the latter - of a Contracting State may normally be expected to have a better or surer grasp of its democratic needs and their practicalities than the Strasbourg Court or its own courts. Therein lies the notion of deference which, under one name or another, still stands as a caution to our courts against interfering too readily with the Government’s policies or Parliament’s legislative schemes in implementation of them. Such caution is an agent for broadening rather than narrowing the margin of appreciation/ambit of discretionary judgement of a Contracting State in this context, just as it may be in the context of other important and sensitive issues peculiar to a Contracting State’s traditions, to which its authorities – like those of Ireland in Murphy – are peculiarly alive and well qualified to assess. Here, the United Kingdom Parliament has chosen to introduce a prohibition on political advertising confined to the broadcast media because of its perceived greater power than that of other media and, consequently, greater potential for distortion by wealthy interests of the democratic process. It may be that it could have gone about it in a different way, but is the court to be the judge of that, faced as it is with wide and highly authoritative support for the Parliamentary scheme?” Auld LJ was to later conclude that Parliament had acted within the ambit of the discretionary judgment available to it. Ousley J stated that the High Court was not reliant solely on the evidence before it since the “experience, expertise and judgment of Parliament expressed in the legislation can demonstrate the necessary justification”. As to the justification for the prohibition, he stated: “There are competing interests at stake here which a legislature is entitled and obliged to balance, taking account of the way in which it can anticipate that groups and parties would use the greater access to the broadcast media which the Claimant seeks for itself and others. ... In this regard, it is clear that Parliament has expressed a considered view, having grappled with the human rights implications of s321. I give great weight to its view thus expressed as evidencing the need for this restriction. This is not an executive act, not secondary legislation but primary legislation which was passed without member dissent by Parliament. It was aware of the opposition on human rights grounds of Professor Barendt, and of the reservations, based on VGT , expressed by the Joint Committee on Human Rights and the Electoral Commission. I also give Parliament’s considered view great weight because of the subject matter. The impact of broadcasting on the topics, framework and intensity of political debate is one which few would be better placed to assess than those who deal on a daily basis with constituents and interest groups, whether to enlist, respond to or resist their influence. They would be well placed to know what manner of groups there were or might be who would take advantage of degrees of alteration to the present ban. It is not contestable that Parliament, through its MPs and politically active peers, is far better placed to reach a judgment on those matters than judges. This is not an area which more readily falls into the sphere in which judges are more experienced and expert. This is the more true of non-national judges. I see these factors as giving substantial evidential weight to the view of a democratically elected body in deciding what restriction was shown to be necessary in the public interest. In substance, another way of putting that is to say that the subject matter warrants a considerable discretionary area of judgment being accorded to Parliament. No doubt Parliament could have devised a form of words which would present a solution of sorts to any problem as to where a line was drawn as between types [of] advertiser or advertisement. However, the complexities and inevitable arbitrariness of any solution, such as it might be called, are proper matters for Parliament to consider in deciding that a complete ban on broadcasting advertisements is the only practicable and fair answer.” Whether Parliament’s enactment of the prohibition was evidence for its necessity in an area of Parliament’s expertise or as a judgment in an area where a wider margin of discretion should be accorded to it, Ousley J considered that Parliament’s decision should be respected by the courts. 16.     Having noted the lack of a relevant European consensus, Auld LJ remarked that the experts’ reports submitted had been of little assistance, had been produced by the State as a matter of disclosure only and had not been relied upon by the State. Ousley J noted that the High Court had been provided with some, but not comprehensive, material about how some other Council of Europe and commonwealth States had dealt with the issue. It was not of any great use save to demonstrate that there was a general consensus that electoral periods justified advertising prohibitions and that there was no clear consensus as to whether the present prohibition was necessary outside of an electoral period. Various states had decided what restrictions were necessary given their particular political sensitivities and broadcasting systems. The absence of consensus might have reflected those differing conditions which were properly part of a legislature’s judgment as to whether or not this degree of prohibition was necessary in its democratic society. 17.     Both Auld LJ and Ousley J emphasised the rationale for the prohibition: to preserve the integrity of the democratic process by ensuring that the broadcast media were not distorted by wealthy interests in favour of a certain political agenda. Ousley J characterised the prohibition as a restriction aimed at supporting the democratic process rather than one with a specific content objection. Both judges considered it legitimate to single out the broadcast media as its impact was potentially more powerful: Ousley J finding that it was not a matter of serious debate that the broadcast media was more pervasive and potent than any other media form. As to the debate about whether television was more expensive than other media, Ousley J considered it sufficient to accept that broadcasted advertisements had an advantage of which advertisers and broadcasters were aware and for which the former would pay large sums of money far beyond the reach of regular groups who would wish to participate in the public debate. 18.     Finally, both judges rejected the argument that the prohibition was disproportionate as it applied outside electoral periods and to groups such as the applicant who were not associated with party politics or electoral campaigns. Auld LJ emphasised that it would not be “a principled or logical distinction” to limit the prohibition to electoral periods. Both judges considered that political advertising in the broadcast media outside such periods was likely to have an equally obvious influence on the democratic process. In this respect, Ousley J noted that the broadcast media were ever-present, that contentious democratic issues could arise at any time and that purchased influence could affect the promotion of legislation, the decision to hold an election or its ultimate outcome. Both judges also considered that it was impracticable, arbitrary and potentially unfair to attempt to draw a line between party political matters and other matters of public importance: the distortion of the political debate could take many forms and could embrace a vast range of matters of public interest and certain issues would be difficult to categorise. There was also a risk that such a distinction might allow political parties to “contract out” their political advertising to “splinter or supporter groups” which would be free from restriction. 19.     As a result, the High Court refused a declaration of incompatibility. 3.     The House of Lords ([2008] UKHL 15) 20.     On 12 March 2008 the House of Lords (Lord Bingham, Lord Scott, Baroness Hale, Lord Carswell and Lord Neuberger) unanimously dismissed the applicant’s appeal. 21.     Lord Bingham gave the lead judgment. He recognised that, since the prohibition interfered with political expression, the standard of justification imposed on the State was “high” and the margin of appreciation was correspondingly small. The objective of the prohibition was as follows: “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.” 22.     The objective was not 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 did not think that the full strength of this argument had been deployed in the above-cited VgT judgment. 23.     He considered that a blanket prohibition was necessary to avoid the risk of advertisements by organisations with objectionable goals and he observed that this option had been discounted in VgT but recognised in the above-cited Murphy judgment. That the prohibition was confined to the broadcast media only was, as Ousley J had found, explained by the particular pervasiveness and potency of television and radio, a factor recognised by this Court in Jersild v. Denmark (23 September 1994, § 31, Series A no. 298) and in Murphy although he noted that the VgT judgment appeared to discount the point. 24.     As to whether a less restrictive prohibition (regulated by time, frequency, expenditure or by the nature and quality of advertisements) would avoid the mischief sought to be avoided, Lord Bingham considered it unnecessary to explore this option in detail because, inter alia , any less restrictive system could be circumvented by the formation of small groups pursuing very similar political objects; it would be difficult to apply objectively and coherently; and it would be even more difficult for broadcasters to fulfil their duty of impartiality. While the JCHR had requested a compromise solution, the Government had judged that no fair and workable compromise solution could be found which would address the problem, “a judgment which Parliament accepted. I see no reason to challenge that judgment”. Parliament’s judgment was to be given “great weight” for three reasons. In the first place, it was reasonable to expect that democratically-elected politicians would be “peculiarly sensitive” to the measures necessary to safeguard the integrity of democracy. Secondly, while Parliament considered that the prohibition might “possibly although improbably” infringe Article 10, Parliament had resolved to proceed because of the importance it attached to the prohibition and its judgment which should not be “lightly overridden”. Thirdly, legislation could not be framed to address particular cases but had to lay down general rules and Parliament would decide where the line would be. While that inevitably meant that hard cases would fall on the wrong side of the line, “that should not be held to invalidate the rule if, judged in the round, it is beneficial.” 25.     The fact that other means of communication were available to the applicant was a “factor of some weight” and this was to be contrasted with Bowman v United Kingdom (19 February 1998, Reports 1998 ‑ I) where the impugned provision was found to amount to be a total barrier to the applicant’s communication of her views. 26.     Finally, Lord Bingham observed that there was no clear consensus among member States on how to legislate for the broadcasting of political advertisements. This Court had widened the margin of appreciation in such instances and suggested that it might be that each State was best fitted to judge the checks and balances necessary to safeguard, consistently with Article 10, the integrity of its own democracy. He dismissed the appeal, agreeing with Ousley J and, in the main, with Auld LJ. He did not accept Lord Scott’s view that the domestic courts could differ from this Court in interpreting Convention rights since the former should, in the absence of special circumstances, follow any clear and constant case-law of this Court. 27.     Lord Scott agreed with Lord Bingham, adding two comments. In the first place, the prohibition could give rise to further Article 10 claims given its “remarkable” width: it could withhold from the applicant the ability to place advertisements for broadcasting with no political content or with an entirely neutral content and prevent the applicant from ‘countering’ permitted commercial advertising which offended their principles. As a result, there might be respects in which sections 319 and 321 were incompatible with Article 10. However, the power to make a declaration of incompatibility under section 4 of the HRA was a discretionary one. As a general rule it ought not to be exercised unless the circumstances of the case showed that the legislative provision in question had “affected a Convention right of the applicant ... in a manner that is incompatible with that right” and hypothetical examples of ways in which the legislative provision might be incompatible with a Convention right did not suffice. The conclusion was that the prohibition was not incompatible with the applicant’s Article 10 rights. Secondly, it was not possible to assume from the VgT judgment that the Court would disagree with the House of Lords in the present case. The Court in Murphy did not distinguish or qualify its reasoning in VgT and this Court’s judgments focused closely on the particular facts of each case. There was no more than the possibility of a divergence between the finding of the House of Lords and of this Court. 28.     Baroness Hale began her judgment by pointing out that there had been “an elephant in the room” when the case was heard and it was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States. She underlined the enormous amounts spent, and which have to be raised, for elections in the United States. There was no limit in the United States to the amount that pressure groups could spend on getting their message across in the most powerful and pervasive media available. 29.     She went on to describe the rationale of the prohibition as ensuring that Government and its policies were not decided by the highest spenders: “Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. ... We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring. So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality.” 30.     Baroness Hale held, in full agreement with the reasons given by Lord Bingham, that the prohibition as it operated in the case was not incompatible with the applicant’s Article 10 rights. On the contrary, it was: “51. ... a balanced and proportionate response to the problem: they can seek to put their case across in any other way, but not the one which so greatly risks distorting the public debate in favour of the rich. There has to be the same rule for the same kind of advertising, whatever the cause for which it campaigns and whatever the resources of the campaigners. We must not distinguish between causes of which we approve and causes of which we disapprove. Nor in practice can we distinguish between small organisations which have to fight for every penny and rich ones with access to massive sums. Capping or rationing will not work...” 31.     She doubted the application of the Court’s judgment in the VgT case since, like all of this Court’s judgments, it was fact specific: “52.     ... Similar though the organisations were, the advertisements were rather different: “eat less meat” is a different message from “help us to stop their suffering”. Important arguments which were given less weight in VgT were accepted in Murphy. If anything, the need to strike a fair balance between the competing interests is stronger in the political than in the religious context. Important though political speech is, the political rights of others are equally important in a democracy. The issue is whether the ban, as it applies to these facts, was proportionate to the legitimate aim of protecting the democratic rights of others. As Lord Bingham has demonstrated, Government and Parliament have recently examined with some care whether a more limited ban could be made to work and have concluded that it could not. The solution chosen has all-party support. Parliamentarians of all political persuasions take the view that the ban is necessary in this democratic society. Any court would be slow indeed to take a different view on a question such as this. There may be room for argument at the very margins of the rule, for example, in banning any advertisement of any kind by a political body, or in banning any advertisement by anyone of matters of public controversy. But that is not this case.” 32.     Finally, Baroness Hale agreed with Lord Bingham (disagreeing with Lord Scott) that the correct interpretation of the incorporated Convention rights lay ultimately with this Court. The domestic courts should adopt a “cautious approach” where they must not “leap ahead” of the Court’s interpretations but “keep pace with the Strasbourg jurisprudence as it develops over time, no more and no less”. 33.     Both Lord Carswell and Lord Neuberger dismissed the appeal for the reasons given by Lord Bingham. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Human Rights Act 1998 (“the HRA”) 34.     The HRA came into force in England, Wales and Northern Ireland on 2 October 2002. Section 4 allows courts to issue a declaration of incompatibility where it is impossible to interpret primary or subordinate legislation compatibly with the Convention. Section 19 of the HRA is entitled “Statements of compatibility” and provides that: “(1) A Minister ... in charge of a Bill in either House of Parliament must, before Second Reading of the Bill: (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill. (2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.” B.     The legislative background to the prohibition 1.     Background to the Communications Bill 2002 (“the 2002 Bill”) (a)     Television Act 1954 (“the 1954 Act”) 35.     Prior to the 1954 Act, the BBC was the only radio and television broadcaster in the United Kingdom and never broadcasted paid advertising. The 1954 Act opened the market to commercial broadcasters, reliant on advertising revenue for finance, and it established a regulatory body (Independent Television Authority, “ITA”) to enforce, inter alia , a prohibition on paid political advertising introduced by the 1954 Act: “No advertisement shall be permitted which is inserted by or on behalf of any body the objects whereof are wholly or mainly of a religious or political nature, and no advertisement shall be permitted which is directed towards any religious or political end or has any relation to any industrial dispute.” 36.     Subsequent legislation has preserved this prohibition. (b)     Committee on Standards in Public Life (“the Neill Committee”) 37.     The Neill Committee was set up by the Government to consider the broader issue of political party funding. Having visited Canada, Germany, Ireland, Sweden and the United States, in October 1998 it presented its Fifth Report to the Government. In Chapter 13 of the Report, the Neill Committee recommended that the prohibition on political advertising on television and radio should be maintained, describing its benefits as follows: “13.7 Preventing the political parties and other politically motivated organisations from buying time on television and radio has the effect of restricting the total amount of money they can spend and also, thereby, of limiting the amounts of money they have to raise. These effects are almost universally agreed to be beneficial. Election campaigns in the United Kingdom are cheaper than in many other countries. During election campaigns, television viewers and radio listeners are not subjected to a continuous barrage of party political propaganda (much of which, if it were permitted here, would undoubtedly be negative). The parties’ dependence on wealthy donors is reduced. Political leaders are not forced to spend enormous amounts of time and energy raising money to fund television and radio campaigns. Not least of the benefits is the fact that the broadcasters provide the parties with free air-time. This means that all the major political parties, and not just the richest ones, are given an opportunity to state their views. Almost all those who have observed election campaigns in the United States regard these aspects of the UK system as superior. We believe that the present arrangements have served this country well and should remain in place.” 38.     The Neill Committee considered that the restriction on freedom of expression resulting from the prohibition was potentially justifiable. It concluded that: “13.11 ... it is perfectly proper for the Government to continue to proceed on the basis that the ban on political advertising on television and radio is legally defensible. We refer in particular to the Ministry’s argument [in the X and the Association of Z v.   the United Kingdom, no. 4515/70, Commission decision of 12 July 1971, Yearbook 14, p. 538] ... justifying the outright ban on the basis of protecting the democratic right of UK citizens not to be subjected to a barrage of political propaganda at prime advertising time from the party with the richest backers. If a court were in the future to rule to the contrary, this would potentially have a dramatic effect on the funding of the political parties. If free to do so, the parties would almost certainly feel obliged to make use of the opportunity to advertise themselves (or attack their opponents) on television and radio. In the United States a high percentage of the expenditure by the political parties at election times is devoted to television advertising. It is the pressure to advertise, as much as any other factor, which generates the demand for money and hence the arms race between Democrats and Republicans...” 39.     The Neill Committee went further suggesting that, if anything, the legislation should be reconsidered to ensure that it was sufficiently wide: “13.12 Another possible future danger, to which reference was made in some of the evidence, is that as advances in technology bring in their train new and varied means of disseminating information (cablevision, multi-channel digital television, the Internet etc.) novel methods may be devised in an attempt to circumvent the current legal restrictions on political advertising. Vigilance will be required to prevent this happening. Existing legislation should be reviewed to ensure that its reach is sufficiently wide.” 40.     In 1999 the Government began a comprehensive review of broadcasting regulation and engaged in consultation on, inter alia , less restrictive measures than the current prohibition on political advertising.   In July 1999 the Government responded to the Neill Committee proposing legislation including maintaining the prohibition on political advertising: “9.2 The ban on paid political advertising on television and radio has been a major factor in limiting the amount of money political parties can spend on election campaigning and therefore on the amount they have to raise. As a result, the ban is supported across the political spectrum and the Government strongly endorses the Neill Committee’s recommendation that it should be maintained.” 2.     Consultation on the 2002 Bill (a)     Communications White Paper 41.     In December 2000 the Government published a Communications White Paper proposing a Communications Bill to implement new controls on the broadcasting media in England and Wales including the maintenance of the prohibition on political advertising. During the resulting consultation period the Court delivered its judgment in Vgt Verein gegen Tierfabriken v.   Switzerland (no. 24699/94, ECHR 2001 ‑ VI). (b)     Publication and scrutiny of the 2002 Bill 42.     Following that consultation period, in May 2002 the Government published the 2002 Bill, thereby opening a three-month consultation period. Programme services were not to contain any political advertising whether it was an advertisement inserted by or on behalf of a body which was political in nature or an advertisement directed to a political end. Documents published with the 2002 Bill included Explanatory Notes (which considered the VgT judgment, noting that it had thrown some doubt on whether the prohibition was Convention compatible) and a Policy document outlining proposals in the Bill and related policy decisions and expressing the view, inter alia , that the Bill reflected a proper balance of freedom of expression and the need to protect against certain types of broadcasted material. 43.     The Joint Committee on Human Rights (“the JCHR”, a standing parliamentary committee tasked with examining the human rights implications of draft legislation) considered the 2002 Bill and, in doing so in June 2002, took evidence from Professor Barendt who was the Goodman Professor of Media Law at University College London (1990-2010), the first chair in media law in the United Kingdom. In response to a question about whether there were restrictions that could be imposed on political advertising which could be compatible with Article 10, Professor Barendt stated that he agreed with the result of the VgT case. To disallow a charity with a political programme (such as Amnesty) which could afford to pay for a short commercial seemed to him to be a “monstrous and unjustifiable infringement of freedom of expression”. It made no sense to him to allow commercial advertisements for automobiles and products associated with driving but not to allow groups to broadcast advertising of the opposite case. He was not advocating unrestricted access but rather the adoption of rules to limit the number of spots which could be purchased. He considered that the distortion of the political debate could be “avoided by imposing financial limits, just as we now have with regard to the financing and expenditure of political parties”. 44.     On 19 July 2002 the JCHR published a report on the 2002 Bill, including on the prohibition of political advertising. The JCHR acknowledged that the prohibition could well be found incompatible with Article 10 having regard to VgT . However, it urged caution in reversing the prohibition given the important rationale of the prohibition and the difficulty of devising a more circumscribed solution. Having noted the approach of the Canadian Supreme Court and the differing freedom of expression traditions in the United States and Australia, the JCHR preferred the European approach in that it gave “appropriate weight to the legitimate objective of securing equality of opportunity for political expression, at any rate in the broadcast media” which tradition justified the prohibition. The JCHR continued: “63. ... there are wider considerations which we believe urge the utmost caution in moving from the current statutory position in the UK (where television and radio access to those seeking to advance political causes is restricted almost entirely to the highly regulated system of party political broadcasts). These wider considerations include the fear of the annexation of the democratic process by the rich and powerful, to which the Court alluded in its judgment in VgT.. . The risks of this will be intensified where it proves impossible to prevent concentration of cross-media ownership in one country. We are also conscious that the compromise hinted at by the Court - a more circumscribed ban applied more discriminatingly - presents a formidable challenge to put in statutory form. In particular, it is difficult to conceive of how to devise ways of allocating air time or capping expenditure in relation to a “political viewpoint” (as opposed to a political party, however that might be defined in statute)...” 45.     While the JCHR doubted the general applicability of the above-cited judgment in the VgT case and saw some merit in waiting for the jurisprudence in this area to mature further before deciding on the appropriate legislative response, it nevertheless considered that a total prohibition on political advertising on radio and television was likely to be held to be incompatible with Article 10, as the Government had itself recognised in the Explanatory Notes to the 2002 Bill. The JCHR recommended that the Government “examine ways in which workable and Convention-compatible restrictions of this kind could be included in the Bill”. 46.     The Joint Committee on the Draft Communications Bill (“the JCDCB”) was a parliamentary body set up to consider the Bill. Its report of 25 July 2002 supported the principles underlying the proposed prohibition: “301. ...The Government’s view is that there are strong grounds for re-enacting the long-standing ban on political advertising in the broadcast media, but it acknowledges that a recent decision of the European Court of Human Rights has cast doubt on the compatibility of that ban with the Convention. Professor Eric Barendt argued that a blanket ban on political advertising was not compatible with human rights and suggested that the aim could best be secured by limits on expenditure on political advertising. The Joint Committee on Human Rights has argued that a ban on the purchase of advertising time for political purposes is likely to be compatible with Convention rights. We support the principles underlying the proposed ban on political advertising ... and urge the Government to give careful consideration to methods of carrying forward that ban in ways which are not susceptible to challenge as being incompatible with Convention rights.” 47.     The Independent Television Commission (“the ITC”) had overall responsibility for commercial television at the time. On 10 October 2002 the ITC invited the Government to maintain the prohibition: “The ITC shares the Government’s principled objections to political advertising and hopes that the ban, which has been effective, will be retained. Our own assessment is that an OFCOM/broadcaster-administered scheme to ‘control’ political advertising based around tests of due impartiality and undue prominence would, fairly swiftly, collapse on the grounds of unworkability in practice ... Once the absolute bar is removed, the broadcasters...would at the very least be open to challenge if they refused to accept political adverts. We are then on a slippery slope ... banning named polit