The House of Lords have dismissed an appeal by Animal Defenders International, against the High Court decision rejecting its claim for judicial review of a decision of the Broadcast Advertising Clearance Centre, which refused to allow the screening of a television advertisement against the commercial, species-endangering use of primates. The Lords agreed with the High Court that Parliament acted within the ambit of the discretionary judgment available to it, in introducing and maintaining the prohibition on political advertising. It also considered there to be a strong argument that the prohibition was necessary in the interest of maintaining the integrity of the democratic process, as the absence of such a ban would run the risk of undue access to the broadcast media based on willingness and ability to pay.
A sound decision from the Lords. The Appeal centred around Section 321(2) of the Communiactions Act 2003, and ADI had sought a declaration under section 4 of the Human Rights Act 1998 that the statutory prohibition is incompatible with its right under article 10 of theConvention of Human rights. The Courts have not been in dispute that the statutory prohibition of political advertising does constitute a restriction on ADI’s “freedom of expression” and that article 10 of the Convention is therefore engaged – nor that , in the words of Lord Scott (that has a nice ring to it doesn’t it) there may be respects in which sections 319 and 321 are incompatible with article 10.
I agree with Baroness Hale who states that the ban on political advertising “is a balanced and proportionate response to the problem: they [ADI] 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.”