Ban on Amnesty radio advertising upheld

LAW REPORT 20 December 1996
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Regina v Radio Authority, ex parte Bull and another; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Aldous, Lord Justice Brooke) 17 December 1996

Campaigning against a government in order to persuade it to change its laws or policies was a "political" activity, the radio advertising of which was prohibited by section 92 of the Broadcasting Act 1990.

The Court of Appeal dismissed an appeal by David Neill Bull and Nigel Wright against the decision of the Queen's Bench Divisional Court on 4 July 1995, refusing their application for judicial review of the decision of the Radio Authority on 7 October 1994 to ban further radio advertising by Amnesty International (British Section).

The ban was imposed under section 92(2)(a) of the Broadcasting Act 1990, which prohibits the inclusion in a licensed service of:

(1) Any advertisement which is inserted by or on behalf of any body whose objects are wholly or mainly of a political nature; (2) Any advertisement which is directed towards any political end.

The applicants were respectively the director and chairman of the council of the British Section of Amnesty International, an unincorporated association founded in 1961 to promote awareness of human rights. They contended that Amnesty's objects were principally humanitarian and non-political.

The authority approached the matter on the basis that:

In order to determine whether the objects of AIBS are wholly or mainly political, the Authority consider whether each of those objects is principally aimed at securing a change of the United Kingdom law or the law of any foreign country, or a reversal of government policy or administrative decisions in the UK or abroad or at persuading the UK government or any foreign government to alter its policies or to adopt particular policies.

On this basis, the authority decided that Amnesty's objects were "mainly political".

Nigel Pleming QC and Peter Duffy and Sean Wilken (Bindman & Ptrs) for Amnesty; David Pannick QC and Dinah Rose (Allen & Overy) for the authority.

Lord Woolf MR said there was no statutory definition of "objects", "wholly or mainly" or "political". Their proper meaning was important in determining this appeal.

Where a body had formally set out its objects, as Amnesty had, one would expect the authority to decide, at first instance, whether those objects fell within section 92(2)(a) by doing no more than examine the statement of its objects. Where there was doubt as to whether the formal statement reflected the true position or where it was not possible to determine the position by merely looking at the objects, the authority was entitled to examine any other material available. Where there was more than one object and some were political and others not, it might be essential to go beyond the formal statement of objects to see whether they were mainly political.

The meaning of "wholly or mainly" was not free from ambiguity. It had to be construed as part of a provision restricting Amnesty's freedom of communication. The issue was not whether such a restriction was justifiable but how it should be construed having regard to its effect. The ambiguous words should be construed restrictively. To fall within the provision, therefore, a body must be more than 75 per cent political.

In considering "political", assistance was provided by the case of McGovern v A-G [1982] Ch 321 at 240, where Slade J was concerned with whether Amnesty was entitled to charitable status. He decided it was not, because all the main objects of the trust were in part political in that their purpose was: to further the interests of a particular political party; to procure changes in the laws of this or a foreign country; or to procure reversal of government policy or particular decisions of government authorities in this or a foreign country.

No better guidance was available as to what was here meant by "political" and his Lordship accepted the authority's argument that this was the correct approach.

Paul Magrath, Barrister

This is the last law report for the Michaelmas Term. Law reports resume at the beginning of the Hilary Term, on 13 January 1997