Amnesty properly refused radio advertising

LAW REPORT v 1 August 1995

Regina v Radio Authority, Ex parte Amnesty International British Section; Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice McCullough) 4 July 1995

The radio authority had not misconstrued its powers or acted irrationally in deciding that Amnesty International British Section could not advertise on radio because its objectives were mainly of a political nature.

The Divisional Court dismissed an application by Amnesty International British Section for judicial review of the Radio Authority's decision that radio advertising by AIBS was unacceptable under section 92(2)(a)(i) of the Broadcasting Act 1990 and rule 8(a) of the Radio Authority Advertising Code because AIBS' objects were mainly of a political nature.

AIBS, whose activities include promoting awareness of and adherence to the Universal Declaration of Human Rights, wanted to run a campaign to bring the plight of people in Rwanda and Burundi to the notice of people in the United Kingdom. It decided to advertise on the radio. The authority considered the proposed advertisement and concluded that although some of AIBS' objects were not political, such as the ending of extrajudicial executions and "disappearances", the remainder, such as the freeing of all prisoners of conscience, ensuring a fair and prompt trial for all political prisoners and the abolition of the death penalty, were political and therefore radio advertising was unacceptable within section 92(2)(a)(i).

AIBS applied for judicial review of the decision on the grounds that the authority had misconstrued section 92 in the light of article 10 of the European Convention on Human Rights which recognised freedom of speech and that its decision was irrational.

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

Lord Justice Kennedy said that section 92(2)(a) was part of a licensing system for which article 10 specifically provided and therefore article 10 was unlikely to have any significant part to play in its construction. In addition to freedom of communication there were other rights to be protected, such as freedom from being virtually forced to listen to unsolicited information of a contentious kind.

As there were competing considerations in relation to which a balance had to be struck and then applied to a wide variety of advertisements it would not be possible for Parliament to provide a definition which gave such a precise indication of what was unacceptable as to yield a clear answer in every case. A large measure of discretion must be left to the regulatory authority.

In interpreting section 92(2)(a) the authority should have regard to what was said in cases such as R v Governor of Pentonville Prison, Ex parte Chend [1973] AC 931 and McGovern v Attorney General [1982] Ch 321.

Provided it operated within those parameters and did not give a decision which could be described as unreasonable, then the court would not interfere because the discretion was that of the authority and not of the court.

There was nothing to suggest that the authority misunderstood or misinterpreted the words of the statute. The authority's approach did not display any evidence of irrationality.

Many people, particularly lawyers, admired the work of AIBS and the dedication of those who worked for it. But it was worth recognising that something which might appear to be an unnecessary restriction on a good cause could also usefully restrain something manifestly less worthy.

Mr Justice McCullough, concurring, said that the difficulty with any submission based on the European Convention on Human Rights was that it presupposed that there was ambiguity in the statute; otherwise the convention had no part to play. Section 92 was not ambiguous.

The authority believed that to achieve observance of human rights in a field concerned with interference with the liberty of the person required governments to change their policies. Its conclusion was within the bounds of reasonableness. That was not to suggest that AIBS' objectives were other than wholly humanitarian. Parliament had decided that humanitarian objects, if also political in the reasonable judgment of the authority, were not to be made the subject of advertisements by the radio and television.

Ying Hui Tan, Barrister