R (ProLife Alliance) v British Broadcasting Corpn

Article 10 does not confer a right to free television time. Where broadcasting facilities are made available to political parties, access must not be withheld on discriminatory, arbitrary or unreasonable grounds. A restriction on offensive material applies to party election broadcasts as it does to other programmes unless its compatibility with Convention rights is successfully challenged. Where that restriction is accepted, the reviewing court examines its application. It cannot remake Parliament’s balance between political speech and protection of viewers. Context remains crucial, but political speech carries no immunity. Broadcasters may reject prolonged, cumulative and graphic images after considering their political importance, the minimum necessary changes and likely offence to public feeling.

R (ProLife Alliance) v British Broadcasting Corpn concerned a political party opposed to abortion which qualified for a party election broadcast in Wales. Its proposed programme contained prolonged and graphic images of aborted foetuses. The BBC and the independent broadcasters rejected the original and two blurred versions as offensive to public feeling. A fourth version, replacing the images with a screen marked “censored”, was transmitted.

Scott Baker J refused permission to seek judicial review. The Court of Appeal allowed the substantive appeal and declared the BBC’s refusal unlawful: [2002] EWCA Civ 297; [2002] 3 WLR 1080. The BBC appealed. Because the party did not challenge the compatibility of the underlying offensive-material restriction with article 10, the central issue was whether the broadcasters had applied that restriction lawfully.

1. Disposition. The House allowed the BBC’s appeal by a majority of four to one. Lord Nicholls, Lord Hoffmann, Lord Millett and Lord Walker held the refusals lawful. Scott Baker J’s decision was restored and the Court of Appeal’s declaration was set aside.
2. Nature of the article 10 interest. Lord Nicholls and Lord Hoffmann held that article 10 of the European Convention on Human Rights does not provide a right to make a free television broadcast. Where access to an important public medium is provided, however, it must not be denied or conditioned on discriminatory, arbitrary or unreasonable grounds. Lord Millett expressly adopted Lord Nicholls’s reasons.
3. Scope of the challenge. Per Lord Nicholls, the party had accepted that applying the offensive-material restriction to party election broadcasts was not itself incompatible with article 10. The court therefore had to decide whether the broadcasters had lawfully applied the existing restriction. It could not perform a new balance between political speech and protection of viewers, since Parliament had already applied the restriction to every television programme.
4. Application of the restriction. Per Lord Nicholls, context can strongly affect whether material is offensive, and a party election broadcast may contain some disturbing images relevant to its message. The proposed tapes nevertheless went much further. The broadcasters considered the political importance of the images, sought the minimum changes necessary, examined the possibility of a late transmission and warning, and unanimously regarded the cumulative images as a clear breach. Their reasoning disclosed no inappropriate standard. The refusals were lawful even under searching scrutiny.
5. Institutional responsibility. Lord Hoffmann held that the restriction was a neutral and objectively justified condition of access. The special power and intrusiveness of television, together with viewers’ expectations in their homes, justified applying standards of taste and decency to political broadcasts. The allocation of the relevant decision-making responsibility was a question of law, rather than judicial courtesy to Parliament or the broadcasters.
6. Separate reasoning and dissent. Lord Walker agreed that review involving Convention rights is context-sensitive and may be more intensive than traditional irrationality review, but remains distinct from merits review. He considered the broadcasters’ experience, the limited interference and the availability of the soundtrack material important. Lord Scott dissented. He considered that refusal of a factually accurate and unsensationalised election broadcast was not necessary in a democratic society and fatally undervalued political expression at election time.

1. House of Lords: By a majority of four to one, allowed the BBC’s appeal in R (ProLife Alliance) v British Broadcasting Corpn, set aside the Court of Appeal’s declaration and restored Scott Baker J’s decision: [2003] UKHL 23.
2. Court of Appeal: Granted permission for judicial review, treated the hearing as the substantive appeal, unanimously allowed it and declared the BBC’s refusal unlawful: [2002] EWCA Civ 297; [2002] 3 WLR 1080.
3. High Court: Scott Baker J refused permission to proceed with the judicial review challenge on 24 May 2001.