London Christian Radio & Anor, R (on the application of) v Radio Advertising Clearance Centre & Anor

An advertisement is directed towards a political end under the Communications Act 2003 by an objective assessment of its content and purpose in context. The advertiser’s subjective motive is not decisive. A statutory prohibition on political advertising by radio and television is compatible with Article 10 where it pursues the protection of the democratic process, responds to a pressing social need and is proportionate. The court must respect Parliament’s considered judgment on the need for a general prohibition. Where the statutory language requires evaluative judgment, the clearance decision-maker’s conclusion will stand unless it is so aberrant that it cannot be regarded as rational.

The claimants sought judicial review of the Radio Advertising Clearance Centre’s refusal to clear a radio advertisement seeking information about the alleged marginalisation of Christians in the workplace. The advertisement stated that the information would be used to inform public debate and help make a fairer society.

The claimants argued that the advertisement was not directed towards a political end under section 321(2)(b) of the Communications Act 2003. Alternatively, they argued that the statutory prohibition was incompatible with Article 10 of the European Convention on Human Rights and should be read down under section 3(1) of the Human Rights Act 1998. The central issues were the compatibility of the prohibition and the proper construction and review of the statutory test.

1. Article 10 compatibility. The application was dismissed. Following R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 131, the prohibitions in sections 319 and 321 of the Communications Act 2003 were necessary in a democratic society. They protected the democratic process against the potential mischief of partial political advertising. Parliament was entitled to conclude that no fair and workable, less restrictive scheme could adequately address that risk. The availability of advertising through other media was also relevant.
2. The conflicting Strasbourg decisions in VgT Verein Gegen Tierfabriken v Switzerland (2002) 34 EHRR 4 and TV Vest AS and Rogland Pensjonistparti v Norway (2009) 48 EHRR 51 did not displace the binding domestic authority. The court also considered that substantial deference was owed to Parliament in this field.
3. Construction of the prohibition. Whether an advertisement is directed towards a political end is determined objectively. The advertiser’s motive or subjective intention is not decisive. The advertisement sought information for use in informing public debate and helping to make a fairer society. Objectively, it was capable of influencing legislation, governmental policies or decisions, public functions and public opinion on a matter of public controversy, within section 321(3)(b), (c), (d) and (f).
4. Review of the clearance decision. The statutory criterion required evaluative judgment. Applying R v Monopolies and Mergers Commission ex parte South Yorkshire Transport Limited [1993] 1 WLR 23, the court could interfere only if RACC’s decision was so aberrant that it could not be classed as rational. RACC had applied anxious scrutiny, and its refusal to clear the advertisement was rational and unimpeachable.

First-instance judicial review proceedings. The judgment records that permission was initially conditionally granted by Sales J on 17 June 2010 and was subsequently granted by Collins J on 14 December 2011.