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

Whether an advertisement is directed towards a political end under the Communications Act 2003 is determined objectively from its text. The advertiser’s motives are irrelevant. Intention matters only where expressed or implicit in the advertisement itself. The concept of a political end is broad and includes social advocacy and attempts to influence public debate, government policy or public functions. The statutory examples are non-exhaustive. A genuinely neutral research advertisement is outside the prohibition merely because its data might later be used politically. However, an advertisement presenting an existing social unfairness, seeking data to inform public debate and stating that the data will help make society fairer may itself support a political campaign. The principle of legality does not justify an artificially narrow construction of ordinary statutory language.

Christian Communications Partnership wished to broadcast an advertisement on London Christian Radio seeking information about the alleged marginalisation of Christians in the workplace. The Radio Advertising Clearance Centre refused clearance, considering the advertisement directed towards a political end under section 321(2)(b) of the Communications Act 2003.

The appellants sought declarations that the advertisement did not contravene the statutory prohibition and that the relevant provisions were incompatible with article 10 of the Convention. Mr Justice Silber rejected both grounds in the Administrative Court. The appellants appealed, but no longer pursued the direct compatibility challenge. The central issues were the proper construction of directed towards a political end, the relevance of section 3(1) of the Human Rights Act 1998, and the proper standard of review.

By a majority, the appeal was dismissed. The Master of the Rolls gave the leading judgment and Richards LJ agreed. Elias LJ dissented and would have allowed the appeal and declared the advertisement lawful.

1. Objective construction. Whether an advertisement is directed towards a political end is determined objectively by examining the advertisement’s text. The advertiser’s motives are irrelevant. Its intention is relevant only where the language expresses or implicitly reveals it. This approach avoids a potentially complex inquiry into the advertiser’s private purposes and gives effect to the statutory aim of maintaining a level playing field in political broadcasting.
2. Meaning of political end. The concept is wide. The examples in section 321(3) of the Communications Act 2003 are non-exhaustive, and the reference to matters of public controversy is inconsistent with a narrow construction. The reasoning in Animal Defenders supported the conclusion that political advertising includes social advocacy capable of affecting public debate.
3. Application. The advertisement’s reference to the advertiser’s Christian publishing role, the asserted marginalisation of Christians, the request for more accurate data to inform public debate, and the stated aim of helping to make society fairer conveyed an existing unfairness which should be changed. It was therefore directed towards a political end. It was unnecessary to identify a particular law or policy to be changed.
4. Convention rights. The prohibition had been held compatible with article 10 in Animal Defenders. Section 3(1) of the Human Rights Act 1998 did not require a narrower construction where the issue was the ordinary meaning of a provision authoritatively regarded as Convention-compatible. The principle of legality remained an interpretative tool, not a substitute for Parliament’s intention.
5. Review standard. The Master of the Rolls was inclined to regard the issue as a hard-edged question for the court rather than a matter confined to rationality review, but left the point undecided. Even on the more limited review approach, the RACC was fully entitled to reach its conclusion. Elias LJ considered that the statutory focus was the advertisement’s immediate political message, not the future use of information, but his view did not prevail.

1. Court of Appeal (Civil Division). The majority dismissed the appeal. Elias LJ dissented. The decision is reported at [2013] EWCA Civ 1495.
2. High Court of Justice, Queen’s Bench Division, Administrative Court. Mr Justice Silber rejected the challenge to the refusal of clearance and the compatibility challenge.