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Jeff King: Deference, Dialogue and Animal Defenders International

jeff2In Animal Defenders International, the European Court of Human Rights upheld the British ban on political advertising in the broadcast media (s.321 Communications Act 2003), consistently with the judgments of the UK House of Lords and High Court, but in an apparent departure from its previous caselaw in the VgT (Verein gegen Tierfabrik v. Switzerland, no. 24699/94 ECHR 2001‑VI) case.  The key issue in the case was whether a blanket ban (or ‘general measure’) was a proportionate restriction of the freedom of expression, or whether some class of exception (a ‘case-by-case’ approach) for groups such as the NGO in this case ought to be recognized. I am in complete agreement with Jacob Rowbottom’s view on the correctness of the Court’s judgment and the desirability of a general ban.  In brief, the problem with making case-by-case or category-based exceptions for advocacy groups is that there is a risk of profusion of ‘non-profit’ groups that are in fact created and backed by well-monied interests, the unveiling of which becomes an impossible regulatory task in the shadow of constant litigation.  The focus of the present comment is on three further matters raised by the case that are of importance for British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.

Many academics have stepped into what is often called ‘the deference-debate.’ [*] One group, in which we find Murray Hunt, Aileen Kavanagh, Alison Young, myself, and I think to a more subtle extent Alan Brady, believe that there is a role for both the practice of judicial restraint, and also for a specific doctrine of judicial restraint, though none of us is generally skeptical of the judicial protection of human rights. On the other hand, we find Trevor Allan arguing a cogent case that a doctrine (e.g. a set of overtly recognized principles) of judicial restraint would be pernicious, that it will lead to excessive deference, and that any proper role for judicial restraint is already comprehended within the legal standards themselves – in legal concepts such as proportionality, Wednesbury reasonableness, fairness and so on.  For the unanimous judgment of the House of Lords in Huang v SSHD [2007] UKHL 11, Lord Bingham made the following finding, after summarizing a range of immigration-specific factors for consideration:

 The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.

 Who needs a doctrine, in other words? This largely agrees with the views of both Trevor Allan and Tom Hickman.  The problem though is that this view depends entirely on the judge having Lord Bingham’s intuitions about ‘appropriate weight,’ which are not as widely shared as we all would wish.  In Animal Defenders International, the Court split 9/8 and Rowbottom, the country’s leading legal expert on the matter, was himself convinced that Strasbourg would decide against the ban. The safe bet was on losing.

The substance of the majority’s decision gave enormous weight to the comprehensive examination of the issue within the legislative process (and in court thereafter):

 114. […] The Government, through the DCMS [the Department], played an important part in that debate explaining frequently and in detail their reasons for retaining the prohibition and for considering it to be proportionate and going so far as to disclose their legal advice on the subject (paragraphs 50-53 above). The 2003 Act containing the prohibition was then enacted with cross-party support and without any dissenting vote. The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.

115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.

The Court here effectively endorses a notion of judicial restraint in deference to the substance and process by which the decisions were undertaken in this situation.  The very issue of the viability of an exception as an alternative to a blanket ban had been batted back and forth by several bodies during the legislative process (and insufficiently so by the Strasbourg court in previous cases, as the UK argued in this case). The majority judgment showed respect for that process and awareness of their own limitations in second-guessing it in a complex context, when the stakes are high.  (The concurring judgment of Sir Nicholas Bratza was even better on this and other points, but I pass over it here for a variety of reasons).

By contrast, the two dissenting judgments had no time for this.  The first group of dissenters quote the notorious court-sceptic JAG Griffith as authority for the implied point that the British courts defer too much to Parliament (Joint Dissenting Opinion of Judges Ziemele et.al., para.2), and then chastise the majority in the following terms:

“Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT, a judgment which inspired a number of member States to repeal their general ban -a change that was effected without major difficulties.”

 Both parts of this quote are misguided in my view. Dismissing the outcome because such a process can yield wrong results (obvious) is to miss the point that this process, on this issue, did deserve considerable weight for a range of substantive reasons. They include the fact that the interlocutors in that process had special knowledge of British politics, commercial media, and consumer habits, and studied the phenomenon at great length and in good faith. The second part of this quote states a claim that could be a highly material point – surely if the revoked ban had not led to problems elsewhere, then that supports the view that the blanket ban isn’t necessary.  But how do they know whether the ban has not in fact been pernicious there?  No evidence is given on this point, and we cannot assume no news is good news when we haven’t looked.  We do know that the impact of the Citizens United v Federal Communications Commission 558 U.S. 310 case in America, which struck down a not entirely dissimilar ban on ‘electioneering communications’ funded by corporations, has been terrible.   One study determined that the case accounted for 78% of campaign spending in the 2012 Presidential election.  (For a more nuanced view of its impact, see here).

The other dissenting judgment, of Justices Tulkens, joined by Judges Spielmann and Laffranque, at least addressed this issue:

 “17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant.”

In this hubristic gesture, Judge Tulkens sweeps aside the virtually unanimous domestic agreement that it is both relevant and indeed persuasive.  What is brushed aside in the dissenting judgments more broadly include the views of the Neill Committee on Standards on Public Life, which visited several countries and reported at length to Parliament; the Joint Committee on Human Rights; the Independent Television Commission; the Joint Committee on the Draft Communications Bill; the Electoral Commission; and the unanimous opinion of the UK Parliament.  These bodies not only know local dynamics, but had greater subject-matter expertise and took more time for consideration. To offer only one illustration, the Neill Committee Report was 262 pages, and the Committee undertook visits to five countries, considered over 400 written submissions, and spent seventeen days taking evidence from 120 individual experts representing 75 organisations in public hearings held around Britain.  It also commissioned two relevant research studies, one of them analyzing freedom of expression jurisprudence.

I will not delve into the UK literature on judicial restraint here to show how the various factors adduced in that literature would counsel the right outcome here.  In brief, the relative expertise was greatly skewed towards the British institutions, both political and judicial; the exact human rights issue was the subject of protracted debate and litigation; the claimant group was not clearly politically marginalized or vulnerable to begin with (a point which is anyway not decisive here); and the cost of getting the issue wrong could be immense and irreversible (hence an impediment to much needed flexibility).  The principles of restraint and deference alluded to by the authors above all draw attention to these items and above all warn judges to resist the temptation to think that once human rights are in play, the judge decides in splendid isolation from policy or considerations of competence.   To those who think this is all obvious, the near miss in Animal Defenders International reminds us that it isn’t.

Having explored this much, I can deal briefly with my second and third points. The second concerns the value of parliamentary consideration of human rights issues.   I am presently engaged in research that examines parliamentary responses to section 4 declarations of incompatibility, and am struck by the incredible professionalism and rigour that is often (not always) found in this process. The JCHR in particular draws the direct attention of both houses to significant human rights implications of bills. It does so on the basis of advice from its legal advisor (presently Mr. Murray Hunt) and always in due consideration of the domestic and international law, as well as considerations of policy. It considers evidence submitted by a variety of NGOs and engages in extended correspondence with the Government on particular bills.  It is the interaction between this Committee, Government and Parliament, where the normative guidance set out in the jurisprudence of the courts unites with the participatory advantages and working flexibility of the legislative process. It may look revolutionary in the human rights context, but it is in fact a workaday illustration of a more widely acknowledged truth –  that pre-legislative scrutiny, as well as legislative scrutiny, is extremely valuable for helping to identify key issues before views ossify and legislative change becomes impeded by inertia and competition.  It can also potentially play a constructive role in litigation afterwards, either helping or harming a legal challenge to the Convention-compatibility of legislation (pace Article 9 of the Bill of Rights 1689 – on which see further the AHRC Report by Hunt, Hooper and Yowell, Parliament and Human Rights, pp.49-50).

The last point is that this case does represent precisely the merits of UK judges scrutinizing the state’s arguments in UK courts, in Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. The Strasbourg Court not only essentially adopted the reasoning of the UK courts, but in doing so it explicitly rowed back from its own jurisprudence (i.e. the VgT case). This is an entirely appropriate form of institutional dialogue, and shows maturity of judgment, the flip side of the much-maligned UK courts’ own willingness to apply rules laid down in Strasbourg.  The upshot of this is plain: a British Bill of Rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue, and made the wrong outcome in Animal Defenders International more likely.

Jeff King is Senior Lecturer in Law at The  Faculty of Laws, UCL.

Suggested citation:  J. King, ‘Deference, Dialogue and Animal Defenders International’ U.K. Const. L. Blog (25th April 2013) (available at http://ukconstitutionallaw.org).


[*] Some important works in this vein include M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs a Concept of Due Deference’ in Bamforth and Leyland, Public Law in a Multi-Layered Constitution (Hart 2003); A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222 (see also her book Constitutional   Review under the UK Human Rights Act (CUP 2009) Part II; A. Young, ‘In Defence of Due Deference’ (2009) 72 The Modern Law Review 554; J. King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies 409, and Judging Social Rights (CUP 2012) Part II (elaborating four principles of restraint).  For the earliest statement of the best critique, see TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 The Cambridge Law Journal 671, a position refined and enhanced in Professor Allan’s more recent (and forthcoming) work.  See also the nuanced position of Dr. Tom Hickman, Public Law after the Human Rights Act (Hart  2010) (accepting and outlining a role for ‘weight’ and guiding principles, but rejecting the idea of a doctrine).  Alan Brady’s Proportionality and Deference under the UK Human Rights Act (CUP 2012) integrates deference into the proportionality analysis in a manner that I believe has more in common with the doctrinalists than with Allan’s approach. Leadings treatise writers such as Paul Craig, Timothy Endicott and Jeffrey Jowell all recognize the role for judicial restraint but have largely steered clear of the question of whether any doctrine is necessary.

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Jacob Rowbottom: A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio

jacob-rowbottom-photoThe European Court of Human Rights has given its decision in Animal Defenders International , holding that the ban on political advertising on the broadcast media does not violate Article 10. I had been convinced that the Strasbourg Court, following earlier decisions in Switzerland and Norway, would come to the opposite conclusion – but I am relieved that they did not. The ban on political ads has been a crucial measure that has helped to keep the cost of politics down in the UK.  That said, it was a close shave. The ban was upheld by a majority of 9, with 8 dissenting. The decision was published earlier this morning, so what follows are my initial thoughts.

The approach of the majority stands in stark contrast to that in the US. While the US Supreme Court in Citizens United rejected arguments that corporate spending can distort the electoral process, the Strasbourg Court accepted the argument that ‘powerful financial groups’ can ‘obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate’. Not only that, concerns about distortion are not limited to the electoral period:

‘While the risk to pluralist public debates, elections and the democratic process would evidently be more acute during an electoral period, the Bowman judgment does not suggest that that risk is confined to such periods since the democrafic process is a continuing one to be nurtured at all times by a free and pluralist public debate.’

This is an important element of the ruling, as it allows the state to take measures to tackle concerns about money in politics generally while staying within the requirements of Article 10.

The key area of debate was not the rationale of the measure, but the proportionality of the ban. The Court found that a partial ban on political advertising – for example allowing some issue advocacy – was unlikely to be workable, noting that such avenues were likely to be abused by ‘wealthy bodies with agendas’. Furthermore, the ban only applied to one type of media, and thereby leaving opportunities for alternative means to communicate, such as newspapers or social media.

Also significant was the fact that the ban had been considered by the UK on several different occasions, such as the Neill Report, in pre-legislative scrutiny and in court. This distinguishes it from cases such as Hirst, where a ban on prisoner voting rights had been maintained without any discussion. The Court thereby attached ‘considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies’.

But what about the previous decisions of the Strasbourg Court in relation to Switzerland and Norway? This I think was the biggest challenge facing the UK government when they were arguing their case. Most interesting here are comments from Judge Bratza who commented that the Court’s decision in VgT Verein:

‘did not do full justice to the purpose of the general prohibition in the legislation, which was to avoid leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the polifical cause in question, with the attendant risks of discriminatory treatment.’

Consequently, he confessed ‘to entertaining certain doubts about the Chamber’s judgment in the case.’

By contrast, the dissenting opinion of Judges Ziemele, Sajo, Kalaydjiyeva, Vucinic and De Gaetano described the contrast with the Court’s earlier decisions as a ‘double standard within the context of a Convention whose minimum standards should be equally applicable throughout all the States parties to it.’ However, rather than being a double standard, the majority’s approach maybe an example of the way that dialogue with the UK shaped the ECtHR’s jurisprudence – or more cynically how the Court was influenced by the existing political tensions between the UK and Strasbourg.

The reasoning of that group of dissenting judges also shows a divide in the Court concerning its Article 10 jurisprudence. While the majority stressed the need for the ban to address distortion in public debate, those dissenters called it ‘well-intentioned paternalism’. Ziemele, et al emphasized Article 10 as primarily a negative right against state measures:

‘Promoting a right where it cannot be effective without additional State action is, according to our jurisprudence, appropriate, but is not a generally accepted primary ground for rights restriction. There is a risk that by developing the notion of positive obligations to protect the rights under Articles 8 to 11, and especially in the context of Articles 9 to 11, one can lose sight of the fundamental negative obligation of the State to abstain from interfering. The very initiative to legislate on the exercise of freedom in the name of broadcasting freedom, and in order to promote democracy in general terms, and for aims which may not necessarily fully conform to one or more of the legitimate aims of Article 10 § 2, remains problematic. The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all. It is one thing to level a pitch; it is another to lock the gates to the cricket field.’

The final sentences attacks what it sees as a ‘level-down’ approach to political equality. Similarly, they went on to say:

‘Freedom of expression is based on the assumption that the speakers, not the Government, know best what they want to say and how to say it. Ideas can compete only where the speaker is in a position to determine, within the limits recognized by the Convention, which form of imparting ideas serves best the message.’

I think these criticisms are misplaced. TV is not a politics free zone, so I don’t think the gates are locked. It is just one type of transaction that is blocked. I think the state plays an important role in ensuring that the opportunities for communication are not skewed in favour of those with the deepest pockets. The case for the ban is not that people cannot decide for themselves, but that different groups should have equal opportunities to persuade people of the merits of their position.

The decision in Animal Defenders International has come as a surprise to me, but – and many will disagree with me on this point – it is a pleasant surprise. It is one in which the Strasbourg Court has moved away from its earlier jurisprudence and emphasized the importance of insulating political debate from the inequalities in wealth.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio’  UK Const. L. Blog (22nd April 2013) (available at http://ukconstitutionallaw.org)

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Jacob Rowbottom: Ministers, media and the decision to investigate

Last week, an editorial in the Guardian called for the Independent Adviser on Ministerial Interests to be scrapped. The paper argued that, as the Adviser is called into action so infrequently, his £20,000 salary is not a good use of resources. Since that article was published, Baroness Warsi has been referred to the Independent Adviser, so at least the current holder of the office, Sir Alex Allan, has some work to be getting on with. However, controversy still surrounds David Cameron’s decision not to refer Jeremy Hunt to the Independent Adviser too.

While there are differing views as to whether Hunt acted in breach of the Ministerial Code, the difficulty lies with the process for deciding whether to refer a matter to the Independent Adviser. It is the Prime Minister that determines whether an alleged breach of the Ministerial Code should be subject to an independent investigation. Whenever I teach ministerial responsibility, most students are pretty quick to spot the basic problem with this arrangement, namely that the PM will have a strong incentive not to refer matters that might have significant political repercussions. So, some commentators speculate that Cameron has been unwilling to refer Jeremy Hunt because an investigation into his with News Corp might reflect badly on Number 10 too. By contrast, an investigation into Baroness Warsi’s alleged failure to disclose a business interest is less likely to wreak damage to the government as a whole (and may have little long term impact on Warsi’s career).

Whether such incentives are at play is speculative. While we can’t know for sure the PM’s reasons, there is still a public perception that the power to refer to the Independent Adviser is used strategically. The PM’s has discretion not only in initiating a formal investigation, but also in deciding the sanction in the event of a breach of the Ministerial Code. That latter discretion is unavoidable, as questions relating to the composition of the Cabinet are ultimately for PM.

The position of Independent Adviser was set up in 2006, as part of a gradual process that has led to more formalized controls on ministerial ethics. The current system seeks to provide some sort of independent check on ministers, while preserving the PM’s ultimate responsibility for the government. It is a system that is a mixture of political discretion and formal investigation. The current concern is that the former element undermines the latter. There are, of course, improvements that could be made. In 2008, the Public Administration Select Committee (PASC) called for the Independent Adviser to be given powers to initiate an investigation of an alleged breach of the Ministerial Code, without a referral from the PM. In March this year, the PASC made the same call again for such a powers to be granted. That change would preserve some political discretion, but do so at the sanctions rather than the initiation stage.

The very issue that has led to calls for Jeremy Hunt’s investigation, the role of the government in relation to the regulation of media mergers, raises a parallel issue. When a media merger is to take place, the Secretary of State has the power to initiate an investigation into the effects of that merger on media plurality (the public interest test). In such circumstances, the minister refers the matter to Ofcom. After Ofcom has made its report, the minister can then refer the merger to the Competition Commission (News Corp’s BSkyB bid was at this stage last summer when the phone hacking scandal broke). If the Commission makes a finding that the merger will be detrimental to the public interest, the minister has the power to approve, block, or attach conditions to the merger. Like the PM’s power on the Ministerial Code, the Secretary of State has the power to initiate an investigation and to impose remedies after the conclusion of the investigation, but an independent body conducts the investigation. It too is a mixture of political discretion and formal investigation. It is also similar to the Ministerial Code process in that there is great suspicion that the minister uses the discretion for strategic reasons.

Again, one solution is to give the investigator, in this case Ofcom, the power to get the process started without a reference from the minister. The House of Lords Communications Committee proposed such a reform in 2008. The possibility of handing the process to independent regulators was also recently discussed at the Leveson Inquiry. At the Leveson hearings, Vince Cable voiced opposition to such a change, arguing that politicians have a legitimate role to play in the media mergers regime. He said:

‘[…]elected politicians, ministers, have a role in the process, and I think that’s absolutely right. I think it’s right because when we’re talking about matters of public interest, we’re making qualitative judgments. We’re not following a sort of quantitative metric, which is what one would normally do with, say, a competition case, and I think it’s right that those decisions be made by people who are — have legitimacy through the democratic process, who are accountable to Parliament […]’

He went on to say that the risks of bias are limited, given that the Secretary of State has to follow a prescribed process, take legal advice and can be subject to judicial review. Cable then noted that to take the decision to initiate the process away from a politician would be to seek ‘artificial comfort’ in a bureaucratic mechanism.

Generally speaking, I have some sympathy with Vince Cable’s point. A decision does not become any less political by giving it to a bureaucrat or quango, and judgments involving the public interest are normally for the democratically accountable parts of government. The question of media plurality is, however, different. It is tied up with issues of power – namely who can own the media (and how much of it can be owned by one person). The media often legitimizes its power by claiming an ability to act as a check on politicians. While some newspapers may favour and give preferential coverage to a particular politician, plurality means that other titles out there may take a more critical stance. That check can be undercut if the minister uses a discretionary power to win favour from a particular media outlet, and give that outlet an advantage over its competitors. In other words, as media plurality is a component of a system that holds the government to account, we should be cautious about giving the government control over the composition of that system in specific cases (as opposed to formulating general rules on plurality).

Giving Ofcom the power to initiate an investigation is just one option. The Coordinating Committee for Media Reform proposes (along with a range of other media reforms) that the public interest investigation should be triggered automatically when a proposed merger meets a threshold of the market share. That approach would take a step away from the current reliance on discretion, whether from a politician or a regulator. Initiating investigations either through Ofcom or a thresholds approach would be an important step, but more may be necessary. In the case of Jeremy Hunt, the public interest investigation was already under way when he became Culture Secretary, and the issue was whether to refer the matter to the Competition Commission. The question is then whether the political discretion should be limited at that intermediate stage too, for example by letting Ofcom decide whether the merger should go on to the Commission.

The questions surrounding Jeremy Hunt both in relation to the Ministerial Code and media plurality raise parallel issues about the role of politicians in the very processes that are supposed to hold them to account. The reforms discussed here would not remove politicians from the processes altogether, but would at least stop them deciding when the wheels can be set in motion. That, I believe, would be a step towards a stronger system of political accountability.

Jacob Rowbottom is a Fellow of University College, Oxford. 

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