Belfast City Council v Miss Behavin Ltd  UKHL 19,  1 WLR 1420
LORD HOFFMANN: 1 My Lords, the end of the Chatterley ban and the Beatles' first LP marked a sudden loss of confidence in traditional British prudishness by legislators and jurors which made the law against obscene publications very difficult to enforce. As a result, the distribution of all but the most hard core pornography became, at least in practice, a lawful trade. This gave rise to unexpected social and environmental problems. It was unacceptable for vendors of pornography to flaunt their wares before the public at large. Ordinary newsagents who sold soft porn avoided outraging sensitive customers by putting it on high shelves. Shops which specialised in pornographic publications and videos, together with sex aids and other such articles, tended to have opaque windows, as much to protect the privacy of customers as the sensibilities of passers-by. They congregated in run-down areas of large towns, usually near the railway station, clustering together on the same principle that people carrying on similar businesses have always traded in close proximity to each other. But the other inhabitants of the locality, both commercial and residential, often objected to the proliferation of sex shops on a mixture of environmental, social, aesthetic, moral and religious grounds: fears about the kind of people who ran them and the customers they attracted; distaste or moral or religious objection to what was going on inside; concern that they lowered the tone of the neighbourhood and attracted other even less desirable trades such as prostitution and organised crime.
2 All these concerns bubbled to the surface in the debate in the House of Commons in 1981 on the second reading of the Local Government (Miscellaneous Provisions) Bill, which contained elaborate provisions dealing with the licensing of premises supplying meals or refreshments, tattooing and ear-piercing (the piercing of other parts of the body does not appear to have been contemplated), acupuncture and electrolysis, but said nothing about sex shops. Honourable members wanted to know why not. The strength of feeling was such that the Government brought forward amendments at the report stage, introducing the system of local authority licensing which is now contained in section 2 of and Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 . The Act applied only to England, but the identical system was extended to Northern Ireland by the Local Government (Miscellaneous Provisions) (Northern Ireland) Order (1985 No 1208 (NI 15)). In the Order, the relevant provisions are article 4 and Schedule 2 .
3 Article 4 gives a council power to resolve that the licensing system contained in Schedule 2 should apply to its district. The Belfast City Council has so resolved. Paragraph 6 makes it unlawful to use premises as a sex shop without a licence. Paragraph 10 prescribes how an application for a licence should be made and sub-paragraphs (15) and (16) provides for representations by interested parties:
"(15) Any person wishing to make any representation in relation to an application for the grant, renewal or transfer of a licence under this Schedule shall give notice to the council, stating in general terms the nature of the representation not later than 28 days after the date of the application.
"(16) Where the council receives notice of any representation under sub-paragraph (15), the council shall, before considering the application, give notice of the general terms of the representation to the applicant."
4 Paragraph 12 deals with grounds of refusal. Sub-paragraph (1) specifies certain grounds personal to the applicant on which refusal is mandatory; for example, the council cannot grant a licence to a person under 18, or a foreign company, or someone whose licence has been revoked by the council within the previous 12 months. Sub-paragraph (3) contains grounds on which the council may refuse, of which the one relevant for present purposes is (c): "that the number of sex establishments in the relevant locality at the time the application is made is equal or to exceeds the number which the council considers is appropriate for that locality."
5 This must be read with sub-paragraphs (4) and (5):
"(4) Nil may be an appropriate number for the purposes of sub-paragraph 3(c).
"(5) In this paragraph 'the relevant locality' means-
(a) in relation to premises, the locality where they are situated ..."
6 The effect of these rather convoluted provisions is that a council may refuse a licence for a sex shop in any locality on the ground it does not consider it appropriate to have sex shops in that locality. It was said that because the Order says that the council "may" refuse, this ground is "discretionary". But I am not sure whether that is a very helpful adjective. It would hardly be rational for the council to decide that the appropriate number of sex shops in the locality was nil, but that it would all the same exercise its discretion to grant a licence. I think it is more accurate to say that the question of how many sex shops, if any, should be allowed is a matter for the council's judgment. In this case the respondent company applied for a licence to run a sex shop at premises in Gresham Street and the council's health and environmental services committee, to which the application was referred, recommended refusal on the ground that the appropriate number of sex shops in the relevant locality was nil. In arriving at this decision, it said that it
"gave consideration to the character of [the] locality, including the type of retail premises located therein, the proximity of public buildings such as the Belfast Public Library, the presence of a number of shops which would be of particular attraction to families and children and the proximity of a number of places of worship ..."
7 This recommendation was adopted by the council and the application refused. The council also gave other reasons, personal to the applicant, but I shall confine myself to the question of whether the refusal under paragraph 12(3)(c) was valid.
8 In arriving at its decision, the council appears to have considered some representations and objections by members of the public which were made outside the 28-day period prescribed by paragraph 10(15). There was an argument about whether they were entitled to do so. Both the judge and a majority of the Court of Appeal said that the council had a discretion to consider late objections but the Court of Appeal, reversing the judge, said that the council had not purported to exercise such a discretion and was therefore wrong to have taken them into account. I do not agree. In my opinion, paragraph 10(15) is concerned only with the position of the objector. If he does not comply with the deadline, he cannot complain that the council did not take his objection into account. But paragraph 10(15) does not prohibit the council from taking all relevant matters into account, whether they have been communicated by objectors or others, early or late, or in any other way. It would be very strange if such a provision, designed to allow the council to carry on its business in an orderly and expeditious manner, had the effect of requiring it to shut its eyes to facts which it considered relevant to its decision. The only difficulty is sub-paragraph (16), which seems to suggest that only the terms of representations received within the 28-day period need be communicated to the applicant. Fairness obviously requires that the terms of any representations which the council proposes to consider should be communicated to the applicant so that he may have an opportunity to comment. But this general principle is in my opinion sufficient to supplement sub-paragraph (16) and keep the scheme fair and workable.
9 As to the substance of the decision, both the judge and the Court of Appeal agreed that the council had acted fairly and properly exercised its powers under the Order. But they disagreed over whether the council had complied with the Human Rights Act 1998 . The Court of Appeal said that the council, in exercising its statutory powers, had not sufficiently taken into account the applicant's right to freedom of expression under article 10 of the Convention and its right to the peaceful enjoyment of its possessions under article 1 of the First Protocol .
10 I am prepared to assume, without deciding, that freedom of expression includes the right to use particular premises to distribute pornographic books, videos and other articles and, rather more doubtfully, that a person who is denied the right to use his premises as a sex shop is thereby "deprived of his possessions": compare, however, ISKCON v United Kingdom (1994) 18 EHRR CD 133 and In re UK Waste Management Ltd's Application for Judicial Review  NI 130 . But both of these rights are qualified. The right to freedom of expression may be subject to such restrictions as are necessary in a democratic society "for the prevention of disorder or crime, for the protection of health or morals, for the protection of the ... rights of others": article 10(2) . The right to enjoyment of possessions is subject to the right of the state to "control the *1425 use of property in accordance with the general interest": First Protocol, article 1(2) .
11 The Court of Appeal accepted that, in principle, the legislature was entitled to restrict both freedom of expression and the enjoyment of possessions by requiring that sex shops be licensed. The applicant has not argued the contrary. What it says is that, in exercising its judgment under article 12(3)(c) as to whether a sex shop was appropriate in the locality of Gresham Street, the council ought to have had regard to its obligation under section 6 of the 1998 Act to respect Convention rights. Although the requirement of a licence was a restriction which pursued a legitimate aim, the council should not, by its decision to refuse a licence, have interfered with the applicant's rights more than was necessary and proportionate for the achievement of that aim.
12 My Lords, I would not dissent from this proposition, although for the reasons I shall mention later, I find it difficult to imagine a case in which a proper exercise by the council of its powers under the Order could be a breach of an applicant's Convention rights. If, however, the Court of Appeal had considered that the refusal of a licence was in this case a disproportionate interference with the human right of the respondent to sell pornography in a place of its own choosing, it should have quashed the decision for that reason. I would have disagreed on the facts, but at least the judgment would have proceeded on orthodox grounds. But the Court of Appeal did not say that the applicant's human right to operate a sex shop in Gresham Street had been infringed. Instead, it said that its Convention rights had been violated by the way the council had arrived at its decision. In the reasons it gave, the council had not shown that it was conscious of the Convention rights which were engaged. The decision was therefore unlawful unless it was inevitable that a reasonable council which instructed itself properly about Convention rights would have reached the same decision.
13 This approach seems to me not only contrary to the reasoning in the recent decision of this House in R (SB) v Governors of Denbigh High School  1 AC 100 but quite impractical. What was the council supposed to have said? "We have thought very seriously about your Convention rights but we think that the appropriate number of sex shops in the locality is nil"? Or: "Taking into account article 10 and article 1 of the First Protocol and doing the best we can, we think that the appropriate number is nil"? Would it have been sufficient to say that they had taken Convention rights into account, or would they have had to specify the right ones? A construction of the 1998 Act which requires ordinary citizens in local government to produce such formulaic incantations would make it ridiculous. Either the refusal infringed the applicant's Convention rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the decision lawful. If it did not, it would not matter if the councillors had never heard of article 10 or the First Protocol .
14 In the Denbigh High School case , the Court of Appeal likewise quashed the decision of a school not to allow a pupil to wear a religious form of dress on the ground that it had arrived at its decision on grounds which did not sufficiently show consciousness of the pupil's Convention right to manifest her religion. As in this case, the Court of Appeal did not say that the school had actually infringed her Convention right to wear the dress. It demanded only that the school demonstrate a correct process of reasoning. Lord Bingham of Cornhill said, at pp 115-116:
"the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated. In considering the exercise of discretion by a national authority the court may consider whether the applicant had a fair opportunity to put his case, and to challenge an adverse decision, the aspect addressed by the court in the passage from its judgment in [ Chapman v United Kingdom (2001) 33 EHRR 399 ] quoted above. But the House has been referred to no case in which the Strasbourg court has found a violation of [a] Convention right on the strength of failure by a national authority to follow the sort of reasoning process laid down by the Court of Appeal. This pragmatic approach is fully reflected in the 1998 Act. The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7(1) only by a person who is a victim of an unlawful act."
15 As Lord Bingham noted, some Convention rights may have a procedural content; most obviously article 6 , but other rights as well. In such cases, a procedural impropriety may be a denial of a Convention right. Thus in Hatton v United Kingdom (2003) 37 EHRR 611 , an article 8 case, the European Court of Human Rights considered not only the effect on the applicant's private life but whether he had had a fair opportunity to put his case. In such cases, however, the question is still whether there has actually been a violation of the applicant's Convention rights and not whether the decision-maker properly considered the question of whether his rights would be violated or not.
16 The Court of Appeal, as I have said, did not decide whether refusal of a licence was a violation of the applicants's Convention rights or not. Weatherup J decided that it was not. I agree. If article 10 and article 1 of the First Protocol are engaged at all, they operate at a very low level. The right to vend pornography is not the most important right of free expression in a democratic society and the licensing system does not prohibit anyone from exercising it. It only prevents him from using unlicensed premises for that purpose. Even if the council considered that it was not appropriate to have a sex shop anywhere in Belfast, that would only have put its citizens in the same position as most of the rest of the country, in having to satisfy their demand for such products by internet or mail order or going to more liberally governed districts like Soho. This is an area of social control in which the Strasbourg court has always accorded a wide margin of appreciation to member states, which in terms of the domestic constitution translates into the broad power of judgment entrusted to local authorities by the legislature. If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights. That was not the case here and I would therefore allow the appeal and dismiss the application for judicial review.
BARONESS HALE OF RICHMOND: 37.....But this is not a case in which the legislation itself attempts to strike that balance. The legislation leaves it to the local authority to do so in each individual case. So the court has to decide whether the authority has violated the Convention rights. In doing so, it is bound to acknowledge that the local authority is much better placed than the court to decide whether the right of sex shop owners to sell pornographic literature and images should be restricted-for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights of others. But the views of the local authority are bound to carry less weight where the local authority has made no attempt to address that question. Had the Belfast City Council expressly set itself the task of balancing the rights of individuals to sell and buy pornographic literature and images against the interests of the wider community, a court would find it hard to upset the balance which the local authority had struck. But where there is no indication that this has been done, the court has no alternative but to strike the balance for itself, giving due weight to the judgments made by those who are in much closer touch with the people and the places involved than the court could ever be.
38 My Lords, there are far more important human rights in this world than the right to sell pornographic literature and images in the backstreets of Belfast city centre. Pornography comes well below celebrity gossip in the hierarchy of speech which deserves the protection of the law. Far too often it entails the sexual exploitation and degradation of women for the titillation of men. But there is always room for debate about what constitutes pornography. We can all think of wonderful works of literature which once were banned for their supposed immorality (my example would be The Well of Loneliness by Radclyffe Hall rather than Lady Chatterley's Lover , but the point is the same). No one is suggesting that pornographic literature and images (always supposing that it is lawful) should be inaccessible to those in Belfast who wish to gain access to them. The authors can publish their work in any other medium should they wish to do so, and the public can gain access to them there. Indeed, the city council has not, as far as we know, refused to license sex establishments elsewhere in the city. There were good reasons for refusing to license establishments in this street and even better ones for refusing this particular company a licence. The suggestion that this is a disproportionate limitation on the company's right to freedom of expression is to my mind completely untenable. The same applies, a fortiori, to the complaint under article 1 of the First Protocol .
39 For these reasons, and I believe in agreement with all of your Lordships, I would allow this appeal and restore the decision of Weatherup J.
Manchester City Council v Pinnock  UKSC 45,  2 AC 104
LORD NEUBERGER MR
52...... The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.
53 In this connection, it is right to refer to a point raised by the Secretary of State. He submitted that a local authority's aim in wanting possession should be a "given", which does not have to be explained or justified in court, so that the court will only be concerned with the occupiers' personal circumstances. In our view, there is indeed force in the point, which finds support in Lord Bingham's comment in Kay v Lambeth London Borough Council  2 AC 465 , 491, para 29, that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession-for example, that the property is the only occupied part of a site intended for immediate development for community housing. The authority could rely on that factor, but would have to plead it and adduce evidence to support it.
54 Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right-indeed the obligation-of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow London Borough Council v Qazi  1 AC 983 , 997, para 25:
"the administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification."
Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.
Second issue: the application of this conclusion in general
55 The conclusion that, before making an order for possession, the court must be able to decide not only that the order would be justified under domestic law, but also that it would be proportionate under article 8(2) to make the order, presents no difficulties of principle or practice in relation to secure tenancies. As explained above, no order for possession can be made *128 against a secure tenant unless, inter alia, it is reasonable to make the order. Any factor which has to be taken into account, or any dispute of fact which has to be resolved, for the purpose of assessing proportionality under article 8(2) , would have to be taken into account or resolved for the purpose of assessing reasonableness under section 84 of the 1985 Act. Reasonableness under that section, like proportionality under article 8(2) , requires the court to consider whether to order possession at all, and, if so, whether to make an outright order rather than a suspended order, and, if so, whether to direct that the outright order should not take effect for a significant time.
56 Moreover, reasonableness involves the trial judge "tak[ing] into account all the relevant circumstances ... in ... a broad common-sense way": Cumming v Danson  2 All ER 653 , 655, per Lord Greene MR. It therefore seems highly unlikely, as a practical matter, that it could be reasonable for a court to make an order for possession in circumstances in which it would be disproportionate to do so under article 8 .
57 ....[T]he court's obligation under article 8(2) , to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the county court.
60 [C]ertain general points can be made....
61 First, it is only where a person's "home" is under threat that article 8 comes into play, and there may be cases where it is open to argument whether the premises involved are the defendant's home (eg where very short-term accommodation has been provided). Secondly, as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier. Thirdly, if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.
62 Fourthly, if domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.
64 Sixthly, the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue "in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty", and that "the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases" seem to us well made.
Hirst v United Kingdom (2006) 42 EHRR 41
76 The Court recalls that the Chamber found that the measure lacked proportionality, essentially as it was an automatic blanket ban imposed on all convicted prisoners which was arbitrary in its effects and could no longer be said to serve the aim of punishing the applicant once his tariff (that period representing retribution and deterrence) had expired. *869
77 The Government have argued that the measure was proportionate, pointing out, inter alia, that it only affected some 48,000 prisoners (not the 70,000 stated in the Chamber judgment which omitted to take into account prisoners on remand who were no longer under any ban) and submitting that the ban was in fact restricted in its application as it affected only those convicted of crimes serious enough to warrant a custodial sentence and not including those detained on remand, for contempt of court or default in payment of fines. On the latter point, the Latvian Government have also placed emphasis on the fact that in Contracting States imprisonment was the last resort of criminal justice. The Court, first, does not regard the difference in numbers identified above to be decisive. The fact remains that it is a significant figure and it cannot be claimed that the bar is negligible in its effects. Secondly, while it is true that there are categories of detained persons unaffected by the bar, it nonetheless includes a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity. Further, the Court observes that, even in the case of offenders whose offences are sufficiently serious to attract an immediate custodial sentence, whether the offender is in fact deprived of the right to vote will depend on whether the sentencing judge imposes such a sentence or elects for some other form of disposal, such as a community sentence. In this regard, it may be noted that in sentencing the criminal courts in England and Wales make no reference to disenfranchisement and it is not apparent, beyond the fact that a court considered it appropriate to impose a sentence of imprisonment, that there is any direct link between the facts of any individual case and the removal of the right to vote.
78 The width of the margin of appreciation has been emphasised by the Government which argued that where the legislature and domestic courts have considered the matter and there is no clear consensus in Contracting States, it must be within the range of possible approaches to remove the vote from any person whose conduct was so serious as to merit imprisonment.
79 As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. It is true that the question was considered by the multi-party Speaker's Conference on Electoral Law in 1968 which unanimously recommended that a convicted prisoner should not be entitled to vote. It is also true that the Working Party, which recommended the amendment to the law to allow unconvicted prisoners to vote, recorded that successive Governments had taken the view that convicted prisoners had lost the moral authority to vote and did not therefore argue for a change in the legislation. It may perhaps be said that, by voting the way they did to exempt unconvicted prisoners from the restriction on voting, Parliament implicitly affirmed the need for continued restrictions on the voting rights of convicted prisoners. Nonetheless it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote.
80 It is also evident from the judgment of the Divisional Court that the nature of the restrictions, if any, to be imposed on the right of a convicted prisoner to vote was in general seen as a matter for Parliament and not for the national courts. The court did not therefore undertake any assessment of proportionality of the measure itself. It may also be noted that the court found support in the decision of the Federal Court of Appeal in Sauvé No.2 , which was later overturned by the Canadian Supreme Court.
81 As regards the existence or not of any consensus among Contracting States, the Court would note that, although there is some disagreement about the state of the law in certain states, it is undisputed that the United Kingdom is not alone among Convention countries in depriving all convicted prisoners of the right to vote. It may also be said that the law in the United Kingdom is less far-reaching than in certain other states. Not only are exceptions made for persons committed to prison for contempt of court or for default in paying fines, but unlike the position in some countries, the legal incapacity to vote is removed as soon as the person ceases to be detained. However the fact remains that it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is imposed or in which there is no provision allowing prisoners to vote. Even on the Government's own figures the number of such states does not exceed 13. Moreover, and even if no common European approach to the problem can be discerned, this cannot of itself be determinative of the issue.
82 Therefore, while the Court reiterates that the margin of appreciation is wide, it is not all-embracing. Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, s.3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Art.3 of Protocol No.1 .
Animal Defenders International v United Kingdom (2013) 57 EHRR 607
8 The applicant NGO campaigns against the use of animals in commerce, science and leisure, seeking to achieve changes in law and public policy and to influence public and parliamentary opinion to that end.
A. The prohibited TV advertisement
9 In 2005 the applicant began a campaign called "My Mate's a Primate" which was directed against the keeping and exhibition of primates and their use in TV advertising. As part of the campaign, the applicant wished to broadcast a 20-second TV advertisement. The proposed advertisement opened with an image of an animal's cage in which a girl in chains gradually emerged from the shadows. The screen then went blank and three messages were relayed in sequence: "A chimp has the mental age of a four year old"; "Although we share 98% of our genetic make-up they are still caged and abused to entertain us"; and "To find out more, and how you can help us to stop it, please order your £10 educational information pack". In the final shot, a chimpanzee was in the same position as that of the girl.
10 The proposed advertisement was submitted to the Broadcast Advertising Clearance Centre (the BACC) for a review of its compliance with relevant laws and codes. On 5 April 2005 the BACC declined to clear the advertisement. The objectives of the applicant were "wholly or mainly of a political nature", so that s.321(2) of the Communications Act 2003 (the 2003 Act) prohibited the broadcasting of the advertisement. This decision was confirmed on 6 May 2005. The advertisement could and can be viewed on the internet.
(b) Preliminary remarks
106...[T]he present parties accepted that political advertising could be regulated by a general measure and they disagreed only on the breadth of the general measure chosen. It is recalled that a state can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases. Contrary to the applicant's submission, a general measure is to be distinguished from a prior restraint imposed on an individual act of expression.
107 The necessity for a general measure has been examined by the Court in a variety of contexts such as economic and social policy and welfare and pensions. It has also been examined in the context of electoral laws; prisoner voting; artificial insemination for prisoners ; the destruction of frozen embryos ; and assisted suicide; as well as in the context of a prohibition on religious advertising.
108 It emerges from that case-law that, in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it. The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation. It is also relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the state to assess. A general measure has been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty, of litigation, expense and delay as well as of discrimination and arbitrariness. The application of the general measure to the facts of the case remains, however, illustrative of its impact in practice and is thus material to its proportionality.
110 The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the state could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it.
111 ...[I]t is relevant to recall that there is a wealth of historical, cultural and political differences within Europe, so that it is for each state to mould its own democratic vision. By reason of their direct and continuous contact with the vital forces of their countries, their societies and their needs, the legislative and judicial authorities are best placed to assess the particular difficulties in safeguarding the democratic order in their state. The state must therefore be accorded some discretion as regards this country-specific and complex assessment which is of central relevance to the legislative choices at issue in the present case.
113 Turning therefore to the proportionality of this general measure, the Court has, in the first place, examined the national parliamentary and judicial reviews of its necessity: which reviews are, for the reasons outlined at - above, of central importance to the present case.
114 Although the prohibition had been an integral part of broadcasting in the United Kingdom since the 1950s, its necessity was specifically reviewed and confirmed by the Neill Committee in its report of 1998. A White Paper with a proposed prohibition was therefore published for comment. It was at this point (2001) that the above cited VgT judgment was delivered and all later stages of the pre-legislative review examined in detail the impact of this judgment on the Convention compatibility of the proposed prohibition. Following the White Paper consultation, in 2002 a draft Bill was published with a detailed Explanatory Note which dealt with the implications of the VgT judgment. All later specialist bodies consulted on that Bill were in favour, for reasons set out in detail above, f maintaining the prohibition: considering that, even after the VgT judgment, it was a proportionate general measure. The Government, through the DCMS, 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. 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 art.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. 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 abovecited 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 art.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.
124 Finally, the Court does not consider that the impact of the prohibition in the present case outweighs the above-described convincing justifications for the general measure.
The Court notes, in this respect, the other media which remain open to the present applicant, and it recalls that access to alternative media is key to the proportionality of a restriction on access to other potentially useful media. In particular, it remains open to the applicant NGO to participate in radio or TV discussion programmes of a political nature (i.e. broadcasts other than paid advertisements). It can also advertise on radio and television on a non-political matter if it sets up a charitable arm to do so and it has not been demonstrated that the costs of this are prohibitive. Importantly, the applicant has full access for its advertisement to non-broadcasting media including the print media and the internet (including social media), as well as to demonstrations, posters and flyers. Even if it has not been shown that the internet, with its social media, is more influential than the broadcast media in the respondent State, those new media remain powerful communication tools which can be of significant assistance to the applicant NGO in achieving its own objectives.
125 Accordingly, the Court considers the reasons adduced by the authorities, to justify the prohibition of the applicant's advertisement to be relevant and sufficient. The prohibition cannot therefore be considered to amount to a disproportionate interference with the applicant's right to freedom of expression. The Court concludes therefore that there has been no violation of art.10 of the Convention.