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The advertisement was entirely inoffensive, but consistent with the claimant’s aims. It was accepted that the secretary of state was the appropriate defendant to the claimant’s judicial review proceedings.

Section 321 provided: “(2) For the purposes of section 319(2)(g), an advertisement contravenes the prohibition on political advertising if it is - (a) ... inserted by ... a body whose objects are ... of a political nature; (b) an advertisement which is directed towards a political end... “(3) ... objects of a political nature and political ends include ... (a) influencing the outcome of elections ... (b) bringing about changes of the law...” In enacting the 2003 Act, Parliament had paid close attention to the important decision of the European Court of Human Rights in Verein gegen Tierfabriken v Switzerland (VgT) (Application No 24699/94) ((2001) 34 EHRR 159), the facts in which were very similar to those of the present case.

The secretary of state had felt unable to make a statement under section 19(1)(a) of the 1998 Act that in her view the provisions of the Bill were compatible with Convention rights, but had made a statement under section 19(1)(b) that the Government none the less wished the House of Commons to proceed with the Bill.

Its position was that it believed that the ban on political advertising in sections 319 and 321 was compatible with article 10, but because of the decision in VgT it could not be sure.

It was accepted that sections 319 and 321 constituted an interference with the claimant’s exercise of its right to free expression and that article 10 was engaged.

It was accepted that that was a restriction prescribed by law and that it had the legitimate aim of protecting the rights of others, namely their democratic rights.

The only issue was whether it was necessary in a democratic society. It was accepted that for a restriction to be necessary there had to be a pressing social need for it.

It was highly desirable in the democratic process that the playing field of debate should be so far as practicable level. It was the duty of broadcasters to achieve that impartially by presenting balanced programmes in which all lawful views might be ventilated.

It was not achieved if well-endowed interests were able to use the power of the purse to give enhanced prominence to their views.

The rights of others that a restriction on the exercise of the right to free expression might properly be designed to protect must include a right to be protected against the potential mischief of partial political advertising. The full strength of that argument had not been deployed in VgT. Parliament had been entitled to regard the risk of such advertisements as a real danger.

The answer to why there was a pressing social need for a blanket prohibition of political advertising on television and radio when no such prohibition applied to the press, the cinema and other media was to be found in the greater immediacy and impact of television and radio advertising.

Parliament had been entitled to accept the Government’s judgment that no fair and workable compromise solution could be found and that no restriction less absolute than that in sections 319 and 321 would suffice to meet the mischief in question. The ban was necessary in a democratic society and compatible with the Convention.

Lord Scott and Lady Hale delivered opinions agreeing that the appeal should be dismissed for the reasons given by Lord Bingham. Lord Carswell and Lord Neuberger agreed with Lord Bingham.

Solicitors: Bindman & Partners; Treasury Solicitor.

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