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Regulating Religious Broadcasting
Published online by Cambridge University Press: 20 October 2008
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The broadcasting world is currently undergoing a revolution. The new technologies of cable and, more importantly, satellite broadcasting have brought within reach an enormous potential expansion and diversity in broadcasting. The Broadcasting Act 1990 is the government's response to the challenge, creating a mostly new regulatory framework. Alongside technological advance there has been a growing concern with regulating programme quality, as the creation of the Broadcasting Standards Commission (placed by Pt. V of the Act on a statutory footing) bears witness. A minor, but not insignificant, place in these cross-currents of ferment is occupied by religious broadcasting. This article seeks to place the controls and duties relating to religious broadcasting under the new regime within the context of its history in the UK and to consider the extent to which the new legal and administrative controls achieve an acceptable balance between religious expression and control of standards.
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- Copyright © Ecclesiastical Law Society 1992
References
1. On broadcasting, the law and censorship generally see: Robertson, G., Freedom, the Individual and the Law, (Penguin, 6th ed., 1989), ch. 6Google Scholar; Munro, C., Television, Censorship and the Law, (Saxon House, 1979)Google Scholar; Gibbons, T., Regulating the Media, (Sweet and Maxwell, 1991).Google Scholar
2. The British Broadcasting Company was formed in 1922 and became the present Corporation in 1927 on the recommendation of a committee of inquiry: Report of the Broadcasting Committee, Cmnd. 2599 (1925).Google Scholar
3. See British Broadcasting Corp. v John [1965] Ch. 32.Google Scholar The text of the BBC's Charter and Licence may be found respectively in Cmnd. 8313 and Cmnd. 8233.
4. The sole attempt at government interference in religious broadcasting occurred when a direction was given to the BBC by the Home Secretary in 1927 following the General Strike under the terms of its licence. This direction required it not to broadcast matters of political, industrial or religious controversy; however, the direction was withdrawn in 1928: Report of the Committee on the Future of Broadcasting, Cmnd. 6783 (1977), para. 5.10.Google Scholar
5. The statutory history of the Independent Broadcasting Authority (under the name of the Independent Television Authority) begins with the Television Act 1954, runs through the Television Act 1964, the Independent Broadcasting Authority Act 1973 and Broadcasting Act 1981 and ends with the 1990 Act. Whereas the IBA was responsible for the provision of broadcasting (achieved in practice through the award of contracts to regional companies), the ITC under the 1990 Act is to license service provision in conventional television, cable and satellite TV. For discussion prior to the passing of the Act see: Boyle, Alan E., ‘Do Broadcasters Need Free Speech?’, in Kingsford-Smith, D. and Oliver, D. (eds), Economical with the Truth: The Law and Media in a Democratic Society, (ESC, 1990).Google Scholar
6. See e.g. Television Act 1964, s. 1(4).
7. See e.g. Television Act 1964, s.3(1)(b).
8. Television Act 1954, Schedule 2, para. 6.
9. Television Act 1954, s.3(4).
10. Ibid.,, s.8(2)(a).
11. See Television Act 1964, s.9(2), Independent Broadcasting Authority Act 1973, S.10(2), Broadcasting Act 1981, s.4(5)(a).
12. See generally: Wolfe, K. M., The Churches and the British Broadcasting Corporation 1922–1956, (SCM, 1984).Google Scholar
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14. CRAC does not, though, meet both corporations simultaneously: consecutive meetings are held on the same occasion with each (see the account by its Chairman, the Bishop of Liverpool, H. L. Debs., vol. 521, cols. 46ff. (9 July 1990)). A further example of the public service attitude to religious broadcasting lies in the practice (abandoned only comparatively recently amid protests from CRAC) of a ‘closed period’ on Sundays when the two main channels would programme their religious programmes opposite each other. This practice was designed to guarantee a minimum audience by restricting other viewer choices. Religion is not the only area to have benefitted from such arrangements. Similar practices have been adopted over current affairs.
15. Independent Television Authority, Religion in Television, (1964), p. 7Google Scholar; Gibbons, op. cit., p. 177.
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20. Cmnd. 6573 (1977); for discussion see Munro and Sullivan, (1977) 40 M.L.R. 460.
21. As late as 1973 the General Advisory Council of the BBC claimed that the Corporation was affected by a Christian ethos not only in the predominance of Christianity in its religious broadcasting but also in relation to its non-religious output: Tastes and Standards in BBC Programmes: A Study by the BBC for its General Advisory Council (BBC, 1973), p. 4.Google Scholar
22. But see the text to note 45 below.
23. Education Reform Act 1988, ss. 7(1) and 84(2). See further Harte, J. D. C., ‘The Religious Dimension of the Education Reform Act 1988’, (1989) 1 Ecc. L. J. (5) 32.Google Scholar
24. And see note 41 below.
25. As epitomised in ‘Punters’ on BBC radio, ‘Comment’ on Channel 4 and ‘Brass Tracks’ on BBC2; and see Gibbons, op. cit., pp. 117–120. Italian law has recognised a right of access to television broadcasting for religious groups: Barendt, E., ‘The Influence of German and Italian Constitutional Courts on their National Broadcasting Systems’, [1991] P. L. 93, 109.Google Scholar
26. Broadcasting Act 1990, s.6(4).
27. Broadcasting Act 1990, s.8(2).
28. Broadcasting Act 1990, ss.6(1)(c),(3),(5)and(6).
29. Broadcasting Act 1990, s.36.
30. The Federal Communications Commission used its rule-making power to create a requirement for public service programmes through its fairness doctrine, which was initially upheld by the Supreme Court in Red Lion Broadcasting Co. v. FCC 395 U.S. 367 (1969). However, later Supreme Court decisions have retrenched from this position resulting in the repeal by the FCC of the fairness doctrine; see Boyle, op. cit., p.64. On the consequences of the FCC's policies for religious broadcasting see: Lacey, Lynda Jo, ‘The Electric Church: An FCC-‘Established’ Institution?’, (1979) 31 Federal Communications Law Journal 235–275.Google Scholar
31. For general accounts see: Hoover, S., Mass Media Religion: the Social Sources of the Electronic Church, (Sage, 1988)Google Scholar, chs. 3 and 4; Armstrong, Ben, The Electric Church, (Thomas Nelson, 1979)Google Scholar; Hadden, Jeffrey K. and Swann, Charles E., Prime Time Preachers, (Mass.: Addison Wesley, 1981).Google Scholar
32. See Alley, Robert S., ‘The Television Church’in Rose, B. G. (ed.) TV Genres, (Greenwood, 1985).Google Scholar
33. Commons' consideration of Lords' amendments: H. C. Debs., vol. 178, col. 601 (25 July 1990).
34. See Broadcasting Act 1981, ss. 10–13.
35. See 1990 Act, s. 17.
36. The ITC considered franchises for Channel 3 in October 1991.
37. Debs, H. C., vol 172, col. 291 (8 May 1990)Google Scholar; and see the Minister's remarks in Standing Committee F, Debs, H. C.., 6 February 1990, col. 643.Google Scholar
38. S.16(2)(e).
39. S.25.
40. Ss.29 and 28(3). Presumably this would allow the ITC to relieve the ‘must carry’ requirement for religious broadcasts in the case of the holder of a weekday only licence.
41. The Earl of Halsbury introduced an amendment at the Committee stage that ‘the quality hurdle’ should include a requirement for religious broadcasting which had ‘respect to the immemorial Christian traditions in Britain’: H. L. Debs., vol. 521, col. 958. At the Report stage he introduced an amendment that religious programmes should ‘maintain the centrality of the Christian faith, while still allowing opportunities for the views of other religious groups to be expressed’: Debs, H. L., vol. 522, col. 244 ff. (9 October 1990)Google Scholar . Both amendments were withdrawn.
42. See Standing Committee F, Debs, H. C.., 25 January 1990, cols. 322–324Google Scholar; amendments were introduced at the Report stage: Debs, H. C.., vol. 172, col. 158 (8 May 1990).Google Scholar
43. Although a group including evangelical Christians did bid fora regional television franchise in 1980.
44. Report of the Inquiry into Cable Expansion and Broadcasting, Cmnd. 8679 (1982).Google Scholar
45. See Veljanovski, C., ‘Cable Television: Agency Franchising and Economics’ in Baldwin, R. and McCrudden, C., Regulation and Public Law, (Weidenfeld and Nicolson, 1987).Google Scholar
46. See e.g. the comments of Earl Ferrers at the House of Lords' Committee stage: Debs, H. L.., vol. 521, col. 70 (9 July 1990).Google Scholar
47. It might be thought that non-commercial broadcasting would be free to break away from this pattern; however the BBC has been equally pre-occupied with capturing a market share of viewers, if for the slightly different reason that it needs mass audiences in order to justify continuing public funding. See Veljanovski, op. cit., pp. 277–278.
48. Sched. 2, Part 2,. para. 2(3).
49. ITC Religious Ownership Guidelines; Guidance To Religious Bodies of Persons (As Defined in Part II of Schedule 2 of the Broadcasting Act 1990) Who Wish to Apply To Hold A Radio Authority Licence Which Is Not a National Licence.
50. Michael Alison, M.P. (and Second Church Commissioner) introduced an unsuccessful amendment designed to free designated Christian broadcasters from ‘no editorialising’ restraints in exchange for other limitations including that they would carry predominantly European material and abstain from broadcasting appeals for donations: Debs, H. C.., vol. 172, cols. 154ff. (8 May 1990)Google Scholar
51. Religious broadcasters are not the only group singled out for licence disqualifications; prohibitions also operate against non-EC Nationals: Sched. 2, Part 2, para. 1. These were widely believed to have been introduced to prevent further market domination by Murdoch-owned companies but they will have the incidental effect of preventing United States Christian broadcasters such as the Christian Broadcasting Corporation from holding licences. The provisions would not appear, however, to prevent companies whose shares were owned on trust by European trustees for American beneficiaries (and in effect financial backers) from holding licences. This expedient is under consideration in at least one instance known to the author.
52. See notes 31 and 32 above.
53. See Hoover, op. cit., pp. 61–62.
54. Sched. 2, para. 6. (The prohibition was re-enacted in the Independent Broadcasting Authority Act 1973 and the Broadcasting Act 1981.)
55. Debs, H. L.., vol. 521, cols. 401 ff. (11 July 1990).Google Scholar
56. Ibid.,, cols. 408–409 (Earl Ferrers).
57. See section 9.
58. S.93.
59. Ss. 7(1)(b) and 91(1)(b) respectively.
60. Section 9.1.
61. Section 6.2.
62. Section 6.3. However it is submitted that this is in a different category to appealing for funds to make other programmes as is commonly the case in the United States.
63. 1990 Act, sections 1 and 2 and Schedule 1.
64. Ss. 83 and 84.
65. The equivalent provision for the Radio Authority (s.85) requires it to promote diversity of national services including at least one channel comprising mainly spoken material and another wholly or mainly of music ‘which in the opinion of the Authority, is not pop music’. There is an analogy in the effect of these subsections with the Race Relations Act 1976, s. 71 which imposes a general duty on local authorities in the discharge of their other functions to promote good race relations and equality of opportunity; this duty has been given a wide but not unlimited interpretation by the courts: see Wheeler v Leicester City Council [1985] A.C. 1054Google Scholar and R v London Borough of Lewisham ex p. Shell [1988] 1 A11 E.R. 938.Google Scholar
66. Cm. 517, November 1988.
67. Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374.Google Scholar
68. Padfield v MAFF [1968] A.C. 997.Google Scholar
69. In this context the following are relevant:
(1) A licence may include
(a) such conditions as appear to the Commission to be appropriate having regard to any duties which are or may be imposed on them, or on the licence holder, by or under this Act;
… (d) conditions providing for such incidental and supplemental matters as appear to the Commission to be appropriate.
(2) A licence may in particular include conditions requiring the licence holder –
(a) to comply with any direction given by the Commission as to such matters as are specified in the licence or are of a description so specified; or
(b) (except to the extent that the commission consent to his doing or not doing them) not to do or to do such things as are specified in the licence or are of a description so specified.
(6) Nothing in this Act which authorises or requires the inclusion in a licence of conditions relating to any particular matter or having effect for any particular purpose shall be taken as derogating from the generality of subsection(1).
70. S.7(1).
71. Notably S.6(3), which deals with a code on political impartiality, and S.9, which deals with advertising.
72. Cf. De Falco v Crawley Borough Council [1980] Q.B. 460.Google Scholar
73. Debs, H. L.., vol. 521, cols. 69 and 391 (11 July 1990).Google Scholar
74. Debs, H. C.., vol. 172, col. 158 (8 May 1990).Google Scholar
75. Channel 3 licence condition 7(1)(d).
76. Debs, H. C.., vol. 172, col. 416 (10 May 1990).Google Scholar
77. Contrast for instance the quite detailed provisions on political balance in subsections 6(3)-(6).
78. Baldwin, R. and Houghton, J., ‘Circular Arguments: the Status and Legitimacy of Administrative Rules’, [1986] P. L. 239Google Scholar; Granz, G., Quasi-Legislation (London: Sweet and Maxwell, 1987), esp. chs. 1–3.Google Scholar
79. Even before the Bill was given the Royal Assent peers and M.P.s were expressing concern that the then draft programme code had been drafted so as to undermine the statutory scheme: H. L. Debs., vol. 522, col. 1215 (Earl of Halsbury), cols. 1218–1219 (Lord Ashbourne) and cols. 1221–1222 where Viscount Buckmaster complained of ‘… a handful of religious advisers trying to overrule the clear wishes of the Government and of both Houses of Parliament with regard to religious broadcasting as contained in the Bill.’; see also Debs, H. C.., vol. 178, cols. 596–597 (25 October 1990).Google Scholar
80. See Laker Airways v Dept. of Trade [1977] A.C. 234.Google Scholar
81. As was the case in Laker.
82. The Minister of State refused to intervene in the making of the ITC code but referred instead to the availability of judicial review to keep the Commission within its statutory jurisdiction: Debs, H. C.., vol. 178, cols. 602–603 (25 October 1990).Google Scholar
83. para. 10.3.
84. Debs, H. C.., vol. 172, col. 158 (8 May 1990).Google Scholar
85. The ITC has already taken informal action relying on the religious programmes provisions in the programme code in one instance: the broadcast on a satellite television channel of a programme involving Morris Cerrulo of World Evangelism featuring healing (see The Times, 8 August 1991Google Scholar; Daily Telegraph, 8 August 1991Google Scholar). Programmes were withdrawn by the channel following receipt of a letter from the ITC drawing attention to possible infringements of the programme code. As this instance demonstrates at the very least the imposition of the code is likely to mean that programmes prepared initially for viewing by American audiences will require considerable editing before screening for British audiences.
86. see note 76 above.
87. This may be inferred from a reference to the subsection in paragraph 10.1 of the Code, which seems to suggest the ITC's view is that the religious programme provisions of the programme code will change in status when the subsection becomes applicable to ITV, Channel 4 and DBS in 1993.
88. S.6(3).
89. S.7(1)(a).
90. S.7(1)(b).
91. S.90(2)(c).
92. See text to notes 70–72 above.
93. Broadcasting Act 1981, s.5.
94. European Treaty Series No. 132. The European Covention on Human Rights may also be relevant; however, Art. 10 (protecting freedom of expression) expressly permits licensing of national television systems.
95. Directive 298/23, Official Journal of the European Communities, October 17, 1989.Google Scholar
96. Directive, Art. 3; Convention, Art. 28. See Reville, N., Broadcasting – The New Law (Butterworths, 1991), pp. 7–9.Google Scholar
97. Attorney-General v Guardian Newspapers (No. 1) [1987] 1Google Scholar W.L.R. 1248; Attorney-General v Guardian Newspapers (No. 2) [1988] 3 W.L.R. 776.Google Scholar
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