The ASA and judicial review

There have been updates in the tale of Cranmer and the Advertising Standards Authority, (ASA)  where Brer ASA punches the tar baby Cranmer for not raising its hat to him, only to find that he gets stuck in a worse mess than being offended.

It is not clear why the ASA decided to have this fight which is a political one disguised as being about an advert.  What little authority the ASA has has arises from the willingness of advertisers to accept its rulings rather than risk having a statutory body created. It is industry-funded which is better than taxpayer-funded.  There are plenty of firms who just ignore the rulings; presumably they are not worried about whether the ASA can lean on publishers or search engines to restrict access to their material. Here is a list of them.

The eminent blogger Guido Fawkes says this in a comment to Cranmer:

The reason I ignore them is because they have no power. No statutory basis. They are a self-appointed, self-regulatory organisation ............. no different from the green ink loonies who write to me every day apart from the fact that they have a letterhead.

 Which prompts the question:

If judicial review is the process for reviewing the decision-making process of  public and quasi-public bodies, is the ASA the sort of organisation which can be taken to judicial review?

There has been at least one judicial review which by the very act of being heard bolsters the view that the ASA is a quasi-public body doing public work and, besides, people keep responding to the ASA as if it had Authority. 

In an earlier case the ASA investigated whether quoting passages from the bible can be an advert which causes offence and concluded that they were and should not be used again. Instead of pointing out that ASA is not the first body in history to have suggested that Christians can't say what they are going to say whether you like it or not, the Sandown Free Presbyterian Church (SFPC) took the ASA to judicial review. (This was a Northern Ireland case).

Mr Justice Treacy found for the Sandown Free Presbyterian Church:

Mr Justice Treacy accepted that there had clearly been an interference with the applicants’ right to freedom of expression [Art 10] since the effect of the ASA’s decision was to prevent the applicant advertising in similar terms in the future.  

He accepted, however, that the ASA had a legitimate aim of maintaining a system of self regulation in the advertising industry which provides adequate controls against the publication of material that would cause widespread or serious offence, including offence that interferes with the rights of readers of a particular sexual orientation to respect for their dignity and private life. 

 (Summary of judgment here.   Full judgment here.)

Mr Justice Treacy appears to have accepted that the ASA is a quasi-public body doing public work.  The ASA aren't about to contradict him. They engaged the experienced  Dinah Rose of Blackstone Chambers and she doesn't appear to have argued for dismissal on the grounds that the claimant could not bring her client to judicial review. That would have been to argue that the ASA has no legal standing and isn't a quasi-public body.

The Sandown Free Presbyterian church brought the case for its own purposes so it didn't ask that prior question. The reviewer of the case - because there were internal challenges first - also thought the ASA had authority.

I consider that the ASA has a duty to weigh up the arguments and counter-arguments and decide whether the advertisement has, or is likely to have, caused serious or widespread offence. That decision must be taken with due regard to the context, medium, audience, product and prevailing standards of decency.

My emphasis on "duty".  Does it have a duty?  It certainly can give whatever opinions it likes, but then so can any club on the behaviour of its members.

In paragraph 53 the court makes explicit its belief about the status of the ASA;

1. Moreover, seriously offensive advertising attacking a particular sexual orientation may interfere with the right to dignity, and the right to respect for his or her private life, of the reader of the advertisement. This right is itself protected under Art.8 of the Convention, and the ASA, as a public authority, has a positive obligation to protect that right.

By paragraph 66 the judgment implicitly accepts the ASA as an emanation of the state even though it is in the form of a private company, industry-funded and cannot compel compliance. In paragraph 73 he considers that although this isn't an example, there could be instances where the ASA would be entitled to order the church "You can't say that".

But surely that depends on establishing whether the ASA have any power to order anybody around who doesn't want to be?  Making an assumption doesn't deal with the prior legal question: can the ASA be brought to judicial review?  

This is not the first time the question has been raised since governments began to set up private agencies to do quasi-public work.  In 1987 that question was asked about the Panel on Takeovers and Mergers. The discussion involved looking at the reality of regulatory power being distributed in a world which was changing.

There is no hard-and-fast rule about this; the court reserved the right to decide to hear a case because nobody can foresee exactly how administrative structures will be in the future.  However, strong guidelines emerged for when a body's decisions can be reviewed: (note: my summary, not definitive)

- the body has to be producing effects in public law

- the body does not need to have statutory support but it ought to be able to point to something official from which it emanates, although that might be a convoluted route as a result of other acts which does not set it up directly.

- the body's rulings cannot be ignored, that is, if it has enforcement power such that when it gives a ruling, it is only fair that it should be reviewable by the courts.

Not all of these have to be in place to bring a case. Their Lordships tried to differentiate an argument between members in a private club with situations where that club has public law effects.

Applying that to the present example, the first is arguable. The ASA has some effect on advertisers but would you call that public law? It involves cutting off the access to revenue by telling publications not to accept advertising, which is definitely an exercise of real power.

The second is also arguable. The ASA keeps saying the government recognizes it but do they have a duty to undertake investigations.  What power compels them to do an investigation when they are unwilling?

But, as Guido Fawkes demonstrated at the very beginning, the third ground is the weakest. If you have a choice whether to take any notice of them, at least in certain media, then how are they a tribunal or a public body?

If  the ASA is not a public body because it cannot enforce its rulings, why is it being taken to judicial review?

If the ASA is a public body, can the Freedom on Information Act be used to prise open its secret complaints procedure?