JOINT PARTLY DISSENTING OPINION OF JUDGES LOIZOU, BAKA AND JAMBREK

1. We agree with the rejection by the Court of the Government’s preliminary objection that the applicant is not a victim of a violation of the Convention (see paragraph 29 of the judgment).

2. We do not, however, find it possible to agree with the conclusion reached by the majority that there has been a violation of the applicant’s right to freedom of expression in that the restriction imposed upon her by section 75(1) and (5) of the Representation of the People Act 1983 (“the 1983 Act”) was disproportionate to the aim pursued.

3. Under section 75(1) of the 1983 Act, any expenditure incurred to promote the election of a candidate by any person other than the candidate or his agent that exceeds the amount of five pounds sterling (GBP 5) is prohibited, if incurred in relation to the election of a particular candidate in a particular constituency. The 1983 Act does not prohibit a political party or an individual or organisation from spending money on publicity in support of or opposition to a political party or a movement generally, at a national or regional level, provided that there is no intention to promote or prejudice the electoral chances of any particular candidate in any particular constituency. Nor are there any restrictions on private donations to political parties or on the powers of the press to support or oppose the election of any particular candidate. The limitation imposed by section 75 relates only to the promotion of candidates not to the promotion of causes (see paragraphs 19 ‑ 22 of the judgment).

4. As found by the Court, the aforementioned limitation on expenditure is only one of many detailed checks and balances which make up United Kingdom electoral law. In that context the Court examined the right to free elections protected by Article 3 of Protocol No. 1 to the Convention. The Court indicated that freedom of expression and free elections, particularly freedom of political debate, together form the bedrock of any democratic system and that the two rights are inter-related and operate to reinforce each other. It also recognised that, in striking the balance between these two rights the Contracting States have a margin of appreciation, as they do generally with regard to the organisation of their electoral systems. We fully subscribe to this analysis by the Court (see paragraphs 41–43 of the judgment).

5. There can be no doubt that limits on election campaign spending maintain equality of arms as between candidates, a most important principle in democratic societies and in the electoral process. Once the 1983 Act, by its section 76, imposes limits on the spending of candidates so that wealthy candidates will not have an unfair advantage, then there must be

limits on others, such as wealthy supporters or action groups, from spending money for the benefit of one candidate or in order to prevent the election of another, as adverse publicity against a candidate might go unanswered on account of the limit on the amount of money a candidate is allowed to spend (see paragraph 18 of the judgment).

6. The philosophy behind the limit imposed by section 75 is, inter alia , to safeguard candidates against manipulation by pressure groups. The limit in question is a narrow one and does not amount to a general impediment on the expression of views by single-issue groups as there are several alternative methods of expressing their views and convictions on any particular issue. They can distribute leaflets with the purpose of informing the electorate as long as they do not promote or oppose any particular candidate. This restriction, which falls within the State’s margin of appreciation, has to be seen as part of an overall balanced democratic electoral system.

7. The Commission found (paragraph 39 of its report) that section 75 “may … be considered as pursuing the legitimate aim of protecting the rights of others, namely, the candidates and the electors in a particular constituency”. The Court found it clear that the purpose of section 75, particularly taken in the context of the other detailed provisions on election expenditure in the 1983 Act, is to contribute towards securing equality between candidates. It therefore concluded, as did the Commission, that the application of this law to Mrs Bowman pursued the legitimate aim of protecting the rights of others, namely the candidates for election and the electorate in Halifax and, to the extent that the prosecution was intended to have a deterrent effect, elsewhere in the United Kingdom (see paragraph 38 of the judgment). We are in agreement with this conclusion.

8. Our disagreement is limited to the finding of the Court in paragraph 47 that section 75 operated, for all practical purposes, as a total barrier to Mrs Bowman’s publishing information with a view to influencing the voters in Halifax in favour of an anti-abortion candidate. We also disagree with its finding that it was not satisfied that it was necessary to limit the expenditure of the applicant to GBP 5 in order to achieve the legitimate aim of securing equality between candidates, particularly in view of the fact that there were no restrictions placed upon the freedom of the press to support or oppose the election of any particular candidate or upon political parties and their supporters to advertise at national or regional level, provided such advertisements were not intended to promote or prejudice the electoral prospects of any particular candidate in any particular constituency. Hence our disagreement with the conclusion of the Court that the restriction in question was disproportionate to the aim pursued and that this constituted a violation of Article 10 of the Convention.

9. In our view, section 75, examined in the context of all the provisions of the Act, cannot be considered as a total barrier to Mrs Bowman’s publishing information on the issues she wished to raise. As indicated above, there exist several other ways of expressing one’s convictions and bringing them to the attention of the electorate without promoting or opposing any particular candidate in a particular constituency. The restriction, which has to be viewed in the light of the totality of the electoral system which is based on constituency representation, was a partial one and moreover limited in time to the four to six week pre-election period.

10. The States Parties to the Convention have a margin of appreciation in assessing the necessity of an interference and the task of the Court is confined to looking at the interference complained of in the light of the case as a whole and determining whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 29, § 50; the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 26, § 52; and the Goodwin v. the United Kingdom judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, pp. 500–01, § 40).

11. For all the above reasons, we have come to the conclusion that there has been no violation of Article 10 of the Convention. The restriction imposed by section 75 of the Act is proportionate to, and no more extensive than necessary in a democratic society to achieve, the legitimate aim that has been identified by the Court, and it falls within the margin of appreciation of the United Kingdom.

12. In particular, we have reached this conclusion because the restriction in question is part of an overall democratic electoral system with checks and balances that aim at preventing evasion of the maximum limits of expenditure. It offers equality of arms as between candidates; it protects candidates from manipulation by pressure groups – hence the preference of such groups for action in constituencies with marginal results – and safeguards their independence; it does not prohibit the spending of money for the promotion of a cause if done without the intention of promoting the interests, or harming the prospects, of a particular candidate; it counterbalances the limit imposed on candidates; it is limited in terms of time. To our minds the aforesaid reasons adduced by the respondent Government to justify the restriction in question are “relevant and sufficient”.