Advertising Standards Authority

Lord Lipsey Excerpts

Thursday 29th October 2015 Lords Chamber

[Lord Lipsey (Lab)]

My Lords, this is a very welcome debate tabled by the noble Baroness, Lady Deech. In Britain, we spend much too much time denigrating the things that we do badly and too little time advertising the things that we do well. Advertising regulation, I shall argue this afternoon, is a jewel in our crown. Therefore, I welcome the opportunity to deal with some—unfortunately there is such a lot so I cannot deal with all of it—of the well-meaning, but in my view utterly misplaced, criticism of the Advertising Standards Authority and its governance, as advanced by the noble Baroness.

I, too, have been a regulator, but in this matter I am a gamekeeper turned poacher. I was a member of the council of the ASA for six years, first under my noble friend Lord Borrie and then under the noble Lord, Lord Smith. Since then, I have been a serial complainer against ads that seem to me to offend against the code. Indeed, I was told a while ago that I was in the top 10 complainers in Britain, and I expect to take the gold medal before too long.

This role of complainer gives me some sympathy with the noble Baroness. I reckon that I have a hit rate of about 90% with my complaints—that is not surprising, because I know from my experience on the council what is likely to win. However, it is a very bruising experience to lose, when the arguments against an ad which the complainer finds so compelling are rejected by the council in its wisdom. Therefore, I quite understand why the noble Baroness is injured still by the fate of her complaint against the ad concerning Medical Aid for Palestinians, given that only four of the 22 complaints she made were ultimately upheld. We know how deeply that must have bit, because as recently as 2012, in a lecture at Gresham College, the noble Baroness said that,

“the Advertising Standards Authority seems to work well as a self regulator”.

What has changed since then is on the record. Noble Lords know that they should not cross the noble Baroness lightly, and she has since mounted a sustained campaign against the governance of the ASA.

I understand that the noble Baroness has circulated to some noble Lords an 18-point charge sheet against the ASA. I expect that the noble Baroness, thoughtful as ever, did not send it to me because she did not want me to splutter into my cornflakes.

I do not have time to deal with all 18 points, but I focus instead on the points made by the noble Baroness when she asked a Parliamentary Question on the subject on 29 June this year, and which she repeated in her speech this afternoon. She said:

“There is no obligation to share material with both sides. The authority sometimes fails to seek expertise and evidence when necessary, fails to give adequate reasons for its judgments, fails to follow precedents”.—[Official Report, 29/6/15; col. 1804.]

I do not want to be unfair, but to me, there is a smell to those arguments: that of a lawyer trying to find lawyerly solutions to problems that she has perceived. The noble Baroness is taking a process that is designed for a lay person to use and seeking to turn it into a quasi-legal system. I shall explain why that seems to me to be a gross mistake.

Let me deal in turn with the points she made in the PQ. There is no obligation to share material. Instead, the ASA executive provides a concise summary of the points made by each side, checks with both sides before the matter goes to council that they do not feel misrepresented, and, often, corrects its summary. That way, one does not have to go through huge piles of papers to find out what the argument is about. That is not legality at work, but common sense.

The noble Baroness said that the authority fails to seek expertise. It does not; it gets it when it needs it. I was recently discussing with the ASA where it might appropriately get impartial advice on my special subject—racing tipsters’ advertising, on which, at some time, I will bore the House. But it rightly and deliberately does not do so when a lay person can perfectly well comprehend the arguments—something at which the ASA’s superb young staff is exceptionally skilled.

It is said that the ASA fails to give adequate reasons. Well, I know that it failed to convince the noble Baroness on her case, but as someone who has large numbers of these cases each year, I find its reasoning is adequate even when I disagree with it. Of course, if you do disagree, you can go off to the independent reviewer, Sir Hayden Phillips, who is a former civil servant of great distinction and judgment, complain about it and get it reconsidered if he is satisfied on the point you are making. Finally, it is said that it does not follow precedents. Well that is the real giveaway. Precedents, which are beloved of judges are often appropriate in law. But in the case of advertising, as I know from my time on the council, each case is different. The facts are different. One man’s misplaced monkey wrench on a lady is another woman’s disgraceful sexual invitation. These cases can be decided only on the facts. There cannot be a general rule on sexual representation that catches all of these things.

Of course, the noble Baroness disagrees with the judgments that are made. She said so. She would like more ads to be banned. She did not produce any evidence that the public feel the same way, and we will come to the public in a minute. I cannot think of a better way of deciding complaints than having 13 very serious people concentrating closely on the arguments, with the ads set out before them, considering them in the most succinct and objective way. I would certainly prefer that to leaving it to the noble Baroness to decide what we may or may not see.

Of course, the ASA observes the rule of law. On 20 occasions, advertisers, mostly commercial advertisers, no doubt egged on by their legal advisers who were looking forward to their fees, have sought judicial review. Of those, 18 of the 20 were wholly won by the ASA and one partly because judges, thank God, are people with common sense. I understand that the noble Baroness’s explanation is that judicial review does not go widely enough. Hey ho, here we go. That means more of the court’s time, more expensive lawyers, more angels dancing on the heads of pins all, so far as I can tell, to no possible practical gain.

One of the huge advantages of the present system is that it brings about a rough equality of armaments. As a complainant, I can pursue my complaint without worrying too much about the advertisers’ lawyers. If the changes sought by the noble Baroness were made, that would start to go. I am not sure that I could go on complaining because I could not face having to read through the vast chunks of material that she thinks should be made available. There are huge legal submissions, which is bureaucracy run amok, in order to consider what is often a very simple point. There would be more and more cases in which the big battalions with their deep pockets would get their way, to no benefit to the public.

Of all the things that the noble Baroness said, the thing that I most strongly disagree with is what she said about the public. What she identifies as the faults of the present system are in fact its strengths—informality, simplicity, a remedy open to all and not just to those who can bring money to bear and have great influence. That is why the Advertising Standards Authority has such strong public support. Some 75% of those who complain are either very or quite satisfied with the ASA, which is far higher than any other regulator with which it is compared.

I am genuinely sorry that the noble Baroness is among the 15% who are dissatisfied. Some time, I will share with her some of the experiences that I have had, too, when I have had complaints turned down. But there is an old saw that we should bear in mind: some people are never satisfied. No system will satisfy everyone and I think the ASA is doing extremely well to satisfy as many people as it has. The Motion in the name of the noble Baroness, Lady Deech, asks the Government what plans they have to review the governance of the ASA. I profoundly hope that in replying, the noble Earl, Lord Courtown, will say, “Absolutely none”. It ain’t broke, so let us not try to fix it.