Some readers will know that I have a particular interest in the way in which the law approaches different media, but this post might be an unexpected version of that. A report I spotted this weekend in the Eastern Daily Press (on the tale of Matt Houchen of King’s Lynn, who was told to take down his Norwich City flag by his local authority) is a reminder of the unusual position of flags under English planning law. The Town & Country Planning Act 1990 (and the Town & Country Planning (Control of Advertisements) Regulations 2007) regulate various structures, including requiring consent for advertisements. These are defined as follows in section 336 of the Act:

“advertisement” means any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used or designed , or adapted for use, and anything else principally used, or designed or adapted principally for use, for the display of advertisements, and references to the display of advertisements shall be construed accordingly.

It’s probably not difficult to see how a flag is included in the first part of the definition, although the bit about purpose (wholly or partly for the purposes of advertisement, announcement or direction) means that attention to the content of the flag is necessary. (It also means that ‘advertisement’ means ‘advertisement and other things’. This is why people don’t like lawyers). In the case of a football logo or colours, which of these three is it? What are you advertising? The existence of the club, your support for it, or selling tickets? Is there a difference between communication and advertisement? (My colleague David Mead also points, in his book The New Law of Peaceful Protest, to the difficulties encountered under the Serious Organised Crime & Police Act (aka SOCPA) along similar lines, but in the case of defining ‘demonstration’).

There are however a number of situations where consent isn’t required, either because of an exception or ‘deemed consent’. First off, the following flags (in a category known as Class H) are exempt, subject to compliance with general conditions (such as not endangering the public, aircraft etc) and as long as they don’t contain any ‘additional subject matter’:

Any country’s national flag
The flag of the Commonwealth, EU or UN
The flag of an English county
The flag of a saint, in the county with which that saint is associated

As you might imagine, the press gets worried about this from time to time, such as the case of an army flag, or the inclusion of the EU flag in the list of exempt flags. For what it’s worth, the flag in the story I mentioned in the first paragraph appears to include a St George’s cross, the Norwich City crest and the initials NCFC. Would the cross alone count as a national flag? Is England a country?

Furthermore, ‘deemed consent’ (a little narrower than an exception, as it doesn’t apply in certain areas) applies to various things, including class 7 Flag Advertisements, which means a flag (of no more than 75cm high) on a ‘single flagstaff projecting vertically from the roof of a building’ containing the name/logo of the occupant or an event; also included in class 7 are flags on residential building sites while there’s at least one house unsold. Got that?

This still doesn’t provide much support to the football fan. A bit surprising, given the other things that are exempt (political advertisements during elections, an advertisement displayed on a vehicle) or have deemed consent (a B&B sign, an ad for a travelling circus, a balloon for 10 days a year, a hoarding on a building site).

The courts have had to deal with this on a couple of occasions. In Westminster City Council v Haw [2002] EWHC 2073 (QB), Mr. Haw (the late protester who stood outside the Houses of Parliament for many years) was alleged to be obstructing the highway without lawful authority or excuse. Although it wasn’t the main point of the case, the judge did find (when figuring out if Haw was acting lawfully) that his political placards were not advertisements as they were neither advertisements (as they didn’t promote a product or service), announcements (he wasn’t announcing anything) or directions (he wasn’t directing anyone anywhere or to do anything). It’s not a detailed analysis, but it was important in Haw’s case. But compare this with the later decision in Butler v Derby City Council [2005] EWHC 2835 (Admin), Mr. Butler had been convicted of a breach of planning law for a 200cm x 85cm banner with the logo of a campaign group (Derby Heart) and the slogan Save Five Lamps. He argued that it wasn’t an advertisement, and if it was, the law violated his right to freedom of expression. The court found that (noting that the definition of advertisement was deliberately broad and that it was a ‘pointless semantic exercise’ to figure out if a particular display should be in the advertisement, announcement or direction sub-category). On the issue of free speech, it said that the issue wasn’t content regulation; ‘a local planning authority is not entitled to refuse advertisement consent because it disagrees with the content of the message to be displayed’, and that the ‘rights of others’ exception to article 10 of the European Convention on Human Rights was relevant because of visual intrusion (and the ability to obtain consent). It probably didn’t help (as Richard Harwood pointed out in a brief comment in the Journal of Planning & Environment Law, June 2006) that the regulations have provisions for election posters, which would suggest that they fall within the definition of advertisement. The problem is therefore those things caught by the regulations that aren’t excluded in one way or another.

My view is that the decision in Haw doesn’t take the statute seriously enough and the decision in Butler doesn’t take freedom of expression seriously enough. A better approach would be to consider the limitations that article 10 might require be placed on the definition of advertisement. This would involve a proper consideration of whether the law as it stands creates a favoured type of expression and places restrictions on others, and whether that distinction is appropriate. In the case of flags, I’d suggest that it is difficult to defend the system as content neutral when it allows some flags but not others, or that a high level of protection of the rights of others is necessary in the case of a non-approved flag but not for the wide range of exempt and deemed-consent ads. Indeed, if political expression is regulated above and beyond travelling circuses and estate agents, justifying this will be difficult. Not impossible (see for example the TV political advertising ban being upheld in Animal Defenders), but requiring justification. (I also touched in this in my attempt to defend politicians ringing you up during your dinner in the European Human Rights Law Review earlier this year). Why are the colours of a local saint OK when those of a sports club are not? In this context, one could have a very interesting discussion of a declaration of support for a football team as free speech (and its importance in a democratic society), but that’s for another day.