Freedom of speech versus controlling the arms race of political fund-raising. That perennial debate in American politics has now surfaced here with a challenge to the longstanding ban on paid political advertising on television and radio.

This alarms the main parties who fear an escalation in the cost of British election campaigns to the stratospheric levels seen in the United States. The nearly £40 million spent centrally and locally in last year’s general election here is less than was spent in the recent elections in each of the four biggest American states.

Yet the future of the ban has hardly been discussed publicly despite its vast implications for our politics. The story starts in Switzerland: not alas on the Reichenbach Falls, though Sherlock Holmes would have relished following the bizarre trail from its origins in an advertisement encouraging people to eat less meat and urging protection for animals. This advert was rejected by the Swiss authorities under its prohibition on broadcasting political advertisements. But the European Court of Human Rights ruled that the ban violated the freedom of expression article of the Human Rights Convention since the control had not been shown to be “necessary in a democratic society”.

This ruling raises doubts about the British ban, as the Parliamentary Joint Committee on Human Rights has said. The main parties are eager to maintain the ban. They wish to avoid the horrors of the American system where the large, and growing, cost of buying advertising time (“spots”) forces politicians to spend large amounts of time on courting donors, who gain access, and often influence over legislation.

The Swiss case has already had one direct result here. Ever since the European Convention on Human Rights was incorporated into British law four years ago, the opening page of every new Bill has included a statement from the sponsoring minister saying that it was compatible with the Act. But for the first time since 1998, Tessa Jowell, the Culture Secretary, has not been able to make such a declaration about one clause of the Communications Bill. This authorises the new Ofcom regulator to maintain the ban on political advertising. During the Second Reading debate on the Bill, Ms Jowell said her advisers had looked at whether minor changes would make it compatible with the Act, but this would still have allowed substantial political advertising. Despite these complications, the Government still backs the ban and would, she said, robustly defend the Bill in the face of any challenge. Curiously, there was hardly any follow-up by MPs to her remarks.

As so often with the European Convention, the legal arguments involve a balance of rights rather than an absolute view on all restrictions on paid advertising. The traditional British, and European, approach has been to emphasise equality of treatment in the broadcast media, though not the press. Ms Jowell rightly argued that, “by denying powerful interests the chance to skew public debate, the present ban safeguards the public and democratic debate and protects the impartiality of broadcasters”.

The opposite, American, tradition puts most weight on encouraging as much political expression as possible. The freedom of speech argument is central to the current court challenge to this year’s US campaign finance law (McCain-Feingold) which restricts some advertisements before an election and bans soft or indirect contributions. Defenders of the law argue that it may modestly limit the corrupting influence of big money and powerful interests on politics.

Crucial to any defence of the British ban is the provision of free air time to parties based on the number of votes they have previously won and, during elections, to parties fielding candidates in one sixth of the seats in each part of the United Kingdom. There have been criticisms of the lack of sufficient transparency and formality, as well as the broadcasters’ control over the allocation of free air time, though not the content of such broadcasts.

The whole system has been reviewed by the independent Electoral Commission which will shortly make its final recommendations. Its consultations showed strong support from almost all the political parties and the broadcasters for a continuation of the present ban. The sole exceptions to this view were some people in the advertising industry who would naturally benefit from any change. The Commission argued in a consultative paper that the British system of free broadcasts as a counter-balance to the ban on paid advertising would survive scrutiny in the courts under the Human Rights Act. But there needs to be tightening up. The Commission doubted “whether the existing arrangements for free broadcasts are sufficiently clear, formalised and predictable, as expressed in law” to satisfy the Act’s requirements. The law also needs to be updated to take account of the growth of satellite and cable channels.

These proposals will probably satisfy the main parties and the Government. The key issue, as raised in the Swiss case, is likely to be the treatment of outsiders, less well-funded and minority groups. All the main players privately expect that there will still be a legal challenge, from a minor party or from an independent group. This could arise if, and when, a referendum is held over the euro which, by definition, will be fought outside the main party battle. The present law lays down limits on “third party” spending on campaigns, and discriminates against them in the provision of free broadcasting time.

The only way that the undoubted benefits of the current ban on paid political advertising can be retained is if the rules on free time are both made clearer and opened up. After all, politics should not be a closed shop. The main parties have long lost their monopoly on public loyalty and affection. Other views should be heard.

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