In the Media

Judicial review

PUBLISHED April 9, 2013

Public authority - Claimant religious organisation seeking to place advert bearing anti-gay message on London buses

Core Issues Trust v Transport for London: Queen's Bench Division, Administrative Court (London): 22 March 2013

In April 2012, the claimant organisation sought to place an advertisement (the advert) to appear on the outside of London buses. The advert's wording was: 'Not gay! Ex-gay, post-gay and proud. Get over it!'. It was a response to an advert placed by the gay rights charity Stonewall that had earlier appeared on buses, which stated: 'Some people are gay. Get over it!'.

Transport for London gave the reason that the advert was contrary to its advertising policy. Clauses 4.3 and 4.5 of TfL's advertising policy (the advertising policy) stated that TfL would notify the applicant in writing as soon as reasonably practicable whether the advert was approved or rejected, and, if it was rejected, the reasons why the advert was not considered to meet with the standards in the policy. TfL considered that the advert was likely to cause widespread or serious offence to members of the public and decided not to allow it. The claimant was informed as to the effect of the decision, but reasons for the decision were only provided three months later.

The claimant submitted that the real reason that the advert had been banned was because the mayor of London disagreed with the views expressed and considered that the advert could be a liability in his bid to be re-elected. The claimant sought judicial review of the decision not to allow the advert.

The claimant submitted, first, that the decision not to allow the advert had been unlawful. Second, it submitted that the decision-making process demonstrated procedural unfairness and a lack of proper consideration of the relevant issues. Thirdly, it submitted that TfL's decision had breached its right to freedom of expression under article 10 of the European Convention on Human Rights (the convention). Fourthly, it submitted that, by refusing its advert while accepting Stonewall's advert, TfL had discriminated against it, contrary to article 14 of the convention. It submitted that TfL had discriminated against ex-gays, who, it submitted, were a protected class under the Equality Act 2010 (the 2010 act). Fifthly, it submitted that TfL's decision infringed its right to freedom of thought, conscience or religion under article 9 of the convention. Sixthly, it contended that TfL's decision had been irrational. The claim would be dismissed.

(1) On the evidence, unlawfulness had not been established. TfL had acted in its own interests to avoid causing offence to a section of the public and to avoid criticism and controversy. The fact that its interests had overlapped with those of the Mayor did not render the decision unlawful (see [58] of the judgment).

(2) TfL had been in breach of clause 4.3 and 4.5 of the advertising policy. The delay in giving reasons for the decision had resulted in the decision-making process falling below the standards to be expected of a responsible public body (see [66]-[67] of the judgment).

(3) The fact that advertising on the side of London buses was extremely intrusive was highly significant. The advert would, on the evidence, cause grave offence to a significant section of the people who would view it. For those who were gay, it was liable to interfere with the right to respect for their private and family life, under article 8(1) of the convention. TfL would have been acting in breach of section 149 of the 2010 act, had it allowed the advert to appear on its buses, as the advert encouraged discrimination and did not foster good relations, tackle prejudice or promote understanding between those with same-sex sexual orientation and those without. The location of the advert, the large number of people exposed to it over several weeks, the nature of the message, its effect on gays, and the public sector equality duty were all to be considered.

TfL's decision had been justified and proportionate in pursuit of the legitimate aim of protecting the rights of others. The fact that TfL had applied its advertising policy inconsistently and partially was outweighed by the countervailing factors, which made it proportionate to refuse to display the advert (see [137], [144], [148], [177] of the judgment). Jersild v Denmark (Application 15890/89) [1994] ECHR 15890/89 considered; Otto-Preminger Institute v Austria (Application 13470/87) (1995) 19 EHRR 34 considered; Vgt Verein gegen Tierfabriken v Switzerland (Application 24699/94) [2001] ECHR 24699/94 considered; Giniewski v France (Application No 64016/00) [2006] ECHR 64016/00 considered; Miss Behavin' Ltd v Belfast City Council [2007] All ER (D) 219 (Apr) considered; Kirk Session of Sandown Free Presbyterian Church's Application for Judicial, Re [2011] NIQB 26 considered; R (on the application of Aguilar Quila) v Secretary of State for the Home Department; R (on the application of Bibi) v same [2012] 1 All ER 1011 considered.

(4) With regard to the article 14 claim, the claimant, being a corporate body, had no sexual orientation and was not a victim of any discrimination of the grounds of sexual orientation. Further, ex-gays were not a protected group of people under the Equality Act 2010 (see [155], [156] of the judgment). The article 14 claim would fail (see [158] of the judgment).

(5) First, the rights protected by art 9 of the convention could not be enjoyed by corporate entities or non-natural persons such as associations. Second, the claimant was seeking to express its perspective on a moral/sexual issue, not the manifestation of a religious belief. Even if the advert had been motivated by a religious belief, it did not actually express that belief. Nor had the claimant been required by religious belief to communicate those views by way of adverts on London buses (see [161], [162], [165] of the judgment). Article 9 of the convention would not be engaged in the instant case (see [160] of the judgment). Arrowsmith v United Kingdom (Application 7050/75) (1981) 3 EHRR 218 considered; Vereniging v Rechtswinkels Utrecht v Netherlands 46 DR 200 (1986) E Com HR considered.

(6) Where irrationality was claimed and fundamental human rights were in issue, the court had to adopt the rigorous standard of review, encapsulated in the phrase 'anxious scrutiny', to assess whether the decision maker had interfered with fundamental rights and, if so, whether that interference had been objectively justified (see [170] of the judgment). TfL's advertising policy expressly prohibited adverts likely to cause serious offence, or which related to matters of public controversy or sensitivity. It had been reasonable to conclude that the content of the advertisement had been likely to cause widespread offence and had been sensitive and controversial. Even if the mayor and TfL had personally disagreed with the content of the advert, that had not been the sole or decisive reason for the decision. Finally, displaying such an advert would have been a breach of TfL's statutory duty under section 149 of the 2010 act (see [172] of the judgment). The decision of TfL had not been irrational (see [172] of the judgment).

Paul Diamond (instructed by Andrew Law Solicitors) for the claimant; Nigel Pleming QC and Catherine Dobson (instructed by Transport for London Legal) for the defendant.