Transport for London decided in April 2012 not to allow an advertisement placed by Anglican Mainstream on behalf of the Core Issues Trust to appear on the outside of its buses. The proposed wording was “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!”. It was intended as a response to an advertisement by Stonewall which had earlier appeared on the outside of TfL’s buses: “SOME PEOPLE ARE GAY. GET OVER IT!”. It also had vague echoes of a previous bus campaign by the British Humanist Association for which the slogan was “THERE’S PROBABLY NO GOD. NOW STOP WORRYING AND ENJOY YOUR LIFE”.
The reason given for the refusal was that the advertisement was contrary to TfL’s Advertising Policy because it was
“… likely to cause widespread or serious offence to members of the public on account of the nature of the product or service being advertised, the wording or design of the advertisement or by way of inference … and/or [contained] … images or messages which relate to matters of public controversy and sensitivity”.
In Core Issues Trust v Transport for London  EWHC 651 (Admin) (which was taken as a “rolled up” hearing of the application for permission and the substantive hearing for judicial review), the Trust submitted that TfL had abused its statutory powers for an improper purpose, alleging that the real reason for TfL’s ban was that the Mayor of London, Boris Johnson, disagreed with the views expressed in the advertisement and thought it could be a liability in his bid for re-election as Mayor. The Mayoral election was on 3 May 2012 and the episode occurred some three weeks before polling day. In short, the claimant Trust alleged that Johnson had abused his position as Chair of TfL to advance his re-election campaign. There were press reports that Johnson had intervened – but his principal opponent, Ken Livingstone, supported his action in banning the advertisement.
Lang J came to a series of conclusions. As to the allegation of bias, Boris Johnson had not abused his position as Chair of TfL in order to advance his re-election campaign. Her Ladyship noted that the Trust was not challenging the legality of the decision on free-standing procedural grounds but had argued that the manner in which the decision had been made had demonstrated “an over-hasty reaction to press criticism made without proper consideration of the human rights of Anglican Mainstream and the Trust” (para 67). She agreed that TfL’s decision-making process had been procedurally-unfair, in breach of its own procedures, had demonstrated a failure to consider the relevant issues and “… fell below the standards to be expected of a responsible public body”.
“… the advertisements by the British Humanist Association and Stonewall did not comply with TfL’s own restrictions which prohibit advertisements ‘likely to cause widespread or serious offence’ or which ‘relate to matters of public controversy or sensitivity’. Both advertisements were in the form of confrontational assertions which made no contribution to a reasoned debate. The British Humanist Association advertisement was highly offensive to the religious beliefs of the significant section of the public who believe in God. The Stonewall advertisement was highly offensive to fundamentalist Christians and other religious groups whose religious belief is that homosexuality is contrary to God’s teachings” (para 145).
As to the various human rights issues:
- Article 10(1) ECHR (expression) was engaged; however, the interference had been prescribed by law. As a public body subject to the equality duty TfL was under a positive obligation to protect the rights of gays and that was a “legitimate aim” under Article 10(2) (para 91).
- Even though TfL had applied its Advertising Policy inconsistently and partially and had refused the Trust the opportunity to respond, TfL’s decision was justified and proportionate in pursuit of the legitimate aim of protecting the rights of others. Therefore, the refusal had not been a breach of the Trust’s rights under Article 10(1) because the shortcomings had been outweighed by the countervailing factors that made it proportionate to refuse to display the advertisement (para 148).
Interestingly, the Trust also submitted that TfL had discriminated, contrary to Article 14 (discrimination), against ex-gays who, it contended, were a protected class under the Equality Act 2010 falling within the definition of sexual orientation in section 12. The Trust also argued that ex-gays faced hostility and discrimination from both homosexuals and heterosexuals. Lang J disposed of those arguments in fairly short order, on two grounds: that the claim had been brought by the Trust which, as a corporate body, could have no sexual orientation and that, in any case, ex-gays were not protected under the Equality Act.
In her opinion Article 9 (thought, conscience and religion) was not engaged: first, because though Article 9 rights might be enjoyed by religious communities and churches they could not be enjoyed by corporate entities or non-natural persons such as associations and, secondly, because the Trust was seeking to express its perspective on a moral/sexual issue, not the manifestation of a religious belief (paras 160–162).
Nor was the TfL’s decision irrational:
“Its advertising policy expressly prohibited advertisements which were ‘likely to cause widespread or serious offence to members of the public’ or which related to ‘matters of public controversy and sensitivity’. It was reasonable to conclude that the content of this advertisement was likely to cause widespread offence and was sensitive and controversial. The huge number of complaints, and their content, provided TfL with a sufficient basis upon which to make a reasonable decision not to run the advertisement. Even if, as the Trust alleged, the Mayor and TfL personally disagreed with the content of the advertisement, this was not the sole or decisive reason for the decision. Finally, displaying an advertisement of this nature would have been a breach of TfL’s statutory equality duty in s 149 Equality Act 2010” (para 172).
Her Ladyship concluded that the Trust’s case had been arguable and permission was therefore granted but then dismissed the claim for judicial review. However, it was subsequently reported that she had given Core Issues Trust leave to appeal, on grounds that the free expression point merited consideration by the Court of Appeal.
Comment TfL won – but not without the merest soupçon of egg over corporate face. As we have seen, Lang J’s view was that, if the proposed advertisement by the Core Issues Trust was “likely to cause widespread or serious offence”, so were those by the British Humanist Association and Stonewall which TfL had already displayed on its buses. What saved TfL in the present circumstances was that to have displayed the proposed advertisement would have been breached its statutory equality duty under s 149 Equality Act 2010.
Which raises the question, did the display of the BHA and Stonewall advertisements also breach TfL’s statutory equality duty? But we shan’t know the answer because that, of course, was not in play for adjudication.