As readers will no doubt be aware, in April 2012 Transport for London decided 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!”.
In Core Issues Trust v Transport for London  EWHC 651 (Admin), on which we posted at the time, 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. Lang J concluded that the Trust’s case had been arguable. However, she dismissed the claim for judicial review even though she agreed that Article 10(1) ECHR (freedom of expression) was engaged because the interference had been prescribed by law and fulfilled a legitimate aim under Article 10(2): as a public body subject to the equality duty, TfL was under a positive obligation to protect the rights of gays. However, she gave Core Issues Trust leave to appeal, on grounds that the free expression point merited consideration by the Court of Appeal.
By the time the case got to the Court of Appeal, however, further information had come to light: see R (Core Issues Trust) v Transport for London & Anor  EWCA Civ 34. In the Administrative Court Lang J had been prepared to accept on the facts before her that the decision not to run the advertisement had been made by Mr Everitt (Managing Director of Marketing and Communications at TfL):
“She accepted that he was ‘influenced’ by Mr Johnson. But the decision was his. TfL’s interests in implementing its Policy and avoiding causing offence to a section of the public and avoiding criticism and controversy coincided with those of Mr Johnson, who also wished to avoid causing offence and criticism which might damage his election campaign” (para 36).
The difficulty is that there is now in evidence an e-mail which unequivocally states that the Mayor instructed TfL to pull the advertisement. On the face of it, this is inconsistent with Mr Everitt’s insistence that the decision was his and his alone. Mr Everitt has not provided an explanation for this. All he is able to say in relation to this e-mail is that he did not see it until May 2013 and that it has not caused him to change his evidence that he made the decision” (para 37).
Lord Dyson MR (with whom Briggs and Christopher Clarke LJJ concurred) pointed out that a claimant who established the unlawfulness of an administrative act was entitled to a remedial order and that where a decision was shown to be unlawful, the court should be wary of refusing relief on the grounds that the decision-making body would have reached the same decision had it acted lawfully (para 44). So on the question of how to proceed, he approached the matter on the basis that:
“(i) the decision may have been made for the improper purpose of advancing the Mayor’s re-election campaign; (ii) the judge was right to hold on the evidence before her that the disallowing of the advertisement did not infringe the Trust’s Convention rights and (iii) it is inevitable that, if TfL were required to reconsider the question, it would not reach a different conclusion from that reached on 12 April 2012″ (para 45).
On the issue of the Mayor’s involvement, he concluded that it was in the interests of justice that a further enquiry be conducted by the court as to whether or not the decision had been instructed by the Mayor and whether or not it had been made for an improper purpose. The Mayor (on behalf of the GLA) should be added back as a defendant and the case remitted to the judge for her to make the necessary order and give appropriate directions (para 48). He rejected the Article 10 point and, further, rejected an appeal to Article 9 on the grounds that, on the facts, it added nothing to Article 10.
So back to the drawing-board…
You say “with whom Briggs and Christopher Clarke LJJ concurred”. With respect this appears not be 100%. Briggs LJ appeared to differ on the Article 10(2) point of ‘Necessary and proportionate to achieve these aims’. See -
At  his lordship said,”Like my Lord, I consider that the Stonewall advertisement was probably intended to promote tolerance of gay people and to discourage homophobic bullying, and that this is plainly a lawful aim. But the advice to ‘get over it’ is a confrontational message which is likely to come across to many of those to whom I have just referred as at least disrespectful of their sincerely held beliefs, and to some as suggesting that there is no place for the toleration of their beliefs in modern society. Displayed on the side of London buses it is therefore likely to cause widespread offence to many, even if it may have promoted tolerance and understanding in others.”
Clarke LJ only gave formulaic agreement.
Article 10(2) may live to see another day.
I agree that Briggs LJ’s concurrence was not 100 per cent. I was referring to his concurrence with “the direction for the further investigation of this case proposed by the Master of the Rolls, and with his conclusion that, if the outcome were to be that the existing decision be quashed, TfL could nonetheless lawfully decide again to refuse to accept the Trust’s advertisement” (para 102).
As you suggest, Article 10(2) may come round again – but I guess we’ll have to wait and see what the Administrative Court says.
This is the bit I never understood:
“Lang J concluded that the Trust’s case had been arguable. However, she dismissed the claim for judicial review even though she agreed that Article 10(1) ECHR (freedom of expression) was engaged because the interference had been prescribed by law and fulfilled a legitimate aim under Article 10(2): as a public body subject to the equality duty, TfL was under a positive obligation to protect the rights of gays.”
I thought the equality duty was to “foster good relations” between different groups of people, with different “protected characteristics”, not to protect the “rights” of any one group, with one protected characteristic, at the expense of another, with a different protected characteristic.
Personally, I think the entire recent project of enshrining a non-scientific, ideological and somewhat absurd neologism like “sexual orientation”, undefined or cursorily and certainly *inadequately* defined, into various bits of new legislation and international treaties, amounted to asking for trouble in the first place. But having embarked upon such folly, we’re stuck with the consequence that some people now want to broadcast to the world (on the side’s of buses if you please!) that “some” people (meaning themselves) “are gay”, which they presumably conceive of as a “sexual orientation” they have, whilst other people, who find being constantly “erased” so-to-speak, want to retaliate by broadcasting that *different* people (meaning *themselves*) exist who “are” “not gay, ex-gay, post gay”, which they (whether wisely or foolishly) wish to assert is equally *their* so-called “sexual orientation”, as they are entitled to. I find it alarming (in a “country is going to the dogs” kind of way) that *one* such group should be allowed to remind people present on bus routes of their alleged existence, whilst another is not allowed to, and that even the Court of Appeal connives at such asymmetry, basically.
How is there an equality duty (as long as not conformed to in obedience to a vote-grubbing politician) to allow so-called “gays” to advertise their alleged existence, and to invite us all to get over it, but to forbid “not gay, ex-gay, post gay” the same self-publicity, if they are minded to spend their money that way too? How on earth does that unequal treatment of “foster good relations” between anybody and anybody else? It obviously hasn’t fostered good relations at all, and this was foreseeable, and probably intended. The entire idea that such a pair of inconsistent decisions would ever cause anything but a profound worsening of relations between the two distinct groups, with their distinct and very different protected characteristics, is absolutely absurd, to my way of thinking.
Well said. The debate on sexual orientation has been fundamentally slanted against anyone who claims “ex-gay” status, thus destroying the cherished notion of those who believe they are intrinsically homosexual and this cannot be changed. Assuming that such desires must be followed through on, cannot be resisted and must be “got over”. This, of course, begs the question of whether our courts are also creating a defence for pedophilia?
“I can’t help it” must never become routinely admissible as a plea because it undermines all notions of free will and personal responsibility, which is at the heart of any legal system. Without this basic consensus, we might as well as close-up our courts. How much longer will natural law and justice be mocked in Britain?