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…