‘Ex-gay’ London bus advert ban not improper use of Mayor’s power

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 appeared earlier on the outside of TfL’s buses: “SOME PEOPLE ARE GAY. GET OVER IT!”. In Core Issues Trust v Transport for London [2013] 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.

At first instance 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) and had not been an improper use of power by the Mayor. In the Court of Appeal, however, further information had come to light: see R (Core Issues Trust) v Transport for London & Anor [2014] EWCA Civ 34. Lord Dyson MR (with whom Briggs and Christopher Clarke LJJ concurred) 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].

Judgment has now been handed down after the further hearing. In R (Core Issues Trust Ltd) v Transport for London & Anor [2014] EWHC 2628 (Admin) Lang J concluded as follows:

“(i) Mr Johnson was the Chair of the Board of TfL and, in his capacity as Mayor, he had statutory power to issue written instructions or directions to TfL. He did not issue either a written or verbal instruction or direction to TfL on this occasion.

(ii) TfL made the decision not to run the advertisements. Prior to making that decision, Mr Everitt of TfL requested the views of the Mayor’s office and Mr Johnson communicated a strongly-expressed opinion that the advertisements were offensive and should not appear on London buses. Mr Everitt of TfL was strongly influenced by Mr Johnson’s opinion when he made the decision not to run the advertisements.

(iii) Mr Johnson was not motivated by an improper purpose, namely, to advance his Mayoral election campaign” [para 143].

The claim was dismissed.