Advertising, religion and Articles 9 & 10 ECHR: Lancashire Festival of Hope

In Lancashire Festival of Hope with Franklin Graham Limited v Blackpool Borough Council & Anor [2021] Manchester Cty Ct F00MA124, the Court was asked, in effect, to rule on whether or not a charitable limited company could be regarded as having “human rights” for the purposes of anti-discrimination legislation and the ECHR.

The background

The Lancashire Festival of Hope with Franklin Graham Limited (LFH), a private limited company and a registered charity, was set up to organise the Lancashire Festival of Hope, which was held at the Blackpool Winter Gardens in September 2018 [1]. Franklin Graham, an American evangelist with controversial views, spoke at the Festival on each day [2]. In the spring of 2018, LFH had contracted with the Second Defendant, Blackpool Transport Services Ltd (through its agent Exterion Media Ltd) to display banner advertisements on its buses from 2 to 29 July 2018. The advertisements read “Lancashire Festival of Hope with Franklin Graham – Time for Hope” and gave the date and venue of the Festival and the URL for the Festival’s website. They contained no overtly religious wording nor imagery [5]. After complaints from members of the public about the advertisements, they were removed from the buses [6].

LFH claimed that it had been discriminated against on grounds of religion and belief by the removal of the advertisements. It alleged that the decision to remove them was made by both Defendants and claimed breaches of the Equality Act 2010 and violation of its Convention rights under Articles 9 and 10 ECHR, taken with Article 14 [8].  LFH argued that the decision to remove the advertisements from the buses had discriminated directly against it on grounds of religion and belief in that they treated LFH less favourably than others in materially the same or similar circumstances; alternatively, the Defendants had discriminated against LFH indirectly in applying a policy of “no political or religious advertising on the buses” [87].

In relation to the Human Rights Act, LFH argued both Defendants were public authorities (or if the Second Defendant was not, it was engaged in functions of a public nature when providing public transport services and/or advertising on public transport service), that as a religious body it had rights under Article 9 and that the removal of the advertisements without justification had discriminated against it, contrary to Article 9 and 10 ECHR [88].

The arguments

The Defendants argued that LFH was not a religious organisation for the purposes of the Equality Act or Article 9 and that LFH itself and could not be said to have a religion. The advertisements had been removed because Blackpool Transport Services Ltd had a policy prohibiting religious advertising and a policy of neutrality – with which the advertisements were inconsistent. The advertisements had caused offence to members of the public because of the reference to Franklin Graham, given his expressed views on homosexuality, same-sex marriage and Islam, and buses displaying the advertisements might become a target for vandalism. They had been removed because of their content and their actual and anticipated effect and they would have been removed whatever the characteristics of the person seeking to display them. Furthermore, the comparators identified by LFH were unsuitable. As to indirect discrimination, the advertising policy would not have had a differential effect – but if it had done so, it was a proportionate means of achieving a legitimate aim [89].

In relation to the Human Rights Act, the Defendants argued that Blackpool Transport Services Ltd was not a public authority and was not exercising any public function when accepting or removing the advertisements, that LFH could not bring a claim pursuant to Article 9 because it was a limited company and, in any case, any interference with Article 9 or 10 rights had been justified.

The judgment

HHJ Claire Evans noted that it was “the very unacceptability to some sectors of society of Franklin Graham’s particular religious beliefs” that was the alleged basis for the discrimination. To take into account in considering the requirement under s.23 Equality Act 2010 for a suitable comparator against which the Court could conclude that the alleged discrimination had occurred went to the heart of the protected characteristic and could not be right:

“It would be approaching the issue in a way which would defeat the purpose of the legislation to eliminate discrimination on the ground of a particular religion or belief [112].

Further, it would require the Court to involve itself in the relative acceptability to society of the perceived offensiveness of one religious view over another, and the role of the Court was not “to enquire into the validity of differing religious views or to give preference to some over others. All religions and beliefs are characteristics protected by law” [113].

As to whether or not Blackpool Transport Services Ltd was a public authority, HHJ Evans held that it was: it had been created by the Council to meet its statutory responsibilities under the Transport Act and was It is wholly owned and controlled by the Council [155] – but if she was wrong about that, she held that, in entering into contracts for advertising on its buses, Blackpool Transport Services Ltd was engaging in a function of a public nature [157].

Though she preferred to consider her decision with reference to Article 10, HHJ Evans ruled as follows on whether or not LFH, as a limited company, could have rights under Article 9:

“160. Its charitable purposes are set out in Article 2.1 as ‘the advancement of the Christian Religion in the Lancashire area by sharing the good news of Jesus Christ’.

161. I can see no good reason for distinguishing between the Claimant and a Church, or an association with religious and philosophical objects, simply on the basis that the legal vehicle for its actions is a limited company rather than an unincorporated association pursuing its charitable objectives via, for example, a charitable trust. It has no purpose or powers according to its Articles of Association other than religious ones.

162. Accordingly, insofar as it matters I find that the Claimant does itself possess Article 9 rights.“

As to the Article 10 issue, she accepted that the Defendants were pursuing the legitimate aim of avoiding offence being caused to others [173]. However:

“The Defendants had a wholesale disregard for the right to freedom of expression possessed by the Claimant. It gave a preference to the rights and opinions of one part of the community without having any regard for the rights of the Claimant or those who shared its religious beliefs. It made no effort to consider whether any less intrusive interference than removing the advertisements altogether would meet its legitimate aim. Whilst, of course, the Defendants are to be afforded a margin of appreciation in considering any interference under Article 10, all of those factors taken together mean in my judgment that its actions fell well outside it” [186].

The Defendants had therefore breached Article 14 and had discriminated against LFH on the ground of religion in relation to its Article 10 rights [187].

Cite this article as: Frank Cranmer, "Advertising, religion and Articles 9 & 10 ECHR: Lancashire Festival of Hope" in Law & Religion UK, 6 April 2021, https://lawandreligionuk.com/2021/04/06/advertising-religion-and-articles-9-10-echr-lancashire-festival-of-hope/

8 thoughts on “Advertising, religion and Articles 9 & 10 ECHR: Lancashire Festival of Hope

  1. The judgment would be hard to disagree with, given the views attributed to LFH though not expressed on the side of a bus reflect those printed in the pages of the New Testament.

      • If it’s a religious organisation then yes. It’s a point that was decided by the ECHR years ago, the logic being that in most cases individuals express and practise their religion in community with others so restrictions on religious organisations are in effect restrictions on individual believers.

        • I wrote a chapter on this in ‘Religious Beliefs and Conscientious Exemptions in a Liberal State’ (Hart, 2019). This was my conclusion:

          ‘In the context of English and Scots law … the rights of religious, as opposed to secular, organisations, are already given exceptional treatment under section 13 Human Rights Act 199862 and in matters such as employment policy – which suggests that it is entirely reasonable, and settled law, to impute a moral sense to a religious corporation or trust. It may also be reasonable to impute a moral sense to the directors of a closely held company or to the partners of a small limited liability partnership where – as TJ Mosedale observed in Exmoor Boat Cruises – the non-natural person is “the alter ego of a person (or, potentially, a group of people)”. But whether a large secular corporation can be said to be the alter ego of its shareholders – many of which are, in any case, likely themselves to be corporations such as banks and investment funds – is very much more doubtful.’

          On that basis, I reckon (for what it’s worth) that HHJ Evans was correct.

          • HHJ Evans is not a Judge because she is correct about the law; however, she is correct about the law because she is a Judge.

  2. Excellent case note! My only comment is to note that this case highlights the importance of the publication of county court judgments. With most cases decided at this level, it is disappointing we have to rely on third parties (like the website hosting this judgment) to disseminate the case law here. County court judgments may not have precedential value, but for understanding how law and religion are dealt with in practice in E & W, having access to them is an invaluable tool for legal research into the practical application of principles decided in higher courts.

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