Core Issues Trust v Transport for London

The Trust sought judicial review of TfL's decision (12 April 2012) not to permit an Anglican Mainstream/ Core Issues Trust advertisement on the outside of London buses. The court held that Article 10 ECHR (freedom of expression) was engaged but that TfL's Advertising Policy and its refusal were "prescribed by law", pursued a legitimate aim (protection of the rights of others) and were proportionate. The judge also found defects in TfL's decision-making process (lack of adequate consultation, haste and failure to follow its own procedures) and that the Mayor influenced events, but concluded there was no abuse of power on the evidence. The public sector equality duty in section 149 Equality Act 2010 and the risk of prejudice to persons of protected sexual orientation were material to the proportionality assessment. The claim for judicial review was dismissed (permission granted but substantive claim dismissed).

Background and parties

The Core Issues Trust (a religious charity) and Anglican Mainstream sought to place an advertisement reading "NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!" as a direct response to a Stonewall bus advertisement. The advertisement had been contracted with CBS Outdoor but was prevented from running when Transport for London (TfL) decided it was contrary to its Advertising Policy. The Trust applied for judicial review of TfL's refusal.

Nature of the claim / relief sought

• The Trust sought relief by way of judicial review of TfL's decision to refuse to display the advertisement, grounding its case principally in alleged breaches of rights under Article 10 ECHR and related duties under the Human Rights Act 1998 and the Equality Act 2010.

Procedural posture

• First instance hearing in the Administrative Court before Lang J. Permission was granted and the substantive claim was heard as a rolled-up hearing. The original individual claimant was replaced by Core Issues Trust for standing reasons.

Issues framed by the court

• Standing under section 7 HRA 1998 and Article 34 ECHR;
• Whether Article 10 was engaged and, if so, whether the interference was prescribed by law, pursued a legitimate aim and was necessary in a democratic society (proportionality);
• Whether TfL acted for an improper purpose or abused power (Mayoral influence);
• Whether procedural unfairness, irrationality or unlawful discrimination (Article 14 / Equality Act) arose; and
• Whether Article 9 was engaged.

Court's reasoning (concise)

• Standing: the Trust had standing as the directly affected corporate claimant; the original individual claimant did not.
• Article 10: advertising on buses is a medium protected by Article 10; TfL's cancellation constituted an interference with expression. The court rejected TfL's submission that Article 10 was not engaged.
• Prescribed by law: TfL's Advertising Policy had a domestic legal basis under the Greater London Authority Act 1999 and was sufficiently accessible and precise for the circumstances; therefore the interference was "prescribed by law".
• Legitimate aim: the refusal was properly analysed as directed to protecting the rights of others (including protection from discrimination and harassment) and consistent with TfL's duties under section 149 Equality Act 2010.
• Proportionality: the court accepted that TfL's policy restriction on adverts likely to cause widespread or serious offence is capable of being proportionate in the bus context. The court gave weight to TfL's judgment about the intrusive nature of large moving bus advertisements and to the evidence that the Trust's advert would cause grave offence and risk prejudice to homosexual persons. Although TfL applied its policy inconsistently in earlier cases and its decision-making in this instance was procedurally deficient and rushed, those defects did not outweigh the factors justifying refusal. Displaying the advertisement would also have risked TfL breaching its public sector equality duty.
• Article 14 / Equality Act: the court found no successful Article 14 discrimination claim; the Trust, as a corporate body, was not a person of protected sexual orientation and "ex-gays" did not constitute a protected category under the Equality Act.
• Article 9: not engaged because the Trust's advert did not amount to a protected manifestation of religion and Article 9 rights do not extend to the corporate claimant in the circumstances.
• Improper purpose and irrationality: the Mayor influenced discussions, and the decision-making was procedurally unfair, but on the evidence there was no established abuse of power to advance an electoral interest and the substantive decision was not irrational.

Result

Permission to apply for judicial review was granted but the substantive claim was dismissed. The court concluded TfL's refusal was justified and proportionate.

First instance: The claim for judicial review is dismissed. Lang J held that Article 10 was engaged but that the interference was prescribed by law, pursued a legitimate aim (protection of the rights of others) and was proportionate. Although TfL's decision-making was procedurally unfair and the Mayor influenced events, there was no established abuse of power and the substantive refusal was lawful and necessary in pursuit of the legitimate aim, in particular having regard to TfL's public sector equality duty under section 149 of the Equality Act 2010.