Core Issues Trust v Transport for London

Article 10 is engaged where a public authority cancels a commercial advertising contract because it objects to the advertisement’s content. However, there is no unrestricted right to advertise on public transport. Restrictions may be justified where the advertising medium is highly intrusive and the message is likely to cause grave offence or prejudice. A public authority may take account of the rights of others and its public sector equality duty. In assessing proportionality, the court must consider the content, medium, audience, availability of alternative means of expression and the authority’s consistency of approach. Inadequate decision-making may reduce the weight given to the authority’s judgment, but does not necessarily make a justified restriction unlawful. A corporate body cannot claim discrimination based on sexual orientation, and “ex-gays” do not constitute a fourth protected category under section 12 of the Equality Act 2010.

The claimant, a charitable company, sought judicial review of Transport for London’s refusal to display on London buses an advertisement stating “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!”. The advertisement was intended to respond to a Stonewall advertisement stating “SOME PEOPLE ARE GAY. GET OVER IT!”. TfL relied on its Advertising Policy, including provisions concerning widespread or serious offence and matters of public controversy and sensitivity.

The claimant alleged improper purpose, procedural unfairness, breaches of Articles 9, 10 and 14 of the ECHR, breaches of the Equality Act 2010, and irrationality. The central issues were whether Article 10 was engaged, whether the restriction was prescribed by law and proportionate, and whether the claimant had been unlawfully discriminated against.

1. Standing and improper purpose. The Trust had standing, whereas Dr Davidson did not. The decision was made by TfL’s officer. The Mayor influenced the decision, but his involvement as TfL’s chairman was not unlawful. Improper electoral motive was not established.
2. Article 10. Cancelling a contract for advertising space because of the advertisement’s content constituted interference with freedom of expression. There is no absolute right to advertise on buses, but access to a public medium cannot be denied on discriminatory, arbitrary or unreasonable grounds.
3. Legal certainty and legitimate aim. TfL’s Advertising Policy had a basis in domestic law, was accessible and was sufficiently precise. Its aims included protecting the rights and freedoms of others, including gay people who might be offended, prejudiced or adversely affected by an anti-gay message.
4. Proportionality. The restrictions on advertisements likely to cause widespread or serious offence, or concerning public controversy and sensitivity, were justified. Bus advertising was exceptionally intrusive: it was large, mobile, unavoidable and encountered by millions of people. The advertisement was confrontational, liable to cause grave offence and capable of encouraging homophobic prejudice. Alternative means of expression were available. TfL’s inconsistent treatment of earlier advertisements and its failure to provide a right to counter were important factors, but were outweighed by the nature and likely effect of this advertisement and the public sector equality duty.
5. Equality and religion. Displaying the advertisement would have breached TfL’s duty under section 149 of the Equality Act 2010. Article 14 was not breached because the refusal was based on content, not the identity of the advertiser. The Trust, as a corporate body, had no sexual orientation, and “ex-gays” were not a separate protected category under section 12. Article 9 was not engaged because the Trust was not a religious community and the advertisement did not manifest religious belief.
6. Process and irrationality. TfL acted procedurally unfairly and contrary to its own policy by deciding hastily, without consultation, proper consideration of past practice or reasons given promptly. The claimant had not pursued procedural unfairness as a free-standing ground. The decision was nevertheless not irrational and was compatible with Article 10. Permission was granted, but the claim for judicial review was dismissed.