Core Issues Trust, R (on the application of) v Transport For London & Anor

A public authority may restrict paid advertising on a publicly controlled transport network by reference to content. The restriction must have a basis in accessible national law, pursue a legitimate aim and be proportionate. General standards such as offence and controversy can satisfy legal certainty where the discretion is bounded and protected against arbitrariness. The limited availability of the medium, its intrusive impact, alternative means of expression, the rights of affected persons and equality considerations are relevant. The public sector equality duty requires due regard to equality objectives; it does not compel a particular outcome. A decision influenced by an ulterior political purpose is unlawful. Even where a lawful decision would probably be the same, the court should be cautious about withholding relief and should investigate serious misuse of statutory power.

Core Issues Trust challenged Transport for London’s refusal to display an advertisement concerning sexual orientation on London buses. TfL relied on its Advertising Policy, including restrictions on advertisements likely to cause widespread or serious offence and advertisements concerning public controversy or sensitivity.

The Trust alleged that the decision was taken to advance the Mayor’s re-election campaign and breached its rights under articles 9 and 10 of the Convention. Lang J dismissed the judicial review claim, finding that improper purpose had not been established and rejecting the Convention challenge. Freshly disclosed emails raised a substantial question about the Mayor’s role. The central issues before the Court of Appeal were whether the decision required further investigation for improper purpose and whether the refusal was justified under the Convention and the equality duty.

1. Disposition. The Court of Appeal could not determine whether the Mayor instructed the withdrawal of the advertisement or whether the decision was made to advance his political campaign. The case was remitted so that the Mayor could be added as a defendant and the judge could direct further evidence, including statements from the Mayor, Mr Harri and Mr Barnes, followed if appropriate by cross-examination. If the decision was instructed by the Mayor or made for an improper purpose, it must be quashed. If not, Lang J’s decision would stand.
2. A public body cannot exercise a statutory power for an improper purpose. Whether that occurred was a question of fact. Although a court may withhold relief where the same decision would inevitably have been reached lawfully, that principle has limits. It is especially important to grant appropriate relief where the alleged unlawfulness involves political misuse of statutory power. The court must remain alert to its constitutional role in maintaining the rule of law. The approach in [2005] UKHL 13 and [2011] UKSC 28 supported that conclusion.
3. Article 10 was engaged, but there was no unconditional right to use publicly controlled advertising space. The Canadian decision in [2009] 2 RCS 295 was distinguishable. TfL’s Policy had a basis in national law under the Greater London Authority Act 1999, was publicly accessible and used sufficiently precise standards. Restrictions pursued legitimate aims, including avoiding serious offence, protecting the rights and dignity of others, and supporting equality duties. The refusal was proportionate because bus advertising was prominent and intrusive, alternative means of expression were available, and the advertisement was liable to encourage homophobic views and interfere with the private-life rights of gay people.
4. The public sector equality duty under section 149 of the Equality Act 2010 requires due regard to specified equality considerations. It does not compel a substantive outcome or remove the need to balance those considerations against countervailing factors. Lang J mischaracterised the duty by treating it as a substantive fetter, but the error was immaterial. The proportionality conclusion remained correct. Article 9 added nothing to the Article 10 analysis, and section 13 of the Human Rights Act 1998 did not alter the result. The Court also held that discrimination because of past, perceived or changed sexual orientation can fall within the prohibition of discrimination because of sexual orientation.

• Court of Appeal (Civil Division) — [2014] EWCA Civ 34: remitted the improper-purpose issue for further investigation and directed that the Mayor be added as a defendant if necessary. The Article 9 and Article 10 challenges were rejected.
• High Court, Queen’s Bench Division, Administrative Court — Lang J dismissed the judicial review challenge, finding that improper purpose had not been established and that the refusal was justified under the Convention.