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

The Court of Appeal considered a judicial review challenge to Transport for London’s refusal to permit a bus advertisement placed by the Core Issues Trust. The Trust alleged the decision was made for an improper purpose (to advance the Mayor’s re-election campaign) and that it breached Articles 9 and 10 of the European Convention on Human Rights. The court held that (i) on the material before Lang J the decision to disallow the advertisement was within TfL’s Advertising Policy and compatible with article 10(2), read together with the public sector equality duty in section 149 of the Equality Act 2010, and (ii) fresh evidence raised a real question whether the Mayor had in fact instructed the withdrawal and whether an improper purpose was involved, so the matter required further investigation.

Accordingly the Court remitted the case to the Administrative Court judge for further inquiry into the Mayor’s role (including witness statements and, if appropriate, cross-examination), while upholding the judge’s approach to the Convention issues and rejecting a separate article 9 claim as adding nothing to the article 10 analysis.

Background and parties: The appellant Core Issues Trust (a charity) arranged an advertising campaign for London buses with wording that implied homosexuality could be reversed. Transport for London (TfL) refused to allow the advertisement under its Advertising Policy, which bars advertisements likely to cause widespread or serious offence or which relate to matters of public controversy or sensitivity, and which is applied so as to give effect to TfL’s duties under the Greater London Authority Act and the Equality Act 2010 (section 149 public sector equality duty). The Trust applied for judicial review of TfL’s decision. The Secretary of State for Culture, Media and Sport and Minister for Women and Equalities intervened.

Relief sought and procedural posture: The Trust sought quashing of TfL’s refusal and contended the decision was unlawful because it was (a) motivated by an improper purpose (to further the Mayor’s re-election campaign) and (b) in breach of Articles 9 and 10 ECHR. Lang J dismissed the claim; the Trust appealed to the Court of Appeal.

Issues framed: (i) whether the decision was taken for an improper purpose; (ii) whether the interference with freedom of expression was "prescribed by law", pursued a legitimate aim and was necessary and proportionate under article 10(2); (iii) whether article 9 added any separate protection; (iv) the relevance of the public sector equality duty in section 149 EA and TfL’s alleged inconsistent application of its Policy (notably the Stonewall advertisement).

Court’s reasoning: On improper purpose, the court accepted Lang J’s factual findings that Mr Everitt (TfL) took the decision but was influenced by the Mayor; however, after disclosure of an internal email suggesting the Mayor had instructed withdrawal, the Court of Appeal found the factual picture uncertain. Because the new email raised a strong prima facie case that the Mayor instructed TfL to pull the advertisement, further inquiry was required into the Mayor’s role and motives. On article 10 the court agreed with Lang J that TfL’s Advertising Policy had a proper legal basis, the limits were sufficiently precise for legal certainty, and the restrictions pursued legitimate aims (protection of the rights of others and compliance with the public sector equality duty). Given the intrusive, public and unavoidable nature of bus advertising, the refusal to display the advertisement was proportionate despite some inconsistent application of the Policy; the public sector equality duty and the risk of encouraging homophobic reactions carried decisive weight. Article 9 added nothing beyond article 10. The court therefore remitted the matter for further factual investigation of whether an improper purpose existed; if that inquiry establishes an improper purpose the decision must be quashed, otherwise Lang J’s dismissal of the Trust’s human rights challenge stands.

Appeal allowed in part and remitted to the Administrative Court judge for further inquiry into whether the Mayor instructed or otherwise caused TfL to withdraw permission for the advertisement and whether any improper purpose (advancing the Mayor’s re-election) actuated the decision. The court affirmed the judge’s conclusions on the article 10 proportionality issue and held that article 9 added nothing material. If, on remittal, the judge finds no improper purpose the judge’s dismissal of the Trust’s Convention challenges will stand; if she finds an improper purpose the decision must be quashed.

Appeal from the Administrative Court, Queen's Bench Division (Lang J) (CO72842012). The Court of Appeal heard the appeal and remitted the case to the judge below for further factual inquiry into the Mayor's role and possible improper purpose.