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

A public body must exercise a statutory power for the purpose for which Parliament conferred it. A laudable public objective does not cure use of the power for an unauthorised purpose. Where several purposes operate, the decision is lawful if the authorised purpose is the true and dominant purpose, even though an incidental political advantage results. A decision may be quashed where an improper purpose or irrelevant consideration has materially influenced it, particularly where the purposes are inextricably mixed. Informal consultation between a public corporation and its political chair is not unlawful merely because the chair’s views carry considerable weight.

The claimant sought judicial review of Transport for London’s refusal to display an advertisement responding to a Stonewall campaign. The original claim was dismissed: [2013] EWHC 651 (Admin). The Court of Appeal dismissed the Convention grounds but remitted the alleged improper-purpose issue for reconsideration: [2014] EWCA Civ 34.

Following disclosure under the Freedom of Information Act 2000, the issue was whether the Mayor had instructed TfL to refuse the advertisement and whether the decision was made, wholly or partly, to advance his re-election campaign.

1. The claim was dismissed. TfL, rather than the Mayor, made the decision not to run the advertisement. The Mayor expressed a strongly held view that it was offensive and should not appear on London buses, and Mr Everitt was strongly influenced by that view.

2. The Mayor was entitled to communicate informally with TfL officials and express his opinion. His statutory power under section 155 of the Greater London Authority Act 1999 to issue written guidance or directions did not prevent informal communication. No written or verbal instruction or direction was given on this occasion.

3. The governing principle is that a statutory power must be used for the purpose for which it was conferred, not for an unauthorised purpose. The fact that an elected politician may obtain incidental electoral benefit does not make an otherwise lawful decision improper. The relevant question is whether electoral advantage was the true or dominant purpose.

4. The evidence did not establish that the Mayor or TfL acted to advance the election campaign. The evidence showed concern about offence, controversy, criticism and TfL’s public position. Those concerns were connected with the lawful application of TfL’s Advertising Policy. Any political considerations were incidental and would not have altered the decision.

5. The court did not determine the claimant’s criticisms of the rushed process as procedural unfairness because that ground had not been pleaded. Nor was the decision invalidated by the Mayor’s failure to see the full advertisement or the Policy before expressing his view.

• High Court (Administrative Court): the original judicial review claim was dismissed: [2013] EWHC 651 (Admin) .
• Court of Appeal: the Convention grounds were dismissed and the improper-purpose issue was remitted to the High Court: [2014] EWCA Civ 34 .
• High Court (Administrative Court): after remittal and further evidence, the claim was dismissed.