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

The claimant sought judicial review of Transport for London’s decision of 12 April 2012 not to permit an advertisement on the outside of buses. The refusal was taken under TfL’s Advertising Policy, applied in light of the public sector equality duty now in section 149 of the Equality Act 2010, and in particular paragraph 3.1(d) (likely to cause widespread or serious offence) and paragraph 3.1(k) (matters of public controversy and sensitivity) of the Policy. The Court considered whether the Mayor’s involvement rendered the decision unlawful as an exercise of statutory power for an improper purpose (to advance the Mayor’s election campaign), in light of new emails disclosed after the initial hearing.

The judge found that the operative decision not to run the advertisement was made by a senior TfL officer (Mr Everitt) during a telephone discussion with the Mayor’s press official and that the Mayor’s strongly expressed views influenced that decision. The Court rejected the contention that the Mayor gave a formal instruction or that the decision was unlawfully tainted by an improper dominant purpose. Although a Guardian briefing gave the impression that the Mayor had "pulled" the adverts, the evidence established that TfL made the decision for legitimate policy reasons and there was no adequate basis to conclude the Mayor acted to advance his electoral campaign. The claim was therefore dismissed.

Background and parties: The claimant, Core Issues Trust (with Anglican Mainstream involved in placing the ad), sought judicial review of Transport for London’s decision to refuse to allow an advert stating a position critical of homosexuality to appear on the outside of London buses. The advert was proposed as a counter to a prior Stonewall advert. The defendants were Transport for London and the Mayor of London.

Procedural history: At first instance the Trust’s claim was dismissed ([2013] EWHC 651 (Admin)) on the grounds that TfL lawfully applied its Advertising Policy and did not breach Articles 9 or 10 ECHR. The Court of Appeal ([2014] EWCA Civ 34) dismissed the Convention rights grounds but remitted to the High Court the factual issue whether the decision had been taken for an improper purpose (namely to advance the Mayor’s re-election campaign) in light of post-judgment disclosure of emails. The present judgment followed that remittal.

Nature of the claim and relief sought: A judicial review challenge seeking to quash TfL’s decision not to permit the advertisement. Key legal questions were (i) whether the decision was taken for an improper purpose (electoral advantage) so as to be ultra vires and (ii) whether the decision offended Convention rights (previously dismissed).

Issues framed:

• Whether TfL lawfully applied its Advertising Policy (including the public sector equality duty now reflected in Equality Act 2010 s.149) to refuse the advertisement.
• Whether the Mayor instructed or otherwise improperly directed TfL to refuse the advertisement, and if so whether the true dominant purpose was to advance his election campaign.
• Whether new disclosure (an email indicating the Mayor "instructed" TfL to pull the adverts) altered the factual findings such that the decision should be quashed.

Court’s reasoning: The Court analysed the chronology and contemporaneous communications. CBSO had contracted to run the adverts and CAP/ASA had indicated they were unlikely to uphold complaints. Public reaction and press coverage on 12 April prompted rapid internal exchanges. The decisive act not to run the adverts was made by Mr Everitt of TfL during a telephone call with the Mayor’s press adviser, who conveyed the Mayor’s strong view that the adverts should not run. The Guardian briefing and some internal emails used the language that the Mayor had "instructed" TfL; however, the Judge drew a distinction between a formal instruction or written direction (not given) and the Mayor expressing a strongly-held opinion which carried persuasive weight.

The Court considered authorities on improper purpose and multiple motives. It accepted that a public body must not exercise statutory powers for an unauthorised dominant purpose, but also recognised that legitimate public considerations and coincident political advantage may coexist. On the evidence the decision-maker at TfL was authorised to make the decision, was influenced by the Mayor’s views, and would likely have reached the same decision applying the Policy. The Court found no sufficient basis to conclude the Mayor acted with an improper electoral purpose or that that motive was dominant so as to vitiate the decision. The claim was dismissed.

Wider comment: The Court noted the haste of the decision-making and the press handling but emphasised that procedural unfairness was not pleaded. The judgment addresses the difficulty of distinguishing permissible political awareness from impermissible use of statutory powers for electoral advantage.

The claim is dismissed. The Court held that TfL lawfully refused to run the advertisement under its Advertising Policy, applying the public sector equality duty (Equality Act 2010 s.149 and Policy paragraphs 3.1(d) and 3.1(k)). Although the Mayor expressed a strongly held view and that influenced TfL’s decision-maker, there was no sufficient evidence that the Mayor gave a formal instruction or that the decision was taken for the improper dominant purpose of advancing his election campaign.

Initial High Court judgment dismissing the claim: [2013] EWHC 651 (Admin). The Court of Appeal dismissed the Article 9 and 10 grounds but remitted the issue of improper purpose to the High Court: [2014] EWCA Civ 34. The present judgment follows that remittal: [2014] EWHC 2628 (Admin).