Core Issues Trust Ltd v Transport for London and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] EWHC 2628 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 July 2014 |
| Docket Number | Case No: CO/7284/2012 |
[2014] EWHC 2628 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/7284/2012
The Queen on the application of
Paul Diamond (instructed by Core Issues Trust) for the Claimant
Nigel Pleming QC and Catherine Dobson (instructed by Transport for London Legal Department) for the Defendants
Hearing dates: 30 th June & 1 st July 2014
Core Issues Trust ("the Trust") seeks judicial review of the decision made by Transport for London ("TfL"), on 12 th April 2012, not to allow its advertisement to appear on the outside of its buses.
The wording of the proposed advertisement was:
"NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!
www.anglican-mainstream.net www.core-issues.org"
The Trust and Anglican Mainstream are Christian organisations which promote the view that, in accordance with the Scriptures, sexual relations should only take place between heterosexual married couples, not homosexuals. The Trust seeks to support those who are unhappy with their homosexuality to manage, reduce and where possible, eliminate homosexual practices and feelings.
Their advertisement was intended to be a response to an advertisement by Stonewall, a campaigning organisation for LGBT (lesbians, gay men, bisexual and transgender individuals) which had earlier appeared on the outside of TfL's buses stating:
"SOME PEOPLE ARE GAY. GET OVER IT!"
The reason given for the refusal was that the advertisement was contrary to TfL's Advertising Policy.
Judgment of the High Court
At a hearing on 22 nd March 2013, I dismissed the Trust's claim for judicial review 1. I held that TfL did not act unlawfully in refusing to display the Trust's advertisement because:
i) TfL's Advertising Policy did not permit advertisements which were controversial or likely to cause widespread or serious offence or which were inconsistent with TfL's obligations under the Equality Act 2010; and
ii) the refusal was not a breach of the Trust's human rights under Articles 9 or 10 of the Convention.
In my judgment, I also rejected the Trust's submission that the decision had been made for an improper purpose, namely, to advance the Mayor's electoral campaign. The election was on 3 rd May 2012, and the campaign was underway by 12 th April 2012 when the decision was made. I held:
"58. The appointment of the Mayor as Chairman of TfL, with power to appoint Board members, and to give directions to TfL, creates a potential conflict of interest between the Mayor's different roles which the Mayor has to be careful to avoid. In
my judgment, it was perfectly proper for Mr Johnson, as Chair of TfL, to be involved in the decision-making process on this issue and to express his views to Mr Everitt. But if the motive for the decision was to advance Mr Johnson's election campaign, at the expense of a proper exercise of TfL's powers and duties, this would call into question the lawfulness of the decision. In my view, such unlawfulness has not been established on the evidence. TfL acted in its own interests to avoid causing offence to a section of the public and to avoid criticism and controversy. Its interests coincided with those of Mr Johnson, who also wished to avoid causing offence and avoid criticism which might damage his election campaign. The overlap in interests did not render the decision unlawful."
Freedom of Information Act 2000 disclosure
After the judgment in the High Court, Dr Davidson, the Trust's Director, made requests to TfL and the Mayor of London under the Freedom of Information Act 2000. In response, he obtained relevant emails which had not been in evidence at the time of the hearing in the High Court, including an email from Mr Guto Harri, Director of Communications at the Greater London Authority, to Mr Richard Barnes, Deputy Mayor, dated 12 th April 2012 (timed 18:04) which read:
"Boris has instructed tfl to pull the adverts. And I have briefed the Guardian. Who will break that news in the next half hour."
Judgment of the Court of Appeal
The Trust appealed to the Court of Appeal 2. The Court dismissed the Trust's grounds based on Articles 9 and 10 of the Convention and remitted the issue of 'improper purpose' back to me for reconsideration. The Master of the Rolls (with whom the other members of the Court agreed) said:
"34 It is common ground that a public body cannot exercise a statutory power for an improper purpose: see De Smith's Judicial Review at paras 5–082 to 5–119. It is not disputed by Mr Pleming that, if the decision to disallow the advertisement had been taken for the purpose of advancing the Mayor's election campaign and not for the purpose of fulfilling the objects of the GLAA and implementing the Policy, it would have been an unlawful decision. The issue in this case is whether the decision was taken for that purpose. This is an issue of fact.
35 Mr Pleming submits that the judge's findings of fact on this issue at paras 55 and 58 of her judgment are unimpeachable. In my view, on the material that was before the judge, that is
unquestionably correct. Indeed, I did not understand Mr Diamond to contend otherwise. The question for us is whether the new material makes any difference.36 Central to the judge's finding was her acceptance of the evidence of Mr Everitt that the decision was made by him. She accepted that he was "influenced" by Mr Johnson. But the decision was his. TfL's interests in implementing its Policy and avoiding causing offence to a section of the public and avoiding criticism and controversy coincided with those of Mr Johnson, who also wished to avoid causing offence and criticism which might damage his election campaign.
37 The difficulty is that there is now in evidence an email which unequivocally states that the Mayor instructed TfL to pull the advertisement. On the face of it, this is inconsistent with Mr Everitt's insistence that the decision was his and his alone. Mr Everitt has not provided an explanation for this. All he is able to say in relation to this email is that he did not see it until May 2013 and that it has not caused him to change his evidence that he made the decision. The need for an examination of the role of the Mayor is all the greater because (i) the 18.04 email shows that the Mayor' Office contacted the Guardian immediately apparently in order to make political capital out of the story; and (ii) arrangements had been made for the Mayor to appear on 13 April (the following day) at hustings organised by Stonewall.
38 This is a most unsatisfactory state of affairs. It is surprising that TfL has not obtained witness statements from the Mayor, Mr Harri and Mr Barnes to explain the email. Mr Everitt has provided no explanation for it. If the email means what it says, it is difficult to see how it can properly be said that Mr Everitt and he alone took the decision. And if the Mayor took the decision, the question arises as to what his motives were. It is impossible for this court to decide what part (if any) was played by the Mayor in the decision to disallow the advertisement. It is, therefore, impossible for this court to decide whether the decision was or was not taken for the purpose of promoting the Mayor's election campaign.
39 Mr Pleming submits that, even if Mr Everitt was implementing a decision made by the Mayor, it is clear that such a decision would have been in implementation of the Policy even if it also coincidentally advanced the Mayor's election campaign. It is clear that the Mayor was of the opinion that the advertisement was likely to cause widespread or serious offence to members of the public and related to matters of public controversy and sensitivity. Mr Pleming also relies on the fact that the Mayor is chairman of TfL and has the power to give directions to TfL as to how it should exercise its functions.
40 But there are three difficulties with this. First, the Mayor did not purport to give directions pursuant to section 155 of the GLAA (which are required to be in writing). Secondly, the Mayor was not aware of the Policy until after 12 April: it is therefore difficult to see how he could have been purporting to direct TfL to implement the Policy. Moreover, if in substance the decision was that of the Mayor and it was not in implementation of the Policy, it would have been in breach of article 10 of the Convention on the grounds that it would not have been "prescribed by law" (see paras 56 to 58 below). Thirdly, even if the Mayor's views were as Mr Pleming suggests, that does not necessarily mean that the decision was not taken for the purpose of advancing his political interests.
45 So how should we proceed in the present case? I shall approach this question on the assumption that (i) the decision may have been made for the improper purpose of advancing the Mayor's re-election campaign; (ii) the judge was right to hold on the evidence before her that the disallowing of the advertisement did not infringe the Trust's Convention rights and (iii) it is inevitable that, if TfL were required to reconsider the question, it would not reach a different conclusion from that reached on 12 April 2012.
46 In my view, if the decision that was taken on 12 April 2012 was unlawful because it was taken in order to further the Mayor's political campaign, the court would have a duty to say so. The judge was right to recognise that this would be a serious matter.
47 In the face of Mr Everitt's...
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R Longacre Properties Ltd v Winchester City Council
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