Core Issues Trust v Transport for London
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Lang Dbe,Mrs Justice Lang |
| Judgment Date | 22 March 2013 |
| Neutral Citation | [2013] EWHC 651 (Admin) |
| Docket Number | Case No: CO/7284/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 March 2013 |
[2013] EWHC 651 (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
Paul Diamond (instructed by Andrews Law Solicitors) for the Claimant
Nigel Pleming QC and Catherine Dobson (instructed by Transport for London Legal) for the Defendant
Hearing dates: 28 th February & 1 st March 2013
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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 an advertisement placed by Anglican Mainstream placed on behalf of the Trust 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"
It was intended to be a response to an advertisement by Stonewall 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.
On 19 th October 2012, Kenneth Parker J. ordered that the application for permission was to be listed to be heard at the same time as the substantive hearing for judicial review, as a "rolled up hearing".
Standing
At the outset of the hearing, I ruled that the original Claimant, Dr Michael Davidson, did not have standing to bring the claim and so, with the consent of both parties, Core Issues Trust was substituted as Claimant.
A person only has sufficient interest to bring a claim under section 7 of the Human Rights Act 1998 (" HRA 1998") if he is a "victim" of an unlawful act, within the meaning of article 34 of the European Convention on Human Rights ("ECHR"). It is established Convention law that a claim cannot be brought unless the claimant has been directly affected. Class actions are not permitted.
In this case, the 'persons' directly affected were Core Issues Trust and Anglican Mainstream, which placed the order on behalf of both organisations. Dr Davidson was not directly affected in his individual capacity, and the fact that he is the voluntary Director of Core Issues Trust did not give him sufficient standing to bring the claim.
Although the test for standing in judicial review claims under CPR Part 54 is more liberal than under the ECHR, the human rights claim was at the core of this judicial review, and so the Claimant had to establish standing under the HRA 1998.
The Legislative and Regulatory Framework
TfL is a statutory body established by Parliament under section 154 of the Greater London Authority Act 1999 ("GLAA 1999"). By Schedule 10, paragraphs (2) and (3), members of TfL are appointed by the Mayor, and the Mayor acts as Chairman.
TfL is required by section 154(3) to exercise its functions:
a) in accordance with such guidance or directions as may be issued to it by the Mayor;
b) for the purpose of facilitating the Greater London Authority's ("GLA") duty to secure the provision of transport facilities, and
c) for the purpose of securing or implementing the Mayor's Transport Strategy.
By section 155, the Mayor may issue guidance, and either general or specific directions to TfL on the exercise of its functions. Such guidance or directions must be issued in writing and notified to the nominated officer of TfL.
Paragraph 1(3) of Schedule 10 to the GLAA 1999 empowers TfL "to do such things and enter into such transactions as are calculated to facilitate, or are conducive or incidental to, the discharge of any of its functions".
Under this power, TfL maintains an Advertising Policy. Section 1.1 explains that the purpose of the policy is "to set out high level principles, together with the decision making framework and criteria, governing the approval of advertisements which appear on TfL's services and information campaigns undertaken by TfL and to ensure TfL's compliance with its obligations in section 404 of the GLA Act."
Section 1.2 makes clear that "TfL will ensure that advertisements which appear on TfL's services and information campaigns undertaken by TfL are consistent with the obligations in section 404 of the GLA Act".
Paragraph 3.1 of the "Required Standards" in its Advertising Policy provides that "advertisements will not be approved for, or permitted to remain on TfL's services, if, in TfL's reasonable opinion, the advertisement falls within any of the categories set out, which include, among other matters:
"(a) The advertisement does not comply with the law or incites someone to break the law.
(b) The advertisement does not comply with the British Code of Advertising, Sales Promotion and Direct Marketing.
(c) The advertisement is inconsistent with the obligations in section 404 of the GLA Act 1999.
(d) The advertisement is likely to cause widespread or serious offence to members of the public on account of the nature of the product or service being advertised the wording or design of the advertisement or by way of inference.
(e) The advertisement depicts men, women or children in a sexual manner ….
(f) The advertisement depicts or refers to indecency or obscenity or uses obscene or distasteful language.
(g) ….
(h) The advertisement depicts direct or immediate violence to anyone shown in the advertisement.
(i) The advertisement condones or provokes anti-social behaviour.
(j) …..
(k) The advertisement contains images or messages which relate to matters of public controversy and sensitivity.
(l) — (o) …
(p) The advertisement relates to a political party or parties or a political cause.
(q) — (r). "
Section 404 of the GLAA Act 1999 was repealed on 5 April 2011 with the entry into force of section 149 of the Equality Act 2010. As a public body, TfL must now exercise its powers in accordance with section 149 of the Equality Act. Sections 1.1 and 1.2 and section 3(1)(c) of TfL's Advertising Policy should therefore be read as referring to the obligations set out in section 149 of the Equality Act 2010.
The public sector equality duty in section 149 of the Equality Act 2010 provides, so far as is material:
"(1) A public authority must, in the exercise of its functions, have due regard to the need to —
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
[….]
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and person who do not share it involves having due regard, in particular, to the need to —
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are —
age
disability
gender reassignment
pregnancy and maternity
race
religion or belief
sex
sexual orientation."
Section 12(1) of the Equality Act 2010 provides:
"sexual orientation means a person's orientation towards—
(a) persons of the same sex,
(b) persons of the opposite sex, or
(c) persons of either sex."
Direct and indirect discrimination on the grounds of a protected characteristic is prohibited by sections 13 and 14, Equality Act 2010.
The facts
The Trust is a company limited by guarantee and a registered charity, based in Northern Ireland, whose objects are "the advancement of religion" and "the promotion of the Holy Scriptures", in particular "to uphold the view that any sexual relationship outside marriage is inconsistent with the Biblical view of "one flesh" relationships (Genesis 2.24), and the Divine pattern for family life, premised on marriage between one man and one woman".
In its Statement of Belief the Trust declares that:
"the Church of Jesus Christ, when true to the Scriptures, properly provides a spiritual home and sensitive support for believers and seekers who struggle with issues of sexual brokenness, including homosexuality."
Its "Core 'Change' Statement" states:
"All human sexuality is fallen and is in need of the sanctifying work of God to restore it to its intended wholeness and divine purpose. There is a growing body of research evidence indicating that sexual preference is neither immutable, innate nor chosen. As a consequence of our basic sinfulness we all have desires that we do not choose to have but we do have choices with respect to what we do about them. As a consequence our sexual identity can be reinforced or altered by either gender-affirming or gay-affirming lifestyles or therapies. CORE works with people who voluntarily seek to change from a "gay" lifestyle to a gender-affirming one. This is sometimes referred to as a "sexual re-orientation" process."
Anglican Mainstream, which is a company limited by guarantee and a registered charity, describes itself as a community within the Anglican communion, committed to promote, teach and maintain the...
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