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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> North Cyprus Tourism Centre Ltd & Anor, R (on the application of) v Transport for London [2005] EWHC 1698 (Admin) (28 July 2005) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2005/1698.html Cite as: [2005] EWHC 1698 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Queen on the application of NORTH CYPRUS TOURISM CENTRE LIMITED (1) PARADISE FOUND TRAVEL COMPANY LIMTED (2) |
Claimants |
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- and - |
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TRANSPORT FOR LONDON |
Defendant |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robin Allen QC, Graham Brodie and Ms Rachel Chambers (instructed by Transport for London) for the Defendant
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice NEWMAN :
Introduction
"It has recently been brought to my attention that a number of London buses are now carrying an advertisement promoting holidays to North Cyprus. The advert in question being www.go-northcyprus.com.
You should be aware that North Cyprus is not a country recognised by our government, or indeed any other government except for that of Turkey who have illegally occupied the territory for the past thirty years.
It causes me great concern that Transport for London have taken the decision to allow such advertising to appear on their buses and request that these are withdrawn from any form of public transport immediately. Your comments regarding these advertisements and confirmation of their withdrawal would be appreciated as soon as possible."
"The Mayor may issue to Transport for London … specific directions as to the exercise of its functions."
On 16th July 2004 the Mayor issued a direction that the defendant comply with the provisions of section 404 of the 1999 Act. Section 404 (as material) provides:
"(1) In exercising their functions, it shall be the duty of –
(a) the Greater London Authority …
(b) …
(c) …
to comply with the requirement in subsection (2) below.
(2) The requirement is to have regard to the need –
(a) to promote equality of opportunity for all persons irrespective of their race, sex, disability, age, sexual orientation or religion;
(b) to eliminate unlawful discrimination; and
(c) to promote good relations between persons of different racial groups, religious beliefs and sexual orientation."
"7.1 Advertisements should not be approved for, or permitted to remain on display on TfL Sites/Vehicles if they:
a. …
b. …
c. …
d. Are likely to cause widespread or serious offence to members of the public or sections of the public, on account of the nature of the product or service being advertised the wording or design of the advertisement or inference contained therein;
…
k. Contain images or messages that relate to matters of public controversy and sensitivity".
"All advertising management agreements we are party to with TfL operators stipulate the conditions governing the acceptance of advertisements. Following a complaint to the Mayor's office and at TfL's request in December, we therefore duly removed the NCTB's advertisements."
"As you are aware, TfL has previously received complaints (via the Mayor's office) regarding the previous NCTB advertising campaign. Having received these, TfL had a duty to consider and address the concerns outlined therein and has done so.
Having considered the position carefully TfL has reached the following conclusions:-
1. The NCTB advertisements will cause TfL to breach its own advertising policy as in TfL's view they:
are likely to cause widespread or serious offence to members of the public or sections of the public, on account of the nature of the product or service being advertised, the wording or design of the advert or inference contained therein; or
contain images or messages that relate to matters of public controversy and sensitivity.
2. Further, under the current contractual arrangements in place with the bus operators for bus services in Greater London, TfL is entitled to seek the immediate removal of any advertisements which, in TfL's opinion:
are likely to offend the general travelling public or offend ethnic, religious or other groups on account of the nature of the product or service being advertised or design of the advertisement or inference contained in the advertisement or open to the possibility of defacement; and
might adversely affect in any way the interest of any member of the TfL Group or are in any way considered inappropriate.
In view of the factors set out at 1 and 2 above, TfL believes that it is fully justified in adopting its present stance in relation to the proposed NCTB advertising campaign.
Whilst TfL (like Viacom) has no political stance or opinion with regard to the North Cyprus situation, it is clearly a sensitive, ethnic, political issue and a matter of some controversy.
I trust that this letter provides you (and NCTB) with a sufficient explanation of the reasons behind TfL's refusal to allow further NCTB advertising campaigns."
(1) A commitment of the UK government, the European Union and the United Nations to end "the isolation of Northern Cyprus and its people" and to end "the trade embargo".
(2) The expression, by a vote in the April 2004 referendum, of a desire on the part of Turkish Cypriots for the reunification of Cyprus.
(3) The UN Secretary-General's call "to ease the plight in which the Turkish Cypriot people find themselves through no fault of their own".
And alleged:
(4) Perversity on the part of the defendant in yielding to the "Greek Cypriot lobby".
(5) That the ban was "discriminative and offensive" to the very large Turkish Cypriot community in London and not conducive to improving relations between the two communities.
"Much of that promotion has been by the North Cyprus Tourism Centre Limited (NCTC), a UK registered company. Tourism is a vital part of the economy of Cyprus both North and South. London is a very important market for potential travellers to North Cyprus and London Transport advertising represents a very effective means of reaching that market".
(1) Procedural unfairness.
(2) Irrationality.
(3) Infringement of Article 10 ECHR.
The letter maintained, amongst its detailed arguments, that:
(a) the decision treated advertising by North Cyprus as being a political issue favouring one side in the political dispute against the other; and
(b) that it was unlawful and disproportionate in its extent "… banning all advertising for North Cyprus for an unlimited period on all tubes and buses, regardless of the identity of the person placing the advertisement and regardless of the location of the advertisement".
The second decision letter dated 13th April 2005
(1) "It is plain that what is at issue is the desire of the TRNC to advertise the tourism opportunities in the northern part of Cyprus and to seek if necessary to invoke the court's help to that end".
(2) That, in essence, the defendant did not accept that the TRNC may invoke justice in the courts in relation to advertising tourism in the northern part of Cyprus. "The Crown does not recognise TRNC and does recognise the Republic of Cyprus as having sovereignty over all Cyprus. Accordingly, TRNC has no lawful interest in tourism in Cyprus which is cognisable by the courts in the United Kingdom."
(3) That "the current position of the United Kingdom can be seen quite clearly from the latest advice to travellers posted by the FCO to its website on the 4th March 2005".
The letter then went on to set out parts of the website.
(4) That by reference to authority, in particular the case of Veysi Dag v Secretary of State for the Home Department (Immigration Appeal Tribunal decision 14th March 2001) and the case of Luther v Sagor [1921] 3 KB 532 and other cases referred to in the decision of Dag, TfL adopted the conclusion that:
"It is not open to any United Kingdom court or tribunal to give any degree of recognition to the 'Turkish Republic of Northern Cyprus' as a sovereign State". "
(1) It was denied that the decision was procedurally unfair and in breach of the rules of natural justice. Reliance was placed upon Mr Hendy's letter of 9th February 2005 and the fact that the detailed representations in the letter dated 30th March 2005 from Messrs Addleshaw Goddard had been taken into account in reconsidering the initial decision.
(2) As to the ban, said by Addleshaw Goddard to be a ban on all advertising for North Cyprus, being irrational and/or wholly unreasonable, TfL stated:
"TfL does not accept that its decision to ban all advertising for Northern Cyprus on the basis that it is likely to cause widespread or serious offence is irrational and/or wholly unreasonable.
TfL has not banned all such advertising. It has decided it will not accept advertising from the proxies of a body that is in international law (and as accepted by the United Kingdom) in illegal occupation of a part of the territory of the Republic of Cyprus. It would accept advertising from the Tourist Board of the Republic of Cyprus in relation to any part of Cyprus, but not from a body which is seeking to act on behalf of an illegal government".
"Are likely to cause widespread or serious offence to members of the public or sections of the public, on account of the nature of the product or service being advertised, the wording or design of the advertisement or inference contained therein".
It contended that the complaint received from Mr Coleman which the defendant understood represented the views of his Greek Cypriot constituents "was fully justified by reference to the provisions of the Advertising Policy".
"It refers to a web site entitled www.go-northcyprus.com. The web site says in terms in the contact section that it is the "UK Representative of the Ministry of Tourism of Northern Cyprus (TRNC)".
The defendant added:
"It is simply unarguable that this advertisement and its basis in action of the so-called "Ministry of Tourism of Northern Cyprus (TRNC)" is anything other than deeply politically controversial."
(1) That it did not accept that TRNC and its proxies may claim any protection under the ECHR. That claims destructive of rights established under the Convention would not be permitted (see Articles 17 and 18 of Schedule 1 to the Human Rights Act 1998).
(2) That the Council of Europe does not recognise TRNC and does recognise the Republic of Cyprus. Further, that it did not accept that any entity such as the TRNC which is not recognised under international law has any rights to freedom of expression under the ECHR and certainly not to claim to exercise sovereign power in relation to tourism in the north.
(3) The defendant added:
"In any event, TfL considers it would be improper for a public authority such as TfL to permit advertising of this kind designed to attract tourism into an area which carries such a substantial "health warning" from the Foreign Office".
(4) The defendant maintained that it had the power at law to act as it had done and that its actions were prescribed by law.
(5) The defendant refuted the contention that the decision unlawfully discriminates against the Turkish Cypriot community, whether resident within the United Kingdom or in North Cyprus, relying upon the fact that section 404 of the 1999 Act was concerned with the promotion of equality in respect of "lawful opportunities for all people". Since TRNC is not internationally recognised and Turkey's occupation of North Cyprus is considered internationally to be illegal, TfL failed to see how the decision was inconsistent with the provisions of section 404 of the 1999 Act. On this point, the letter ended:
"There is no question of the TRNC having a lawful right to sovereignty over the north of the Republic of Cyprus and cannot offer tourism over that area without acting in a way which is contrary to the rights recognised as lawfully being with the Republic of Cyprus."
(6) The defendant denied that its decision was irrational and unreasonable in that it was taking sides on a political issue. It added:
"The fact that the United Kingdom government wishes to see such reunification of Cyprus is not inconsistent to its stated policy of non-recognition of 'TRNC' and does not alter the present position of 'TRNC' continuing to remain an unrecognised 'State'."
(7) As to the suggestion that the advertising bore no political message whatsoever, the defendant maintained that this is advertising by a body which is illegal in international law and not recognised by the United Kingdom. The letter went on to add:
"As we have mentioned above, the decision was reached as a result of a complaint received from Brian Coleman in November 2004 based upon NCTB's previous advertising campaign on London buses.
TfL understands that this complaint was prompted by complaints Mr Coleman had received from his Greek Cypriot constituents. TfL was also informed by the Mayor's Office that the Mayor agreed that further advertisements of this kind on London Transport would not be acceptable.
The decision was not a disproportionate response to the complaints received as it was the only sanction available to TfL following its consideration of the complaint and the advertisement in question.
It is ridiculous to suggest that the advertising does not contain a political message. We have pointed this out above. Accordingly TfL does not accept that the advertising contains no political message whatsoever. It is clear from the complaint received that the advertisement in question promoting 'North Cyprus' does relate to a matter of political controversy and sensitivity which is of a highly political nature, i.e. the North Cyprus situation."
"In view of the previous complaint received (which was also endorsed by the Mayor's Office) TfL considered the terms of its advertising policy and refused to sanction this proposed campaign on the grounds that it:
- was likely to cause widespread or serious offence to members of the public or sections of the public; and
- contained images/messages that related to matters of public controversy and sensitivity namely, the North Cyprus situation.
Having received further representations from interested parties TfL has reconsidered its decision to refuse to sanction the proposed NCTC campaign and has decided to maintain its stance on this issue.
This decision was reached taking into account: (1) the terms of TfL's advertising policy; (2) the fact that it would be improper for a public authority such as TfL to allow advertising designed to attract tourism into an area which carries such a substantial "health warning" from the UK Foreign & Commonwealth Office; and (3) the representations received to date."
(1) confirming that Britain "does not recognise any state in Cyprus other than the Republic of Cyprus";
(2) stating that "this does not mean that the UK government refrains from dealing with the Turkish Cypriot community. On the contrary, we believe that helping the Turkish Cypriots to come out of isolation and to raise their standards towards EU norms, will make a settlement in Cyprus more likely";
(3) confirming the EU's and the Secretary General's call "to end the isolation of Turkish Cypriots" and confirming the UK government's agreement with that objective;
(4) expressing a willingness to have a dialogue with the defendant "to discuss the potential presentational issues" on the media coverage in connection with the ban;
(5) rejecting the suggestion the FCO website constituted "a health warning"; and
(6) recognising that the key issues in connection with tourism were related to "… displaced people and appropriated property" and that the promotion of tourism was regularly subject to criticism from Greek Cypriots.
The hearing
(1) Procedural unfairness at common law and contrary to Article 6.1 ECHR.
(2) Article 10 of ECHR.
(3) Irrationality.
(1) the content and meaning of the advertisement;
(2) the nature and extent of the ban;
(3) the standing of the claimants;
(4) the reasons for the ban;
And as necessary and not already considered:
(5) the available legal bases for imposing the ban;
(6) any remaining grounds of challenge.
Content and meaning of the advertisement
"UK Representative office of the North Cyprus Tourism Ministry."
At the bottom of the page, a statement:
"This site is provided FREE by 'icCyprus' to the UK Representative Office of the Ministry of Tourism of TRNC".
The greater part of the site is devoted to listing travel agents who promote holidays in North Cyprus. The second claimant is included in the list.
"Nothing could be more obvious than that the advertising of a website which is the "official" website of the illegal and purported TRNC would cause grave offence and fall to be scrutinised under the defendant's policy" (Skeleton Argument, paragraph 86).
At paragraph 43 of the same Skeleton Argument he submitted:
"The central point about which all else revolves is the illegality of TRNC".
So expressed, the argument depends not upon the content or meaning of the words on the website, but upon the fact that TRNC, being a state unrecognised in international law, operated a website promoting tourism in North Cyprus, to which the advertisement referred. In oral argument, Mr Allen, put it somewhat differently. He submitted that, by referring to a "Ministry of Tourism", TRNC was impliedly representing that it was a recognised state and that the statements including the word "Ministry" should be regarded as misrepresentations, amounting to an unjustified and misleading assertion of legality. Although the second decision letter does not supply this reason for the contentions that, "TRNC claims to exercise sovereignty over Northern Cyprus" and claims ".. to exercise sovereign power in relation to tourism in the north", it is likely this argument forms the basis upon which those points were advanced.
The nature and extent of the ban
"TfL does not accept that its decision to ban all advertising for North Cyprus on the basis that it is likely to cause widespread or serious offence is irrational and/or wholly unreasonable.
TfL has not banned all such advertising. It has decided it will not accept advertising from the proxies of a body that is in international law (and as accepted by the United Kingdom) in illegal occupation of a part of the territory of the Republic of Cyprus. It would accept advertising from the Tourist Board of the Republic of Cyprus in relation to any part of Cyprus, but not from a body which is seeking to act on behalf of an illegal government".
"… Is this a total ban on all advertising for North Cyprus as a holiday destination or just from NCTB? Would you consider advertising for North Cyprus from other companies?"
Mr Hendy responded by letter dated 5th April 2005 to point out that the decision was to be reconsidered, but referring to the decision as being "… to refuse to allow further advertising campaigns for holidays in Northern Cyprus". It is not clear whether the reference to "all advertising campaigns" included all or only a campaign by TRNC. Or, for that matter, any advertising campaign in which it could be seen that TRNC was involved or connected.
"You express surprise that PFTC is a claimant. Mr Hendy's letter of 9th February at least implicitly and Mr Farmiloe's letter of 13th April explicitly made it clear that TfL banned all advertising for North Cyprus (save that from the Tourist Board of the Republic of Cyprus). Should TfL have wished to clarify its position it would have responded to the second paragraph of our letter of 15th April. In addition it should have been clear to TfL that banning advertising by NCTC would affect others with a commercial interest in North Cyprus – see our letter of 30th March".
(1) TfL's opinion that the advertising campaign infringed TfL's advertising policy because "by referring to North Cyprus and by containing a link to NCTC's website contained images/messages that relate to matters of public controversy and sensitivity" and therefore, in TfL's opinion, infringed the policy.
"The North Cyprus situation being clearly a matter of public controversy and sensitivity".
(2) TfL considering "… that it would be inappropriate to carry such advertisements taking into account the concerns highlighted within the "Travel Advice" section of the Foreign & Commonwealth Office website".
The standing of the claimants
(1) the claim is not justiciable because TRNC has no right to claim justice from the courts and the claims of each of the claimants fall for the same reason;
(2) it is an abuse of the process of the court for TRNC to appoint an agent for the purpose of seeking the assistance of the court; and
(3) neither of the claimants has a sufficient interest to bring the claim.
In truth, as he recognised, the contentions depend for their success upon the same arguments.
The standing of an unrecognised state
(1) the rule on standing is not a procedural rule, but concerned "fundamental principles of English law based on important public policy considerations" (see Gur 609F);
(2) it was a device which would enable every unrecognised state to circumvent the fundamental principles of our law and, as such, would be contrary to public policy, being "a colourable device" (see Gur 609H-610A-B).
"Carl Zeiss was decided on the basis of the application of principles of agency: on the materials before the House of Lords the relevant acts were categorised as those of the U.S.S.R. rather than the G.D.R. This route was open to their Lordships because there was an executive certificate, which expressly stated, at p. 859:
"up to the present date Her Majesty's Government have recognised the State and Government of the Union of Soviet Socialist Republics as de jure entitled to exercise governing authority in respect of that zone [the G.D.R.]."
"We note that in your skeleton argument your counsel assert that 'The claim is not brought by the TRNC, through an agent or in any other capacity" (C skel paragraph 11). TfL does not accept this proposition either in fact or in law'.
Whether or not it is lawful for NCTC to exist as a company in this country is beside the point, if it is acting as agent for TRNC, in this advertising campaign and this judicial review.
We shall submit that there is the strongest possible basis for an inference that this is so.
The facts, either in the bundle or readily accessible, make it perfectly clear that the advertising work of NCTC is undertaken to support the "Ministry of Tourism" of the "Turkish Republic of Northern Cyprus", and that it is TRNC which controls and pays for this work. It is therefore properly to be inferred that, in all material respects for this case, NCTC is the agent or proxy of TRNC.
As you know we shall argue that:
1. TRNC does not have either standing or justiciable rights that the court can recognise;
2. It cannot avoid this problem through the use of agents: and
3. Both NCTC and Paradise are acting in this capacity.
We shall refer the court to the following matters in support of the proposition that NCTC is an agent of TRNC.
1. The letter before action was written on behalf of TRNC, its representative Mr. Korhan, and NCTC (Bundle 1/5/149).
2. TRNC fund NCTC (Bundle 1/4/22 at para 5, C skeleton 6112).
3. NCTC only make a short form return to companies house, and have no independent means of funding this litigation.
4. NCTC is the representative office of Tourism Ministry of TRNC (Bundle 1/4/22 at para 5)
5. There are only two shareholders of NCTC, Yalcin Vehit and Hakki Muftuzade each holding one share (Bundle 1/51/46).
6. They both give their address as 29 Bedford Square, London WC1B 3EG (Bundle 1/5/45 –46). This is the address of the Office of the London Representative for TRNC (Bundle 2/12/379), which is also the address of the NCTC.
7. We know from the Bundle that Yalcin Vehlt is an Under- Secretary of the Ministry of Tourism of the TRNC (Bundle 1/5/44).
8. Hakki Muftuzade is described as the UK Representative of the TRNC see http://www.cypnet.com/ncyprus/tourism/embassies.html#uk. We shall ask for this document to be added to the bundle.
9. There are only two directors of NCTC,
a. One is Namik Korhan who is another London Representative of TRNC (Bundle 1/5/43, 1/5/149); and
b. The other is the same Mr. Vehit.
10. The secretary of NCTC is Yilmaz Kalfaoglu (Bundle 1/5/43 .He says that he is the Tourism Coordinator of the first claimant NCTC. Whether or not that is true, he is also the Tourism Coordinator of the Ministry of Economy and Tourism of North Cyprus (see http://www.holidayinnorthcyprus.com/arrival rep.jsp). We shall ask that this document be added to the bundle.
11. The obvious purpose of the advertising campaign is to promote www.go-northcyprus.com (Bundle 1/5/124 and passim).
12. This website is explicitly stated to be the website of the Office of Tourism of the Turkish Republic of Northern Cyprus (Bundle 1/5/52).
13. NCTC carries on no independent commercial activities.
14. It is perfectly plain that the funds for purchasing advertising on TfL's sites must come and only come from TRNC.
Accordingly we invite you admit forthwith that NCTC is the agent (or proxy) of TRNC in its activities of advertising the TRNC website and tourism in the Northern Part of Cyprus.
In the absence of an admission we shall ask the Court to infer as much from the above documents. If the court considers that it still needs to hear from Mr. Kalfaoglu before it is willing to draw such an inference we shall ask that it directs cross-examination of Mr. Kalfaoglu on this issue.
As to The Paradise Found Travel Company Limited, it is plain that they were added as Claimants when TRNC decided not to proceed with the litigation. We have perfectly reasonably asked you to confirm to us who is paying for their part in the litigation. You have declined to do so. We shall ask the court to either infer that their part of the litigation is paid for directly or indirectly by TRNC or (on the same basis as above) to direct cross-examination of Mr. Suleyman on the question whether Paradise's intervention in the litigation is also in this respect as an undisclosed agent of TRNC.
In each case we consider that it is necessary that the court should consider such cross-examination to ensure that the rule against judicial recognition of non-recognised states is not being abused".
(1) The first claimant has not purported to perform governmental acts on behalf of TRNC. The promotion of tourism is a commercial activity which confers benefits on the administration or government of the territory in question and the people of the territory. Governments of states recognised by HMG, indeed HMG itself, encourage, support by finance and otherwise, the activities of companies in a wide variety of commercial fields, but, merely by doing so, they do not become bound by the acts of the companies. The first claimant has engaged in commercial activity on its own behalf and has not sought to bind TRNC or render it liable for any obligation. The fact that it is funded by the government of TRNC is irrelevant. Further, it enjoys separate legal personality from its shareholders who are, in any event, not TRNC.
(2) The first claimant was incorporated before this dispute arose. It has contracted with the defendant in its own name as principal. It wished to enter into a further contract, but the defendant's decision has prevented it from doing so. It has not been appointed as agent "for the purpose of seeking the assistance of the court" on TRNC's behalf. As the contracting party prevented from contracting further, it is obviously the party primarily affected. The facts do not approach the facts which led Steyn J. to conclude the assignment was "a colourable device".
(3) I reject the thrust of the submission, which presses for the consequences of the non-recognition of TRNC as a state, to operate so as to render non-justiciable any and all activity carried on by any legal person in or in connection with the territory of North Cyprus, on the ground that the Republic of Cyprus is sovereign in North Cyprus. I accept that the administration in the name of TRNC is illegal according to the law which the English court recognises as governing the territory, namely the law of the Republic of Cyprus. I recognise that this court cannot act so as to accord recognition to TRNC as a sovereign state, but, in according standing to the first claimant in respect of its legal rights and obligations as a corporate entity existing in English law, no recognition is accorded to TRNC. According to English law, I can see no basis for concluding that the first claimant is the agent of TRNC, which, according to English law, cannot be recognised as lawfully existing. Nor can the mutuality of interest, which I accept can be shown to exist in the first claimant being able to exploit the commercial advantages of tourism in North Cyprus and TRNC's ability to receive revenue from tourism, operate so as to deny the first claimant access to the court in connection with its own legal rights.
(4) I should add that, had it been necessary, I would have called for argument on the issue whether "common sense and justice" did not require the court to acknowledge the existence of a qualification to the principles flowing from non-recognition, for the purpose of doing justice to individuals "who were caught up in a political situation which was not of their making" (see Gur p. 605 G). The UN Secretary-General's exhortation to the international community "to ease the plight in which Turkish Cypriot people find themselves through no fault of their own" echoes the rationale for the UK government's approach, which is:
"… whilst respecting this position [the fact of non-recognition], this does not mean that the UK government refrains from dealing with the Turkish Cypriot community. On the contrary we believe that helping the Turkish Cypriots to come out of isolation, and to raise their standards towards EU norms, will make a future settlement in Cyprus more likely" (Simon Wood: letter 3rd May 2005).
It is unnecessary to do so because, in my judgment, the law is consistent with that objective being achieved.
The second claimant
The reasons for the ban
"Taking into account the fact that TRNC is not internationally recognised and Turkey's occupation of North Cyprus is considered internationally to be illegal, TfL fails to see how the decision is inconsistent with the provisions of section 404 of the Greater London Authority Act 1999".
It is true another part of the letter alleged that TRNC is "in illegal occupation of a part of the territory of the Republic of Cyprus" (see the extract in paragraph 20(2) above). Whilst this has the merit of being legally accurate, it leaves this aspect of the decision in confusion.
Decision letter 9th February 2005
Paragraph 7.1(d) and (k) of the Advertising Policy
Decision letter of 13th April 2005
"…what is at issue is the desire of the TRNC to advertise the tourism opportunities in the northern part of Cyprus and to seek if necessary to invoke the court's help to that end".
The role of TRNC in promoting tourism by advertising is the source of offence, but only because TRNC is not recognised:
"If the political position pertaining to North Cyprus were to change or the territory were to become subsumed within an internationally recognised state, TfL would, of course, reconsider its position".
But the letter also puts forward another reason, a reason for not permitting any advertising for tourism in North Cyprus:
"In any event, TfL considers that it would be improper for a public authority such as TfL to permit advertising of this kind designed to attract tourism into an area which carries such a substantial "health warning" from the Foreign Office".
"in its capacity as a public authority, TfL also considered that it would be inappropriate to carry such advertising taking into account the concerns highlighted with the Travel Advice section of the Foreign and Commonwealth Office website".
"TfL's decision, based upon the complaint received from the Chairman of the London Assembly … pointed out quite clearly that TRNC was not recognised by the UK (and which TfL understands represents the views of his Greek Cypriot constituents) was fully justified by reference to the provisions of the Advertising Policy".
Later:
"It is simply unarguable that this advertisement and its basis in action of the so called "Ministry of Tourism of Northern Cyprus" (TRNC) is anything other than deeply politically controversial".
The available legal bases for imposing a ban
Article 10 ECHR
36.1 it must be prescribed by law;
36.2 it must further a legitimate aim; and
36.3 the interference must be shown to be necessary in a democratic society (Shayler [2003] 1 AC 247 per Lord Bingham at paragraph 23 page 268.269).
Prescribed by law
"it shall be within the capacity of Transport for London 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".
"widespread or serious offence to members of the public or sections of the public, on account of the product or service being advertised the wording or design of the advertisement or inference contained therein".
"the nature of the product or service being advertised the wording or design of the advertisement or inference contained therein"
do not foreseeably cover the separate content of a website referred to in the advertisement.
Legitimate Aim
Necessary in a democratic society
Remaining grounds of challenge
Procedural Unfairness