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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Core Issues Trust v Transport for London  EWHC 651 (Admin) (22 March 2013)
Cite as:  EWHC 651 (Admin),  PTSR 1161
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CORE ISSUES TRUST
|- and -
TRANSPORT FOR LONDON
Hearing dates: 28th February & 1st March 2013
Crown Copyright ©
MRS JUSTICE LANG:
"NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!
"SOME PEOPLE ARE GAY. GET OVER IT!"
The Legislative and Regulatory Framework
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.
"(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.
(h) The advertisement depicts direct or immediate violence to anyone shown in the advertisement.
(i) The advertisement condones or provokes anti-social behaviour.
(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). "
"(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 –
pregnancy and maternity
religion or belief
"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."
"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."
"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."
"SOME PEOPLE ARE GAY. GET OVER IT!"
That advertisement was placed by Stonewall, a campaigning organisation which seeks to promote equality and justice for lesbians, gay men, bisexual and transgender individuals, commonly abbreviated to "LGBT". Anglican Mainstream and the Trust deliberately copied the design, colour and wording of Stonewall's advertisement, to make it clear that it was a response.
"… the advertising copy you submitted seems to comply with the British Code of Advertising, Sale Promotion and Direct Marketing (the CAP Code). We have looked at your copy in light of existing ASA adjudications and believe that the ASA is unlikely to uphold complaints against it".
"If the landlord at any time in its absolute discretion requires the display of Advertisement Copy at this property to be interrupted or discontinued then the Contractor may interrupt or discontinue such display of Advertisement Copy without prior notice to the Principal and upon any such action of the Landlord the Contractor may terminate the Agreement whether wholly or in part notwithstanding anything therein contained, In the event of such termination, the Contractor's liability is limited as outlined in Clause 9.4 above."
"This has been approved by ASA/CAP... We are accepting this, but wanted to let you know. My fear was that if we said no – we have no legal grounds upon which to turn this down (nor within our bus contracts) My personal fear is that there would be an awful lot more PR for this if turned down (particularly with no grounds to do so)."
"Attempts to "treat" or alter sexual orientation have been strongly condemned by leading medical organisations. The Royal College of Psychiatrists has warned that "so-called treatments of homosexuality create a setting in which prejudice and discrimination flourish" and concluded in 2010 that "there is no sound evidence that sexual orientation can be changed". The British Medical Association has also attacked "conversion therapy", a related field to reparation therapy, passing a motion asserting that it is "discredited and harmful to those 'treated'…..
In a statement, Anglican Mainstream and Core Issues said Stonewall's slogan is "merely another attempt to close down the critical debate about being gay and marriage 'equality'. They accused Stonewall of riding roughshod over individuals who choose to "move out of homosexuality".
The statement continued "Both organisations recognise the rights of individuals to identify as gay, and to live according to their own values. But, by the same token, they believe individuals – such as married men and women unhappy with their homosexuality – should be supported in developing their heterosexual potential where this is the appropriate life choice for them… Current scientific research says there is no gay gene and that sexuality is far more fluid than has hitherto been thought."
"We might not have a legal reason to block it, but how does this meet our criterion for avoiding issues of public controversy? I find it pretty hard to reach a judgment about these things without someone having done some sort of analysis as to how this meets or fails to meet our advertising policy. It is also not very helpful being asked to exercise that judgment in isolation without some sort of analysis of precedent – i.e. what have/haven't we allowed in this area previously. Can CBSO or someone here answer please to help us reach a conclusion?"
"This advertisement has just been brought to our attention by our advertising agency, CBSO and we have decided that it should not run on London's bus or transport networks. We do not believe that these specific ads are consistent with Tfl's commitment to a tolerant and inclusive London. The adverts are not currently running on any London Buses and they will not do so.
The Mayor was strongly of the view that this ad should not be run….."
"29. During the afternoon of 12 April, TfL became aware of growing public reaction and further press coverage, which supported the view that the underlying message behind the advertisement (even if this is characterised as no more than suggesting some recovery from or reversal of homosexuality) was causing offence or was controversial, or at the very least that it had the potential to do so. For example, there were over 800 comments in response to the Guardian story … before this facility was closed and TfL received 37 complaints. Comments on social media also reflected intense public concern and offence, with around 1500 Twitter comments revealed by our social media monitoring engine and a dedicated Face book page set up against the advertisement. Although there was some correspondence in support of the advertisement going ahead, the vast majority expressed concern – and even on occasion outrage – about the advertisement and/or suggested that it should not proceed. This reinforced my own concerns.
30. In the circumstances, including the principally negative public reaction, I was concerned that the advertisement did not meet paragraph 3.1(d) of TfL's advertising policy.
31. I (rather than the relevant custodian under the advertising policy, who was in the process of leaving TfL) decided that the advertisement should not run given that it did not appear to meet TfL's advertising policy, in relation to paragraph 3.1(d) and (k)."
"Although CBS Outdoor did not seek TfL's approval in line with TfL's Advertising Policy dated 4th October 2009, the advertisement is not approved for posting on the TfL network as, in TfL's opinion, it falls within the following categories set in paragraph 3.1 of the Advertising Policy:
- 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; and/or
- The advertisement contains images or messages which relate to matters of public controversy and sensitivity."
These reasons were not forwarded to Anglican Mainstream.
"The advertisement was not approved for posting on the TfL network as, in TfL's opinion, it fell within the following categories set in paragraph 3.1 of the Advertising Policy:
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; and/or
The advertisement contains images or messages which relate to matters of public controversy and sensitivity."
Abuse of power
"Mr Johnson used his powers as chairman of Transport for London to instruct the body to ditch the campaign.
He said yesterday: 'London is one of the most tolerant cities in the world and intolerant of intolerance'.
'It is clearly offensive to suggest that being gay is an illness that someone recovers from and I am not prepared to have that suggestion driven around London on our buses.'" (Daily Mail online)
He said that he made his decision not only because he thought an advert which suggested that gay people could be cured was likely to cause "great offence", but also because of the possible reverberations for London's Christian community. "The job of mayor is to unite, the job is to stop prejudice, and actually the backlash would be so intense it would not have been in the interest of Christian people in this city," he said. (Guardian online)
The Evening Standard said he told the audience: "The job of mayor is to unite, to stop prejudice. "The backlash would be so intense it would not have been in the interest of Christian people in this city."
Ken Livingstone agreed with Mr Johnson's decision to pull the adverts, saying: "In my view Boris was right to pull them".
(Pink News online)
Unfair decision-making process
Human Rights Act 1998
Article 10 ECHR
(1) General principles
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions, and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder and crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
a) a claimant must establish that his right to freedom of expression has been interfered with by a public authority;
b) the public authority must establish that the interference is:i) prescribed by law;ii) in furtherance of a legitimate aim; andiii) necessary in a democratic society i.e. justified by a 'pressing social need' and proportionate to the legitimate aim relied upon.
(2) Is Article 10(1) engaged?
"56. In the present case, that primary right [under Article 10] was not engaged. There was nothing that the Alliance was prevented from doing, It enjoyed the same free speech as every other citizen. By virtue of its entitlement to a [Party Election Broadcast] it had more access to the homes of its fellow citizens that other single-issue groups which could not afford to register as a political party and put up six deposits.
57. There is no human right to use a television channel..."
"58. The fact that no one has a right to broadcast on television does not mean that article 10 has no application to such broadcasts. But the nature of the right in each case is different. Instead of being a right not to be prevented from expressing one's opinions, it becomes a right to fair consideration for being afforded the opportunity to do so; a right not to have one's access to public media denied on discriminatory, arbitrary or unreasonable grounds."
"Article 10 does not entitle ProLife Alliance or anyone else to make free television broadcasts. Article 10 confers no such right. But that by no means exhausts the application of article 10 in this context. In this context the principle underlying article 10 requires that access to an important public medium of communication should not be refused on discriminatory, arbitrary or unreasonable grounds. Nor should access be granted subject to discriminatory, arbitrary or unreasonable condition. A restriction on the content of a programme ... must be justified. Otherwise it will not be acceptable. This is especially so where, as here, the restriction operates by way of prior restraint. On its face prior restraint is seriously inimical to freedom of political communication."
(3) Prescribed by law
a) the interference has a legal basis in national law;
b) the law is accessible;
c) the law is sufficiently precise for the individual to be able to regulate his conduct in accordance with the law and foresee the consequences of his actions, to a degree that is reasonable in the circumstances.
"(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.
(k) The advertisement contains images or messages which relate to matters of public controversy and sensitivity."
"The Court has, however, already emphasised the impossibility of attaining absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. Criminal law provisions on obscenity fall within this category."
"40. The Court reiterates that, according to its case law, the relevant national "law", which includes both statute and common law, must be formulated with sufficient precision to enable those concerned—if need be, with appropriate legal advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. A law that confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference. "
42. The Court recognises that the offence of blasphemy cannot by its very nature lend itself to precise legal definition. National authorities must therefore be afforded a degree of flexibility in assessing whether the facts of a particular case fall within the accepted definition of the offence. "
(4) Legitimate aim
(5) Necessary in a democratic society
(b) Case law
"freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more likely to accept decisions that go against them if they can in principle seek to influence them, it acts as a brake on the abuse of power by public officials, it facilitates the exposure of errors in the governance and administration and justice of the country..."
"The strong conviction that freedom of speech is a universal value is challenged today not only by freedom's oldest opponents (the despots and ruling thieves who fear it), but also by new enemies who claim to speak for justice not tyranny. These new enemies point to other values we respect, including self-determination, equality, and freedom from racial hatred and prejudice, as reasons why the right of free speech should now be demoted to a much lower grade of urgency and importance."
"These calls for censorship will strike many people as reasonable and signal, just for that reason, a new and particularly dangerous threat to free speech, for we are more likely to relax our defence of that freedom when our betrayers are foreign, or when the speech in question seems worthless or even vile. But if we do, then the principle is inevitably weakened, not just in such cases, but generally."
"The applicant's religious views and the biblical scripture which underpins those views no doubt cause offence, even serious offence, to those of a certain sexual orientation. Likewise, the practice of homosexuality may have a similar effect on those of a particular religious faith. But Art 10 protects expressive rights which offend shock or disturb... the respondent has failed to convincingly establish the necessity for such restriction which, in my view, disproportionately interferes with the applicant's freedom of expression. In making this assessment I have taken into account the very particular context in which the advertisement was placed, the fact that the advertisement did not condone and was not likely to provoke violence, contained no exhortation to other improper or illegal activity, constituted a genuine attempt to stand up for their religious beliefs and to encourage others to similarly bear witness and did so by citing well known portions of scripture which underpinned their religious faith and their call to bear witness..."
"… a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary - cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgment. To hold otherwise would mean that freedom of speech and opinion is subjected to the 'heckler's veto'. "
"The Court's supervisory functions oblige it to pay the utmost attention to the principles characterising "democratic society". Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, ... it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. This means … that every 'formality', 'condition', 'restriction' or 'penalty' imposed in this sphere must be proportionate to the legitimate aim pursued."
"The Court recalls that freedom of religious expression constitutes one of the essential foundations of a democratic society. As paragraph 2 of Art. 10 expressly recognises, however, the exercise of that freedom carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Art. 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane."
"The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account."
"The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice."
"where delicate and difficult judgments are involved ... this court will treat with appropriate respect the views taken by those whose primary responsibility is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the courts to decide whether or not the Convention rights have been breached: R (SB) v Denbigh High School  1 AC 100; Belfast City Council v Miss Behavin' Ltd  1 WLR 1420."
"I have to confess that this 'post-gay' word is deeply unsettling me. I'm wondering if they'll need to label us with pink stars so we can be easily identified when the 're-education' or 'treatment' begins."
"This is truly disgusting, and I can't believe it was allowed. Treating homosexuality (through therapy or otherwise) as if it were a disease is very backward, and illegal amongst other things. And for such messages to be paraded around London is just unbelievable ..."
"This is hate speech in my view as it encourages the interpretation homosexuality as something to be treated. Just appalled that this can even get off the ground."
"This is an absolute disgrace. As a gay person I find this not only shocking, but incredibly offensive."
"I am appalled that TfL have decided to allow homophobic advertising on their London buses. The "Not gay, post-gay and proud" campaign promotes an outdated, disreputed, and backward idea that being gay can be, and should be cured - an idea that is not only incorrect, but is also highly offensive. .. As a gay woman I have faced homophobic attitudes since my early teens and still experience it now in my twenties. I use the London buses to get to work 5 days a week, but if I see or hear about a single bus with that poster driving around I will be withdrawing my support of this company until you withdraw your support of homophobia."
"I write to complain in the strongest possible terms about TfL's decision to carry advertising materials for a campaign by the Core Issues Trust and Anglican Mainstream, which promotes therapy to 'cure' gay people of their gay tendencies. I believe TfL's decision to promote both the campaign and the idea that homosexuality is an affliction in need of a cure to be highly misguided and irresponsible for a number of reasons:
- the presence of these materials in such a prominent and everyday London context legitimises negative perceptions of homosexuality and general homophobia.
- London is a modern, cosmopolitan city with a large number of gay people living in it, who will now - should they travel on buses on these specific routes - encounter material that suggests they are in need of therapy so as to become 'ex-gay'.
- there are numerous cases of young people struggling with their sexuality as a result of encountering general homophobia in everyday life. This campaign adds to the enormous pressure they experience at this crucial time in their lives….."
"Not only is this message intolerant and divisive, it also uses the terms 'ex-gay' and 'post-gay' which refer to people who have been through so-called therapy to address their homosexuality. Given that this treatment has been entirely discredited by the British Medical Association, it seems irresponsible in the extreme to advertise (and thereby legitimise) such theories."
"I am currently a police officer for the Met and also an LGBT Liaison officer. This shocks me and I believe is also an offence. … If this advert is allowed to be publicly displayed, I personally hold you responsible as the Mayor of London, and you will be committing the offence by allowing it to be displayed. I expect you to put a very quick stop to this.… With people already finding it hard coming to terms with their sexuality, this gets posted and it will be harder for some. There is already a massive issue with gay bullying and hate crime and this will give people an excuse. We do not want another gay person to kill themselves because they can't be who they are!"
a) eliminate discrimination, harassment and victimisation against persons with same- sex sexual orientation;
b) foster good relations between those who have same-sex sexual orientation and those who do not, in particular to tackle prejudice and promote understanding.
The Advertising Policy reflects this requirement (under the predecessor provision in section 404 GLAA 1999).
Article 14 and the Equality Act 2010
"Sexual orientation is a protected characteristic. It means a person's sexual
• persons of the same sex (that is, the person is a gay man or a lesbian);
• persons of the opposite sex (that is, the person is heterosexual); or
• persons of either sex (that is, the person is bisexual)."
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religious belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
"Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a "manifestation" of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9 paragraph 1 (see Skugar and Others v. Russia (dec.), no. 40010/04, 3 December 2009 and, for example, Arrowsmith v. the United Kingdom, Commission's report of 12 October 1978, Decisions and Reports 19, p. 5; C. v. the United Kingdom, Commission decision of 15 December 1983, DR 37, p. 142; Zaoui v. Switzerland (dec.), no. 41615/98, 18 January 2001). In order to count as a "manifestation" within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question (see Cha'are Shalom Ve Tsedek v. France [GC], no. 27417/95, paragraphs 73-74, ECHR 2000-VII; Leyla Sahin, cited above, paragraphs 78 and 105; Bayatyan, cited above, paragraph 111; Skugar, cited above; Pichon and Sajous v. France (dec.), no. 49853/99, Reports of Judgments and Decisions 2001-X). (Emphasis added)."
"It is true that public declarations proclaiming generally the idea of pacifism and urging the acceptance of a commitment to non-violence may be considered as a normal and recognised manifestation of pacifist belief. However, when the actions of individuals do not actually express the belief concerned they cannot be considered to be as such protected by Article 9 (1), even when they are motivated or influenced by it".
a) procedural unfairness;
b) failure to take into account relevant considerations;
c) inconsistent and partial application of TfL's Advertising Policy as a breach of the administrative law principle of consistency.
Therefore it would be wrong for me to decide the claim against TfL on these grounds. I observe that, even if the Trust had pursued these grounds, it could only, at best, have resulted in the Court quashing TfL's decision, leaving TfL free to make the same decision again, in a lawful manner. No doubt that was the reason why the Trust chose to rely instead upon the Human Rights Act 1998 and the Equality Act 2010.
Summary of conclusions
a) advertisements on the side of London buses are highly intrusive;
b) the advertisement would cause grave offence to a significant section of the many inhabitants of London; and, for those who are gay, it was liable to interfere with the right to respect for their private and family life under Article 8(1);
c) it was perceived as homophobic and thus increasing the risk of prejudice and homophobic attacks;
d) it was not a contribution to a reasoned debate;
e) leaflets, articles, meetings and the internet all provide an alternative vehicle for the expression of the Trust's message;
f) under the Equality Act 2010, TfL was under a duty to eliminate discrimination and harassment against gays and to "foster good relations" "tackle prejudice" and "promote understanding" between those who have same-sex orientation and those who do not. Displaying the advertisement would have been in breach of that duty.