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Procedural Unfairness? Get over it!

27 March 2013
Core issues Trust v Transport for London ("TfL")

The High Court has rejected a claim brought by the Core Issues Trust (the "Trust") in relation to a proposed "anti-gay" advertising campaign. The Court ruled that it was lawful for TfL to refuse to display, on London buses, the advertising slogan: "Not gay! Ex-gay, post-gay and proud. Get over it!"

The slogan was designed as a response to a 2012 campaign run by Stonewall, a gay rights charity.  The Stonewall campaign had placed advertisements on the side of London buses stating: "Some people are gay. Get over it!"

TfL is no stranger to controversy when it comes to ad campaigns.  In 2008, the British Humanist Association ran a bus campaign featuring the slogan: "There's probably no God. Now stop worrying and enjoy your life."  In 2009, the Christian Party ran a similar campaign with the slogan "There definitely is a God".  Both campaigns prompted a number of complaints to the Advertising Standards Authority ("ASA").

In Court, TfL argued that allowing the Trust's adverts to be displayed would have been contrary to its advertising policy (the "Advertising Policy"), which sets out the high level principles, decision-making framework and criteria for the approval of advertisements appearing on TfL's services.  The Advertising Policy states that advertisements should not be posted if they were "likely to cause widespread or serious offence" or contained "images or messages which relate to matters of public controversy and sensitivity".  TfL also pointed to its duty under s. 149 of the Equality Act to eliminate discrimination and promote and foster understanding between gay people and heterosexuals.

The Trust argued that TfL had abused its statutory powers. It claimed that the real reason for the refusal was that Boris Johnson, who acts as the Chair of TfL, disagreed with the views expressed and was concerned the campaign might affect his re-election prospects.  The Trust also criticised the TfL decision-making process, although it did not run this as a legal argument.  The Trust claimed – and TfL did not dispute – that TfL had cancelled the advertising contract without warning, with no consultation process and with no opportunity for the Trust to vary the content of the advertisement (despite such a course of action being required to be available under the Advertising Policy).

However, the Trust's key argument was that TfL's actions amounted to an unjustified breach of its right to freedom of expression under Article 10 of the ECHR.  The Trust also claimed that its rights under Article 14 (not to be discriminated against in exercising its freedom of expression) and Article 9 (freedom of religion) were breached.

In giving judgment, Mrs Justice Lang was critical of TfL's decision-making, stating that it seemed to give almost no consideration to the requirements of Article 10.  She found that the "decision-making process was procedurally unfair, in breach of its own procedures and demonstrated a failure to consider the relevant issues".   Furthermore, TfL had made no attempt at the time of the decision to justify its behaviour under the Equality Act.  The fact that TfL had previously permitted "potentially offensive" advertisements on its transport system also  led Lang J to state that it had applied its own Advertising Policy "inconsistently and partially".  However, in the absence of a challenge by the Trust on the grounds of procedural impropriety, Lang J was unable to find against TfL on this basis. 

Turning to the human rights arguments, Lang J held that, despite the existence of procedural unfairness, TfL had been entitled to refuse to display the advertisements.  Articles 9 and 14 were not engaged.  While Article 10 was engaged, TfL's actions amounted to a justified and proportionate restriction on the right to freedom of expression.  The particular factors that weighed in TfL's favour included the intrusiveness of the ads, the grave offence that would be caused to many London residents, the homophobic nature of the advert, and TfL's duties under the Equality Act.

In the context of human rights, the balancing of competing considerations to assess proportionality is familiar territory.  The unusual feature of this case is that the defendant was vindicated on the basis of a justified and proportionate interference with a human right, despite the openly acknowledged existence of procedural unfairness.  Lang J made it clear that her hands were tied in reaching a verdict as the Trust had not sought to challenge the propriety of the decision making procedure of TfL.  Nevertheless, the case in itself represents an interesting balancing act between traditional judicial review grounds and human rights grounds.

 

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