29 January 2014

Core Issues Trust, a Christian organisation whose purpose is to support homosexuals 'who voluntarily seek a change in sexual preference and expression', had sought to place an advert on London buses stating 'NOT GAY! EX-GAY, POST-GAY AND PROUD, GET OVER IT' in response to the more well-known 'SOME PEOPLE ARE GAY, GET OVER IT!' disseminated by Stonewall on London buses.

The events that followed were the subject of a recent decision by the Court of Appeal which could result in the Mayor of London being added to the proceedings as a defendant.

When Core Issues approached Transport for London (TfL), Mr Everitt, TfL's director of marketing, contacted TfL's chairman to seek his opinion. TfL's chairman happened to be Boris Johnson who, at the time, was standing for re-election as Mayor of London. Mr Everitt then received an internal email from the Mayor's office, stating that the Mayor 'instructed [Mr Everitt] to pull the advert'. The proposed advert was leaked to the press and Mr Everitt received a number of complaints, to which he responded that he alone had made the ultimate decision to refuse to run the advert, and that his decision had been based on TfL's advertising policy.

The court initially ruled that TfL had been entitled to refuse displaying the phrase on its buses, and Core Issues appealed the decision to the Court of Appeal. The Court was required to decide:

  • whether TfL had exercised its power for the improper purpose of furthering the Mayor's election campaign (rather than the objectives of TfL's advertising policy)
  • whether TfL's interference with Core Issues Trust's freedom of expression was justified under article 10(2) of the ECHR 1950.

On the second point, the Court of Appeal found that TfL's decision was justified because:

  • Core Issues was not faced with total prohibition on publishing its message and could have recourse to other ways of expressing its views
  • the adverts would be seen by, and cause offence to, large numbers of the public in central London
  • the inconsistency of allowing Stonewall's advert but not Core Issues' was outweighed by TfL's duty to have regard to s.149 of the Equality Act 2010.    

However, the Court of Appeal has now said that a decision on the first point could not be reached without an explanation from the Mayor as to his instruction to Mr Everitt to pull the advertisement. As TfL had not provided any statements from the Mayor and others involved, the Court found that a further enquiry should be conducted and that this could only be done if the Mayor was added to the proceedings as a defendant.

For the moment the case is back with the judge for directions. Mr Johnson may be joined to the proceedings and asked to explain his instructions to Mr Everitt. The legal validity of such an instruction would be a serious question for the courts.  If the Courts decided that it was given to support a re-election campaign as alleged, then a very real and practical question for any public body acting in concert with elected individuals will be raised. How far is it legitimate (intra vires) for public support, in the form of likely voting intentions, to be considered when making administrative decisions?

The instinct is to say that this is not a legitimate legal consideration. But then, if so, does democracy end where rational administration begins?

The author, Elsa Hadley is a solicitor in Burges Salmon's Disputes and Litigation team.

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