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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Core Issues Trust, R (on the application of) v Transport For London & Anor [2014] EWCA Civ 34 (27 January 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/34.html Cite as: [2014] EWCA Civ 34, [2014] PTSR 785, [2014] WLR(D) 35 |
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ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MRS JUSTICE LANG
CO72842012
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BRIGGS
and
LORD JUSTICE CHRISTOPHER CLARKE
____________________
THE QUEEN ON THE APPLICATION OF CORE ISSUES TRUST |
Appellant |
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- and - |
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TRANSPORT FOR LONDON & ANOTHER |
Respondent |
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SECRETARY OF STATE FOR CULTURE, MEDIA AND SPORT AND MINISTER FOR WOMEN AND EQUALITIES |
Intervener |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nigel Pleming QC and Catherine Dobson (instructed by Transport for London Legal Department) for the Respondent
Dan Squires (instructed by Treasury Solicitor) for the Intervener
____________________
Crown Copyright ©
Master of the Rolls:
"NOT GAY! EX-GAY, POST-GAY AND PROUD, GET OVER IT
www.anglican-mainstream.net www.core-issues.org"
Background
"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! Stonewall
www.stonewall.org.uk"
The earlier advertisement was placed by Stonewall, an organisation that works for equality and justice for lesbians, gay men, bisexuals and transgender individuals.
Statutory and regulatory framework
The Greater London Authority Act 1999 ("the GLAA")
"(a) in accordance with such guidance or directions as may be issued to it by the Mayor under section 155(1) below,
(b) for the purpose of facilitating the discharge by the Greater London Authority ("GLA") of its duties under section 141(1) and (2) above to secure the provision of transport facilities, and …….."
"(a) guidance as to the manner in which it is to exercise its functions,
(b) general directions as to the manner in which it is to exercise its functions,
or
(c) specific directions as to the exercise of its functions."
Section 155(4) provides that any guidance or directions issued under subsection (1) must be issued in writing.
"(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 protection 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 persons 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 –
…
sexual orientation."
"(1) 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.
(2) In relation to the protected characteristics of sexual orientation-
(a) a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation;
(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same sexual orientation"
The Policy
"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."
"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 following categories:
……..
(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.
……….
(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.
.............".
The circumstances in which the advertisement was disallowed
"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.
For info:
The Mayor was strongly of the view that this ad should not be run….."
"There was some confusion about whether the decision was taken by TfL or the Mayor as shown, for example, in the Guardian article 'Anti-Gay adverts pulled from bus campaign by Boris Johnson' on 12 April 2012. However, although the Mayor had made his views clear and I was aware of them, I made the decision. "
"Revelations that adverts asserting the power of therapy to change the sexual orientation of gay people were due to be driven round the capital came as Johnson, who is seeking re-election in May, was due to appear at a mayoral hustings organised by the gay campaigning group Stonewall on Saturday."
"I accept that the decision was made by Mr Everitt, on behalf of TfL, but the conclusion I reached, on the evidence, was that Mr Johnson influenced Mr Everitt's decision. The emails revealed that Mr Everitt consulted the Mayor's Office on the course of action he should take. Regrettably, the response from the Mayor's Office was not in evidence. However, TfL's press release stated "The Mayor was strongly of the view that this ad should not be run…." (para 55).
"58. The appointment of the Mayor as Chairman of TfL, with power to appoint Board members, and to give directions to TfL, creates a potential conflict of interest between the Mayor's different roles which the Mayor has to be careful to avoid. In my judgment, it was perfectly proper for Mr Johnson, as Chair of TfL, to be involved in the decision-making process on this issue and to express his views to Mr Everitt. But if the motive for the decision was to advance Mr Johnson's election campaign, at the expense of a proper exercise of TfL's powers and duties, this would call into question the lawfulness of the decision. In my view, such unlawfulness has not been established on the evidence. TfL acted in its own interests to avoid causing offence to a section of the public and to avoid criticism and controversy. Its interests coincided with those of Mr Johnson, who also wished to avoid causing offence and avoid criticism which might damage his election campaign. The overlap in interests did not render the decision unlawful."
Improper purpose
"Authority is not needed (although much exists) to show that there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review."
The article 10 claim
"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 or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Prescribed by law
Legitimate aim
Necessary and proportionate to achieve these aims
"In order to give effect to the primary right of freedom of expression in a democratic society, those who wish to promote an offensive or controversial message should be entitled to do so. In my view, it is proportionate to ask those people to express those views in a way other than by advertising on buses in a major city. Posters, leaflets, articles, meetings and the internet all provide an alternative vehicle for expression of these views."
"135. I consider that there is force in the Trust's submission. The advertisements by the British Humanist Association and Stonewall did not comply with TfL's own restrictions which prohibit advertisements "likely to cause widespread or serious offence" or which "relate to matters of public controversy or sensitivity". Both advertisements were in the form of confrontational assertions which made no contribution to a reasoned debate. The British Humanist Association advertisement was highly offensive to the religious beliefs of the significant section of the public who believe in God. The Stonewall advertisement was highly offensive to fundamentalist Christians and other religious groups whose religious belief is that homosexuality is contrary to God's teachings.
136. TfL sought to justify the Stonewall advertisement on the grounds that it furthered TfL's objectives under section 149, Equality Act, but declined to provide any detail about the basis of the decision. I doubt whether this confrontational advertisement did anything to "tackle prejudice" or "promote understanding" among homophobic people. It was more likely to spark retaliation, as indeed it did in the case of Anglican Mainstream and the Trust.
137. In the light of the evidence and submissions, I make the proportionality assessment under Article 10(2) on the basis that TfL's decision to exclude the Trust's advertisement was inconsistent and partial, in the light of its willingness to display the British Humanist Association and Stonewall advertisements. Furthermore, it denied the Trust the opportunity to respond to the Stonewall advertisement, in what the Trust described as "the right to counter". These are important factors in favour of allowing the Trust to express its views in this particular medium."
"Turning to the Trust's advertisement, I am satisfied, on the evidence, that it will cause grave offence to a significant section of the large number of people who will view it. For those who are gay, it is liable to interfere with the right to respect for their private and family life, under Article 8(1). This goes far beyond a 'heckler's veto'. In my view, the evidence of complaints received supports these conclusions."
"The last complaint quoted above raises the issue of the threats to gays arising from homophobia. The European Commissioner for Human Rights, Thomas Hammarberg, recognised the medicalisation of homosexuality as a form of homophobia: see "Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe" (2011). I accept that the Trust takes issue with this analysis, and argues that reparative therapy to overcome same sex attraction should be recognised as legitimate and of assistance to those who seek it. The Trust has the right to express its view. But, as I have already indicated, this advertisement is a confrontational assertion, not a reasoned, informed contribution to a debate. I consider that it is liable to encourage homophobic views, whether intentionally or not, and, in general terms, homophobia places gays at risk."
"143. The Trust submits that everyone should enjoy freedom of expression in a publicly owned space. The buses are not, of course, public property. But the fact that they are operated on behalf of a public body makes it all the more important that they do not carry a message which is contrary to the Equality Act 2010. In respect of those who have same-sex sexual orientation, Section 149 requires TfL to have due regard to the need to:
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).
144. In my judgment, TfL would be acting in breach of its duty under section 149 if it allowed the Trust's advertisement to appear on its buses, as it encourages discrimination, and does not foster good relations or tackle prejudice or promote understanding, between those with same-sex sexual orientation and those who do not.
145. I recognise that this conclusion is contrary to the philosophical position represented by Ronald Dworkin's eloquent plea for freedom of expression at paragraph 99 above. But in my view, the effect of the Equality Act 2010 is to fetter the freedom of public bodies to carry advertisements which denigrate people on the basis of protected characteristics, such as sexual orientation, gender, race, religious belief etc. This is a policy decision made by Parliament. The Trust has not applied for a declaration that the Act is incompatible with the Convention.
"146. All the factors I have referred to above — the location of the advertisement, the large number of people exposed to it over several weeks, the nature of the message, its effect on gays, and the public sector equality duty — plainly distinguish advertising on TfL buses from the newspaper advertisement which was approved by the High Court of Northern Ireland in the Sandown case.
…………
148. For the reasons set out above, my conclusion is that TfL's decision was justified and proportionate in pursuit of the legitimate aim of protecting the rights of others. Therefore the refusal was not a breach of the Trust's rights under Article 10(1). The fact that TfL had applied its Advertising Policy inconsistently and partially and refused the Trust a right to respond was outweighed by the countervailing factors, described above, which made it proportionate to refuse to display the advertisement."
The approach to section 149 of the EA
"(f) under the Equality Act 2012, 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."
The judge's treatment of the Stonewall advertisement
Conclusion on the proportionality issue
"The prohibition concerned only the audio-visual media. The State was, in the Court's view, entitled to be particularly wary of the potential for offence in the broadcasting context, such media being accepted by this Court and acknowledged by the applicant, as having a more immediate, invasive and powerful impact including, as the Government and the High Court noted, on the passive recipient. He was consequently free to advertise the same matter in any of the print media (including local and national newspapers) and during public meetings and other assemblies."
Article 9
"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 religion or 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."
Section 13 of the Human Rights Act 1998
"If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right."
Article 14 and the EA
"Second, ex-gays are not protected under the Equality Act. Section 12 prescribes three categories of sexual orientation protected under the Act: orientation to persons of the same sex (homosexuals); orientation to persons of the opposite sex (heterosexuals); orientation to persons of either sex (bisexuals). There is no fourth category of persons who were previously orientated to persons of the same sex and are now orientated to persons of the opposite sex."
"If, as is common ground, tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being treated as if he were gay when is he not is barely perceptible. In both cases the man's sexual orientation, in both cases imaginary, is the basis---that is to say, the grounds---of the harassment".
Conclusion
Lord Justice Briggs:
Lord Justice Christopher Clarke: