A DECISION by Transport for London (TFL) not to allow a
Christian group to place an advertisement on London buses, in
response to a pro-gay one by the campaigning group Stonewall, was
not irrational or dispropor-tionate, the High Court has ruled. Nor
did it involve the Mayor of London in an abuse of his position as
chairman of TFL in seeking to advance his re-election campaign.
Stonewall's advert, stating "SOME PEOPLE ARE GAY. GET OVER IT!"
prompted a riposte reading: "NOT GAY, EX-GAY, POST-GAY AND PROUD.
GET OVER IT!" This was disallowed by TFL on 12 April last year.
The claimants in the High Court proceedings challenging TFL's
decision were the Core Issues Trust, a registered charity based in
Northern Ireland. Its objects include "the promotion of the Holy
Scriptures". It says that it works "with people who voluntarily
seek to change from a 'gay' lifestyle to a gender affirming one",
which is referred to as a "sexual re-orientation process".
The trust planned the advert with Anglican Mainstream, a
conservative Anglican charity, although it took no part in the
court proceedings. It and the trust deliberately copied the design
colour and wording of Stonewall's advert to make it clear that it
was a response.
TFL had previously permitted controversial and potentially
offensive advertisements on its transport system, notably an advert
on the outside of London buses placed by the British Humanist
Association which read, "There's probably no God".
The trust argued that TFL had abused its statutory powers for an
improper purpose, and that the real reason why the advert was
banned was because the Mayor, Boris Johnson, disagreed with the
views expressed, and considered that the advert could be a
liability in his bid to be re-elected as Mayor for London.
TFL argued at the hearing that the decision to ban the advert
had been made by its managing director of marketing and
communications, not by Mr Johnson. There was press comment that
revealed that the rival candidate for mayor, Ken Livingstone, also
supported the ban on the advert.
The judge, Mrs Justice Lang, said that the appointment of the
mayor as chairman of TFL, with power to appoint board members and
give directions to TFL, created a potential conflict of interest
between the mayor's different roles which he had to be careful to
It was perfectly proper, the judge said, for Mr Johnson, as
chair of TFL, to be involved in the decision-making process, and to
express his views. 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, that would call into question
the lawfulness of the ban.
In the judge's view, there was no evidence of such unlawfulness.
TFL acted in its own interests to avoid causing offence to a
section of the public, and to avoid criticism and controversy.
TFL's interests coincided with those of Mr Johnson, who also wished
to avoid causing offence and avoid criticism which might affect his
mayoral campaign. The overlap in interests did not make the
decision to ban the advert unlawful.
The trust also argued that, by refusing its advert while
accepting the advert by Stonewall, TFL had discriminated against
the trust, contrary to Article 14 of the Human Rights Convention,
which prohibits discrimination in the enjoyment of Convention
rights. It argued that TFL discriminated against ex- gays, and that
ex-gays faced hostility and discrimination from both homosexuals
The judge rejected that argument, first because the claim was
brought by the trust, which was a corporate body and had no sexual
orientation, and therefore was not a victim of any discrimination
on the grounds of sexual orientation; and, second, because ex-gays
were not a protected class under the Equality Act 2010. The
protected classes were homosexuals, heterosexuals, and bisexuals.
There was no fourth category of persons who were previously
orientated to persons of the same sex and were now orientated to
persons of the opposite sex.
Nor, the judge ruled, was Article 9 of the Convention - which
protects the human right to freedom of thought, conscience, or
religion - engaged. The rights protected by Article 9 could not be
enjoyed by corporate entities or non-natural persons, such as
associations. They could be enjoyed by religious communities and
Churches, but the trust was neither of these.
Moreover, even if the advert that the trust had sought to be
placed was motivated by a religious belief, it did not actually
express that belief. Nor was the trust required by religious belief
to communicate those views by way of advertisement on London buses,
the judge said.