Case No: C1/2013/0993 & (A)
27 January 2014
Link to judgment
Religion or Belief, Sexual orientation
Summary of case
The Claimant, a Trust, sought judicial review of the decision made by Transport for London (TfL), on 12th April 2012, to ban an advert from London buses. The advert was placed by Anglican Mainstream, a Christian charity, on behalf of the Trust, another Christian charity which describes its aim as ‘supporting men and women with homosexual issues who voluntarily seek change in sexual preference and expression’. The wording of the proposed advertisement was: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’
It was intended as a response to another advert placed on London buses earlier in 2012 by Stonewall, the gay rights campaign group, which wording was ‘SOME PEOPLE ARE GAY. GET OVER IT!’
The Trust considered that TfL’s decision was irrational and breached their rights under Articles 9 & 10 of the European Convention of Human Rights (freedom of religion and belief, freedom of expression). The Trust also claimed that TfL had discriminated, contrary to Article 14 of the EHCR (anti-discrimination), against ex-gays who, it contended, were a protected class under the Equality Act 2010 falling within the definition of sexual orientation in section 12.
The High Court considered that TfL’s decision-making process was procedurally unfair, in breach of its own procedures, and demonstrated a failure to consider the relevant issues.
Nevertheless the High Court considered that:
- Article 9 was not engaged because the Trust was not an individual, religious community or church.
- There was no breach of Article 10 as TfL’s Advertising Policy was a justified and proportionate restriction on the right to freedom of expression, in pursuit of the legitimate aim of protecting the rights of others.
- There was no breach of Article 14 and the Trust was not protected under the Equality Act 2010 because it was not an individual with sexual orientation and the individuals it represented (ex-gays) were not a protected category of persons under the Equality Act.
Additionally, 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 their Equality Duty.
TfL’s decision was not irrational and the claim for judicial review was dismissed.
The Trust appealed to the Court of Appeal, Civil Division. They held that, in the light of new evidence, a further enquiry had to be conducted as to whether the decision had been instructed by the Mayor and whether it had been made for an improper purpose. The case was remitted to the High Court for the judge to reconsider this question in the light of the fresh evidence and in the light of any further material. If upon reconsideration the judge decides that the decision was not instructed by the Mayor and not made for an improper purpose, then her decision will stand,
The challenges to TfL’s decision to disallow the Trust’s advertisement based on articles 9 and 10 of the Convention and section 13 of the Human Rights Act 1998 were rejected.