Historically judicial review has been about ensuring that the decision making processes of public bodies are fair and that, as an essential part of this, like cases are treated alike. In human rights challenges that has changed, with the courts focusing much more on the outcome of the decision making process rather than the process itself and the depth of that change is strikingly illustrated in the decision of Mrs Justice Lang in R oao Core Issues Trust v Transport for London  EWHC 651 (Admin).
The case concerned an attempt by a charity, Core Issues Trust (which explains that part of its purpose is to work “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”) to run advertisements on the side of 25 buses for two weeks in April 2012. The wording of the advertisements was to be “ NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” and were a response to advertisements previously placed on TfL buses by Stonewall “SOME PEOPLE ARE GAY. GET OVER IT!”.
TfL has a policy on which advertisements it will accept (which requires it not to accept advertisements that are likely to cause widespread or serious offence to members of the public or which contain messages which relate to matters of public controversy and sensitivity) and also requires any advertisements to comply with the British Code of Advertising, Sales Promotion and Direct Marketing. The advertisement was considered and passed by the relevant advisory body dealing with Code compliance but, shortly before the advertisements were due to be run, TfL decided to ban them. The decision was taken in a hurry (it seems to have been prompted by The Guardian taking an interest) and TfL consulted Boris Johnson who as Mayor of London is Chair of TfL. Mr Johnson clearly wanted the advertisements to be banned, although his exact role remains opaque – and the judge was clearly disappointed not to have had fuller evidence about what he said to TfL. The reasons eventually given for the ban were that the advertisements breached the TfL’s policy on causing offence and dealing with matters of controversy/sensitivity.
Core Issues Trust challenged the ban on the basis that it infringed its human rights, in particular the right under Article 10 of freedom of expression. As part of her assessment of the challenge, Mrs Justice Lang considered – and accepted – the Trust’s assertion that the decision process was procedurally unfair and lacked a proper consideration of the relevant issues. The process was procedurally unfair because TfL had failed to consult the Trust before the ban and give it the opportunity to modify the wording of the advertisement (as TfL’s own policy said it should do). And there was a failure to take into account relevant issues because TfL had failed to consider its past practice in relation to other controversial and potentially offensive advertisements which had been accepted for publication, in breach of TfL’s policy. However these failings, for all practical purposes, were found by the judge to be irrelevant to her decision on whether Article 10 had been breached.
There were essentially two principal arguments in relation to Article 10. The first was whether TfL’s policy on advertisements that might cause widespread/serious offence or that related to matters of public controversy and sensitivity was proportionate, the second whether the application of the policy in the particular circumstances was justified. In relation to both arguments Mrs Justice Lang found against the Trust. On the policy itself, she held that what was of particular significance was the fact that advertising on buses is “extremely intrusive” and that many people might have no choice but to travel (or drive) on a bus “carrying a message which is contrary to their beliefs and personal identity”. In addition, she considered it to be significant that bus advertisements necessarily had to brief and designed to deliver a “short, sharp shock to the public”. Taking these factors together, the judge concluded that the policy was proportionate – because those who wanted to express controversial views could do so through other means such as articles, leaflets, the internet, all of which enabled a reasoned case to be made as opposed to a slogan or an abusive message.
In relation to the decision to ban, the judge’s starting point was that important factors in favour of allowing the advertisement were the fact that TfL’s approach to its policy, judged by advertisements that it had allowed previously, was inconsistent and partial and the fact that the Trust was seeking to respond to the Stonewall advertisement. However she held that these factors were outweighed by fact that the advertisement “is liable to encourage homophobic views, whether intentionally or not, and in general terms, homophobia places gays at risk”. In addition, she considered that to have allowed publication would have put TfL in breach of its ‘due regard’ duties under the Equality Act 2010. Taken together this meant that the ban was a proportionate means of protecting the rights of others and consequently did not infringe the Trust’s right to freedom of expression.
One of the side issues in the case was whether the real reason for the ban was because Boris Johnson disagreed with advertisement and thought that TfL running it would impact on his chances of re-election, the Mayoral election being some three weeks after the events in question. On the evidence (which the judge regretted did not include any emails from Mr Johnson’s office) Mrs Justice Lang decided that although TfL’s interests in banning the advertisement overlapped or coincided with Mr Johnson’s interests in doing so, it was TfL’s interest that were determinative. However the logic of the underlying decision is that even if she had reached different conclusion – even if the only reason for the ban had been to promote the Mayor’s chances of winning his election and so an abuse of power – there would still have been no breach of the Trust’s Article 10 rights. A striking illustration indeed of the shift away from process to outcome.