On the Case: Issue 3

Religious freedom and freedom of speech in the UK: What are the core issues?

Welcome to the third edition of On The Case. Written by academic staff, alumni and students of the Schools of Law of the University of Notre Dame Australia, On The Case provides readers with brief summaries of recent developments in the law.

In this third edition, recent graduate Patricia Muscat (LLB/BA (with First Class Honours), and Associate Dean, School of Law, Sydney Dr Keith Thompson look at the English High Court’s recent decision in Core Issues Trust v Transport for London.¹

The English High Court upheld a decision made by Transport for London (TfL) refusing to run a bus advertisement (ad) that had been commissioned by Christian group, Core Issues Trust (CIT) and placed, on its behalf, by Anglican Mainstream. The ad responded to a similar ad which had been successfully run on TfL buses. The earlier ad said:

“SOME PEOPLE ARE GAY. GET OVER IT!”

The response said:

“NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!”

The proposed CIT ad had been approved by TfL’s Committee of Advertising Practice (CAP) and a contract initiated with Anglican Mainstream, but after an article was published on The Guardian website following leaked information, after consultation with the Mayor, Boris Johnson, a decision was made not to run the advertisement.

No reasons for the decision were given until requested by CIT and Anglican Mainstream. The reasons then issued said that the ad did not comply with TfL’s Advertising Policy - it was considered likely to cause widespread or serious offence to members of the public and contained messages which relate to matters of public controversy and sensitivity.

CIT challenged the decision on the basis that it was:

• an abuse of power by the Mayor who CIT said made the decision to protect and advance his political reputation;
• contrary to the Human Rights Act² and the European Convention of Human Rights (ECHR) because it inhibited freedom of expression by CIT;
• inconsistent and partial;
• discriminatory, in breach of art 14 of the ECHR;
• in breach of art 9 of the ECHR which pertains to the freedom to manifest religious beliefs; and
• irrational.

The Court found that the decision was made by TfL rather than the Mayor and that if the decision made corresponded with the Mayor’s personal or political views, that was simply a coincidence. Freedom of expression under Article 10 of the ECHRwas not absolute. Article 10(2) authorised legal restrictions upon the general right and that extended to “advertisements which are ‘likely to cause widespread or serious offence’ or which ‘relate to matters of public controversy or sensitivity’”. Though “TfL’s decision to exclude the Trust’s advertisement was inconsistent and partial, in light of its willingness to display …advertisements”⁴ which were “highly offensive to the religious beliefs of a significant section of the public who believe in God…[or who believed] that homosexuality is contrary to God’s teachings”,⁵ TfL “would be acting in breach of its duty [to eliminate same-sex orientation discrimination] under section 149 of the Equality Act 2010 if it allowed [CIT’s] advertisement to appear on its buses”. Justice Lang said she made this decision despite reference to “Ronald Dworkin’s eloquent plea for freedom of expression”⁶ and despite “the fact that TfL had applied its Advertising Policy inconsistently and partially”.⁷ That inconsistency and partiality was outweighed by the provisions of the Equality Act 2010 which were described as “countervailing factors”.⁸

CIT’s discrimination argument failed because:

• TfL’s decision was made in relation to the content of the proposed ad and not the identity of those seeking to place it;⁹
• CIT was a corporate body and could not suffer discrimination on the grounds of sexual orientation because it did not have a sexual orientation;¹⁰ and
• ex-gays were not a protected class under s 12(1) of the Equality Act 2010.¹¹

CIT’s arguments about freedom of thought, conscience and religion under Article 9 of the ECHR also failed because CIT was not a human person and did not have human rights. But Justice Lang said in any event that CIT’s ad did not express a belief and was thus not a protected manifestation of belief.¹² The ad was merely motivated by religion or belief and that was not sufficient to engage Article 9.¹³

TfL’s decision was rational because it was made in a manner justified by the Advertising Policy on human rights grounds.¹⁴

Though CIT might have “challenged the decision on other conventional judicial review grounds”¹⁵ including procedural unfairness; failure to take into account relevant considerations; and inconsistent decision making,¹⁶ CIT had not pled those causes of action and so could not succeed on those grounds even though TfL’s decision making process was procedurally unfair.¹⁷

What lessons can we learn from this case in Australia? The first lesson is that lawyers must make sure they plead the best cause of action. In Australia we do not have the luxury of a Human Rights Act or a binding supra-national human rights convention to plead. But that may be a good thing since those alternative causes of action appear to have obscured that the best cause of action in this case was always simple procedural unfairness. Secondly, though the English High Court allowed CIT to bring the case in place of a human person who did not have standing for other reasons,¹⁸ discrimination, equality and human rights cases are unlikely to succeed unless they are personally brought by a human individual who has suffered harm. A final lesson perhaps is that those who would protect traditional human rights like freedom of religion must ensure that the legislative expression of modern equality rights does not directly trump the old rights or allow them to be weighed out of existence.

¹ [2013] EWHC 651

² Section 6 of the Human Rights Act obliges public authorities to act in a manner compatible with the ECHR.

³ Core Issues Trust v Transport for London at [128].

⁴ Ibid [137].

⁵ Ibid [135].

⁶ Ibid [145].

⁷ Ibid [148].

⁸ Ibid.

⁹ Ibid [152].

¹⁰ Ibid [155].

¹¹ Ibid [156]. Section 12(1) provides: “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.”

¹² Ibid [165].

¹³ Ibid [162].

¹⁴ Ibid [172].

¹⁵ Ibid [173].

¹⁶ Ibid.

¹⁷ Ibid [175].

¹⁸ Ibid [6]-[9].