In a politically sensitive judgment, the Master of the Rolls, Sir John Dyson, has ruled that the High Court must investigate the political intervention by Boris Johnson banning a Christian advertisement which was deemed by Stonewall and Transport for London to be ‘anti-gay’.
Historic duty
The Courts have fulfilled an historic duty of holding politicians to account and refusing to tolerate non transparent behaviour. The decision of the Court is one of the most significant in recent times in ensuring that powers are exercised by politicians properly.
In April, just before the 2012 London Mayoral Elections, the Christian charity, Core Issues Trust, was to run its Bus Advertisement Campaign. It, therefore, came at a time when the Conservative Party was courting the LGBT vote in an attempt to ditch what it called the ‘toxic’ history of the Party and seek new supporters. The Government was also concluding the consultation over its controversial policy on same sex marriage.
The Bus Advertisement Campaign by homosexual campaign group, Stonewall, stated “Some People Are Gay. Get Over It!”. In response, Core Issues Trust, led by Dr Mike Davidson, agreed with the Advertising authorities to run a Bus Campaign saying "Not Gay! Ex-Gay, Post-Gay and Proud. Get over it!".
However, despite pre-authorisation of the advertisements, the Mayor of London personally intervened at the politically sensitive time and banned the adverts.
Motive
In the judgment in the lower court Mrs Justice Lang had ruled ‘If the motive of 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 the original case and confirmed on appeal, it was recognised that the Core Issues poster, the Stonewall poster (and the British Humanist Association poster ‘There’s probably no God. Now stop worrying and enjoy your life’) all breached TfL’s policy which prohibits posters likely to cause offence.
The Master of the Rolls expressed concern that the original trial judge was not able to adequately investigate the political intervention by Boris Johnson.
In his judgment on the Appeal case handed down this morning Sir John Dyson [Para 37, 38] said:
“The difficulty is that there is now in evidence an email which unequivocally states that the Mayor instructed TfL to pull the advertisement…. The need for examination of the role of the Mayor is all the greater because (i) the 18.04 email shows that the Mayor’s office contacted the Guardian immediately in order to make political capital out of the story; and (ii) arrangements had been made for the Mayor to appear on 13 April (the following day) at hustings organised by Stonewall. This is a most unsatisfactory state of affairs.
"Interests of Justice"
[Para 48]“In my view, it is in the interests of justice that a further enquiry be conducted by the court as to whether (i) the decision was instructed by the Mayor and (ii) it was made for an improper purpose. As Christopher Clarke LJ said during the course of argument, the only way this can be done properly is for the Mayor (on behalf of the GLA) to be added back as a defendant. The case should be remitted to the judge for her to make such an order and then give appropriate directions with a view to deciding whether the decision was instructed by the Mayor and made for an improper purpose. It will be for her to decide what directions to give. But I would expect her to direct that written statements be made by the Mayor, Mr Harri and Mr Barnes and then to decide in the light of the statements whether to order cross-examination.”
In light of the judgment, Dr Davidson has today written to the Mayor of London demanding he make all email access, current and potentially deleted, available to his lawyers. In his letter he demands: “As you know, we have email evidence of your political intervention, and we now ask you to make publically available all email correspondence in this matter and, to allow computer experts to analyse any relevant emails which may, or may not, have been deleted from your system for whatever reason.
As I am sure you will be aware, the political credibility of politicians is at an all-time low. Your openness, transparency and integrity in helping with pre-court access to these matters will be much appreciated. If such access is not offered, our lawyers will petition Mrs Justice Lang to order such access as part of further enquiry as the Master of the Rolls has so directed.”
"Failed to comply"
Importantly, the Appeal Court also recognised [Para 80] that Mrs Justice Lang had ruled that, by the same advertising criteria, “the Stonewall advertisement had failed to comply with the Policy”.
Andrea Minichiello Williams, Chief Executive of the Christian Legal Centre which has supported Core Issues Trust said: “The effect of such a ruling means that the past and present campaign being run by Stonewall breaches Transport for London’s Advertising standards and is illegal. Stonewall knows this but has brazenly decided to pursue its agenda.
"In a mature democracy both sides of a debate should be heard but it seems that Boris Johnson, Transport for London and Stonewall are intent to shut down the Christian side of the debate by fair means or foul.
"Relief"
"It is a great relief that the Master of the Rolls has ruled to hold to account arbitrary use of the exercise of power by a public authority”.
Core issues Trust is represented by leading Human Rights barrister Paul Diamond, Standing Counsel to the Christian Legal Centre.
Click here for the full judgment >
Watch Andrea Williams and Dr Mike Davidson discuss the ruling outside the Court of Appeal >