London Mayor Boris Johnson may yet come to regret getting involved in the decision to pull an advert for the “ex-gay” group the Core Issues Trust after the Court of Appeal today ruled that he should be ordered to give evidence about his role in the decision.
The Trust had agreed a contract with Transport for London’s (TfL) ad agency, CBS Outdoor, to run adverts that read:
“NOT GAY! EX-GAY, POST-GAY AND PROUD, GET OVER IT”
with links to their own and Anglican Mainstream’s websites.
The adverts were in response to an earlier advert from the gay-rights campaign group Stonewall that read:
“SOME PEOPLE ARE GAY. GET OVER IT!”
with links to the Stonewall website.
The legal dispute arose after the advert was pulled by TfL on the afternoon/evening of 12th April 2012, just four days before the ads were due to appear. It is what happened on that afternoon that could prove embarrassing for the mayor.
The evidence shows that:
At 4.27pm the Guardian published an online article online about “an angry response from gay rights campaigners” to a leaked copy of the advert.
In response to the article – and the complaints that had begun to come in – the Mayor’s office sent an email just after 5.00pm to Vernon Everitt, TfL’s director of marketing and communications, asking “is this happening?”
In response Mr Everitt said that he himself had only just seen the advert, which had been accepted by their ad agency and cleared by the ads standards people. He said that he didn’t like it and asked the Mayor’s office “Shall I get it pulled?”
At 6.01pm, two things happened:
Firstly, the Deputy Mayor Richard Barnes sent an internal email saying “I believe that we should take a strong and immediate line on this and get it them (sic) stopped. I wonder how TfL could accept them in the first place.”
Secondly, TfL issued a press release announcing that “we have decided that it should not run on London’s bus or transport networks. We do not believe that these specific ads are consistent with TfLs commitment to a tolerant and inclusive London.” At the foot of the press release, under “For info” it states that “The Mayor was strongly of the view that this ad should not be run…”
At 6.04pm, the Mayor’s director of external affairs, Guto Harri, sent an internal email saying that “Boris has just instructed tfl to pull the adverts and I’ve briefed the Guardian. Who will break that news in next half hour.”
At 6.48pm, the head of the corporate desk at TfL, Vicky Morley, sent an email in which she stated: “Revelations that adverts asserting the power of therapy to change the sexual orientation of gay people were due to be driven around the capital came as Johnson, who is seeking re-election in May, was due to appear at a mayoral hustings organised by the gay campaigning group Stonewall on Saturday.”
The issue that exercised the Master of the Rolls, Lord Dyson, is who made the decision to pull the advert, and why:
Whoever made the decision to pull the advert, if the decision was made because it breached TfL’s advertising policy, then the decision was lawful.
The problem comes if the decision was made by Boris Johnson. If he pulled the advert to aid his re-election campaign, then the decision was unlawful. But what other grounds could he have for pulling it?
In today’s judgment, Lord Dyson says that Boris Johnson could not have been “giving directions” as allowed under the Greater London Authority Act because this requires directions to be given in writing. They were not.
Nor could Boris Johnson claim to be upholding the advertising policy because, the judgment says (paragraph 40) that the Mayor was not aware of this policy until after 12 April.
The Master of the Rolls, together with Lord Justice Briggs and Lord Justice Christopher Clarke, has ordered that the case should be referred back to the High Court and that the Mayor Boris Johnson should be added as a defendant to the case. They expect the High Court judge to order that Mayor Boris Johnson, Deputy Mayor Richard Barnes, and the external affairs director Guto Harri should all give written evidence. In light of the content of their statements, the High Court should then decide whether or not they should be cross-examined.
Whatever happens, the Core Issues Trust poster will not be appearing on London’s busses: the three judges were unanimous that the posters would “cause offence to large numbers of the public in central London” and, for gay people, “would be liable to interfere with the right to respect for their private lives.” They went further, saying that “the advertisement is liable to encourage homophobic views and homophobia places gays at risk.”
TfL’s public sector equality duty, under section 149 of the Equality Act 2010 “points strongly against allowing the advertisements to appear on its busses, since it would encourage discrimination.”
The judgment was also critical of the original Stonewall advert (the subject of a separate judicial review by the Core Issues Trust), and upheld the High Court’s earlier judgment that it was in breach of TfL’s advertising policy on the grounds that it was “likely to cause widespread or serious offence or related to matters of public controversy.”
The Master of the Rolls acknowledged that “Some people are gay” was a statement of fact; and that “get over it” was “a graphic way of saying that people should accept the principles of tolerance which are embodied in the” Equality act.
But Lord Justice Briggs went further, he said: “There are many people, of many different faiths and none, who have been brought up and taught to believe that all homosexual conduct is wrong. Many have, after long and careful thought, arrived at a different view…
“…the advice to ‘get over it’ is a confrontational message which is likely to come across to many . . . as at least disrespectful of their sincerely held beliefs, and to some as suggesting that there is no place for the toleration of their beliefs in modern society. Displayed on the side of London busses it is therefore likely to cause widespread offence to many, even if it may have promoted tolerance and understanding in others.”
Whether or not the Stonewall adverts should appear on London busses is a matter for a separate judicial review. The question as to whether the Core Issues Trust advert should appear has been pretty much settled by today’s judgment.
What is still to be decided is whether the original decision to ban the Core Issues Trust advert was taken lawfully.
If the Mayor did take the decision, as the evidence suggests, the courts will have to decide whether TfL’s communications director Vernon Everitt perjured himself in his witness statements before the High Court and Court of Appeal in which he said that he took the decision.
If Mr Everitt took the decision Richard Barnes and Guto Harri will have to explain why they lied to the press about Boris Johnson’s involvement; and Boris Johnson will have to explain why he didn’t seek to correct the misleading newspaper reports in the Guardian and elsewhere.
That is all rather assuming that the Core Issues Trust continue with their claim. With the Court of Appeal saying that TfL could have lawfully decided not to display the adverts, there seems little reason for the case to continue, except there now hangs over the Mayor a question mark about whether or not he acted lawfully.
The Master of the Rolls described the present situation as “a most unsatisfactory state of affairs” and said that it was “surprising” that witness statements from Johnson, Barnes and Harri were not produced by TfL to explain the conflict between the statement by Mr Everitt and the additional evidence that had been obtained using the Freedom of Information Act.
Whatever your view on the Stonewall and Core Issues Trust adverts (personally, I find them both counter-productive and fail to see how lobbying taunts at each other across the streets of London advances public debate); the outcome for Boris Johnson, if the Core Issues Trust do take this case back to the High Court, could prove to be somewhat embarrassing.