The decision that the ban on ‘ex-gay, post-gay and proud’ bus advertisement was lawful is another example of how human rights principles are selectively applied by the establishment says Pat Harrington.
In a controversial judgment in late March the High Court ruled that the banning of an advert which read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” from appearing on London buses was handled very badly by Transport for London (“TfL”) but was not unlawful or in breach of the human rights of the group behind the advert.
The advert was placed in April 2012 by Anglican Mainstream, a Christian charity, on behalf of Core Issues Trust, another Christian charity which says its function is “supporting men and women with homosexual issues who voluntarily seek change in sexual preference and expression”. It was clearly a response to another advert placed on London buses earlier in 2012 by Stonewall, the gay rights campaign group, which supported the proposal to introduce same-sex marriage and declared “SOME PEOPLE ARE GAY. GET OVER IT!”
The advert was cleared by the Committee on Advertising Practice (“CAP”) as being compliant with their code, but after receiving a large number of complaints about it (following a leak to the Guardian) TfL decided to stop the advert from being placed on its buses. Core Issues Trust brought an application for judicial review (Anglican Mainstream did not take part in the proceedings), claiming that this decision was irrational and breached their rights under Article 9 (freedom of religion and belief) and Article 10 (freedom of expression), read with Article 14 (anti-discrimination).
In her decision Lang, J held that:
1. On the evidence before her, the Mayor of London (Boris Johnson) did not abuse his position as Chair of TfL in order to advance his re-election campaign. Core Issues Trust had argued that the reason the advert was banned was because the Mayor disagreed with it and thought it would harm his prospects of being re-elected. Although Lang J held that Boris did influence TfL’s decision and had to be careful to avoid conflicts of interest, it was not established on the evidence she had seen that there was a conflict of interest on this occasion.
2. TfL’s decision-making process was procedurally unfair, in breach of its own procedures, and demonstrated a failure to consider the relevant issues.
3. Article 10(1) ECHR, which protects the right to freedom of expression, was engaged. TfL’s Advertising Policy was a justified and proportionate restriction on the right to freedom of expression, however. TfL’s decision to refuse to display the Trust’s advertisement was also justified and proportionate, in furtherance of the legitimate aim of protecting the rights of others. Therefore the ban was not a breach of the Trust’s rights under Article 10(1).
4. The fact that TfL had applied its Advertising Policy inconsistently (by banning the Core Issues Trust advert, but not the Stonewall advert or the earlier British Humanist Association “THERE’S PROBABLY NO GOD. NOW STOP WORRYING AND ENJOY YOUR LIFE” bus adverts, which were both “highly offensive” (at least in the opinion of the Judge!) was outweighed by the countervailing factors against allowing the advertisement to run, namely
- advertisements on the side of London buses are highly intrusive;
- the advertisement would cause grave offence to a significant section of the many inhabitants of London; and, for those who are gay, it was liable to interfere with the right to respect for their private and family life under Article 8(1);
- it was perceived as homophobic and thus increasing the risk of prejudice and homophobic attacks;
- it was not a contribution to a reasoned debate;
- leaflets, articles, meetings and the internet all provide an alternative vehicle for the expression of the Trust’s message;
- 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 that duty.
5. Article 9 (thought, conscience and religion) was not engaged: first, because though Article 9 rights might be enjoyed by religious communities and churches they could not be enjoyed by corporate entities or non-natural persons such as associations and, secondly, because the Trust was seeking to express its perspective on a moral/sexual issue, not the manifestation of a religious belief.
6. TfL’s decision could not be characterised as irrational as: “Its advertising policy expressly prohibited advertisements which were ‘likely to cause widespread or serious offence to members of the public’ or which related to ‘matters of public controversy and sensitivity’. It was reasonable to conclude that the content of this advertisement was likely to cause widespread offence and was sensitive and controversial. The huge number of complaints, and their content, provided TfL with a sufficient basis upon which to make a reasonable decision not to run the advertisement. Even if, as the Trust alleged, the Mayor and TfL personally disagreed with the content of the advertisement, this was not the sole or decisive reason for the decision.” (para 172)
What are we to make of this judgment? It upholds a serious interference with freedom of expression and has done so in relation to such particularly sensitive topics as sexuality and religion. The prominent gay rights campaigner Peter Tatchell has already said that he thinks the High Court’s decision was wrong and undermines freedom of expression.
He is right! It seems that the Political Class protects only one side of the debate on this as on so many issues. Whether one supports or opposes the views of Anglican Mainstream is not the point here.
It is also interesting to note that one Judge, Lang J noted on several occasions that she had not been provided with any evidence about the Mayor’s response to TfL, commenting pointedly that the reasons for the decision being made so hastily to ban the advert “are not clear from the incomplete evidence before me, but might have been explained by the missing evidence from the Mayor’s Office“.
Certainly the haste in which Johnson acted as well as the comments and that of his main election rival at the time to the Guardian call into question how far he considered matters and why he made his decision. The Guardian reported:
“Johnson, who contacted the Guardian to announce he was stopping the adverts within two hours of their contents becoming public, said: “London is one of the most tolerant cities in the world and intolerant of intolerance. It is clearly offensive to suggest that being gay is an illness that someone recovers from and I am not prepared to have that suggestion driven around London on our buses.”
His main rival in next month’s mayoral election, Ken Livingstone, said Johnson should never have allowed the adverts to be booked. “London is going backwards under a Tory leadership that should have made these advertisements impossible.”
It would have been interesting to see all the correspondance and have details of all discussions which actually took place between TfL and the Mayor’s office. It would also be of interest to obtain the Press Statement issued on behalf of the Mayor concerning the ban which was not put before the Court. The whole subject is one I am looking into. It would be a very serious matter if Boris Johnson had abused his position as Chairman of Tfl for political reasons related to a desire not to offend lobby groups in the run-up to his Mayoral re-election campaign.
A BAD JUDGMENT FOR FREEDOM
TfL argued that the ‘legitimate aim’ behind banning the advert under Article 10(2) was ‘the protection of morals’. Lang J held that this was not persuasive, but found instead that TfL’s real aim was to protect the rights of others, i.e. LGBT people who might be offended or upset by the advert. So TfL’s decision was upheld as being in furtherance of an aim which it never actually mentioned itself! How helpful of the Court to look at it in this way!
The Court found that TfL were ‘inconsistent and partial’ by banning the Core Issues Trust advert but not the Stonewall (or British Humanist Association) adverts. Curiously, however, Lang J held that because TfL banned the advert because of its content, rather than the identity of the Trust, Article 14 was not engaged. This despite the fact that the wording of the advert was specifically designed to mimic the Stonewall advert. The key theme of the Core Issues Trust advert conveyed the opinion that it is possible for a person to change their sexuality. Basically, TfL (or Boris Johnson) were scared or concerned about reaction to the Trust’s opinions and beliefs. Article 14 prohibits discrimination on the ground of political or other opinion and also on the ground of religion. Just how the ‘content’ of the advert was distinct from the opinion or religious belief of the Trust was not explained.
Similarly, Lang J held that Article 9 was not engaged because the Trust was “seeking to express its perspective on a moral/sexual issue, not the manifestation of religious belief“. Again, to seek to separate religious expression from expression on moral issues seems unconvincing. Again no clear explanation of the distinction was given. It seems obvious that the Trust’s views are connected to its religious beliefs – and it may not be a valid distinction following the recent judgment of the European Court in Eweida v. United Kingdom.
Lang J held that people who change their sexuality are not protected by the Equality Act, which only covers three categories of sexual orientation – homosexual, heterosexual and bisexual. If this is correct, it means the Act is not particularly inclusive of people who do not wish to consider themselves bound by one of these three narrow labels.
The judgment branded the earlier Stonewall and British Humanist adverts as offensive:
““… the advertisements by the British Humanist Association and Stonewall did not comply with TfL’s own restrictions which prohibit advertisements ‘likely to cause widespread or serious offence’ or which ‘relate to matters of public controversy or sensitivity’. Both advertisements were in the form of confrontational assertions which made no contribution to a reasoned debate.The British Humanist Association advertisement was highly offensive to the religious beliefs of the significant section of the public who believe in God. The Stonewall advertisement was highly offensive to fundamentalist Christians and other religious groups whose religious belief is that homosexuality is contrary to God’s teachings” (para 145).
It is quite clear that the line of thinking here is that if a number of people had complained about the Stonewall and BHA adverts and Tfl had banned them because they were “offensive” then the Courts should not overturn this. This should sound warning bells to any campaign group which wishes to raise controversial issues. The unintended consequence for those who campaigned for the ban is that it is unlikely that Tfl would accept any controversial adverts. What a bland, ‘safe’, ‘inoffensive’ and sterile world we will all live in.
THE RIGHT TO BE ‘OFFENSIVE’
The whole concept of allowing limitations on freedom of expression because people may be offended is itself an offensive concept to those who believe in real democracy and free debate. A question not fully explored in this case is whether or not the advertising restrictions of Tfl are themselves unlawful.
Commenting on this aspect of the case Andrew Copson, Chief Executive of the British Humanist Association (BHA), said:
“Everything offends someone somewhere but when an English judge is moved to deem our mild and humorous Atheist Bus Campaign as “offensive” then the law is clearly setting the bar of offence ludicrously low. The court said our statement that there is probably no god will have offended people who believe the opposite. That assumes that people are automatically offended by others saying things they don’t believe themselves. But this isn’t offence – it’s disagreement – and trying to suppress it in the public sphere is inimical to the maintenance of a free society. There are good reasons to ban some adverts but offence is not one of them.”
Mick Hume, in an article he wrote for The Times republished by Spiked put it like this:
“If your sincerest desire is to avoid hurting anybody’s feelings, the answer is never to write or say anything controversial.
“But if we do want to express strong and sincerely held opinions, we will have to accept that some might be upset.
“That’s life, and it’s tough. Why should anybody feel obliged to apologise for what they believe, or worse, for what others feel?”
“…More and more now, we are expected to value feelings above thought, emotions above ideas. And the one emotion which appears to count above all others is feeling offended, or that your self-esteem has been damaged.”
Peter Tatchell, a prominent and militant gay-rights campaigner, took a similar view when commenting on the judgment (much to his credit):
“The judge, Justice Lang, made her decision to uphold the advert ban on the grounds that they are offensive to gay people. She is right. They are offensive but being offensive is not a legitimate basis for banning anything.
“In a free society there is no right to not be offended. Almost anything that anyone says can potentially be deemed offensive by someone. The law should not cater to the sensitivities of any section of the public. If it did, many adverts, plays, books and films would be banned.
“Given that Transport for London allowed Stonewall’s advert – “Some people are gay. Get over it!” – it seems double standards to ban the counter message of the Core Issues Trust.
“Banning these adverts reminds me of the bad old days when gay adverts were banned on the grounds that they were offensive. For decades, gay helplines, youth groups and campaign organisations faced bans on advertising their services.
“It is not right for the gay community to turn around and adopt the oppressive, anti-free speech tactics of our past oppressors.
“Free speech is one of the most important of all human rights. It should only be limited in extreme circumstances, such as when people abuse it to incite violence or harass and intimidate others.
“Free speech is for everyone – even those with whom we disagree”.
We should also pause to consider whether “confrontational” assertions or slogans form part of “reasoned debate”. Certainly the opinion expressed in the judgment here is that they don’t. I believe that such slogans and assertions form a key element of public debate. How is the attention of people to be attracted if not by such means? Surely many debates are adversarial (and thus confrontational) in nature? There seems to me to be an underlying snobbery which contends that only academic or semi-academic forms of argument and content should be protected under “freedom of expression” principles. Perhaps that says more about the cultural conditioning of our Judges than the actual principles we should adopt in a democracy?
This judgment was wrong and Lang J has further undermined universal human rights. It seems that if you are on the ‘wrong’ side of the argument the Court will look at shallow justifications as to why your freedom of belief and expression cannot be upheld. As you can see from the above case there are many get-out clauses built in! The political effects of this partisan approach are to load the dice in public discourse. Such bans distort the debate by limiting the ability of some participants to communicate their arguments to the public. It isn’t about this particular issue, we should take a content neutral approach, it is about freedom to communicate ideas and opinions. The selective application of human rights principles evidenced again by this judgment must be challenged and opposed not just by those affected but by all those who believe that creating rules that are selectively and inconsistently applied undermines Justice. The only positive aspect to this sorry tale is that many are beginning to realise that denying the rights of unfashionable, less powerful, controversial or unpopular groups ultimately undermines all our rights.