University of Newcastle - Australia
From the SelectedWorks of Neil J Foster
January 28, 2014
Recent UK case connected with sexual
orientation “hate speech”
Neil J Foster
Available at: https://works.bepress.com/neil_foster/74/
The
bus
advertisements
case
Recent
UK
case
connected
with
sexual
orientation
“hate
speech”
Following
on
from
my
recent
presentation
on
“Legal
Pressure
Points”,1
today
brings
an
interesting
decision
from
the
UK
that
raises
some
related
issues.
In
R
(On
the
Application
Of
Core
Issues
Trust)
v
Transport
for
London
[2014]
EWCA
Civ
34
(27
January
2014)2
the
England
and
Wales
Court
of
Appeal
handed
down
a
decision
relating
to
a
controversy
over
signs
displayed
on
London
buses.
The
history
is
slightly
complex,
and
some
of
the
issues
concerned
go
back
to
the
fairly
famous
attempt
by
some
of
the
“New
Atheists”
to
spread
their
message
on
London
buses
by
signs
saying
“There
is
Probably
No
God.”
A
lobby
group
supporting
the
gay
and
lesbian
movement,
Stonewall,
subsequently
ran
a
bus
campaign
with
signs
that
read:
"SOME
PEOPLE
ARE
GAY.
GET
OVER
IT!"
In
response,
two
Christian
groups
sponsored
and
proposed
to
run
signs
saying:
"NOT
GAY!
EX-‐GAY,
POST-‐GAY
AND
PROUD,
GET
OVER
IT-‐
www.anglican-‐mainstream.net
www.core-‐issues.org".
Having
been
made
aware
of
these
proposed
signs,
the
bus
company,
Transport
for
London
(TfL)
cancelled
them
at
the
last
minute.
Part
of
the
debate
in
the
proceedings
is
the
process
by
which
this
cancellation
took
place.
The
Core
Issues
Trust,
one
of
the
Christian
groups,
contended
that
they
had
been
pulled
on
direct
orders
of
Boris
Johnson,
the
controversial
Mayor
of
London,
who
was
about
to
stand
for
re-‐election,
and
in
particular
was
due
to
attend
a
rally
in
favour
of
his
campaign
organised
by
the
Stonewall
group
(the
sponsors
of
the
original
“Get
over
it!”
advertisement)
on
the
next
day.
Core
Issues
Trust
complained
about
the
cancellation
of
its
advertisement,
both
on
the
grounds
that
the
Mayor
had
behaved
illegally
and
exceeded
his
authority
in
giving
a
direct
order
to
TfL
on
political
grounds;
and
also
on
the
grounds
that
their
freedom
of
speech
and
freedom
of
religion
rights
were
being
breached.
In
earlier
proceedings3
the
trial
judge
had
found
that
there
was
insufficient
evidence
to
conclude
that
the
Mayor
had
been
directly
involved.
She
did,
however,
comment
adversely
on
the
way
that
TfL
were
relying
on
a
policy
they
had
adopted
that
“advertisements
will
not
be
approved
for
the
London
public
transport
network
which
in
TfL's
reasonable
opinion
"are
likely
to
cause
widespread
or
serious
offence"
or
"which
relate
to
matters
of
public
controversy
or
sensitivity".”
She
commented
that
if
TfL
were
truly
being
consistent
with
their
policy
they
should
have
rejected
both
the
earlier
atheism
advertisements
and
also
the
original
Stonewall
advertisement.
But
in
the
end
she
concluded
that
the
fact
that
TfL
had
behaved
wrongly
in
the
past,
did
not
mean
that
their
decision
now
not
to
run
the
Core
Issues
ad
was
wrong.
In
these
proceedings
on
appeal,
the
Court
of
Appeal
(Lord
Dyson,
Master
of
the
Rolls;
Briggs
and
Christopher
Clarke
LJJ)
reversed
the
trial
judge’s
decision
on
the
improper
behaviour
of
Boris
Johnson.
They
did
this
because
after
the
trial,
and
by
the
time
the
matter
had
come
to
the
appeal,
the
classic
“smoking
gun”
had
1
See
Neil
J.
Foster.
"Legal
Pressure
Points
for
Christians
In
21st
Century
Australia"
Australia
Day
Convention
VII-‐
St
Andrew’s
Cathedral-‐
Australia’s
Future:
Christ,
the
Nation,
the
State;
Sydney,
NSW,
Jan.
2014,
at:
http://works.bepress.com/neil_foster/73
.
2
See
http://www.bailii.org/ew/cases/EWCA/Civ/2014/34.html
for
the
full
report.
3
Core
Issues
Trust
v
Transport
for
London
[2013]
EWHC
651
(Admin).
Neil
Foster
1
The
bus
advertisements
case
been
located:
an
email
sent
from
the
Mayor’s
office
saying:
“Boris
has
just
instructed
tfl
to
pull
the
adverts”!
(See
para
[28]
of
the
CA
decision.)
This
issue
then
had
to
be
sent
back
to
the
judge,
who
it
was
strongly
suggested
should
reinstate
the
Mayor
as
a
defendant
and
require
him
to
testify
on
the
point.
However,
the
Court
generally
agreed
with
the
trial
judge’s
position
on
the
other
issues.
Article
10
of
the
European
Convention
on
Human
Rights
gives
a
right
to
freedom
of
speech,
which
of
course
has
to
be
balanced
against
other
interests.
A
breach
of
art
10
has
to
be
justified
by
being
shown
to
be
“(i)
prescribed
by
law;
(ii)
in
pursuance
of
a
legitimate
aim;
and
(iii)
"necessary
in
a
democratic
society".”
(at
[51])
Here
the
Court
accepted
that
TfL’s
“no
serious
offence”
policy
was
one
that
was
legally
made
under
the
relevant
Act
and
Regulations,
and
was
in
pursuance
of
a
legitimate
aim.
The
Master
of
the
Rolls
said
at
[58]:
I
accept
the
submission
of
Mr
Pleming
that
the
standards
of
"offensiveness"
and
"public
controversy"
are
sufficiently
precise
to
meet
the
requirement
of
legal
certainty.
Both
"offence"
and
"controversy"
are
uncomplicated
ordinary
English
words.
They
are
both
concepts
that
are
frequently
used
to
set
regulatory
standards
of
decency.
This
can
be
interestingly
contrasted
with
the
recent
decisions
of
the
High
Court
of
Australia
and
the
Supreme
Court
of
Canada
noted
in
my
earlier
paper,
all
of
which
expressed
concern
about
a
law
that
restricted
free
speech
merely
on
the
grounds
of
“offence”.4
On
the
question
of
the
legitimacy
of
the
aim,
Lord
Dyson
said
that
protection
of
the
rights
of
same-‐sex
oriented
persons
was
an
important
aim.
Interestingly
his
Lordship
at
[61]
quoted
the
organisation’s
duty
under
s
149
of
the
Equality
Act
2010
(UK),
which
was
to
have
due
regard
to
the
need
to
(a)
eliminate
discrimination,
harassment
and
victimisation
against
persons
with
same-‐sex
sexual
orientation;
and
(b)
foster
good
relations
between
those
who
have
same-‐sex
sexual
orientation
and
those
who
do
not
and
in
particular
to
tackle
prejudice
and
promote
understanding.
One
would
perhaps
have
thought
that
accepting
an
aggressively
rude
advertisement
from
Stonewall,
but
rejecting
a
similar
advertisement
from
the
Core
Issues
Trust
on
the
same
point,
was
unlikely
to
“foster
good
relations”
between
those
different
parties!
Finally,
on
the
proportionality
point,
Lord
Dyson
accepted
the
trial
judge’s
findings
that
TfL
had
behaved
wrongly
by
allowing
the
earlier
Stonewall
advertisement
to
run.5
But
he
concluded
that
TfL’s
decision
was
still
arguably
correct.
The
core
reasons
are
expressed
as
follows:
[84]....
The
restrictions
are
justified
in
view
of
the
prominence
of
the
advertisements
and
the
fact
that
they
would
be
seen
by,
and
cause
offence
to,
large
numbers
of
the
public
in
central
London.
Moreover,
for
those
who
are
gay,
the
advertisements
would
be
liable
4
See
Saskatchewan
(Human
Rights
Commission)
v
Whatcott,
2013
SCC
11
(27
Feb
2013);
Attorney-‐General
(SA)
v
Corporation
of
the
City
of
Adelaide
[2013]
HCA
3
and
Monis
v
The
Queen
[2013]
HCA
4
(27
February
2013).
5
Interestingly,
his
Lordship
noted
that
separate
proceedings
are
currently
under
way
for
a
specific
ruling
on
the
illegality
of
the
earlier
decision,
thought
those
proceedings
had
been
“stayed”
pending
the
outcome
of
this
case-‐
see
paras
[78]-‐[79].
Neil
Foster
2
The
bus
advertisements
case
to
interfere
with
the
right
to
respect
for
their
private
life
under
article
8(1).
[85] Secondly,
I
agree
with
the
judge
that
the
advertisement
is
liable
to
encourage
homophobic
views
and
homophobia
places
gays
at
risk.
Closely
linked
to
this
is
TfL's
duty
under
section
149(1)
of
the
EA
which
points
strongly
against
allowing
the
advertisement
to
appear
on
its
buses,
since
it
would
encourage
discrimination.
(emphasis
added)
With
respect,
it
is
not
immediately
apparent
that
all
these
reasons
are
valid.
Yes,
the
advertisements
might
offend.
If
a
broad
view
of
art
8
of
the
ECHR
were
taken,
this
would
be
some
“interference”
with
“respect”
for
private
life.
But
would
the
advertisement
really
encourage
“homophobia”?
Surely
the
only
way
it
could
do
that
would
be
if
any
suggestion
doubting
the
genetic
basis
of
homosexuality
were
to
suddenly
lead
to
an
outbreak
of
hatred
for
homosexual
persons.
But
why
should
this
be
the
case?
And
notice
the
subtle
connections
here.
No
one
would
dispute
in
a
general
sense
the
contention
that
“homophobia
places
gays
at
risk”-‐
we
would
all
want
to
condemn
gay-‐bashing
and
“homophobically”-‐motivated
violence.
But
to
slide
from
“encourage
homophobic
views”
to
the
dark
overtone
of
“risk”
is
a
very
big
move!
Again,
why
does
expressing
a
view
that
not
all
those
who
are
gay,
will
always
be
so,
“encourage
discrimination”?
We
are
not
told.6
But
we
are
told
at
[88],
with
no
real
reasons
being
offered,
that
the
Core
Issues
advertisement
was
wrong:
by
implying
offensively
and
controversially
that
homosexuality
can
be
cured.
Is
it
so
“offensive”
and
“controversial”
to
make
this
claim?
That
seems
to
be
a
conclusion
that
Lord
Dyson
starts
with,
not
one
that
he
provides
any
reasons
for
offering.
Perhaps
it
is
not
surprising,
then,
though
it
is
sad,
that
the
Article
9
freedom
of
religion
claims
are
met
with
very
short
treatment.
Lord
Dyson
refers
at
[91]
to
the
reasons
offered
by
the
trial
judge
for
refusing
to
apply
art
9:
first,
that
rights
to
freedom
of
religion
are
not
enjoyed
by
“corporate
entities”
other
than
“religious
communities
or
churches”;
second,
that
in
any
case
freedom
of
religion
does
not
apply
to
“moral”
issues
which
are
merely
“motivated”,
as
opposed
to
being
“required”,
by
belief.
Thankfully
the
Master
of
the
Rolls
does
not
endorse
these
propositions,
which
both
seem
to
be
wrong.
If
“religious
communities”
are
to
be
allowed
rights
of
freedom
of
religion,
why
not
an
explicitly
religious
organisation
like
Core
Issues?
And
the
second
proposition
is
simply
incoherent
as
well
as
being
clearly
wrong
in
light
of
the
decision
of
the
European
Court
of
Human
Rights
in
Eweida
and
ors
v
United
Kingdom
[2013]
ECHR
37
(15
January
2013),
noted
in
my
earlier
paper.
There
it
was
specifically
ruled
that
the
fact,
for
example,
that
moral
objections
to
same
sex
marriage
were
not
“required”
of
Christians,
did
not
prevent
such
an
objection
being
a
free
exercise
of
religion.
So
why
does
Lord
Dyson
say
that
art
9
is
not
engaged?
It
is
slightly
hard
to
determine,
but
he
simply
says
that
since
the
test
in
art
9
(legality,
lawful
purpose,
6
See
also
para
[88],
where
Lord
Dyson
defends
the
earlier
Stonewall
ad
as
encouraging
“gay
acceptance”,
and
then
shifts
to
conclude
that
the
Core
Issues
ad,
as
a
response
to
it,
must
be
guilty
of
encouraging
“gay
rejection”!
Neil
Foster
3
The
bus
advertisements
case
proportional)
is
the
same
as
that
in
art
10,
then
for
the
same
reasons
an
art
9
claim
would
fail.7
There
was,
however,
an
interesting
point
made
about
whether
it
could
be
argued
that
TfL
were
discriminating
against
“ex-‐gays”.
In
other
words,
does
a
right
not
to
be
discriminated
against
on
the
ground
of
sexual
orientation
include
a
right
not
to
be
discriminated
against
because
one
has
changed
sexual
orientation?
Lord
Dyson
accepted
that
an
argument
of
this
sort
might
be
made
out:
[98]
Discrimination
against
a
person
because
of
his
or
her
past
actual
or
perceived
sexual
orientation,
or
because
his
or
her
sexual
orientation
has
changed,
is
discrimination
"because
of…..sexual
orientation".
There
is
no
requirement
in
the
EA
that
discrimination
must
relate
to
a
person's
current
sexual
orientation.
All
that
is
required
is
that
the
discrimination
is
"because
of
sexual
orientation".
However,
his
Lordship
seems
to
have
accepted
that,
as
the
trial
judge
had
found,
the
Core
Issues
group
qua
group
did
not
have
a
“sexual
orientation”,
and
that
any
claim
of
this
sort
would
have
to
be
brought
by
an
individual.
The
other
members
of
the
Court
agreed
with
the
Master
of
the
Rolls.
But
it
was
encouraging
to
read
the
comments
of
Lord
Justice
Briggs:
[104] …
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.
Some
have
been
encouraged
along
the
way
by
bold
expressions
of
the
type
found
in
the
Stonewall
advertisement.
But
many
others
continue
sincerely
to
hold
that
belief,
and
some
regard
a
departure
from
it
as
inconsistent
with
the
maintenance
of
their
faith.
Some
would
rather
give
up
their
jobs,
or
discontinue
their
businesses,
than
act
in
a
way
which
they
believe
condones
such
conduct,
whether
by
conducting
civil
partnership
or
gay
marriage
ceremonies,
by
admitting
gay
couples
to
bed
and
breakfast
accommodation,
or
by
providing
adoption
training
to
gay
couples.
Sincere
differences
of
view
about
this
issue
are
tearing
apart
some
religious
communities,
both
here
and
abroad.
[105] Like
my
Lord,
I
consider
that
the
Stonewall
advertisement
was
probably
intended
to
promote
tolerance
of
gay
people
and
to
discourage
homophobic
bullying,
and
that
this
is
plainly
a
lawful
aim.
But
the
advice
to
'get
over
it'
is
a
confrontational
message
which
is
likely
to
come
across
to
many
of
those
to
whom
I
have
just
referred
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
buses
it
is
therefore
likely
to
cause
widespread
offence
to
many,
even
if
it
may
have
promoted
tolerance
and
understanding
in
others.
This
at
least
seems
to
introduce
some
balance
into
the
discussion.
In
the
end
the
decision
means
that
the
question
of
whether
the
Mayor
arranged
for
the
removal
of
the
advertisements
improperly,
for
political
purposes,
will
need
to
be
re-‐examined.
The
related
proceedings
challenging
the
original
Stonewall
advertisements
will,
it
seems
to
me,
find
that
they
were
unlawful
as
contrary
to
TfL’s
policy.
But
that
policy
has
also
led
to
the
banning
of
the
Core
Issues
advertisements.
It
seems
obvious
that
each
of
the
ads
was
as
7
His
Lordship
in
paras
[93]-‐[94]
also
virtually
ignored
an
argument
based
on
s
13
of
the
Human
Rights
Act
1998,
which
requires
special
importance
to
be
given
to
the
free
exercise
of
religion
by
a
“religious
organization”.
The
provision
is
indeed
hard
to
interpret,
but
one
would
like
to
at
least
have
seen
some
attempt!
Neil
Foster
4
The
bus
advertisements
case
“offensive”
as
the
other
(ie
mildly)-‐
but
for
reasons
noted
in
my
previous
paper,
in
my
view
each
should
have
been
allowed
to
run
and
the
issues
debated
openly,
rather
than
being
“covered
up”
and
removed
from
the
public
square.
Neil
Foster
28
Jan
2014
Neil
Foster
5