England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th July 2014

Mrs Justice Lang:

1. Core Issues Trust ("the Trust") seeks judicial review of the decision made by Transport for London ("TfL"), on 12^th April 2012, not to allow its advertisement to appear on the outside of its buses.
2. The wording of the proposed advertisement was:

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

www.anglican-mainstream.net www.core-issues.org"

3. The Trust and Anglican Mainstream are Christian organisations which promote the view that, in accordance with the Scriptures, sexual relations should only take place between heterosexual married couples, not homosexuals. The Trust seeks to support those who are unhappy with their homosexuality to manage, reduce and where possible, eliminate homosexual practices and feelings.
4. Their advertisement was intended to be a response to an advertisement by Stonewall, a campaigning organisation for LGBT (lesbians, gay men, bisexual and transgender individuals) which had earlier appeared on the outside of TfL's buses stating:

"SOME PEOPLE ARE GAY. GET OVER IT!"

5. The reason given for the refusal was that the advertisement was contrary to TfL's Advertising Policy.

Judgment of the High Court

6. At a hearing on 22^nd March 2013, I dismissed the Trust's claim for judicial review^[1]. I held that TfL did not act unlawfully in refusing to display the Trust's advertisement because:

i) TfL's Advertising Policy did not permit advertisements which were controversial or likely to cause widespread or serious offence or which were inconsistent with TfL's obligations under the Equality Act 2010; and

ii) the refusal was not a breach of the Trust's human rights under Articles 9 or 10 of the Convention.

7. In my judgment, I also rejected the Trust's submission that the decision had been made for an improper purpose, namely, to advance the Mayor's electoral campaign. The election was on 3^rd May 2012, and the campaign was underway by 12^th April 2012 when the decision was made. I held:

"58. The appointment of the Mayor as Chairman of TfL, with power to appoint Board members, and to give directions to TfL, creates a potential conflict of interest between the Mayor's different roles which the Mayor has to be careful to avoid. In my judgment, it was perfectly proper for Mr Johnson, as Chair of TfL, to be involved in the decision-making process on this issue and to express his views to Mr Everitt. But if the motive for 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 my view, such unlawfulness has not been established on the evidence. TfL acted in its own interests to avoid causing offence to a section of the public and to avoid criticism and controversy. Its interests coincided with those of Mr Johnson, who also wished to avoid causing offence and avoid criticism which might damage his election campaign. The overlap in interests did not render the decision unlawful."

Freedom of Information Act 2000 disclosure

8. After the judgment in the High Court, Dr Davidson, the Trust's Director, made requests to TfL and the Mayor of London under the Freedom of Information Act 2000. In response, he obtained relevant emails which had not been in evidence at the time of the hearing in the High Court, including an email from Mr Guto Harri, Director of Communications at the Greater London Authority, to Mr Richard Barnes, Deputy Mayor, dated 12^th April 2012 (timed 18:04) which read:

"Boris has instructed tfl to pull the adverts. And I have briefed the Guardian. Who will break that news in the next half hour."

Judgment of the Court of Appeal

9. The Trust appealed to the Court of Appeal^[2]. The Court dismissed the Trust's grounds based on Articles 9 and 10 of the Convention and remitted the issue of 'improper purpose' back to me for reconsideration. The Master of the Rolls (with whom the other members of the Court agreed) said:

"34 It is common ground that a public body cannot exercise a statutory power for an improper purpose: see De Smith's Judicial Review at paras 5-082 to 5–119. It is not disputed by Mr Pleming that, if the decision to disallow the advertisement had been taken for the purpose of advancing the Mayor's election campaign and not for the purpose of fulfilling the objects of the GLAA and implementing the Policy, it would have been an unlawful decision. The issue in this case is whether the decision was taken for that purpose. This is an issue of fact.

35 Mr Pleming submits that the judge's findings of fact on this issue at paras 55 and 58 of her judgment are unimpeachable. In my view, on the material that was before the judge, that is unquestionably correct. Indeed, I did not understand Mr Diamond to contend otherwise. The question for us is whether the new material makes any difference.

36 Central to the judge's finding was her acceptance of the evidence of Mr Everitt that the decision was made by him. She accepted that he was "influenced" by Mr Johnson. But the decision was his. TfL's interests in implementing its Policy and avoiding causing offence to a section of the public and avoiding criticism and controversy coincided with those of Mr Johnson, who also wished to avoid causing offence and criticism which might damage his election campaign.

37 The difficulty is that there is now in evidence an email which unequivocally states that the Mayor instructed TfL to pull the advertisement. On the face of it, this is inconsistent with Mr Everitt's insistence that the decision was his and his alone. Mr Everitt has not provided an explanation for this. All he is able to say in relation to this email is that he did not see it until May 2013 and that it has not caused him to change his evidence that he made the decision. The need for an examination of the role of the Mayor is all the greater because (i) the 18.04 email shows that the Mayor' Office contacted the Guardian immediately apparently 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.

38 This is a most unsatisfactory state of affairs. It is surprising that TfL has not obtained witness statements from the Mayor, Mr Harri and Mr Barnes to explain the email. Mr Everitt has provided no explanation for it. If the email means what it says, it is difficult to see how it can properly be said that Mr Everitt and he alone took the decision. And if the Mayor took the decision, the question arises as to what his motives were. It is impossible for this court to decide what part (if any) was played by the Mayor in the decision to disallow the advertisement. It is, therefore, impossible for this court to decide whether the decision was or was not taken for the purpose of promoting the Mayor's election campaign.

39 Mr Pleming submits that, even if Mr Everitt was implementing a decision made by the Mayor, it is clear that such a decision would have been in implementation of the Policy even if it also coincidentally advanced the Mayor's election campaign. It is clear that the Mayor was of the opinion that the advertisement was likely to cause widespread or serious offence to members of the public and related to matters of public controversy and sensitivity. Mr Pleming also relies on the fact that the Mayor is chairman of TfL and has the power to give directions to TfL as to how it should exercise its functions.

40 But there are three difficulties with this. First, the Mayor did not purport to give directions pursuant to section 155 of the GLAA (which are required to be in writing). Secondly, the Mayor was not aware of the Policy until after 12 April: it is therefore difficult to see how he could have been purporting to direct TfL to implement the Policy. Moreover, if in substance the decision was that of the Mayor and it was not in implementation of the Policy, it would have been in breach of article 10 of the Convention on the grounds that it would not have been "prescribed by law" (see paras 56 to 58 below). Thirdly, even if the Mayor's views were as Mr Pleming suggests, that does not necessarily mean that the decision was not taken for the purpose of advancing his political interests.

45 So how should we proceed in the present case? I shall approach this question on the assumption that (i) the decision may have been made for the improper purpose of advancing the Mayor's re-election campaign; (ii) the judge was right to hold on the evidence before her that the disallowing of the advertisement did not infringe the Trust's Convention rights and (iii) it is inevitable that, if TfL were required to reconsider the question, it would not reach a different conclusion from that reached on 12 April 2012.

46 In my view, if the decision that was taken on 12 April 2012 was unlawful because it was taken in order to further the Mayor's political campaign, the court would have a duty to say so. The judge was right to recognise that this would be a serious matter.

47 In the face of Mr Everitt's repeated denials, this court cannot decide whether the Mayor instructed TfL to withdraw permission for the advertisement. The 18.04 email of 12 April raises a strong prima facie case that he did so, but that needs to be investigated…

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…"

Directions

10. Following remittal to the High Court, the Mayor of London (Mr Boris Johnson) was joined as Second Defendant. Orders for disclosure were made against both Defendants. The Defendants relied upon new witness statements from Mr Boris Johnson, the Mayor; Sir Peter Hendy, Commissioner for Transport, TfL; Mr Richard Barnes, Deputy Mayor; and Mr Guto Harri, Director of External Affairs/Communications, Greater London Authority. The two statements previously made by Mr Everitt, Managing Director of Marketing and Communications at TfL, were also relied upon by the Defendants. Although the Claimant applied to cross-examine the Defendants' witnesses, I did not take the exceptional step of ordering cross-examination, as I did not consider it was necessary for a just determination of the claim.
11. The hearing was listed for two days. On the morning of day 2, I allowed the Defendants to adduce second witness statements from Mr Harri and Mr Johnson, commenting on further emails recently disclosed. At the close of Mr Pleming's submissions, at 2.00 pm on day 2, he applied to adduce in evidence a third witness statement from Mr Everitt, which the Court was told confirmed Mr Harri's account of the telephone conversations between them on 12^th April 2012. I refused permission because the witness statement arrived so late, and it was unfair to the Claimant to adduce new evidence at that stage. Mr Everitt could have given evidence about these conversations at the first High Court hearing; the Court of Appeal hearing and in advance of the second High Court hearing. There was no good reason for delaying it until the final stage of the second High Court hearing.

Statutory Framework

12. The Greater London Authority ("GLA") is a statutory corporation established under section 1 of the Greater London Authority Act 1999 ("GLAA 1999"). By section 2, the GLA shall consist of a Mayor and an Assembly, who are elected. The Mayor is the executive arm of the GLA and the London Assembly is its scrutiny arm. The Mayor appoints a Deputy Mayor from among Assembly members (section 49).
13. The GLA has statutory transport functions. Section 141 GLAA 1999 imposes a duty on the Mayor to "develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities and services" in London and publish them in a Transport Strategy.
14. TfL is a statutory corporation established under section 154 GLAA. TfL is required by section 154(3) to exercise its functions:

i) in accordance with such guidance or directions as may be issued to it by the Mayor;

ii) for the purpose of facilitating the Greater London Authority's ("GLA") duty to secure the provision of transport facilities, and

iii) for the purpose of securing or implementing the Mayor's Transport Strategy.

15. By Schedule 10, paragraphs (2) and (3) of the GLAA 1999, members of the TfL Board are appointed by the Mayor. If the Mayor chooses to be a Board member, he is to be appointed Chairman of the Board.
16. As permitted by paragraph (7) of Schedule 10, the TfL Board delegates to the Chief Officers the discharge of any functions of TfL (save for those reserved to the Board) and the day-to-day management of TfL. TfL's Standing Orders set out the delegations together with those matters which are reserved to the Board.
17. By section 155, the Mayor may issue guidance, and either general or specific directions to TfL on the exercise of its functions. Such guidance or directions must be issued in writing and notified to the nominated officer of TfL. These powers are vested in the Mayor by virtue of his office and do not derive from his membership of the Board.

TfL's Advertising Policy

18. Paragraph 1(3) of Schedule 10 to the GLAA 1999 empowers TfL "to do such things and enter into such transactions as are calculated to facilitate, or are conducive or incidental to, the discharge of any of its functions".
19. Under this power, TfL maintains an Advertising Policy ("the Policy"). Section 1.1 explains that the purpose of the Policy is "to set out high level principles, together with the decision making framework and criteria, governing the approval of advertisements which appear on TfL's services and information campaigns undertaken by TfL and to ensure TfL's compliance with its obligations in section 404 of the GLA Act".
20. Section 1.2 makes clear that "TfL will ensure that advertisements which appear on TfL's services and information campaigns undertaken by TfL are consistent with the obligations in section 404 of the GLA Act".
21. Paragraph 3.1 of the "Required Standards" in the Policy provides that "advertisements will not be approved for, or permitted to remain on TfL's services, if, in TfL's reasonable opinion, the advertisement falls within any of the categories set out at sub-paragraphs (a) to (r)". The material sub-paragraphs are:

"(c) The advertisement is inconsistent with the obligations in section 404 of the GLA Act 1999."

"(d) The advertisement is likely to cause widespread or serious offence to members of the public on account of the nature of the product or service being advertised the wording or design of the advertisement or by way of inference."

"(k) The advertisement contains images or messages which relate to matters of public controversy and sensitivity."

22. Section 404 of the GLAA 1999 was repealed on 5 April 2011 with the entry into force of section 149 of the Equality Act 2010. As a public body, TfL must now exercise its powers in accordance with section 149 of the Equality Act. Sections 1.1 and 1.2 and section 3(1)(c) of the Policy should therefore be read as referring to the obligations set out in section 149 of the Equality Act 2010 (the public sector equality duty).
23. TfL makes provision for London bus services through contractors, known as bus operators. Under TfL's "operators framework", bus operators are permitted to accept commercial advertising on buses, subject to certain conditions. These conditions include a requirement that advertisements will not be acceptable if they do not comply with TfL's advertising policy and the British Code of Advertising, Sales Promotion and Direct Marketing.
24. Advertising is managed by external contractors who enter into arrangements with bus operators.

Chronology of events

Prior to 12^th April 2012

25. The advertising contractor in this case was CBS Outdoor UK ("CBSO").
26. On 4th April 2012, Anglican Mainstream submitted an order form for the advertisement to CBSO. It was to run on the sides of 25 buses between 16th and 29th April 2012.
27. On 5th April 2012, CBSO submitted the advertisement to the Committee of Advertising Practice ("CAP") for consideration.
28. The CAP is an industry-created Committee which writes and maintains the British Code of Advertising, Sales Promotion and Direct Marketing, known as the CAP Code. The CAP offers advice on compliance with the CAP Code but its views are not binding on the Advertising Standards Authority, which is an independent body that administers the Codes and investigates complaints.
29. On 10th April 2012, CAP notified CBSO that:

"… the advertising copy you submitted seems to comply with the British Code of Advertising, Sale Promotion and Direct Marketing (the CAP Code). We have looked at your copy in light of existing ASA adjudications and believe that the ASA is unlikely to uphold complaints against it."

12^th April 2012

30. On 12th April 2012, CBSO confirmed the order and entered into a contract with Anglican Mainstream. Clause 15 of CBSO's standard terms and conditions provided:

"If the landlord at any time in its absolute discretion requires the display of Advertisement Copy at this property to be interrupted or discontinued then the Contractor may interrupt or discontinue such display of Advertisement Copy without prior notice to the Principal and upon any such action of the Landlord the Contractor may terminate the Agreement whether wholly or in part notwithstanding anything therein contained. In the event of such termination, the Contractor's liability is limited as outlined in Clause 9.4 above."

31. On 12^th April 2012, in the early afternoon, CBSO sent three emails to Leon Daniels, Managing Director of Surface Transport, and Mike Weston, Operations Director, at TfL. The first email attached the advertisement, saying:

"This has been approved by ASA/CAP... We are accepting this, but wanted to let you know. My fear was that if we said no – we have no legal grounds upon which to turn this down (nor within our bus contracts) My personal fear is that there would be an awful lot more PR for this if turned down (particularly with no grounds to do so)."

32. The second email said "...the Guardian newspaper is sniffing around asking if we are running this – are you comfortable with us running this – we really need to know as soon as we can?"
33. The third email said "ignore previous email – the first one stands – it will be run, but just wanted to let you know." By the time of the third email, at 15.17, CBSO had made an internal decision that it would be wrong to censor the Trust's advertisement when they had allowed the Stonewall advertisement to run. Later that afternoon, CBSO had released a statement to the Guardian stating that the advertisement would run. CBSO did not wait for TfL's views as it did not consider that TfL's approval was required.
34. At 16.27 the Guardian published an article on its website about the advertisement, stating that it was due to run on buses the following week. It reported "an angry response from gay rights campaigners", including Stonewall. It included a statement from Anglican Mainstream and the Trust. The Guardian article triggered a large number of posts on the Guardian website, on Twitter and elsewhere, objecting to the advertisement.
35. During the course of the afternoon, TfL received a large number of complaints, as well as several expressions of support for the advertisement.
36. At 16.38, the emails from CBSO were forwarded by Ms Sylvia Quagraine, TfL Press Officer to Mr Everitt, (among others). She informed him that the Guardian newspaper had contacted CBSO and were drafting 'a line'. She said:

"Mike has informed me that the ASA/CAP have approved the advert and that we have no legal ground to reject it. He wants to know if you would like us to reject the advert, if so a decision needs to be made as soon as possible as he believes that either way there will be a lot of publicity for the group."

37. Mr Everitt said in his witness statement that he immediately had concerns about the advertisement because it could potentially cause offence by implying homosexuality could be cured. So he responded in an internal email at 16.45 saying:

"We might not have a legal reason to block it, but how does this meet our criterion for avoiding issues of public controversy? I find it pretty hard to reach a judgment about these things without someone having done some sort of analysis as to how this meets or fails to meet our advertising policy. It is also not very helpful being asked to exercise that judgment in isolation without some sort of analysis of precedent – i.e. what have/haven't we allowed in this area previously. Can CBSO or someone here answer please to help us reach a conclusion?"

38. In response to this request, Ms Quagraine emailed CBSO asking for urgent information about the acceptance of the advertisements. At 17.04 she emailed Mr Everitt (among others) saying that she had not been able to contact CBSO but would keep trying.
39. Ms Helene Mulholland, a journalist at the Guardian, telephoned Mr Guto Harri that afternoon informing him about the proposed advertisement and the Guardian article.
40. At about 17.04pm, Mr Harri sent to Mr Everitt an email asking "is this happening", to which Mr Everitt replied "I've just been alerted to the fact that our ad agency has accepted it. The ads standards people have cleared it. I don't like it. Shall I get it pulled? The only thing is that banning it now will create a splash, but that may be better than this being paraded around London. "
41. Shortly after the email, Mr Everitt and Mr Harri spoke on the telephone. Mr Harri said in his witness statement:

"I .. remember being very clear in my view that the advertisements could cause great offence, and that the Mayor would hate them. Vernon Everitt was clearly alarmed by the initial public reaction too, and minded to address it. Discussing such issues and co-ordinating our separate reactions to them was regular good practice between us and our respective teams at the GLA and TfL….On this occasion, it was in Vernon's interest and mine to communicate a clear messages swiftly and consistently to the Guardian to avoid exacerbating the public backlash that was already underway."

42. Mr Harri made a note of the conversation at the time on his mobile telephone:

"Dosen't infringe any ad rules in the uk

Offensive … Could be

Vernon. I don't like it.

If we banned it we'd get hammered by Anglicans

Cd stop it going up

Lose"

43. Mr Everitt made no mention of this telephone conversation, in either of his witness statements.
44. Mr Harri also emailed Mr Dan Ritterband, GLA's Director of Marketing, with the link to the Guardian article at 17.08, asking him "do you know about this – is it happening". Mr Ritterband had not heard about it. Mr Harri explained in his witness statement that he thought "Mr Ritterband, as a gay man, would be able to bring a helpful perspective to the acceptability of the advertisement" so he emailed him again at 17.26 asking him "how offensive do you find it?" Mr Ritterband emailed in reply, at 17.32, saying "Very offensive. You can't be 'cured' of being gay. And to even hint it's an illness is pretty foul. This track only plays to extremists; no right minded Londoner would agree." He sent another email at 17.34 saying "He'd be a hero at Stonewall at Saturday for having then [them] stopped. Otherwise Sat will not be comfortable."
45. Mr Harri then telephoned Mr Johnson, who was out of City Hall at the time. In Mr Harri's witness statement he said:

"I told him as succinctly as possible … the nature of the advertisement (probably including the fact that it was an echo of the Stonewall advertisement), how they had slipped through the net, that the press were already onto this and that public reaction was considerable and very hostile. The Mayor was very clear in his reaction and I clearly remember him saying words to the effect that he was not having buses driving around London telling gay people that they are sick and can be cured. It was clear to me that the Mayor wanted these advertisements to be stopped. His view, and my view, was that it was not appropriate for these advertisements to be running and that TfL should sort this issue out."

46. In the meantime, at TfL, Mr Everitt sent an email at 17.07 to 8 members of staff at TfL, saying "Guto has been on. Please do not say anything to the Guardian until I have agreed our line with him."
47. At 17.20 pm Mr Everitt sent an internal email to 7 members of staff saying:

"Can we please find out URGENTLY:

how many buses is this running on

for how long.

In parallel, please start drawing up a statement that says something like:

'Our advertising agency CBSO manages ads on our network. They have checked this ad with the advertising standards authorities who have confirmed that the ad does not infringe any UK advertising rules.'

Or something like this. We must have a statement that shows we are not making judgments about every ad which goes up."

48. TfL staff began to gather the information Mr Everitt had asked for:

i) At 17.38, Mr Chris MacLeod, Director of Marketing, emailed Mr Everitt (among others) saying "On 25 bus sides I reckon. Supposed to be a take off of a Stonewall campaign (pro Gay). Worth checking if that ran on buses. What does the small print on the ad say?"

ii) At 17.42, Ms Vicky Morley, press officer, replied to Mr MacLeod, copying in Mr Everitt, and said "the small print includes web addresses for Anglican Mainstream and Core Issues. We're trying to get hold of CBSO now and getting a line together."

iii) At 17.45, Ms Quagraine emailed CBSO asking "what other adverts we have run in the past that is similar to this one e.g. the Stonewall ads."

49. At about 17:45 Mr Harri telephoned Mr Everitt again and informed him of Mr Johnson's views. Mr Harri's account of the conversation was as follows:

"I made it clear that the Mayor did not want the advertisements to run, repeating to Vernon that the Mayor had said words to the effect that he was not having buses driving around London telling gay people they are sick and can be cured. Vernon was already becoming aware of the extent of the public outrage being expressed, and told me about it. We agreed that the advertisements were offensive, and Vernon agreed that he would sort the issue out. At the time I did not specifically distinguish between TfL taking a decision which coincided with the wish of the Mayor, and TfL conforming to the wish of the Mayor."

50. Mr Everitt made no mention of this telephone conversation, in either of his witness statements.
51. After this conversation with Mr Everitt, Mr Harri telephoned Ms Mulholland at the Guardian and gave her a "verbal briefing", informing her that the advertisements were not going to run.
52. At 18.00 Mr Harri emailed Mr Everitt saying:

"Guardian will break story

..Re bj intervention in half hour

Sending me my quote which I will forward to you as soon as I get it.

Good to brief everyone else now but ideally with a 7 pm embargo so guardian gets a head start."

53. After the hearing, I sought further written clarification from Mr Harri as to the meaning of this email. In a further statement, he explained that he was letting Mr Everitt know that he had spoken to Ms Mulholland and informed her that the advertisements were not going to run "following an expression of the Mayor's strong views to TfL", and that the Guardian would be running the story in the next half hour. He said:

"What I meant by "sending my quote" is that The Guardian would be sending me by email the quotation from the Mayor which I have briefed verbally over the phone. During my time as the Mayor's spokesman I would often brief journalists verbally and then ask the journalist to send me what they would quote so that I could see what it looked like in print and approve or tweak. The pace of the job, and the fact that I was away from my computer and office so often, meant that briefing verbally was the only option …"

54. Mr Harri explained that he formulated the "quote" on behalf of Mr Johnson, based on the earlier telephone conversation he had with him. Mr Johnson did not draft or approve the quote. Nor did Mr Harri discuss with Mr Johnson the precise content of the briefing to the media.
55. At 18.01, TfL issued a press statement in the following terms:

"This advertisement has just been brought to our attention by our advertising agency, CBSO and 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 TfL's commitment to a tolerant and inclusive London. The adverts are not currently running on any London Buses and they will not do so.

For info:

The Mayor was strongly of the view that this ad should not be run. The ad was submitted to our agency CBSO who originally ran it by the Advertising Standards Authority and the CAP who advised that it did not breach any UK ad regulations. However, now that it has been brought to our attention, we have decided the ad will not run."

56. At 18.11 Mr Everitt emailed this press statement to Mr Harri saying "This is what we are giving Helene and will give to everyone else once she breaks the story".
57. At 18.17 Ms Mulholland emailed to Mr Harri the draft article which she had written, based on the information he had provided to her. At 18.25 Mr Harri forwarded it to Mr Everitt, with the accompanying message "Here's the tale I told. Ta for your help". This email was not disclosed by TfL in the first High Court hearing. The article stated:

"Boris Johnson, the Conservative mayor, has pulled an "offensive" Christian advertising campaign against homosexuality which was due to appear on London's buses next week and asserts the power of therapy to change the sexual orientation of gay people. A clearly angered Johnson 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". The Mayor immediately put the wheels in motion to halt the campaign after being alerted to the plans by the Guardian….. Johnson used his discretion as chair of Transport for London to instruct the transport body to ditch the advertising campaign…"

58. During the afternoon, Mr Richard Barnes, the Deputy Mayor, received emails and telephone calls objecting to the advertisement. He obtained the link to the Guardian article at 17.52. He then telephoned Sir Peter Hendy, Commissioner of TfL, whom he knew well. His account of the conversation in his witness statement was:

"9. I expressed to him what had been expressed to me about the intolerant nature of these advertisements. I said words to the effect that it would be better if they did not go ahead. I understood from Peter Hendy that he would look into the matter. I also asked if the advertisement conformed to TfL policy."

59. Sir Peter Hendy's account of the conversation in his witness statement was as follows:

"I am not certain how I first heard about the .. advertisements, but I think it was when I spoke to Richard Barnes .. He said words to the effect that the advertisements should be stopped, and I said words to the effect that TfL had rules on advertising and that I would speak to Vernon Everitt, TfL's Managing Director of Customer Experience, Marketing and Communications about this."

60. Immediately after the telephone conversation, Mr Barnes forwarded the link to the Guardian article by email to Sir Peter, with the message "As discussed, we must stop this."
61. At 18.01, Mr Barnes sent an email, with a link to the Guardian article, to members of staff in the Mayor's Office, including Mr Harri and Mr Ritterband. He also sent it to Mr Lynton Crosby, a communications consultant and campaign strategist who was retained by the election campaign for Mr Johnson to act as the campaign director. The email stated:

".. I have spoken to Peter Hendy and told him that I have received 10's of e-mails objecting to this homophobic rant and asked him to stop it. I believe that we should take a strong and immediate line on this and get .. them stopped. I wonder how TfL could accept them in the first place."

62. Mr Harri replied almost immediately in an email at 18.04, also copied to Mr Crosby, saying:

"Boris has just instructed tfl to pull the adverts. And I've briefed the guardian who will break that news in next half hour."

Mr Barnes replied: "Brilliant. Thank you".

63. These email exchanges appear to have been forwarded on by Mr Harri to Mr Johnson later that evening (at 22.14) with the message "Lynton copied on this at 6 pm".
64. Sir Peter spoke to Mr Everitt about the concerns raised by Mr Barnes and Mr Everitt told him that he had already taken the decision to stop the advertisement. Sir Peter emailed Mr Barnes at 18.23 saying "Just spoken to Vernon. It has been stopped."
65. At 18.10, Mr David McNeill, Director of Public Affairs and Stakeholder Engagement at TfL, emailed Mr Barnes noting that he had been specifically targeted in a Facebook campaign. He said "In consultation with the Mayor, TfL has decided to stop the adverts from appearing on our buses."
66. At 18.26 Ms Morley emailed TfL staff about "the story that broke in the Guardian today" which "on the Mayor's guidance we have confirmed that we will not be running the ads on our buses. This has already generated widespread press interest, we are briefing hard that we will not be running the ads and have tweeted our response…"
67. At 18.28, Mr Weston, Operations Director for London Buses at TfL, sent an email to Mr Everitt confirming that he had spoken to CBSO "who have confirmed that the advert will NOT be posted".
68. At 18.46 Ms Morley circulated by email to staff the revised Guardian article, with the comment that the Guardian had "updated story now". The article was very similar to the earlier draft sent by Ms Mulholland to Mr Harri. It added:

"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."

69. At 18.48 Mr Taylor, TfL press officer, emailed TfL staff saying comments on the website were "all praising Boris for banning the ad". Mr Everitt emailed in reply "Good. Well done all for getting us to a clear position quickly. We might even find that we get lots of new advocates!"
70. At 18.51 Mr McNeill emailed Mr Chris Bryant MP, a former Anglican curate, who had been quoted in the Guardian article criticising the advertisements, saying "TfL has decided to stop these adverts" to which Mr Bryant replied "Excellent". The email exchange was forwarded to Mr Everitt who said "Good, well done".
71. At 19.00 Mr Taylor emailed Mr Everitt saying "The campaign group are fighting back. If we are pressed on [their] claims I will point them to the Ad Policy. Mr Everitt replied at 19:02 saying "is to be expected. Ultimately the Mayor decides what goes on the network over which he has the political accountability end of."
72. At 19.23 Mr Everitt emailed Mr Weston and others about the need to remind advertising contractors to make an early referral to TfL of any advertisement which might contravene the Policy. He said:

"we had an example this afternoon of an ad which is a pretty blatant contravention of 3.1(d) being referred to us at the last moment by CBSO. This required immediate intervention, including by the Mayor, in the middle of a serious media and social media storm."

73. Mr Everitt added, in a further email at 19.51 that the advertisement "probably contravened 3.1(k) too actually".
74. Mr Everitt forwarded this email to Sir Peter Hendy, saying "Pulling the ad was definitely the right thing to do."
75. At 20.05, Mr McNeill emailed Mr Everitt saying that he had been trying to contact Stonewall. Mr Everitt replied that saying "they've already issued a statement welcoming the move".

13^th April 2012

76. At 07.52, Mr Everitt emailed staff at TfL saying:

"As usual in such cases, the story has moved quickly to us as 'censors'. …However, it would now have become a massive storm had it been allowed to continue and we would be standing accused of promoting intolerance. Like it or not, we are seen to 'condone' messages that are run on sensitive subjects, hence the existence of 3.1(k) in the policy…..Ultimately of course, the Mayor says what is acceptable to run on a network for which he carries the accountability."

77. At 08.32, Mr Everitt emailed the Policy to Sir Peter Hendy saying "Here are the rules on ads. See … 3.1(d) and 3.1(k) in particular. The ad in question was causing serious public offence."
78. Mr Johnson had a telephone conversation with Sir Peter in the morning of 13^th April and expressed his surprise that the advertisements had initially been approved and asked how this had happened. Sir Peter explained to him the way in which advertisements were accepted by TfL's agents and informed him about TfL's Policy. Sir Peter arranged for the Policy to be emailed to Mr Johnson.
79. At 9.59 Ms Joanne Parry, Safety Support Manager, emailed TfL staff requested a review into TfL's arrangements with its advertising contractors, commenting that the press coverage had been "great for Boris' election campaign, but negative press for TfL".
80. At 10.41 Mr Martyn Loukes, Business Development Manager, emailed TfL staff saying that "Vernon/Peter and Boris took the decision that the Ad failed to meet TfL's guidelines".
81. A journalist, Mr Brendan Cole, emailed Ms Quagraine asking if it was correct to say that Mr Johnson had "pulled the ad". She replied at 12.28 saying "The Mayor made clear that he was unhappy with the idea that these adverts would be displayed on London's buses."
82. At 14.37 Mr Everitt sent an email to the LGBT staff Network, of which he was a sponsor, explaining that TfL had taken "an immediate view, which the Mayor strongly supported, that the ad did not meet our advertising guidelines..".

Communications after 13^th April 2012

83. On 14^th April 2012 (not 13^th April 2012 as stated by the Court of Appeal), Mr Johnson attended the Stonewall London Gay Mayoral Hustings. The only mention of the advertisements was in the introduction by Ben Summerskill. Mr Everitt commented "I think the ad thing would have been much more prominent had the issue not been killed last week with all candidates pretty much on the same page".
84. On 14^th May 2012 Mr Johnson sent a signed letter to Hazel Blears MP in which he said:

"I believe that London should be a city where everyone should have the opportunity to live their life free from persecution and prejudice. As I felt that these adverts would go against this view, I instructed that they be immediately stopped."

85. Mr Johnson wrote a signed letter in almost identical terms to Councillor Adams on 22^nd May 2012. His staff also sent letters by email, in response to correspondence, which referred to instructions from the Mayor that the advertisements should be stopped. I was also shown a draft letter prepared by the Mayor's Office to a member of the public stating that TfL had decided that the advertisement should not run and that decision was "supported" by the Mayor.
86. On 19^th June 2012, Mr McLeod sent an email to another member of staff at TfL, who had enquired why CBSO, as 'custodian', had not provided the reasons for the decision, and explained "it probably just got forgotten in the moment – it was quite a hectic time. They might also believe it was our responsibility as the Mayor made the final decision".

Communications with the Trust and Anglican Mainstream

87. Anglican Mainstream was not consulted before the decision to refuse the advertisement was made. Dr Davidson first heard when reporters contacted him for a comment in the early evening of 12th April 2012, saying that "Boris Johnson had banned the advert in his role as Chairman of TfL".
88. On 13th April 2012, CBSO sent an email to Anglican Mainstream stating that TfL had decided not to allow the advertisement to run, but without giving any reasons.
89. On 16th April 2012, Mr Weston confirmed in writing his verbal instruction to CBSO not to allow the advertisement. The letter stated:

"Although CBS Outdoor did not seek TfL's approval in line with TfL's Advertising Policy dated 4th October 2009, the advertisement is not approved for posting on the TfL network as, in TfL's opinion, it falls within the following categories set in paragraph 3.1 of the Advertising Policy:

• The advertisement is likely to cause widespread or serious offence to members of the public on account of the nature of the product or service being advertised the wording or design of the advertisement or by way of inference; and/or

• The advertisement contains images or messages which relate to matters of public controversy and sensitivity."

These reasons were not forwarded to Anglican Mainstream.

90. On 30th April 2012, Anglican Mainstream and the Trust wrote to CBSO asking for the advertisement to be reinstated in accordance with the contract and their human rights. On 11th May 2012, CBSO replied explaining that it had to terminate the contract in compliance with clause 15 of the contract.
91. On 31st May 2012, Anglican Mainstream and the Trust wrote jointly to the Mayor of London requesting reasons as to why the advertisement was rejected. The letter was received by the GLA and passed to TfL to respond.
92. Mr Everitt responded on behalf of TfL by letter dated 4th July 2012. The letter stated:

"The advertisement was not approved for posting on the TfL network as, in TfL's opinion, it fell within the following categories set in paragraph 3.1 of the Advertising Policy:

The advertisement is likely to cause widespread or serious offence to members of the public on account of the nature of the product or service being advertised, the wording or design of the advertisement or by way of inference; and/or

The advertisement contains images or messages which relate to matters of public controversy and sensitivity."

The Defendants' account

93. Mr Everitt is the Managing Director of Marketing and Communications at TfL. He is a very senior and experienced employee. His evidence was that he made the decision not to run the advertisements, on behalf of TfL, having taken account of the Mayor's views. He did not receive an instruction from the Mayor.
94. In his first witness statement, Mr Everitt stated that he had made the decision not to run the advertisements for the following reasons:

"29. During the afternoon of 12 April, TfL became aware of growing public reaction and further press coverage, which supported the view that the underlying message behind the advertisement (even if this is characterised as no more than suggesting some recovery from or reversal of homosexuality) was causing offence or was controversial, or at the very least that it had the potential to do so. For example, there were over 800 comments in response to the Guardian story … before this facility was closed and TfL received 37 complaints. Comments on social media also reflected intense public concern and offence, with around 1500 Twitter comments revealed by our social media monitoring engine and a dedicated Face book page set up against the advertisement. Although there was some correspondence in support of the advertisement going ahead, the vast majority expressed concern – and even on occasion outrage – about the advertisement and/or suggested that it should not proceed. This reinforced my own concerns.

30. In the circumstances, including the principally negative public reaction, I was concerned that the advertisement did not meet paragraph 3.1(d) of TfL's advertising policy.

31. I (rather than the relevant custodian under the advertising policy, who was in the process of leaving TfL) decided that the advertisement should not run given that it did not appear to meet TfL's advertising policy, in relation to paragraph 3.1(d) and (k).

32. There was some confusion about whether the decision was taken by TfL or the Mayor as shown, for example, in the Guardian article 'Anti-gay adverts pulled from bus campaign by Boris Johnson' on 12 April 2012…However, although the Mayor had made his views clear and I was aware of them, I made the decision."

95. In his second witness statement, following the disclosure of further emails, Mr Everitt said:

"6. … I was aware of the Mayor's views, because of communications with Guto Harri. But I had no direct contact with the Mayor and at no time was I asked to pull the advertisement by the Mayor, anyone acting on behalf of the Mayor, or anyone else.

7. As far as I know, no one, other than me, looked at the advertising policy and assessed the developing situation against it. The Mayor was not in a position to judge the proposed advertisement against the advertising policy – the advertising policy was not sent to the Mayor .. until .. the next day .. and, in any event, day-to-day decisions on the application of policy are exercised by TfL officers.

8. In the period between the advertisement being drawn to my attention and my decision that the advertisement should not run, the online response reinforced my concern that the advertisement would cause widespread offence. There was abundant evidence before my eyes that widespread controversy, offence and even outrage was being caused by the proposed advertisement. I did not need the Mayor to point this out.

9. …I therefore took the decision that the advertisement should not run…"

96. The Mayor, Mr Johnson, is an experienced politician and journalist who was first elected Mayor in May 2008. In his evidence, he explained that he was strongly of the view that the advertisement should not run because it could offend a wide group of Londoners. His view was not influenced at all by the forthcoming election. He did not give an instruction to TfL, but he expected TfL to act in accordance with his view.
97. Mr Johnson said in his witness statement:

"5. I had not seen a copy of the proposed advertisement at the time I was asked to express my views. I gave my opinion on the basis of the description I was given by Guto Harri. It was, however, perfectly clear to me straight away from the description that it was saying something offensive to a wide group of people in London, not just gay people but for example their friends and families, that is, being gay was an illness that could be cured. In my view, it was inappropriate that such an advertisement should be allowed to be displayed on London's public transport network. I saw the advertisement subsequently and it confirmed my initial view.

…

7. I felt very strongly that the advertisement should not run, and I expressed that view to Guto Harri, who I knew was in communication with TfL. As Mayor of London and Chair of TfL, and as a human being, I was giving my opinion on a matter which could offend a wide group of Londoners. It is not unusual for me to do so – in my role as Chairman of TfL and Mayor I often express views on issues relevant to Londoners. I hoped that my opinion would be respected, and followed by TfL. It was, however, up to Tfl to take the decision it thought fit. I believed it likely that TfL would agree, but I did not instruct TfL to do anything.

8. If TfL had not stopped the advertisement following my strong expression of a view on the subject, I could have directed TfL to do so. On this occasion I did not make a formal Mayoral decision or sign a direction to TfL …

…..

10…..The Stonewall advertisement … seems to me to be a simple exhortation to general tolerance. On the other hand, this proposed advertisement was saying something very offensive about a particular community in London, suggesting that being gay was capable of a psychological or medical cure. As Mayor I have a general duty to maintain a spirit of harmony between various communities in London and I felt strongly that it was not appropriate for this advertisement to run on London's public transport network.

11. … The fact that this issue arose during a period of electoral campaigning was unconnected to the views that I expressed. I reached my view solely on the basis of my concern that the advert was likely to offend. I remained Mayor during this period and I remained aware of the importance of promoting equality and tolerance and understanding between all groups and faiths in London. I did not consider the electoral implications of stopping the adverts. There was no thought in my mind that stopping the advert would increase my prospects of re-election."

98. As noted above, Mr Barnes, the Deputy Mayor, also advised TfL that, in his view, the advertisements should not run. He said in his witness statement:

"10. … with a thirty year background in local government and its procedures and four years as Deputy Mayor, I was well aware at the time that neither I, nor the Mayor as Chair of TfL, had power to compel TfL to do anything by way of instruction. I could, and the Mayor could, express concern to appropriate and senior officers at TfL, but a formal requirement to do something would have to be conveyed through a direction under the GLA Act, following GLA procedures."

Law

99. It is a general principle of administrative law that a public body must exercise a statutory power for the purpose for which the power was conferred by Parliament, and not for any unauthorised purpose. An unauthorised purpose may be laudable in its own right, yet still unlawful. The issue is not whether or not the public body has acted in the public interest, but whether it has acted in accordance with the purpose for which the statutory power was conferred.
100. In Porter v Magill [2002] 2 AC 357, Lord Bingham analysed the legal principles applicable to members of a local authority found guilty of 'wilful misconduct' in adopting a policy of Council house sales with the predominant purpose of achieving electoral advantage for their political party. He said:

"19. ….Powers conferred on a local authority may be exercised for the public purpose for which the powers were conferred and not otherwise. A very clear statement of this principle is to be found in Wade & Forsyth, Administrative Law, 8^th ed. (2000), pp 356-357. The corresponding passage in an earlier edition of that work was expressly approved by Lord Bridge of Harwich in R v Tower Hamlets London Borough Council, Ex p. Chetnik Developments Ltd [1988] AC 858, 872:

"Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended."

The principle is routinely applied, as by Neill LJ in Credit Suisse v Allerdale Borough Council [1997] QB 306, 333 who described it as "a general principle of public law"."

……

"Powers conferred on a local authority may not lawfully be exercised to promote the electoral advantage of a political party."

……

"21. Whatever the difficulties of application which may arise in a borderline case, I do not consider the overriding principle to be in doubt. Elected politicians of course wish to act in a manner which will commend them and their party (when, as is now usual, they belong to one) to the electorate. Such an ambition is the life blood of democracy and a potent spur to responsible decision-taking and administration. Councillors do not act improperly or unlawfully if, exercising public powers for a public purpose for which such powers were conferred, they hope that such exercise will earn the gratitude and support of the electorate and thus strengthen their electoral position. The law would indeed part company with the realities of party politics if it were to hold otherwise."

101. Lord Scott agreed with Lord Bingham, observing at [144]:

"There is all the difference in the world between a policy adopted for naked political advantage but spuriously justified by reference to a purpose, which had it been the true purpose, would have been legitimate, and a policy adopted for a legitimate purposes and seen to carry with it significant political advantage."

102. According to Wade & Forsyth: Administrative Law (10^th ed.) at p.349:

"Where a statutory power is exercised both for the purpose for which it was conferred and for some other purpose, the act will be lawful provided that the permitted purpose is the true and dominant purpose behind the act, even though some secondary or incidental advantage may be gained for some purpose which is outside the public body's powers. There is a clear distinction between this situation and its opposite, where the permitted power is a mere pretext and a dominant purpose is ultra vires."

This passage was quoted with approval by Lord Hutton in R v Southwark Crown Court, ex p. Bowles [1998] UKHL 16, [1998] 2 WLR 715, at 651D.

103. Where the reasons given by a statutory body for taking or not taking a particular course of action are not mixed and can be clearly disentangled, and where the court is quite satisfied that even though one reason may be bad in law, nevertheless the statutory body would have reached precisely the same decision on the other valid reasons, then the court will not generally "interfere by way of judicial review" or alternatively exercise its discretion in favour of granting a remedy: see R. v Broadcasting Complaints Commission Ex p. Owen [1985] QB 1153, per May LJ at p. 1177B-D, in which the Commission had listed 5 reasons in its decision letter, one of which was found to be invalid.
104. In R v Lewisham LBC, ex parte Shell [1988] 1 All ER 938, the Divisional Court held that the local authority's dual aims – to improve race relations and improperly to pressurise Shell to change its policies – were so inextricably mixed that the "extraneous and impermissible purpose has the effect of vitiating the decision as a whole" (at [72]). As a general principle, Neill LJ held, at [66], that "where the bad reason or purpose demonstrably exerted a substantial influence on the relevant decision, the court can interfere to quash the decision".
105. As De Smith's Judicial Review (7^th ed.) observes at 5.117 - 118, the courts have often approached problems of plurality of purpose by considering whether the decision-maker has taken into account an unauthorised purpose as an 'irrelevant consideration'. The decision will be invalidated if the irrelevant consideration has had a "substantial" or "material" influence upon the decision: see Hanks v Minister of Housing and Local Government [1963] 1 QB 999 per Megaw J at 1018 – 1020; R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 286, per Rose LJ at [401]; R v Inner London Education Authority ex parte Westminster CC [1986] 1 WLR 28, per Glidewell J. at [43]; R v Ealing LBC ex parte Times Newspapers Ltd [1987] IRLR 129, at [49].

Submissions

106. The Trust submitted that the decision was made by TfL as a result of a "decisive intervention" by the Mayor. Either the Mayor gave an instruction or he expressed his view so strongly that it was bound to be followed by Mr Everitt, who was his subordinate. Both were impermissible. The Mayor should either have given a written direction or remained silent. There was evidence that the Mayor had an ulterior motive of electoral gain, demonstrated by the "political capital" which he made from claiming to have made the decision to "pull" the advertisements. He abused his power and acted irrationally by intervening to stop the advertisements without even knowing the terms of the Policy, let alone applying it.
107. The Defendants submitted that the decision was taken by Mr Everitt, on behalf of TfL, not by the Mayor, although Mr Everitt was aware of the Mayor's view that the advertisements should not run when he made the decision. The Mayor did not give an instruction to Mr Everitt because he did not have power to do so, other than by giving a formal written direction under section 155 GLAA 1999. The use of the word "instruct" in contemporaneous documents was merely "intended to reflect the involvement of the Mayor in expressing his views as to what TfL should do". Alternatively, if the Court was to find that the witness statements and the emails conflict, the Court should prefer the evidence in the witness statements.
108. On the evidence, there was no basis for concluding that the Mayor's involvement with the decision of 12^th April (however it was characterised) was motivated by a desire to achieve an electoral advantage or avoid an electoral liability. The Mayor was motivated by his concern that an offensive and controversial advertisement should not run on London buses. Even if the Court was to find that he was also motivated by electoral considerations, contrary to the Defendants' case, that was only a secondary motive, not the dominant motive. Since the Court of Appeal has upheld the lawfulness of the refusal to run the advertisement, based upon the Advertising Policy, the Court should not interfere by way of judicial review and should not quash the decision.

Conclusions

109. It is apparent from the emails that both TfL and the Mayor's Office were immensely concerned at the prospect of bad publicity and public criticism. They perceived the Guardian article, and the online comments which it triggered, as a media storm which they wanted to bring under control. They felt under pressure to make an immediate public response. Mr Harri was aware that the print deadline was very close and did not want newspapers to be printed and distributed overnight with the original story unanswered. In my view, this explains the breakneck speed at which the decision was made and why the press was notified of the decision before CBSO or the Trust and Anglican Mainstream.
110. Mr Diamond was critical of the hasty decision-making process which did not allow time for consultation with the Trust, nor for a measured assessment of the competing arguments, for and against allowing the Trust to respond to the Stonewall advertisements. In my first judgment, I found these criticisms to be valid. However, the Trust has not pleaded its challenge on the basis of procedural unfairness, and therefore that issue remains outside the scope of this claim.
111. The Mayor is responsible for TfL's policy and he is also Chairman of TfL's Board. He does not have an executive role at TfL, and he would not usually be involved in day-to-day decisions. However, I am not aware of any legal or ethical restriction upon the Mayor communicating with TfL officials, outside the formal channels of Mayoral decisions and directions and Board meetings. There are bound to be occasions when a Chairman of a corporate body, whether in the private or public sector, is consulted informally about a difficult executive decision, and the Chairman's views are likely to carry considerable weight. Mr Johnson explained that it is not unusual for him to express his opinion, in his capacity as Chairman of TfL and Mayor. On this occasion, Mr Everitt asked the Mayor's Office whether TfL should "pull" the advertisement. In my judgment, it was perfectly proper for Mr Johnson to express his views on this issue to TfL.
112. TfL is part of what is known as the "GLA group" comprising the five organisations for which the Mayor has statutory responsibilities. It emerged from the evidence that there is a close working relationship between TfL and the Mayor's Office, involving regular informal contact at a senior level. This explains why Mr Barnes rang Sir Peter Hendy as soon as he heard about the advertisement, and why Mr Everitt asked Mr Harri if he should "pull" the advertisement. Mr Everitt said, in his first witness statement, "as a matter of routine, TfL and GLA exchange views on our public positions". This seems to me to be an accurate statement.
113. On my analysis of the evidence, Mr Everitt was still in the process of deciding whether or not to run the advertisements when Mr Harri telephoned him to inform him of Mr Johnson's views at 17.45. Mr Everitt's emails timed at 16.45 and 17.20 made urgent requests for more detailed information which had not been fully answered by 17.45, and there is no evidence that Mr Everitt had made a decision prior to the call.
114. Mr Everitt's aim was to agree a position with the Mayor's Office before announcing a decision to the press - see Mr Everitt's email at 17.07:"Guto has been on. Please do not say anything to the Guardian until I have agreed our line with him".
115. It appears that Mr Everitt made the decision that the advertisements should not run during the telephone call, though Mr Everitt's witness statements did not state this. Mr Harri, in his witness statement, said "we agreed that the advertisements were offensive and Vernon agreed that he would sort the issue out". The next recorded communication between them is at 18.00 when Mr Harri emailed Mr Everitt with the arrangements for issuing the "story" to the press. Mr Harri has explained that he telephoned Ms Mulholland at the Guardian, to inform her that the advertisements would not run, immediately after his telephone conversation with Mr Everitt and before he sent the email to Mr Everitt at 18.00. So the decision must have been made during the conversation between Mr Everitt and Mr Harri at 17.45, as there is no other recorded communication between them. This inference is supported by the timing of TfL's press release announcing the decision at the same time, 18.01.
116. I conclude therefore that the telephone conversation in which Mr Everitt learned of the Mayor's views was the point at which Mr Everitt made the decision not to run the advertisement. So the question is, did Mr Harri pass on an instruction from the Mayor or merely pass on the Mayor's strongly-held views?
117. In their witness statements, Mr Everitt and Mr Johnson both denied that an instruction was given. Mr Harri stated:

"At the time I did not specifically distinguish between TfL taking a decision which coincided with the wish of the Mayor, and TfL conforming to the wish of the Mayor. While the point did not arise, if TfL had come back to me saying that it had decided that the advertisements were to run, there would have been a clear conflict. Had there been such a conflict, the final decision would have rested with the Mayor, but in that case the decision would have been taken formally by him…."

118. I doubt that someone as senior as Mr Everitt would have made the decision merely on the basis of the telephone call from Mr Harri if he thought it was the wrong decision. However, I am satisfied that Mr Everitt would have been aware that, if there was a conflict, the final decision would rest with the Mayor. It was also Mr Everitt's view, expressed later in emails to TfL staff, that ultimately it was for the Mayor to decide, as he was politically accountable for TfL:

"Ultimately the Mayor decides what goes on the network over which he has the political accountability end of." (12^th April, at 19.02)"

"Ultimately of course, the Mayor says what is acceptable to run on a network for which he carries the accountability." (13^th April, at 07.52)"

119. The difficulty which the Defendants face is that the article written by Ms Mulholland, based upon Mr Harri's briefing, claimed that Mr Johnson instructed TfL to make the decision, and that, in effect, it was Mr Johnson's decision. It included the following lines:

"Boris Johnson, the Conservative mayor, has pulled an "offensive" Christian advertising campaign.."

"The mayor immediately put the wheels in motion to halt the campaign.."

"Johnson used his discretion as chair of Transport for London to instruct the transport body to ditch the advertising campaign…"

120. The Guardian and other newspapers reported the story in these terms, attributing the decision to Mr Johnson.
121. Even internally, Mr Harri used the word "instructed" when he emailed Mr Barnes at 18.04 saying "Boris has just instructed TfL to pull the adverts. And I've briefed the guardian."
122. Mr Johnson also said he 'instructed' TfL not to run the advertisements: see the letters to Hazel Blears MP (14^th May 2012) and Councillor Adams (22^nd May 2012). Both these letters were personally signed by Mr Johnson, though no doubt drafted for him.
123. There was a dispute at the hearing as to the meaning of the word "instruction" which was in danger of descending into a debate about semantics. I prefer to focus on what actually happened. I have no doubt that the actual decision not to run the advertisement was made by Mr Everitt on behalf of TfL. He notified Mr Weston who in turn notified CBSO. The decision was made in the course of a conversation with Mr Harri who told Mr Everitt that Mr Johnson had expressed a strongly-held opinion that the advertisements were offensive and that TfL should not run them on London buses. Mr Everitt was strongly influenced by Mr Johnson's views and wishes in reaching his decision that TfL would not run them.
124. I accept that Mr Everitt might well have reached the same decision later that afternoon, even if he had not been informed of Mr Johnson's views. It also seems likely that the TfL Commissioner, Sir Peter Hendy would have directed Mr Everitt to stop the advertisements from running, following his discussions with Mr Barnes. Mr Barnes was the Deputy Mayor, who had responsibility for the GLA's Equalities Policy, and he acted independently of the Mayor in asking TfL not to run the advertisements.
125. Mr Everitt was authorised to make the decision on behalf of TfL and no improper motive has been attributed to him. There is no evidence to suggest that either TfL or Mr Everitt had a vested interest in the outcome of the election or supported Mr Johnson's candidature in preference to that of the other main contender, Mr Ken Livingstone. The TfL emails express concern about criticism of TfL, not concern about the potential adverse impact on Mr Johnson's election prospects.
126. However, the question raised by the judgment of the Court of Appeal is whether, in effect, Mr Everitt was implementing a decision made by Mr Johnson who may have been seeking to further his electoral campaign. I have also considered whether, if Mr Johnson had an improper ulterior motive for stopping the advertisement, Mr Everitt's decision was tainted by the reliance which he placed upon Mr Johnson's views and wishes when reaching his decision.
127. I accept Mr Johnson's evidence that, in expressing the view that the advertisements were offensive and unacceptable, he was giving his opinion as "Mayor of London and Chairman of TfL, and as a human being". The Court of Appeal has since held that the decision not to run the advertisements, on the grounds that they were offensive, was lawfully made, in pursuance of a legitimate purpose. Mr Johnson would have been well aware that, as Mayor and Chairman of TfL, he would have to take ultimate responsibility for a controversial decision by TfL. Inevitably, there was a political dimension to this controversy, using the term 'political' in the broadest sense. As an experienced politician, Mr Johnson would have been alive to the political dangers of alienating either the gay lobby or the Christian lobby, and Londoners in general. As an elected politician with a high profile, he would have had an eye to public opinion with every step he took while in office. These considerations are not improper. If they were, then "[t]he law would indeed part company with the realities of … politics", per Lord Bingham in Porter v Magill, at [21]. Parliament, when legislating for an elected Mayor to act as Chairman of TfL's Board, presumably weighed up the advantages and disadvantages of conferring this responsibility upon a politician. Assuming that all these factors operated on his mind, either consciously or sub-consciously, I consider that his response would have been the same, whether or not he was in an election campaign. I found his explanation for his views on the advertisements to be convincing and I accept his statement that the forthcoming election was not the reason why he concluded that the advertisement ought not to run.
128. Of course, Mr Johnson faced heightened exposure to the public and press during the election campaign, and so he was at greater risk of attack and of alienating voters at a crucial time. But he was equally liable to be lambasted by the gay or the Christian lobby, whichever view he took of the advertisements, which were due to run from Monday 16^th April, but were already public knowledge. He was booked to attend hustings organised by Stonewall on 14^th April and hustings organised by the Evangelical Alliance and London Church Leaders on 18^th April. On the evening of 12^th April, he was due to attend the "Black Britain Decides" hustings hosted by "a coalition of Black leaders including church and business leaders, activists, faith groups and others". It was expected that there would be a high proportion of people associated with churches in the audience who might well support the Trust's advertisements challenging the earlier Stonewall advertisements. Mr Harri was alive to these risks. The note of his initial conversation with Mr Everitt recorded his concern that "if we banned it we'd get hammered by Anglicans".
129. In the event, TfL's decision not to run the advertisements was met with a mix of approval and disapproval, as anticipated. There was significant criticism on the grounds that it amounted to unfair censorship.
130. Mr Diamond complains that Mr Johnson gave his views without seeing the advertisement. He did not check the Policy, and did not properly consider the arguments in favour of allowing the Trust a response to the Stonewall advertisements. Mr Johnson gave an instant response to a question asked over the telephone, when he was away from the office on other business. In my judgment, these failures are not evidence of improper political motive. The reason why Mr Johnson gave an instant response was that the Mayor's Office and TfL felt under pressure to make an immediate response to the Guardian article, as I have set out above. I do not condone their approach. From the Court's perspective, a more considered decision-making process would have been preferable. But the Trust has decided not to plead its claim on these grounds.
131. Mr Diamond submits that Mr Johnson was motivated by the desire to make "political capital" of the decision not to run the advertisements, and thus promote his electoral campaign. He points to the article written by Ms Mulholland of the Guardian, based upon a briefing given by Mr Harri.
132. I consider that this article, and by inference Mr Harri's briefing, did indeed give Mr Johnson credit for TfL's decision, in a colourful way. It is at odds with the more measured press release issued by TfL, which gave the reasons for the decision made by TfL and then added "For Info: The Mayor was strongly of the view that this ad should not be run". TfL's later communications were largely consistent with their initial press release. On the evidence before me, TfL's press release was the more accurate account.
133. In my view, the wording of the "quote" attributed to Mr Johnson is consistent with the opinions he expressed in his witness statement and which, according to the evidence, he communicated to Mr Harri during their telephone conversation. The quote read:

"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"

The more controversial references to the Mayor "pulling" the advertisements or "instructing" TfL to do so are to be found in the rest of the article.

134. The evidence of Mr Johnson and Mr Harri is that they only spoke once that afternoon about this issue. I sought further confirmation from both Mr Harri and Mr Johnson on this point. In his further statement, Mr Johnson confirmed that he only had one communication with Mr Harri, namely the initial telephone conversation. He did not discuss with him the content of any press briefing. He did not draft or agree the "quote" or any other part of the article.
135. Mr Harri said that Mr Johnson did not tell him what to say to the press, nor did he discuss the content of the press briefing or the wording of the "quote" from Mr Johnson with him. Mr Harri formulated the "quote" on behalf of Mr Johnson. He explained that he frequently drafted and approved quotes on behalf of Mr Johnson. Where possible he would try to agree the words with him, or have his words quoted as his spokesman, but there was not always time to do this. On this occasion he drafted the "quote" on the basis of his telephone conversation with Mr Johnson. He communicated it to Ms Mulholland, as part of a verbal briefing, and requested her to send it to him in writing for approval.
136. I consider that Mr Harri used terms such as "pulled" and "instructed" without much care or precision. In his witness statement, he explained that:

" .. 'instructed' was shorthand for explaining that the Mayor had expressed what he wanted to see happen, that I had conveyed this view, and the advertisements had been pulled."

137. It seems to me likely when Mr Harri was briefing Ms Mulholland he decided to play up Mr Johnson's role, and downplay TfL's role, putting a favourable 'spin' on the story, in his role as the Mayor's press adviser. I note that Mr Harri did not ask Ms Mulholland to change her text or issue a correction. He forwarded it to Mr Everitt at 18.25 with the message "Here's the tale I told"; this comment was perhaps an acknowledgment that the account he had given to the press was a "tale" i.e. not strictly accurate. On the evidence, it does not appear that Mr Johnson asked Mr Harri to play up his role or was aware that he intended to do so. He left it to Mr Harri to decide what to say to the media.
138. I have given careful consideration to the question whether or Mr Harri played up Mr Johnson's role in order to advance his election campaign, and if so, whether Mr Johnson should have taken steps to prevent this.
139. There is a well-established convention which prohibits employees of national or local government from promoting any candidate in a forthcoming election, so as to maintain neutrality. The Chief Finance Officer and Monitoring Officer of the GLA issued written guidance on this convention in February 2012 entitled "Use of GLA Resources". It permits elected office holders to respond to events connected with their office which may arise during an election campaign. However, responses should not be party political in tone or content.
140. Mr Harri was Director of Communications at the GLA. In dealing with the media, he acted as spokesman for the Mayor. It was his responsibility to present and explain the views of the Mayor to the media. He had no formal role in the Mayor's re-election team. A separate team, with different staff and located elsewhere, dealt with the campaign. Although the campaign director, Mr Crosby, was copied in to some of the emails, there is no evidence that he was either consulted or provided advice at any stage.
141. I am satisfied, on the evidence, that Mr Harri perceived his role throughout as acting as spokesman for Mr Johnson in his capacity as Mayor, not as an election candidate. He said that, as a former political correspondent and because of the GLC guidance, he was well aware of the pre-election conventions on publicity and the importance of political neutrality in the pre-election period. I think it very unlikely that Mr Harri, as an experienced professional journalist, would have risked breaching the pre-election conventions. Nor would Mr Johnson, as an experienced politician, have intended or wanted him to do so. Even leaving to one side their concerns about propriety, I consider that the potential risks for both of them would have been too great for them to contemplate such a course of action.
142. My conclusion is that, on this occasion, Mr Harri was using the media in much the same way as he had probably done throughout Mr Johnson's term of office, namely, to present Mr Johnson, his views and his work, in the most favourable light possible. In my view, this briefing would have been the same whether or not there was an ongoing election campaign. Advancing Mr Johnson's re-election campaign was not its purpose.
143. I summarise my conclusions in the following way:

i) Mr Johnson was the Chair of the Board of TfL and, in his capacity as Mayor, he had statutory power to issue written instructions or directions to TfL. He did not issue either a written or verbal instruction or direction to TfL on this occasion.

ii) TfL made the decision not to run the advertisements. Prior to making that decision, Mr Everitt of TfL requested the views of the Mayor's office and Mr Johnson communicated a strongly-expressed opinion that the advertisements were offensive and should not appear on London buses. Mr Everitt of TfL was strongly influenced by Mr Johnson's opinion when he made the decision not to run the advertisements.

iii) Mr Johnson was not motivated by an improper purpose, namely, to advance his Mayoral election campaign.

144. For these reasons, the claim is dismissed.

Note 1   [2013] EWHC 651 (Admin)    [Back]

Note 2   [2014] EWCA Civ 34    [Back]