Case No. CO-2850-2005

19.TfL (by its Head of Legal) replied by a letter dated 13th April 2005. In summary, it stated:(1) “It is plain that what is at issue is the desire of the TRNC to advertise the tourism opportunities in the northern part of Cyprus and to seek if necessary to invoke the court’s help to that end”.(2) That, in essence, the defendant did not accept that the TRNC may invoke justice in the courts in relation to advertising tourism in the northern part of Cyprus. “The Crown does not recognise TRNC and does recognise the Republic of Cyprus as having sovereignty over all Cyprus. Accordingly, TRNC has no lawful interest in tourism in Cyprus which is cognisable by the courts in the United Kingdom.”(3) That “the current position of the United Kingdom can be seen quite clearly from the latest advice to travellers posted by the FCO to its website on the 4th March 2005”. The letter then went on to set out parts of the website. (4) That by reference to authority, in particular the case of Veysi Dag v Secretary of State for the Home Department (Immigration Appeal Tribunal decision 14th March 2001) and the case of Luther v Sagor [1921] 3 KB 532 and other cases referred to in the decision of Dag, TfL adopted the conclusion that:“It is not open to any United Kingdom court or tribunal to give any degree of recognition to the ‘Turkish Republic of Northern Cyprus’ as a sovereign State”. ”20.As to the proposed grounds of challenge set out in Addleshaw Goddard’s letter, the defendant replied as follows:(1) It was denied that the decision was procedurally unfair and in breach of the rules of natural justice. Reliance was placed upon Mr Hendy’s letter of 9th February 2005 and the fact that the detailed representations in the letter dated 30th March 2005 from Messrs Addleshaw Goddard had been taken into account in reconsidering the initial decision. (2) As to the ban, said by Addleshaw Goddard to be a ban on all advertising for North Cyprus, being irrational and/or wholly unreasonable, TfL stated:“TfL does not accept that its decision to ban all advertising for Northern Cyprus on the basis that it is likely to cause widespread or serious offence is irrational and/or wholly unreasonable.TfL has not banned all such advertising. It has decided it will not accept advertising from the proxies of a body that is in international law (and as accepted by the United Kingdom) in illegal occupation of a part of the territory of the Republic of Cyprus. It would accept advertising from the Tourist Board of the Republic of Cyprus in relation to any part of Cyprus, but not from a body which is seeking to act on behalf of an illegal government”.21.The defendant relied upon section 7.1 of its advertising policy which provides that advertisements should not be approved for or permitted to remain on display if they:“Are likely to cause widespread or serious offence to members of the public or sections of the public, on account of the nature of the product or service being advertised, the wording or design of the advertisement or inference contained therein”. It contended that the complaint received from Mr Coleman which the defendant understood represented the views of his Greek Cypriot constituents “was fully justified by reference to the provisions of the Advertising Policy”. 22.The defendant contended that the advertisement contained a “political message” because it was clear that the advertisement related to a matter of public controversy and sensitivity and of a highly political nature, namely, the North Cyprus situation. This was so because:“It refers to a web site entitled www.go-northcyprus.com . The web site says in terms in the contact section that it is the “UK Representative of the Ministry of Tourism of Northern Cyprus (TRNC)”. The defendant added:“It is simply unarguable that this advertisement and its basis in action of the so-called “Ministry of Tourism of Northern Cyprus (TRNC)” is anything other than deeply politically controversial.”23.The defendant responded to the claimant’s reliance upon Article 10 of the European Convention on Human Rights as follows:(1) That it did not accept that TRNC and its proxies may claim any protection under the ECHR. That claims destructive of rights established under the Convention would not be permitted (see Articles 17 and 18 of Schedule 1 to the Human Rights Act 1998).(2) That the Council of Europe does not recognise TRNC and does recognise the Republic of Cyprus. Further, that it did not accept that any entity such as the TRNC which is not recognised under international law has any rights to freedom of expression under the ECHR and certainly not to claim to exercise sovereign power in relation to tourism in the north. (3) The defendant added:“In any event, TfL considers it would be improper for a public authority such as TfL to permit advertising of this kind designed to attract tourism into an area which carries such a substantial “health warning” from the Foreign Office”.(4) The defendant maintained that it had the power at law to act as it had done and that its actions were prescribed by law. (5) The defendant refuted the contention that the decision unlawfully discriminates against the Turkish Cypriot community, whether resident within the United Kingdom or in North Cyprus, relying upon the fact that section 404 of the 1999 Act was concerned with the promotion of equality in respect of “lawful opportunities for all people”. Since TRNC is not internationally recognised and Turkey’s occupation of North Cyprus is considered internationally to be illegal, TfL failed to see how the decision was inconsistent with the provisions of section 404 of the 1999 Act. On this point, the letter ended:“There is no question of the TRNC having a lawful right to sovereignty over the north of the Republic of Cyprus and cannot offer tourism over that area without acting in a way which is contrary to the rights recognised as lawfully being with the Republic of Cyprus.”(6) The defendant denied that its decision was irrational and unreasonable in that it was taking sides on a political issue. It added:“The fact that the United Kingdom government wishes to see such reunification of Cyprus is not inconsistent to its stated policy of non-recognition of ‘TRNC’ and does not alter the present position of ‘TRNC’ continuing to remain an unrecognised ‘State’.”(7) As to the suggestion that the advertising bore no political message whatsoever, the defendant maintained that this is advertising by a body which is illegal in international law and not recognised by the United Kingdom. The letter went on to add:“As we have mentioned above, the decision was reached as a result of a complaint received from Brian Coleman in November 2004 based upon NCTB’s previous advertising campaign on London buses. TfL understands that this complaint was prompted by complaints Mr Coleman had received from his Greek Cypriot constituents. TfL was also informed by the Mayor’s Office that the Mayor agreed that further advertisements of this kind on London Transport would not be acceptable. The decision was not a disproportionate response to the complaints received as it was the only sanction available to TfL following its consideration of the complaint and the advertisement in question.It is ridiculous to suggest that the advertising does not contain a political message. We have pointed this out above. Accordingly TfL does not accept that the advertising contains no political message whatsoever. It is clear from the complaint received that the advertisement in question promoting ‘North Cyprus’ does relate to a matter of political controversy and sensitivity which is of a highly political nature, i.e. the North Cyprus situation.”24.Having maintained its decision, the Head of TfL Legal wrote to Mr Simon Wood, the head of Greece and Cyprus section of the Foreign and Commonwealth Office (“FCO”), by letter dated 22nd April 2005. The letter drew attention to the past history of advertising for the North Cyprus Tourism Centre, to the fact that in November 2004 a complaint about the advertising campaign had been received from Mr Brian Coleman, the chair of the London Assembly, and the letter set out the matters which had been brought to their notice. The letter went on to point out:“In view of the previous complaint received (which was also endorsed by the Mayor’s Office) TfL considered the terms of its advertising policy and refused to sanction this proposed campaign on the grounds that it:•was likely to cause widespread or serious offence to members of the public or sections of the public; and•contained images/messages that related to matters of public controversy and sensitivity namely, the North Cyprus situation.Having received further representations from interested parties TfL has reconsidered its decision to refuse to sanction the proposed NCTC campaign and has decided to maintain its stance on this issue.This decision was reached taking into account: (1) the terms of TfL’s advertising policy; (2) the fact that it would be improper for a public authority such as TfL to allow advertising designed to attract tourism into an area which carries such a substantial “health warning” from the UK Foreign & Commonwealth Office; and (3) the representations received to date.”25.Mr Wood replied by letter dated 3rd May 2005. In summary, he wrote:(1) confirming that Britain “does not recognise any state in Cyprus other than the Republic of Cyprus”;(2) stating that “this does not mean that the UK government refrains from dealing with the Turkish Cypriot community. On the contrary, we believe that helping the Turkish Cypriots to come out of isolation and to raise their standards towards EU norms, will make a settlement in Cyprus more likely”;(3) confirming the EU’s and the Secretary General’s call “to end the isolation of Turkish Cypriots” and confirming the UK government’s agreement with that objective;(4) expressing a willingness to have a dialogue with the defendant “to discuss the potential presentational issues” on the media coverage in connection with the ban;(5) rejecting the suggestion the FCO website constituted “a health warning”; and(6) recognising that the key issues in connection with tourism were related to “… displaced people and appropriated property” and that the promotion of tourism was regularly subject to criticism from Greek Cypriots.26.After the claimants had issued proceedings, the Head of TfL Legal responded by a letter dated 18th May 2005, refuting the grounds of the application, drawing attention to further information, including the letter from the FCO, and other communications expressing views both for and against the decision and stating that the decision of the 13th April would be reviewed. Further and as part of the review, the letter stated that TfL would take into account the matters which had been referred to in the application for permission to apply for judicial review and expressed a willingness, later fulfilled, to consult with travel agencies operating in TRNC. 27.I have now recorded enough to enable consideration to be given to the hearing.