Prayers at Council Meetings
February 13th, 2012 by Louise Humphreys
Posted In: Local Government
Many readers will not fail to have noticed the press reporting of the decision by Mr Justice Ouseley that Councils have no legal power to make prayers a part of the formal business of a Council meeting - R (National Secular Society and Mr Clive Bone) v Bideford Town Council  EWHC 175 Admin. Depending upon the commentator's view of things, the decision variously represents yet another attack on Christianity or a recognition that religion has no place in politics.
For those of you who have somehow avoided the brouhaha, here's a summary.
Mr Bone was a former Councillor at Bideford Town Council. He had tried on two occasions to get the Council to stop their practice of commencing a Council meeting with a prayer. Both times, the Council had voted against him. His 'cause' was taken up by the National Secular Society, who campaign "for the separation of religion and state". The Society claimed that the council's practice of conducting prayers at council meetings was an act of indirect discrimination against people of no religion, incompatible with Articles nine and fourteen of the European Convention on Human Rights (ECHR) and also that holding prayers was ultra vires (outside the powers) of the Council under section 111 Local Government Act 1972. Mr Bone was joined as a claimant because the Secular Society was not a "victim" for the purposes of the ECHR.
The Council claimed that there was no discrimination because Councillors and members of the public are not expected to participate in prayer and are free to leave the Council Chamber during the saying of prayers.
Section 111 Local Government Act 1972 states:
Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.
In giving judgement, Ouseley J said:
The purpose of the meetings is to transact the business of the Council, which business is made up of the various express and implied functions, duties and powers, which it possesses. The question therefore is whether saying prayers "is calculated to facilitate, or is conducive or incidental to the discharge of any of their functions." ... The language also requires an objective standard or test: it is not a question of whether the Council reasonably considers that a particular act would facilitate or be conducive to or incidental to the discharge of its functions.
I do not see that it can be calculated to facilitate, or br conducive to or incidental to formal public Council deliberations as a whole, for the majority to include as part of their formal deliberations a ceremony from which some absent themselves or feel themselves to be excluded, perhaps under protest or in resentment. The majority acknowledge such response or feelings to be ones which it is right to accommodate; such feelings are in that sense a reasonable response to the course of action preferred by the majority. I appreciate that the saying of prayers may cross party lines, but I cannot see that it would be different from incorporating some other form of religious or secular but potentially divisive ceremony, such as the singing of a political party's song, into the meeting.
Even quite a wide interpretation of s111 would still require the Court to take a view about the extent to which public prayers in the formal Council meeting were likely to facilitate, or be conducive to or incidental to, the performance of the Council's functions. That is not a view which the Court should form, let alone when some are disturbed in the performance of their duties by just such public prayers. It is not for a Court to rule upon the likelihood of divine, and presumptively beneficial, guidance being available or the effectiveness of Christian public prayer in obtaining it. S111 cannot be construed so as to impose such an obligation on the Court.
As a general point, although I deal separately with the question of discrimination and human rights, I do not think that the 1972 Act, dealing with the organisation, management and decision-making of local Councils, should be interpreted as permitting the religious views of one group of Councillors, however sincere or large in number, to exclude or, even to a modest extent, to impose burdens on or even to mark out those who do not share their views and do not wish to participate in their expression of them. They are all equally elected Councillors.
As the Judge ruled in favour of the Claimant on the s111 point, the arguments under the Equality Act and the Human Rights Act necessarily fell by the wayside. However, he gave these matters careful consideration on the hypothetical basis that prayers were within the purview of Section 111 and determined that
If it were lawful, the manner in which the practice is carried out in the circumstances of Bideford does not infringe either Mr Bone's human rights nor does it unlawfully discriminate indirectly against him on the grounds of his lack of religious belief.
Permission to appeal has been given by the judge, acknowledging the case raised issues of general public importance. Whether Bideford Town Council do so remains to be seen.
Quite what will the legal position will be when section 1 of the Localism Act 2011 comes into force is anyone's guess. However, the Communities Secretary, Eric Pickles, is in no doubt:
The Localism Act now gives councils a general power of competence - which allows them to undertake any general action that an individual could do unless it is specifically prohibited by law. Logically, this includes prayers before meetings.
In light of Mr Pickles' comments and, regardless of what the Localism Act says, I for one would not be surprised to see some formal clarification enabling the continuation of prayers as a formal part of a Council meeting.
So where does the decision currently leave us? Despite press reporting, there is no "ban" on prayers at Council meetings merely a ruling that prayers conducted formally as part of a meeting are unlawful. Prayers conducted before a meeting formally opens would therefore seem to be perfectly acceptable. As always, it will be up to each Council how they choose to respond to the ruling.
POST BLOG NOTE:
Bideford Town Council has decided to appeal against the ruling at the Court of Appeal. In addition, the Communities Secretary has brought into force the general power of competence for principal authorities in England.