R on the application of the National Secular Society and Clive Bone v Bideford Town Council – read judgment
The High Court today ruled that the Town Council of Bideford (in Devon) had overreached their powers under the Local Government Act 1972 by insisting on the practice of prayers as part of their formal meetings. The ruling will apply to the formal meetings of all councils in England and Wales, the majority of which are thought to conduct prayers as part of their meetings.
The Secular Society brought this application as part of their campaign to separate religion from public and civil life. They have observed that prayers have been the cause of tension in a number of local councils. But the Society needed to join an individual claimant since they could not be a “victim” for the purposes of the Human Rights Act.
The claimants contended that the practice, which dates back the days of Elizabeth the First, breached the prohibition on religious discrimination in the Equality Act 2006, and the replacement “public sector equality duty” in the Equality Act 2010: it discriminated indirectly against persons, such as Mr Bone, who had no religious beliefs, and it was not justifiable under those Acts. The practice interfered with Mr Bone’s right not to hold religious beliefs under Article 9 ECHR, and not to be discriminated against for that lack of belief under Article 14. They also contended that it was outside the powers of section 111 of the Local Government Act 1972.
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. But Mr Bone is not a Christian, and does not wish to participate in or even to be thought to be associated with acts of religious observance. Even if Councillors were told “politely” that they could withdraw, in his view“it would still be unacceptable because they ask for divine guidance and affirm Christian belief.” He thought that the seeking of such guidance could undermine confidence in the Council.
The issue was solely about whether prayers can be said as a part of the formal business transacted by the Council at a meeting to which all Councillors are summoned. The claimants were not seeking to introduce a bar on acts of worship before the meeting, thus hindering the exercise by Councillors who wished to pray of their right to do so.
The judge granted the declaration sought, that the saying of prayers as part of the formal meeting of a Council is not lawful under s111 of the Local Government Act 1972, and there is no statutory power permitting the practice to continue.
Ouseley J’s reasoning
The key to this decision is the provision which describes the Council’s powers:
…a local authority shall have power to do any thing which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.
This provision, in the judge’s view, should not 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. He did not accept the defendant’s suggestion saying prayers is an act of such a nature that it does not require statutory authority, even by reference to s111 of the 1972 Act.
That provision is, … the basis for all the implied powers which a Council might wish to exercise; the word “functions” in s111 “embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it.
The Council was somewhat on the back foot here because their argument that the Councillors could absent themselves from the prayers contradicted their position that the practice was part of its formal business; they could not have it both ways. Ousley J did not think that
what falls within the scope of s111, as an incident to the transaction of the business of the meeting, can then be regarded as such that attendance for it is unnecessary or optional, in distinction from all other business.
In this careful and pragmatic judgment, Ouseley J demonstrates just the sort of objectivity that Laws LJ identified as the sine qua non of adjudication, in his famous rebuttal of Lord Carey’s call for special protection for religious beliefs. The judge resisted a wider interpretation of the statutory powers, because this
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…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.
Let us go back to Laws LJ in McFarlane v Relate Avon :
the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled; it imposes compulsory law not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since, in the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may, of course, be true, but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer who is alone bound by it; no one else is or can be so bound, unless by his own free choice he accepts its claims.
The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.
Strong words, but worth repeating here lest this small matter of Council prayers is taken as an attack on religious ceremonies as a whole. This has no implications for the role of religious worship in public places, such as remembrance services, or councilors voluntarily attending them.
Since he found the practice unlawful under the Local Authority Act, the arguments under the Equality Act and the Human Rights Act necessarily fell by the wayside, although he gave them careful consideration on the hypothetical basis that prayers were within the purview of Section 111 (paras 34 – 79).
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