This article was fist published on Local Government Lawyer, 10 February 2012
Bideford Town Council is a parish council in Devon. Each month it holds full council meetings in public. At the start of each meeting there are communal prayers. Prayers are deliberately placed before apologies so that those who do not wish to attend are not marked as absent and can attend after prayers. The prayers are always Christian, led by a Minister from one of the town’s eight Christian Churches. A motion to end prayers was proposed by Mr Bone, a member of the council, and twice defeated, once by 9 votes to 6.
It was agreed that members can meet informally for prayers before official business starts – the question is whether prayers can be a minuted part of public business to which councillors are summoned. The council contended that it “put Councillors in mind of their public duties, reflecting the... role of the established Church as part of the fabric of national life”. What does the law say about this?
Local Government Act and Vires
The council lost the case of National Secular Society and Bone v Bideford Town Council  EWHC 175 on vires – not the power of prayer but the power to pray. Section 111 Local Government Act 1972 is a well-known general power to “do any thing which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”. The key to the Bideford case is that prayers were part of the meeting. They were official prayers and so the council needed to identify a power for its actions. Section 111 requires a function – s111 gives the power to perform public functions. The council could not rely on s111 because:
Prayers are not incidental to the council’s other functions – the courts have not allowed s.111 to “cover the incidental to the incidental”.
The test is objective – it is not a question of what councillors reasonably think will facilitate discharge of their functions.
It was put neatly this way: the council has made prayers a formal part of its business to which members are summoned yet it says that councillors are not obliged to be present when this business is conducted.
Section 19 Equality Act 2010 gives the well-known definition of indirect discrimination as A applying to a person, B, a “provision, criterion or practice” which “puts … persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it”. This is discrimination unless the practice is a “proportionate means of achieving a legitimate aim”. A classic example is a height test to do a certain job – it is indirectly discriminatory against women and some disabled people unless justified.
This case turned on a number of important points about discrimination law which have been considered in other cases which made it to the news, such as wearing religious symbols at work and seeking to be excused from conducting same sex partnership ceremonies. The Court held:
The practice was not being applied to Mr Bone. Councillors were not required to attend prayers.
Mr Bone was not at a “particular disadvantage”. He complained that he had to leave the meeting and then return to it and that this was embarrassing. What was needed was specific or identifiable disadvantage. It was hard to see how Mr Bone was at more disadvantage than pupils who did not attend collective worship at school.
The council’s position was proportionate.
Much of the media debate about this case is over who is being unreasonable – the councillors for having prayers or Mr Bone for trying to stop other people praying. At heart the judge’s conclusions on equality law may reflect his apparent view on this wider question: “He is seeking that others abandon a practice, lawfully chosen, which it is lawful for them to choose, so that he does not have to make any accommodation for them, but they do for him.”
Article 9 of ECHR says that “everyone has the right to freedom of thought, conscience and religion”. Article 14 provides that rights must be secured without discrimination. Since article 9 protects the right not to have religious views Mr Bone argued that the prayers discriminated against his non-belief.
A school uniform case noted that article 9 “does not require that one should be allowed to manifest one’s religion at any time and place of one’s choosing” (R (SB) v Denbigh High School). Following from the conclusions on discrimination the Court did not accept that Mr Bone’s embarrassment on leaving the meeting infringed his freedom. His embarrassment was inherent in the majority exercise of their religious freedom. There had to be some give and take.
Local Government Powers
The intriguing thing is the reliance on power/vires. It appears to set a restrictive standard on what a council can do. Could members take it in turn to read out inspiring quotations at the start of a meeting? The Court accepts that they could because prayers are different: “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 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.”
However the Court finds that there is no discrimination or breach of the Human Rights Act by having prayers as Bideford did. This appears to mean that a council does not have the power to upset some members by taking lawful actions.
The reliance on vires may also mean that the judgment will not survive the implementation of s.1 (1) Localism Act 2011, “a local authority has power to do anything that individuals generally may do”. Clearly individuals can pray and can organise prayer meetings. Communities Secretary Eric Pickles has been quoted as saying that this general power of competence would extend to prayers before meetings. Judith Barnes of Eversheds has pointed out that: “The wording [of s1 Localism Act 2011] is far wider than many imagined and it is difficult to conceive of anything that does not fall within the general power of competence (although for many of us it was difficult to find anything that was outside of the wellbeing power!)”. It is reported that Mr Pickles will implement this provision and then give guidance that it allows prayers.
However this may not be a clear path to the conclusion that Mr Pickles wants. It may mean that a council would not lose on the pure question of having the power to organise prayers – the debates about “incidental to the incidental” might well not arise. But it can be seen above that the judge's reasoning is really about the use of powers – the judgment says that powers should not be used “even to mark out” those who do not have certain beliefs. There will be limits on the general competence power – this case is a good example of the debates yet to come about the extent of those limits. Just because you have the power to do something (in a formal sense) that does not mean you have a right to do it. It may be that replacing narrow statutory powers with broad statutory powers will lead to a greater use of precedent to lay the boundary of legitimate local government action.
Equality and Human Rights
It is clear that the parties had seen the case as being about indirect discrimination and human rights. These questions often turn on how high you put the bar. What weight is to be given the interests of the majority? How much inconvenience should someone in Mr Bone’s position be expected to suffer? What factors should be accepted as justifying Mr Bone’s disadvantage? And, in cases concerning belief, is the disadvantage the limited practical effect of having to leave a room for a few minutes or the less measurable – but perhaps more intensely felt – impact on someone’s identity?
Underlying this case are fundamental constitutional questions about the role of religion in society. Compare “Christianity is part of the common law of England” (Blackstone’s Commentaries, Eighteenth century) with: “The precepts of any one religion, and belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of another. If they did, those out in the cold would be less than citizens…” Laws LJ in McFarlane v Relate Avon in 2010.