Councils and Christopher Robin

As A.A. Milne might have observed: Hush! Hush! whisper who dares! Principal councils can now say their prayers!

For despite the success of the National Secular Society (who on 10 February 2012 persuaded Ouseley J that section 111 did not empower Bideford Town Council pre-council prayers as a council function – R (National Secular Society) v. Bideford Town Council [2012] EWHC 175), on 17 February 2012 Pickles E, Secretary of State for Communities and Local Government, issued a commencement order firing up the competence power for principal local authorities. An order activating section 8(2) to apply the competence power to ‘eligible parish councils’ will follow, probably in April, once the requisite Parliamentary procedure (affirmative resolution) has concluded.

So, whilst, pending the requisite ‘eligible parish council’ commencement order, Bideford Town Council (if it wishes to continue prayer sessions) will have to hold these informally before Council business proper gets under way (following the Bideford Parish Council judgment, the Department for Communities and Local Government has issued Freedom to Pray: Advice to Parish Councils), nevertheless, principal councils should now under the competence power be able to hold prayers when they reasonably and proportionately choose as part of Council business.

This is because the competence power in section 1(1) of the Localism Act 2011 – now in force - gives authorities ‘power to do anything that individuals generally may do’ subject to existing or subsequent specific legislative restrictions.

Bideford Judgment

But why did Ouseley J rule Bideford’s long-established prayers out of court? The reason for this was a somewhat narrow interpretation of the scope of section 111 of the Local Government Act 1972 in this context. As is well known, section 111(1) provides that:
‘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 which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions’.

Section 111 is therefore an incidental rather than a primary power i.e. it facilitates, conduces or is an incident of a substantive local authority function.  So, given that the measure is not self-standing and cannot either attach to another exercise of incidental power (no ‘incidental to the incidental’) there must be an identified primary power to which section 111 can attach. In the circumstances this is to be found in section 99 of and Schedule 12 to the Local Government Act 1972. The Schedule is headed ‘Meetings and Proceedings of Local Authorities’ and contains the statutory nuts and bolts of these essential democratic processes.

And, in the Judge’s view, section 111: ‘. . .also requires an objective standard or test’. It is consequently ‘. . .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’.

In this context, Ouseley J explained as follows the ‘narrow scope’ of the issue before him:

‘The Claimants object to the fact that the saying of prayers is a part of the Council's business, to which all Councillors are summoned. It is on the agenda of business to be transacted, and its transaction is minuted. The Claimants do not object to Councillors saying prayers together, led by a cleric, just before the Council meetings begin, but Councillors would not be formally summoned to that gathering. They accept that these gatherings could be held in public, on Council premises, even in the Council Chamber, as part of the Council's dealing with its property. . . The Claimants had no objection either to some short period of quiet contemplation or reflection as part of the Council meeting, in which members would prepare themselves in their own ways for the public duty ahead; those who wished to do so could pray silently, and, it follows to my mind, could use the same prayers as each other in silent communion. The Claimants' objection was to the fact that there was a religious component to the formal Council business’. (Emphases added).

The Town Clerk at Bideford explained in his witness statement that the prayer time usually takes 2 to 3 minutes. Then, ‘. . .those who do not wish to stay in the Chamber during prayers . . . are able to come back into the Chamber during the time prayers have finished and apologies are taken’.

It was the optional nature of a formal piece of Council business that Ouseley J considered to be ‘a contradiction at the heart of the Council's position’. For whilst the Council:
‘. . .has made the prayers part of the formal business of the Council, yet it says that Councillors, summoned to its meetings, are not obliged to be present for this incident to the transaction of business nor to participate in it.’

The Judge did not consider 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 effect, he thought, it is being ‘treated as being outside the scope of the meeting’. In the circumstances, if the Council does not regard it as business for which attendance is summoned, then it should not be on the agenda. If, however, it does regard it as business to which the summons applies, then ‘it cannot make attendance for it optional on the grounds that participation could be objectionable to some Councillors’.

The Court therefore found that there ‘. . .is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council.’ And although the ‘Council has on two occasions by a majority voted to retain public prayers at its full meetings. . .that does not give it power to do what it has no power to do’.

Clearly the Judge is right that a majority vote to take action unfounded in legal powers is ineffective. The question, though, is whether the Judge’s view is the right one. His decision will of course represent the law unless and until the decision is overturned by a higher court.

And, whilst Bideford Council has indicated its intention to appeal, it remains to be seen whether this will now proceed to hearing and if it does how the judgment will fare. For, particularly in the highly localist context of a parish council, it does seem at least arguable that if the majority of councillors do in fact consider that such a process is conducive to or facilitates the conduct of their business then it does in fact achieve that objective. And in practice, whilst all councillors are summoned to meetings, not every councillor is concerned with every item on the agenda. Discrimination and Convention Rights

As to discrimination, this would be an issue only if, contrary to the view of Ouseley J, it was lawful to hold prayers pursuant to section 111. On this basis, the Judge found no discrimination. For, in terms of indirect discrimination, the Judge considered that the ‘. . .fact that someone may be hostile to a practice does not mean that its observance puts him at a disadvantage’. And the claimant councillor in question is ‘not compelled to participate’ in prayers.

Regarding Articles 9 (freedom of thought, conscience and religion) and 14 (prohibition of discrimination), Ouseley J, indicated that, on the premise that formal prayers were lawful, the Claimant councillor in question was free to stay or leave during prayers which are not discriminatory, or to the extent they are, are justified. The Judge could not see that the Claimant’s: ‘. . .freedom of religion, thought or conscience is infringed by the degree of embarrassment he feels, which is no more than is inherent in the exercise by the others of their freedom to manifest their religious beliefs, and his freedom to stay without participating or to leave. It is their freedom which would be infringed were he right. . .’.

Comment

As the commencement order was issued, Mr. Pickles added his voice to those countering what Baroness Warsi has referred to as ‘militant secularisation’. He commented to the BBC that by ‘. . .effectively reversing that illiberal ruling, we are striking a blow for localism over central interference, for freedom to worship over intolerant secularism, for Parliamentary sovereignty over judicial activism, and for long-standing British liberties over modern-day political correctness’.

However, the National Secular Society has cast doubt over the capacity of the competence power in this connection, indicating to the BBC that various: ‘. . .senior lawyers have expressed doubt whether the Localism Act will, as Mr Pickles hopes, make prayers lawful, and the Act was clearly not passed with that express intention’.

Nevertheless, the general power of competence is specifically designed to be robustly broad and it does certainly seem wide enough to cover council prayers. This is of course provided that these are conducted proportionately and reasonably; acknowledging and respecting the sensitivities of those for whom prayers are (if the term can inoffensively be used in this context) anathema.

In that context the findings by Ouseley J that there was no indirect discrimination nor breach of Convention rights (had prayers been found substantively lawful under section 111) should be helpful to councils wishing to conduct formal prayers in this way.

© Nicholas Dobson February 2012.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for ACSeS. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it.