Dangerous overtaking?

The Communities Secretary has sought to fast-track the introduction of the general power of competence in a bid to "overtake" the High Court ruling on formal council prayers. But will that work? Peter Keith-Lucas looks at the move.

For those who thought that the Localism Act 2011 had consigned vires to the dustbin of history, the Bideford Prayers judgment (R (National Secular Society and Bone) v Bideford Town Council [2012] EWHC 175 (Admin)) is like a flashback to the 1970s and 80s, exploring the extent of local authority statutory powers, rather than relying on more fashionable arguments of equalities and human rights.

The Secretary of State's response to the judgment has been to rush in the new General Power of Competence. But will this in fact bring local authorities the "confidence and legal standing" to act, as Eric Pickles claims?

The Bideford case

The facts of the Bideford case are simple: Bideford Town Council included an item for prayers in its agenda for Council meetings, after the Mayor opened the meeting but before members’ apologies for absence, disclosures of interests or the discharge of substantive business. By custom, a cleric from one or other of the various Christian churches in Bideford was invited by the Mayor to say a prayer for the Council and its deliberations, sometimes including the Lord’s Prayer, and such prayers ended with the traditional “Amen”. There was no requirement for councillors to be present during the prayers, just as a councillor could be absent from any other part of the Council meeting. Councillor Bone, who had no religious beliefs, twice put up motions for Council to stop prayers, but on both occasions a majority of councillors voted to retain prayers.

As a statutory corporation, the Town Council needed to demonstrate that it had the power to include prayers in its agenda. It relied on s.111 of the Local Government Act 1972, which provided that it had “power to do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of (its) functions.”

Section 111

Mr Justice Ouseley accepted that a majority of councillors might believe as a matter of faith that the practice of prayers was conducive to the transaction of Council business. But he took the view that it was necessary for the court to take an objective view as to whether, as a matter of fact, Christian prayer was likely to secure divine guidance for councillors in discharging the business of the Council. As the court was unable to make such a finding, it followed that it could not find that the inclusion of Christian prayers came within s.111.

In coming to this view he was influenced by what he saw as a contradiction in the Council’s argument: “if the Council does not regard (prayers) as business for which attendance is summoned, then it should not be on the agenda. If it regards it as business to which the summons applies, it cannot make attendance for it optional on the grounds that participation would be objectionable to some councillors.”

Religious rights

Bideford was probably unfortunate in the absence of religious diversity. In many councils, prayers are firmly on the agenda, but the clerics who offer such prayers are chosen according to the religious beliefs of the current year’s Mayor or Chairman, or to reflect the diversity of faiths represented on the Council or in the local community, rather in the manner of Thought for the Day on Radio 4. If at one Council meeting the cleric is a Sikh or a Unitarian, councillors of other faiths stand or sit respectfully through such prayers even if they do not subscribe to that particular faith. They do not feel excluded from participating in the rest of the meeting because the prayers on that day did not accord with their personal religious beliefs or lack of them.

At Bideford it appears that Councillor Bone was not prepared to offer similar respect to the religious beliefs of the majority of councillors, as he sought to prevent the religious practice of all other councillors, rather than merely to secure that a proportion of Council meetings reflected the absence of religious beliefs on the part of at least one councillor. This despite Mr. Justice Ouseley finding that Mr. Bone suffered no disadvantage for the purpose of claiming religious discrimination or a breach of his Human Rights right of respect for his religion or lack of it.

Facilitating the discharge of Council business

Mr. Justice Ouseley’s reasoning is open to disagreement. As a point of law, the summons to a Council Meeting does not require a councillor to attend all or any of the meeting. Councillors do arrive late or leave early. Some miss a meeting entirely, or go out of the Council Chamber for particular items, even where they do not have prejudicial interests requiring their withdrawal. If Councillor Bone felt it necessary to leave the meeting for the brief duration of prayers, he was still able to participate fully in all the operative business of the meeting.

But the most important aspect is his view that, to come within s.111, there must be objective evidence that the activity does positively facilitate the discharge of Council business, rather than merely that the majority of councillors believe that it assists them in discharging that business. Applying such a literal approach, it might be hard to prove the benefits derived from Council expenditure on the mace or the Mayor’s chain, or the provision of tea (sadly the biscuits disappeared in the last Budget round) after the meeting, for those councillors who choose to remain.

General Power of Competence

The knee-jerk response to this judgment from Eric Pickles as Secretary of State for Local Government was to bring forward implemention of the General Power of Competence under the Localism Act 2011, so that the new power can be exercised by all major local authorities in England from 18 February 2012 (although parish councils such as Bideford will have to wait until April).

But this General Power has been oversold as a universal panacea. Despite the Secretary of State confidently saying that this immediate implementation should effectively overtake Mr Justice Ouseley's ruling, the new General Power may actually offer little assistance in this instance.

Section 1 of the 2011 Act gives a local authority (including Bideford Town Council as a Quality Parish Council) the power to do anything which a natural person of full capacity generally may do, even if this is unlike anything that public bodies may otherwise do.

Eric Pickles stated that "Logically, this includes prayers before meetings". But the issue in the Bideford case was not  whether the Town Council could have prayers before meetings but whether it could add prayers to the meeting's formal agenda and so make them part of the full Council's business. As Bideford Town Council would hardly allow members of the public to compile the agenda for their meetings or to walk into its charming galleried Council Chamber uninvited and say prayers at the start of meetings, so it would appear that rushing this legislation into force may not resolve the problem.

In which case, we may need to wait for the Court of Appeal to take the view that, if the majority of councillors felt that prayers assist them to discharge Council business effectively, then perhaps prayers might actually be conducive to the discharge of such business, even in the absence of admissible evidence of divine intervention.

Peter Keith-Lucas is a partner at Bevan Brittan. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..