Julie McGuigan, GDL student, The College of Law Birmingham
Ruling favouring a secular society reversed by fast-tracking of powers in the Localism Act 2011
On 10 February Mr Justice Ouseley ruled that including Christian prayers as part of the full meetings of Bideford Town Council, included in the official agenda, was unlawful.
Clive Bone, an atheist, was elected to Bideford Town Council in 2007. In 2008 he twice proposed that prayers cease. Both times he was defeated.
Mr Bone challenged the practice by way of judicial review. Judicial review is a mechanism by which courts ensure that public bodies act within the powers they have been given, and do not exceed nor abuse these powers.
The judicial review claim was actually made by the National Secular Society (NSS), alongside Mr Bone. The NSS is an organisation that campaigns for a strict separation of the state from religious institutions. They argue that:
- it is wholly inappropriate for a group of publicly-elected members to appear corporately to subscribe to any religious beliefs, far less one in particular
- for local democracy to be representative it is imperative that the Council reflects the diversity of the community it serves and moves away from practices that deter full involvement from all sections of that community
- everyone should be free to practise their faith, just as they should be free not to have one
The NSS does not deny anybody the right to pray, but does question the appropriateness of a council meeting as a place for prayers.
The NSS said:
‘Our campaign does not deny anybody the right to pray, but we do question the appropriateness of a council meeting as a place for prayers. We regard acts of worship in council meetings as a key secular issue concerning the separation of religion from politics.’
This article explains the legal issues related to the NSS’s claim for judicial review of the decision to hold prayers as part of the official agenda at the start of the meetings.
Why could the NSS apply?
The NSS actually began the action. Pressure groups often fund actions for judicial review as they have the money it costs to bring court action. In allowing groups like NSS to take a more active role in proceedings, the court considers the role of this particular pressure group and whether it is better placed to bring the claim. The NSS is the only pressure group that campaigns solely on the issue of secularism, so their aim is aligned closely with the legal action and they are, indeed, best placed to bring the claim.
Mr Bone was included as a claimant by the NSS as they could not be classed as the ‘victim’ which is required for any arguments related to the Human Rights Act 1998 (s7 HRA 1998).
The council’s powers
At that time, Bideford Town Council was a public body with powers set out in the Local Government Act 1972.
Grounds for the challenge
The grounds of the challenge by the NSS were:
- illegality, as including prayers in the full council meeting was outside the powers granted by s111 of the Local Government Act 1972
- indirect religious discrimination under the Equality Act, on the basis that the practice put Mr Bone at a disadvantage and put atheists at a greater disadvantage than non-atheists
- breach of Mr Bone’s rights under Article 9 of the European Convention on Human Rights (ECHR). Article 9 seeks to guarantee freedom of thought, conscience and religion
- discrimination due to Mr Bone’s lack of belief under Article 14 ECHR which prohibits discriminatory application of the convention rights
Mr Justice Ouseley decided that the practice did not infringe Mr Bone's human rights nor unlawfully discriminate indirectly against him on the grounds of his lack of religious belief. He found that Mr Bone was not compelled to participate, he was free to leave the room whilst the prayers were being said or to stay in silence. As Mr Bone was not disadvantaged, there was no claim in discrimination. He did not specifically address the breach of the human rights issue.
However, he concluded 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.
As a result, it was unlawful to include prayers as part of the official formal council meeting.
When should the prayers have been held?
Mr Bone had no issue with prayers being held before a meeting. He said:
‘I believe people have the right to worship and also the right not to worship and I have got no problem with prayers being said before meeting.’
Mr Justice Ouseley too was content for prayers to happen before the official start of council business, just not as part of it.
The effect of the ban
The judgment provoked a strong reaction from both sides of the argument.
Many councils included prayers in their meetings, so reviewed this in light of the decision.
In The Times, the former Archbishop of Canterbury called the ruling a ‘marginalisation of Christianity’ and said he was ‘very worried by the dangers of creeping secularism’.
On the other side of the argument, Mr Lingwood a leading Minister in Bolton said he believed that ‘To force prayer upon someone is an idea that is offensive to me as a person of faith’.
Pavan Dhaliwal of the British Humanist Association commented, ‘The practice of saying Christian prayers in local councils and in other public bodies, like the Westminster Parliament, is archaic, divisive and inappropriate. There has been progress in some councils which have seen prayers abolished and in new institutions like the Scottish Parliament, which was founded without the same tradition of prayers. This judgment will considerably advance this progress, and all who want our public life to be inclusive and open will welcome it’.
The reasoning behind the conclusion that prayers were unlawful is interesting. The traditional approach to freedoms in the UK is that individuals have the right to do anything unless prohibited by law. Individuals have freedom of expression to the extent that Parliament or the common law restricts it. However, public bodies are not so free – they can only act within the powers granted by Parliament.
The council was only permitted by statute to do things related to the transaction of their business. Anything else is unlawful.
This case involved individuals who have freedom of expression, but in a council which is restricted to the powers granted by Parliament.
Mr Justice Ouseley focused on the council’s duties and how a council must conduct its functions laid out in the Local Government Act 1972. He found that there was no specific statutory power to say prayers as part of the business of the council. In his judgment he says:
‘Even a quite 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 conductive to or incidental to, the performance of the council’s functions.’
This is the opposite of the traditional approach that it is lawful for individuals to do anything unless it is prohibited by statute or common law.
Intervention of the executive
Should a judge be the person to take the UK a step closer to a secular society? Eric Pickles, Secretary of State for Communities and Local Government did not think so. He called the ruling ‘surprising and disappointing’ he went on to say, ‘Public authorities – be it parliament or a parish council – should have the right to say prayers before meetings if they wish. The right to worship is a fundamental and hard-fought British liberty’.
In response to this ruling, he fast-tracked the implementation of provisions in the Localism Act 2011 to give councils a general power of competence. That power allows councils to resolve that they will undertake any action that an individual can do, unless it is specifically prohibited by law. Now, a council to which this power applies is treated in law much more like an individual.
Eric Pickles activated the power for Town and Parish Councils on 18 February, just eight days after Mr Justice Ouseley's ruling.
So, councils may logically resolve to say prayers as part of the council meeting, because an individual has the power to do this very thing. However, this has yet to be tested in court.
On initial reading of the news reports on this case, I was surprised by the way of interpreting s111 of the Local Government Act 1972 (LGA). However, having considered the judgment relating to illegality, I changed my opinion.
An action is ‘ultra vires’ if it is beyond the powers of the public body in question. Indeed, in R v Richmond-upon-Thames LBC ex p McCarthy and Stone (Developments) Ltd, the House of Lords found that the council were not acting with legal authority because s111 LGA did not grant the council a relevant power. So, this line of legal argument has been used before and makes sense in the context of judicial review – the judge is looking see if the act is allowed within the statute and, if they find it is not, the act is unlawful.
The government and Eric Pickles did not like this decision and changed the law. I agree that it is for our democratically elected government to overrule case law with statute where it does not agree with the outcome of case.
Although there were strong criticisms and likewise strong statements of support for the decision, I think the Government may have misjudged the level of support for Christian prayer to be included in official council business. According to the British Social Attitudes survey, 50% of people in the UK do not regard themselves as belonging to a religion and this figure is 64% amongst 18-24 year olds. Religion is on the decline in the UK and it is a diverse country with many different religions represented. Some people commenting on the BBC report of this case commented that they did not think Christian prayer was appropriate in this multi-faith society, and that they did not want their taxes spent on prayers.
Andrew Copson, British Humanist Association Chief Executive, commented,
‘It is quite clear that the population is becoming less religious, particularly as the proportion of younger people who have no religion grows, so the government is fast becoming out of touch with the population when it introduces policies and new laws which actually increase the role of religion in the state. It is bizarre that the government refuses to take a more secular approach to public policy, to eliminate unjustified religious discrimination and religious privilege in places such as schools and the workplace and promote a real equality between people regardless of their religious or non-religious beliefs.’
Although the change in law seems to have settled things, this is an issue that has not really been resolved. Mr Justice Ouseley did not conclude on the human rights issue in his judgment – and the new law and its application to prayer in official council business have not been tested in a court.
House of Lords reform is on the government agenda again. The removal of unelected Church of England bishops from an active role in the creation of laws that affect us all is one of the goals of those who campaign for a secular UK. Set against this, prayers in council meetings seems a much less significant issue…
Julie McGuigan - biography
I graduated from the University of Nottingham with a degree in chemistry. I then worked for the Forensic Science Service (FSS) for 10 years in various roles including DNA Analyst and Forensic Examiner trained in body fluids, chemical enhancement and photography of fingerprints, drugs analysis and packaging comparison. My last role was as a drugs Forensic Scientist and expert witness. During my time at the FSS, I developed an interest in law and when I was made redundant, due to the closure of the FSS by the Government, I worked for a short while at the Legal Ombudsman, before starting the GDL at The College of Law Birmingham. I currently work part-time as an Information Assistant in the College of Law library.