Saturday 7 April 2012

Eyes closed, hands together

NSS & Bone v Bideford Town Council
[2012] EWHC 175 (Admin)


Surprising case, not so much in the result but in the reasoning. Mr Bone, an ex-councillor, objected to prayers at the start of council meetings. They were voluntary but on the official agenda, with the practical consequence that non-Christians had the choice to either present themselves after prayers or sit through them and do their best to ignore them.


The legal point


The claimants argued the case on several grounds: ultra vires the Local Government Act 1972, discrimination under the Equality Act 2006, and breach of Article 9 and 14 of the European Convention on Human Rights.


At first glance one might assume the human rights argument would be the obvious one to succeed, as it is a freedom of religion matter. However, that argument would suffer from the fact there are two stages to prove - first of all to prove that Article 9 and/or 14 is engaged, and then to consider the countervailing arguments in Article 9(2) because freedom of thought, conscience and religion is not an absolute right. The judge doesn't spend a lot of time analysing this because he decided the case on the ultra vires point. However it reads to me as if he didn't accept that Article 9 was engaged, which means the argument failed at the first step.


There are two potential stages to arguing the discrimination point. Both direct and indirect discrimination on the basis of religion are unlawful, but the claimants only argued for indirect discrimination per s45 Equality Act. In order to make good this claim, Mr Bone would have to demonstrate that he was placed at disadvantage compared with his believing colleagues. The judge did not accept that his choice between absenting himself, for which there was no practical penalty as absences were not recorded until after prayers, or his feelings of embarrassment at their religious practice, was a disadvantage amounting to discrimination. [68]


And so the case turned on whether the council had lawful power to engage in prayer as an official part of its meeting. Section 111 of the Local Government Act provides as follows:


Subsidiary powers of local authorities.
(1) 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.
So potentially a three stage test: do the prayers facilitate something, are they conducive to something or are they incidental to something?


Herein the judge found a contradiction. The meeting was one to which elected councillors are summoned to attend. Within that context, a practice that fell within the threefold definition could not then be voluntary. [25]
"I do not see that it can be calculated to facilitate, or be conducive to or incidental to formal public Council deliberations as a whole, for the majority to include as part of their formal deliberations a ceremony from which some absent themselves or feel themselves to be excluded, perhaps under protest or in resentment." [27]
 This was, I would suggest, the ratio decidendi of the case, however the judge went a little further:
"As a general point, although I deal separately with the question of discrimination and human rights, 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 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." [30]
 He also reiterated the words of Lord Justice Laws in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880:
"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 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.
So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection for such a belief's content in the name only of its religious credentials. Both principles are necessary conditions for a free and rational regime." [22]
Not that it should make any difference, but Lord Justice Laws is himself a "devout Christian."


The religious argument


This is short. The judge identified a contradiction laying at the heart of the council's reasoning but there is another. The saying of prayers was kept a formal part of business as an agenda item. Those not wishing to take part were granted the option of not attending, with no formal consequence if they exercised this privilege. This option was granted because those wishing to pray recognised that it is wrong to force religious practice on another person - it is voluntary.


Why could the Christians not voluntarily pray before the formal part of the meeting started and remove the prayer item from the agenda, attendance early to the meeting being self-evidently voluntary? Such a small gesture to entirely avoid this unseemly litigation.


Addendum


Obviously since then matters have moved on as the Local Government Minister, Eric Pickles, signed an order giving wide sweeping powers to local council and has promised to reiterate this in the new Localism Act. Should there be a future case, it would be interesting to see if the judge's obiter remarks in NSS & Bone [30, quoted above] would be cited as authority to quash them again. Even Bideford Town Council seems unsure whether the new power goes far enough.

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