Friday, 10 February 2012

Bideford Council: Carry On Praying?

The High Court's decision in the Bideford council prayers case (brought by the NSS on behalf of an atheist former councillor, Clive Bone) has produced much wailing and gnashing of teeth among the Christian rights lobby: the Christian Institute, Christian Concern, various rentaquote bishops and so on. And it has, naturally, delighted secularists, including the NSS's Keith Porteous Wood, who said that it sent a "clear secular message" about the separation of religion from politics.

The BBC's Robert Piggott sees the decision as further evidence that "the tide has been flowing pretty firmly against Christianity in public life".

But for two reasons I think this assessment is entirely wrong. For secular campaigners, this is a very Pyrrhic victory indeed.

The first relates to the wording of the judgement itself (pdf). Mr Justice Ouseley rejected the main part of the NSS case, that incorporating prayers into its order of business the council was unlawfully discriminating against Councillor Bone and abusing his human rights. He was quite emphatic about this:


He is not compelled to participate. The disadvantage he asserts to himself, and to other Councillors whose lack of religious beliefs might lead them to feel compromised by being present during the saying of prayers, is that of either arriving after prayers, or staying in silence, ignoring what goes on around them but perhaps seeming inadvertently disrespectful, or leaving, disturbing their papers and concentration just before the substantial business begins, with a degree of public embarrassment since the press and public are usually present. This seems to me it is of no real significance. I would not regard it as a disadvantage for these purposes.

It seems to me that the Claimants’ arguments are close to the situation which would have existed if in Ladele v London Borough of Islington [2009] EWCA Civ 1357, [2010] IRLR 211, the registrar who objected to undertaking any part in civil partnership ceremonies, had not merely been permitted to opt out but had succeeded in preventing such ceremonies being undertaken by others because it embarrassed her to be singled out.


The decision to "ban" prayers was a narrow one, resting on what many would consider a point of pedantry: whether the prayers could be tabled as part of the formal agenda, in which case they had to be integral to the council's business, or whether they had to take place informally before the meeting was called to order. The case turned on the interpretation s.111 of the 1972 Local Government Act, which by coincidence has today been superseded by the Localism Act.

The 1972 Act put fairly tight restrictions on what councils were allowed to do. What struck the judge here, though, was that while the council asserted that saying prayers at the meeting was an important part of their conduct of business (giving the councillors a moment of solemnity and an opportunity to reflect on the onerous responsibilities they bore to the good people of Bideford) they also allowed Cllr Bone, and others who disapproved of the prayers, to absent themselves while they were being conducted. This was a contradiction. If the prayers were integral to the council's business there could be no excuse for Cllr Bone's absenting himself. And if they weren't important enough to require Cllr Bone's presence, they couldn't qualify as relevant council business under the Local Government Act. Catch 22.

And that was it. Cllr Bone wasn't being discriminated against, and if the council wanted to have prayers before the meeting, that was fine too. So long as the word "prayers" didn't appear as an item on the council's agenda. It might be argued - was argued - on both sides that the distinction is a crucial one of principle. But it does make the case seem like a tremendous waste of time and money, to me at least.

What the NSS plainly wanted was a declaration that council prayers violated the human rights of non-believing councillors. That would have provided them with ammunition to continue their battle against other manifestations of public religiosity. By confining his decision to a narrow point of statutory construction the judge denied them anything more than a symbolic victory.

As he said:

The Defendants saw success for the Claimants as threatening a range of other occasions, traditional, ceremonial, military or civic, national or local, in which a religious element, usually through the Christian Church, plays its part; and there are elements in what the Claimants have said at various times which suggest distaste for, and a campaign against, such a role. But I am not concerned with those circumstances. Nothing before me persuaded me that if the Claimants were right in their arguments here, they would inevitably succeed in any other particular aspects of their campaign, so that I should reach a conclusion other than the one to which I have come.



The second reason why today's decision may not mean anything is that (as I mentioned above) the Local Government Act has now been superseded by the Localism Act. Eric Pickles, the Communities Secretary, today criticised what he thought was the decision (it was an instant reaction) on the grounds that "we are a Christian country" and that "the right to worship is a fundamental and hard-fought British liberty." But he also mentioned that under the new legislation councils have "a general power of competence - which allows them to undertake any general action that an individual could do unless it is specifically prohibited by law. Logically, this includes prayers before meetings."

The powers given to councils under the new law are indeed much broader: the only limitations to their actions are those "expressly imposed by a statutory provision". No such provision prevents council prayers. It is likely - though it will need to be tested - that the case would have been decided differently under the new Act. What does seem clear is that the provision under which Bideford Council cannot hold prayers is no longer in force. So Bideford Council can start praying again.

Like I said, a Pyrrhic victory.