NSS argues for an end to council prayers at High Court

By Keith porteous Wood

The National Secular Society's challenge to prayers in local council meetings was heard in the High Court on Friday 2 December – about five hours of intense legal activity. The case was presided over by the Judge in charge of the Administrative Court, Mr Justice Ouseley.

We were represented by David Wolfe of Matrix Chambers with defendants Bideford Town Council being represented by James Dingemans QC, who acted (ultimately without success) for the Islington registrar who refused to perform civil partnership ceremonies.

David Wolfe set out in turn the three main grounds of claim that the Council's practice is unlawful in that:

(1) it is unjustified (and thus unlawful) indirect discrimination against persons of no religion; and

(2) it is incompatible with Articles 9 and 14 ECHR (freedom of religion/conscience and non-discrimination) and/or

(3) it is ultra vires (outside the powers of) the Council.

James Dingemans sought to refute all three grounds. He began by putting great store on the fact that the NSS is a campaigning organisation, although the complaint originated from the co-applicant, Clive Bone, a councillor at the time of the complaint but who stood down at the election and decided not to stand again because of the prayer issue. Mr Dingemans read out the NSS's Secular Charter (approved at the recent AGM) to apparently show that this was incompatible with a plural society. However, the judge stopped him from pursuing this line.

Mr Dingemans then proceeded to assert that Councillor Bone's attitude to prayers was also incompatible with a plural society. He claimed that, in contrast, the actions of the Bideford councillors who determined by a democratic vote to continue prayers were compatible with a plural society and were not open to challenge, despite the protestations of Clive Bone and others, and their offers of compromise such as for the prayers to take place before the Council meeting or for a period of silence.

While making great play of councillors voting by a majority to continue with prayers, Mr Dingemans later conceded — in response to an intervention — that democratic votes do not make lawful that which is unlawful. He surprised many by saying that that there was no evidence that prayers were continuing, but evidence was produced to scotch this. The judge asked to see a set of Council minutes and although neither of the legal teams had one, one of our members kindly obliged. (Bideford Council has subsequently held a meeting with prayer, which they did with great fanfare and much media coverage.)

Much time was spent about the exact sequence of events in Bideford Council meetings. Mr Dingemans claimed that Clive Bone was free to arrive late or leave at any time, therefore he was not being required to participate in prayers; Mr Dingemans felt that the record of attendance being taken after prayers had finished supported his point.

But our counsel took a different tack, emphasising the significance of the "summons" that councillors are sent in advance of each Council meeting setting out the business to be transacted, including prayers. The judge engaged with this and the defence came under pressure to explain why they were unwilling to accept the compromises offered. Detailed arguments were exchanged about the nature of disadvantage to which Clive Bone and councillors in his position had been subjected and the threshold of disadvantage at which it fell foul of discrimination protection.

The defence had also raised the spectre of "far-reaching consequences" of our victory: "the coronation oath would need to be abolished; the council's involvement in services of remembrance would be prevented; and chaplains would not be able to serve in HM Armed Forces". Our lawyers considered this to be exaggerated at least, but the judge thought the "implications could go further".

Reference was made throughout to hundreds of pages of case law as well as statutes in a series of ring binders. One relevant case used the phrase "particular disadvantage" and the judge focused on the exact meaning in this context of "particular". Cases can be won or lost on such details. The oldest case referred to by the defence went back to 1880 in which a litigant was the Great Eastern Railway. It concernedwhat was legitimately "incidental" to a company's activities. This was the defence's attempt to bring prayers within the lawful activities of the Council under the Local Government Act 1972 which permits "incidental" activities. Among other arguments, we relied upon the Equality Act 2006 giving only one specific exception allowing "acts of worship or other religious observance" in relation to educational establishments, from which we inferred that such acts in any other context were not allowed.

NSS counsel David Wolfe answered all the defence's points in detail. He also suggested that a major plank of the defence's case was ill-founded. They had gone to great lengths to reject what they thought to be our claim that Clive Bone's freedom to manifest his non-belief had been breached. But our counsel said that this was not something we had contended or relied upon. As a supplementary argument, he added that there was scant evidence of Bideford Council making efforts, as they are required to under the Equality Act 2010, to seek to eliminate or reduce unnecessary discomfort through their actions on grounds of belief or (crucially) non-belief.

Judgment is expected within a month or two.

Keith Porteous Wood worked with the legal team and was joined in the afternoon by Honorary Associate Dr Evan Harris, who has made helpful suggestions to the Claimants' team. Supporting them were both vice-Presidents (Gerard Phillips— who is also Chair of Council — and Elizabeth O'Casey) council member Afonso Reis e Sousa, three former officers as well as Society members. Meanwhile, Terry Sanderson and Campaigns Manager Stephen Evans took part in radio and TV interviews and headed up the team dealing with non-stop press enquiries. Before the hearing, Mike Judge of the Christian Institute and Keith rehearsed the arguments at the BBC in interviews on Radio 4's Today programme, Radio 5 Breakfast with Nicky Campbell and the BBC News Channel (TV).

The Church Times sank to the standards of the worst tabloids by opening its report with the following sentence: "The practice of saying prayers at the start of council meetings is akin to councillors' reading pornographic or racist material, lawyers for the National Secular Society (NSS) told the High Court last Friday."

It only becomes a little clearer later in their account that the analogy being made by the lawyer was that, in the same way that the Council couldn't lawfully decide by democratic vote to read out racist material or pornographic material and justify that on the basis that black or women councillors who felt uncomfortable could leave, so neither can they lawfully do the same by imposing prayers on those who felt uncomfortable by them.

See also: One blogger who understands what we are getting at