Prayers during Council meetings: Bideford Town Council and the NSS battle it out at the High Court

The National Secular Society had it‘s day in court on Friday (2 December 2011), about five hours of intense legal activity. The case was presided over by the Judge in charge of the Administrative Court, Mr Justice Ouseley, in one of the prestige main courts.

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 our case for around two hours, with occasional interventions from Mr Justice Ouseley. Mr Wolfe put forward our three main grounds of claim that the Council’s practice of conducting prayers at the beginning of council meetings 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.

He argued each point in turn.

James Dingemans sought to refute all three grounds.

Gerard Phillips (Vice President), Keith Porteous Wood (Executive Director) and Afonso Reis e Sousa (Council of Management) outside the High Court.

The complaint originated from the co-applicant, Clive Bone, a councillor at the time of the complaint who has stood down at the election and decided not to stand again because of the prayer issue. Nevertheless, Mr Dingemans began by putting great store on the fact that the NSS is a campaigning organisation, and claiming that the NSS was seeking to ban Remembrance Day ceremonies, something the claimant’s defence team were unable to deduce from the web page he referred to. He read out the NSS’s Secular Charter at length to show, astonishingly, that this was incompatible with a plural society. However, the Judge stopped him from pursuing this line.

Accordingly, Mr Dingemans asserted that councillor Bone’s attitude to prayers was also incompatible with a plural society. He then claimed that the actions of the Bideford councillors who determined by a democratic vote to continue prayers, however, were compatible with a plural society and were not open to challenge. This was 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, and describing this as local democracy, he 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 at Bideford, 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.

Much time was spent in examining 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. Defence Counsel sought to support this point by stating that attendance was recorded after prayers had finished. Our Counsel and the Judge were involved in discussing part of our rebuttal: 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 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 law.

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, the applicants relied upon the Equality Act 2006 giving only one specific exception allowing “acts of worship or other religious observance” in relation to educational investigations from which it could be inferred that such acts in any other context were not allowed.

Our Counsel answered all the defence’s points in detail. He also suggested that a major plank of the defence’s case — rejecting our claim that Clive Bone’s freedom to manifest his non-belief had been breached (not something we had previously contended or relied upon) — was ill-founded. As a supplementary argument he added that there was scant evidence of the Council taking 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.

The NSS’s Executive Director, 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 vice-President and Council chair Gerard Phillips, Council member Afonso Reis e Sousa, two former officers as well as Society members. Meanwhile, President 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).