Let us be clear. Britain remains a Christian nation, as Communities Secretary Eric Pickles has insisted – or just as much of a Christian nation as it was before Mr Justice Ouseley ruled that Bideford Town Council had no legal powers to hold prayers during council meetings.
Nor has there been any curtailing of “the right to worship … a fundamental and hard-fought British liberty,” as Pickles suggested. There is not, for example, any ban on Church of England clerics coming within five miles of London; no likelihood of vicars being burned at the stake; no exclusion of members of the Church of England from public office – all milestones (applied by the English state to Catholics and Dissenters) along the road towards establishing the “hard fought British liberty” of worshipping according to the rites of the Anglican state religion (in England, of course, not elsewhere in these islands, where there was a certain amount of resistance to having such British liberty imposed).
But enough of the rant. What actually has Mr Justice Ouseley done if he has not disestablished the Church of England and its communicants? What he has done is look at the powers of local authorities under the Local Government Act 1972 and found that they do not include the power to call elected representatives to a brief act of Christian worship. Such calls are, in the old terminology, ultra vires of the legislatively sanctioned powers of the Town Council.
It is true that Section 111 (1) of the Act (the focus of the judicial review under the Human Rights Act 1998 brought by former councillor, Clive Bone, backed by the National Secular Society) says: “a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”.
But “any thing” is not the same as “anything”. It includes only those matters that form the duties or the discretionary powers of local authorities. As the judge put it: “The purpose of the meetings is to transact the business of the Council, which business is made up of the various express and implied functions, duties and powers, which it possesses”. Councils are not sovereign bodies and hence a vote by the council members is binding on nothing and nobody unless it is a vote on a matter within its legal competences.
That is a good thing, part of our “hard-fought British liberty”, since it would be an insupportable encroachment upon British freedoms if public bodies around the country, howsoever their members might be elected, could pass votes on anything and expect the result of those votes to be respected and actioned. Only Parliament can do that.
There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council – Mr Justice Ouseley
So the fact that Bideford council had voted to continue saying prayers at the beginning of meetings is a matter of no consequence since Bideford council is a public body regulated by parliamentary legislation. As the judge put it: “The Council has on two occasions by a majority voted to retain public prayers at its full meetings. But that does not give it power to do what it has no power to do.”
He noted further: “The issue is solely about whether prayers can be said as a part of the formal business transacted by the Council at a meeting to which all Councillors are summoned. It is quite wrong for the Defendant [Bideford Council] to suggest that the Claimants would be introducing a bar on acts of worship before the meeting, thus hindering the exercise by Councillors who wished to pray of their right to do so.” So there is no ban on any hard-fought British rights to worship, privately or collectively, even within secular public property. Only as part of an official meeting of local authority members who are gathered to represent the people of Bideford, Christian and non-Christian, on a strictly limited set of issues laid down by law for a Town Council. “Pluralism does not mean that one religion is entitled to manifest itself on such occasions.”
The judge summed up the matter thus: “There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council. I do not accept … that saying prayers is an act of such a nature that it does not require statutory authority, even by reference to s.111 of the 1972 Act. That provision is … the basis for all the implied powers which a Council might wish to exercise; the word ‘functions’ in s.111 embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it.”
There are numerous precedents for the doctrine that local authorities cannot step beyond their powers. Take Roberts v Hopwood (1925) in which Poplar Council had decided to pay a minimum of £4 a week to its staff – above market rates – and to pay men and women equally. The House of Lords ruled that the council had no powers to offer fair pay. Any discretion it might think it had was overridden by its Common Law fiduciary duties to the local rate-payers viz, to pay as little as it could get away with.
Lord Wrenbury put it thus: “A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so – he must generally exercise the discretion to do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.”
A majority vote in council made no difference to that position. In paying fairly the council was “taking account of eccentric principles of socialistic philanthropy” and “feminist ambition to secure the equality of the sexes”, according to Lord Atkinson in the case. That would never do. Or not until Parliament passed legislation such as the National Minimum Wage Act and Equal Pay Act.
Eric Pickles should be well aware of the limits put on the powers of local councils. As Bradford Council leader in the 1980s he sought to institute a ticketing system to control who entered the public gallery for council meetings. It took a judge almost no time at all to declare the move ultra vires – and contrary to our fundamental and hard fought British liberty, to boot.
After the Bideford ruling Simon Calvert, spokesperson for the Christian Institute, complained that: “The logic of the ruling is that councils would also be going beyond the law if they took a vote and decided to start each formal council meeting with the national anthem.” Well yes, exactly. Nor could they take a vote to sing selections from Broadway shows or whistle Dixie. Because voting by members of public authorities does not make all things or any things possible. Only voting on things they have power through legislation to make possible makes things possible.
Note: This post should be read in conjunction with General Powers and Super Pickles, new local heroes on the “general power of competence”, which will change some of the law outlined above
A piece on the Constitutional implications of the religion v secularism debate is here
This was the council clerk, Mr McLauchlan’s evidence on the Bideford prayers:
“Councillors and members of the public are not expected to participate in prayer and are free to leave the Council Chamber during the saying of prayers. During prayers Councillors are seated. The prayer offered is a prayer led by a Christian Minister from one of the local churches. In all there are about 8 Christian churches in Bideford and each have, at one time or another, been invited to say prayers. The prayer time normally takes about 2-3 minutes.”
This is Mr Bone’s:
“There was usually a short homily, followed by a prayer for the Council and its deliberations, sometimes ending with the Lord’s Prayer, in which those present were asked to join. All prayers ended ‘Amen’. No attempt was made to make it clear that Councillors who did not wish to participate could withdraw.”