Friday, 10 February 2012

Council Prayers

And now for the completely Bizarre Legal decision Bone v Bideford Town Council [2012] EWHC 175 (Admin)

In this case a Town Councilor objected to fact that Council meetings started with prayers. The procedure was that the Mayor entered the Council Chamber and then there were prayers led by a Minister or Priest chosen in rotation from one of the 8 Churches in the Town. After prayers apologies for absence were taken and the meeting carried on, no Councilor was obliged to be present during the prayers and the custom dated back to Elizabethan times.

An objection was raised by a Mr Clive Bone who is an Atheist and was for a few years a town Councilor. He objected to the Prayers and, as is his right, he raised the issue in the Council. Para 8 of the Judgment explains

"There had been no objection to the practice until Mr Bone was elected in 2007. He made no complaint for 9 months, and then in January 2008 he proposed a motion that prayers cease: it was a tradition no longer appropriate, which could deter some from seeking office, contrary to equality policies. His motion was defeated by 9 votes to 6, with 1 abstention. He withdrew a similar motion in March 2008, but in September 2008 put forward another motion which would have replaced prayers with “a short period of silence”. This was defeated by 10 votes to 5. A campaign by humanists and the National Secular Society then ensued. This litigation is part of that campaign".

In simple terms therefore Mr Bone lost two democratic votes and then decided to use the law to force his views on his colleagues. He based his case on breach of his Human Rights under Article 9 of the European Convention on Human Rights and Belief Discrimination contrary to the Equality Act 2010 and had he won on either of those grounds then the decision might well have had significant implications for the practice of public prayers at a range of events including Remembrance Day and the opening of Parliament (when Her Majesty the Queen expresses the hope that God will guide the members of Parliament in their deliberations) but he lost on both of these points of principle.

He won however on an extremely narrow point of interpretation of s111 Local Government Act 1972 which says that
"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."

As a lawyer I find the decision bizarre I could almost find it easier to understand a decision based on breach of Article 9. The basis of the decision seems to be the legal concept of "ultra Vires" which prevents public bodies engaging in actions which are not permitted by legislation. However the Ultra Vires doctrine like all doctrines is subject to the old idea that "the law is not concerned with trifles" which in modern context is usually expressed as the concept of proportionality. By any rational analysis it seems wholly disproportionate to say that a local ceremony which has lasted for hundreds of years is unlawful merely because it is not specifically mentioned in legislation.

Also bizarre is what the Judge said at para 27
"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. The majority acknowledge such response or feelings to be ones which it is right to accommodate; such feelings are in that sense a reasonable response to the course of action preferred by the majority. I appreciate that the saying of prayers may cross party lines, but I cannot see that it would be different from incorporating some other form of religious or secular but potentially divisive ceremony, such as the singing of a political party’s song, into the meeting."

On the basis of that paragraph if the Council were to meet on November 11th and was to incorporate into its Agenda a 2 minutes silence in remembrance of the War Dead that would also be illegal if a pacifist objected on the basis that this "secular ceremony" (to use the Judges own designation) was divisive towards pacifists

B&B Owners and Sexual Orientation

Two legal decisions today one not unexpected and one completely bizarre

In Bull v Hall & Preddy [2012] EWCA Civ 83 the Court of Appeal confirmed that two B&B owners had discriminated against a same sex couple by refusing to let them have a Double Room. The decision was based on the provisions of the Equality Act (Sexual Orientation) Regulations 2007 which have now been incorporated into the Equality Act 2010.

Essentially the Bulls are a Christian couple who believe that sex should only take place in the context of a married, monagamous and heterosexual relationship. They run a Bed and Breakfast and applied a rule that only married couples could share a room, the rule was applied to unmarried heterosexual couples as well as same-sex couples. However the Court held that since, by definition, a same sex couple could never fall within the definition of a married couple applied by the Bulls the rule was discriminatory towards same sex couples and hence illegal.

I am not surprised by the ruling which was to be expected in view of all the previous decisions on the rights, or to be more precise, lack of rights of Christians in the public sphere. However what does irritate me is that the Judge did not try to address the basic point behind the Bulls objection namely the fact that giving a double room to an unmarried couple would make the Bulls morally complicit in an immoral act. Were they, for example, running a restaurant and had refused to give a meal to a same sex couple then that would have been simple discrimination but their stand was more nuanced than that and it is unfortunate that that British Courts seem unable to recognise that point