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
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13 comments:
The judgment affirms that the choice whether to participate in religious observance is for the individual conscience. This is certainly not bizarre and it supports religious liberty rather than undermining it. Mr Bone is not imposing his views on others because the other councillors can still pray before the meeting. They just can't force every diligently attending councillor to attend prayer sessions against their will.
Your point about the votes in the council is strange. Are you saying your conscience is subject to a majority vote? Mine isn't.
David
According to the facts set out in the Judgment no Councillor was obliged to attend the Prayers section of the meeting so no "diligently attending councillor" (to use your phrase) was forced to attend any prayer session against their will
Mr Bones conscience was not affected by the vote of the majority to continue with the prayers because he did not have to attend them
The meeting started when the Mayor entered. Prayers were then said. A diligently attending councillor would be present from the start of the meeting which would include prayers. Bideford TC's case was that because attendance was only recorded after this point, absence from prayers was tolerated but they accepted that the prayer was formally part of the meeting.
The judgment is clear on this issue and points out the contradiction in Bideford's case in para 25. They, and you, are trying to have your cake and eat it: prayers are part of the formal business of the council on the agenda, but they're not really because you don't have to be there.
You can't square this circle. Either prayers are part of the business of the council which means all councillors whatever their faith, attending to their civic duties, are summoned to be present; or they are not part of the business of the council, in which case they shouldn't be on the agenda.
You said that Councillors were forced to attend and the Judgment says they were not. Your point is as petty minded as the case brought by Mr Bone himself.
Have you seen this post? http://heresycorner.blogspot.com/2012/02/bideford-council-carry-on-praying.html
If this is accurate, then it's a short-lived victory indeed; and one which the atheist element will rue. It's clear from the judgement that there is no human rights argument, and if the new Law allows a wider range of actions to councils, Bideford will be back where it was; with the assurance that it is now beyond attack.
If there is a formal meeting of the council happening, it is my civic duty to be there. Duty is not pettiness, Mr Addison.
But bringing a petty minded case is
It would have been far better if Bideford (and all other councils foisting religious ceremonies on unwilling councillors) had been tolerant. When the majority on Bideford was asked politely not to try to compel councillor attendance at religious meetings, they not only turned down the request but went on to attack the unwillingness to attend church among the minority: link.
We come to another of your attempts to have your cake and eat it. If it is petty to object to being forced to attend prayers, then prayers themselves are not really important and the religious can't really object if prevented from saying them at a time of their choosing. However, that isn't the general approach of the Church, which is to regard praying as a fundamental part of being a Christian. If it's important for Christians to attend prayers, it's also important for those who don't want to not to be forced to.
Which is it? Are prayers petty or are they not?
David I do feel I am in a Dialogue with the deaf here and I am wondering what point there is in continuing this conversation.
Councillors were NOT compelled to attend the prayers section at the beginning of the meeting. That is the fact as set out by the Judge in the judgment.
As for the link to Councillors not attending the Remembrance Day Church service that is irrelevant. Councillors once were not compelled to attend the service and indeed two of them did not. They were criticised by other Councillors for not attending but they were not obliged to attend. They had the legal right not to attend and other Councillors had the legal right to criticise their decision not to to attend.
My point about being petty is because Mr Bone was not obliged to attend or to participate in the prayers which according to the Judgment lasted 2-3 minutes it was petty of him to object to those 2-3 minutes. He is an Atheist so presumably for him prayer is meaningless so it was petty of him to object to other Copuncillors having those 2-3 minutes of prayer which meant something to them and nothing to him
Whilst the case appears petty I suspect the media coverage of it - and perhaps your own analysis of it Neil - would be rather different if a council in (say) Oldham or Burnley decided (by a democratic majority) that they wanted to pray to Allah at the start of council meetings. How would you feel about that?
With so many different faiths now in this country (and many people who are non believers) the only fair solution is to separate church and state.
For me, as an active civil litigator, the major irritation with this whole episode is the fact that there are evidently people who think that one of the purposes of the High Court is to adjudicate on trivia like this. This sort of total nonsense litigation is a hopeless waste of public funds. Let's be clear, it was not a life changing or fundamental. At Heresy Corner, the blogger has said, "But it does make the case seem like a tremendous waste of time and money, to me at least." Yes, well, him and me both!
Richard
What i find intriguing is how it is always Atheists who introduce arguments about a multi faith society in order to ban religious observence and rarely people of faith themselves. No Muslims, Jews, Sikhs or Hindus objected to the Bideford Council prayers.
As it is the prayers themselves obviously began in Elizabethan times and would have been originally only Anglican however the Council evolved and included the other Christian Churches in a rota to offer prayers. No doubt a local Council with a Muslim population could bring the Mosque into a similar rota. I would see no objection to that provided those Councillors who for whatever reason did not want to attend were allowed not to attend which was, of course, exactly what the situation was in Bideford.
Jonathon
I entirely agree that it was a waste of valuable Judicial time when lawyers like you and I are constantly being told not to bring cases unnecessarily to the High Court. The entire case was trivial. Have the Prayers followed by Agenda Item 1 Apologies perfectly legal, Have the Prayers as Agenda Item 1 followed by Apologies as Agenda item 2 illegal. It is the legal equivalent of that (mythological) theological argument as to how many Angels can dance on the head of a pin
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