National Secular Society & Anor, R (on the application of) v Bideford Town Council  EWHC 175 (Admin) caused the Secretary of State for Communities and Local Government, Eric Pickles, something of a surprise. In the following guest post, Keith Porteous Wood, Executive Director of the National Secular Society, explains the view of the NSS on the outcome.
The court order arising from the Bideford prayer case read, in part:
“1. A Local Authority has no power under s.111 of the Local Government Act 1972 or otherwise to hold prayers as part of a formal Local Authority meeting or to summon Councillors to such a meeting at which prayers are on the agenda.
2. The saying of prayers in a Local Authority chamber before a formal meeting of such a body is lawful provided Councillors are not formally summoned to attend.”
That court order still stands and it applies throughout England and Wales. I cannot therefore see how it possible to argue there is “still ‘a legal way’ for councils to have prayers in council meetings” – presumably relying on the proposition that local councils can hold prayers under the terms of s 111 of the Local Government Act 1972.
The Localism Act had already been passed – but not brought into effect – when the court order was granted. As the National Secular Society’s council prayer action was not even on the radar when the Act was drafted and debated I cannot see how it can be argued it can have been “changed to facilitate prayers at Council meetings”. My contention is supported by the fact that the word “prayers” does not appear in the Act, nor as far as I’m aware did it do so in any of the debates on the Bill.
The Secretary of State is of course entitled to express anything he wishes about how the law should or shouldn’t be interpreted and even, I suppose, as he did, to criticise the judiciary when they come to decisions which he does not like. But fortunately we live in a country where interpretation of the law is delegated to judges, not elected politicians. The Welsh Assembly is not in my opinion entitled to rely for legal advice on what he says.
And indeed, while it is very clear what the Secretary of State wants people to think, the way he often expresses his views is, curiously, very much more loose. For example, when he wrote to larger local authorities in the spring he said, inter alia presumably about the Localism Act: “These new flexibilities include the freedom to pray” and “the choice on holding prayers is now yours again”. The freedom to pray or choice on holding prayers outside (for example immediately before) Council meetings has never been in doubt. There still being a valid court order extant, what we do know is that that power is not given by the Local Government Act 1972 s.111. What no one can say categorically until it has been tested by the courts is that the Localism Act gives councils the power to summon councillors to pray and to conduct prayers during their business.
The Local Government Act 1972 s.111 applies to Wales as it does to England. But it does not apply to Scotland, directly. However, the same wording as s.111 appears in the Local Government (Scotland) Act 1973 s.69. We have brought this to the attention of Edinburgh City Council and shortly afterwards they replaced prayers as part of their Council meeting with a Time of Reflection which started 10 minutes earlier and which we observed approximately only half of the Council members attended who attended the subsequent main meeting.
Critics of the NSS should note that before taking the matter up with the High Court and in the High Court proceedings themselves the NSS said that it had no problem with a period of silent reflection during the meetings, or optional prayers before the meeting. I can’t see why most reasonable people wouldn’t find that an acceptable compromise.
The key paras of the Bideford judgment seemed to us to be:
“30. As a general point, although I deal separately with the question of discrimination and human rights, I do not think that the 1972 Act, dealing with the organisation, management and decision-making of local Councils, should be interpreted as permitting the religious views of one group of Councillors, however sincere or large in number, to exclude or, even to a modest extent, to impose burdens on or even to mark out those who do not share their views and do not wish to participate in their expression of them. They are all equally elected Councillors.
31. This conforms with what Laws LJ said in his reserved judgment on the permission application in McFarlane v Relate Avon Ltd  EWCA Civ 880,  IRLR 872 at paragraph 22.
‘The precepts of any one religion, and belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of another. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.
So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection for such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions for a free and rational regime.’
32. That passage was approved by Munby LJ and Beatson J in R (Johns) v Derby City Council  EWHC Admin 375.
33. Accordingly, I have come to the view that the Council has no power to hold prayers as part of a formal Council meeting, or to summon Councillors to a meeting at which such prayers are on the agenda.”
Clearly the Rev Alan Hewitt and his other 150-odd petitioners are entitled to their view; but however much he may wish to impose religion on council meetings they are not religious meetings and should be conducted in a way to make everyone equally comfortable and valued. So if there is to be any opportunity for them at all it should be silent and brief or clearly optional and beforehand.