Friday, 10 February 2012

Bone v Bideford Town Council

Ouseley J gave judgement this morning in an application for judicial review by one Clive Bone in conjunction with the National Secular Society, in the case of R, on the application of the National Secular Society and Bone v Bideford Town Council [2012] EWHC 175. Bideford Town Council are in the habit of having a chaplain intone a few prayers for guidance and sound judgement at the beginning of each of their meetings. This, together with the appointment of honorific chaplains to the Mayor of some of the former large county borough councils, has been quite a common practice in earlier times although is now much diminished.

Mr Bone alleged that this practice offended both the provisions precluding religious discrimination in the Equality Act 2010 and articles 9 (freedom of thought, conscience and religion) and 14 (no discrimination in public rights on the grounds of religion or political or other opinion) of the European Convention on Human Rights as incorporated into UK law by the Human Rights Act 1998. He felt on the one hand that he could not in good conscience attend the meeting during the period within which a prayer was intoned, and on the other hand that he had a responsibility to attend all the business at the Council's meetings, which put him at a discriminatory disadvantage. As a make-weight he argued that holding prayers during the time that the Council was in formal meeting was outside the range of the Council's permissible activities under the Local Government Act 1972.

Mr Bone lost on his main point. Ouseley J held that holding prayers did not put Mr Bone at a disadvantage within the meaning of the 2010 or the ECHR, assuming that the action in question (a moment of formal prayer) was lawful under the 1972 Act. So in Ouseley's view it came down to a technical matter of statutory construction about whether the action in question was within the powers conferred on the Council by the 1972 Act.

I explained the principles behind the powers of incorporated bodies (whether incorporated by charter or, as in this case, by statute) in my article on the Royal Prerogative and the other natural powers of the Crown. In summary, statutory bodies can only do what they are explicitly or implicitly authorised to do by the statutory provisions in question. Section 111(1) of the Local Government Act 1992 gives the power to act for incidental purposes in these terms:
"(1) Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."
Ouseley J held in effect that such facilitation and conduciveness required more than seeking divine assistance to its deliberations in order to be lawful, whether or not a divine being existed capable and willing to provide it. I have always felt that Duncan Ouseley was a very sound fellow but I have to say this is just a little too legalistic for my taste. I think you either have to man up and say it contravenes the ECHR or just let it pass.

It is to be noted that Part 1 of the Localism Act 2011 will signficantly extend the powers of local authorities so that (like the Crown) they will have all the powers of a natural person, and a natural person certainly has power to intone prayers within his or her own hearing. The Cabinet can, for example, pronounce a prayer at the start of each of its meetings and perhaps Tony Blair might have been inclined to do so had he been able to persuade his Cabinet colleagues of its value. Section 1 of the 2011 Act provides:
"(1) A local authority has power to do anything that individuals generally may do.

(2) Subsection (1) applies to things that an individual may do even though they are in nature, extent or otherwise —

(a) unlike anything the authority may do apart from subsection (1), or
(b) unlike anything that other public bodies may do.


(5)The generality of the power conferred by subsection (1) ("the general power") is not limited by the existence of any other power of the authority which (to any extent) overlaps the general power."
Section 2 provides that this does not confer a power to do anything authorised subject to conditions by an overlapping pre-commencement statutory power except on those prior conditions, but that would not apply here according to the reasoning adopted by Ouseley J. The problem for Bideford Town Council is that section 1 of the 2011 Act was not at the time of the prayers complained about in force (in fact, it was not then enacted); and that when it does come into force, the council is not covered by the provision unless it were to meet the conditions to be prescribed by the Secretary of State by an order enabling it to comprise "an eligible parish council" (town councils are in law just a species of parish council and not a district or borough council).

However, this does illustrate the artificiality of this decision. It appears that county and district/borough councils will be able to utter prayers under this new power, but not parish or town councils unless and until made eligible parish councils. By the same token, this does not appear to be the victory for secularism that the NSS seem to think it is.

Update 1: Some commentators seem to think Chapter 1 of Part 1 of the Localism Act 2011 is already in force, so Ouseley J made a mistake. That is wrong. The Secretary of State said at the beginning of the year that he proposed to bring the 2011 Act into force around the beginning of April this year but the commencement order for this has not yet been made. A commencement order has been made enabling the Secretary of State to make an order prescribing the conditions to be met to be an "eligible parish council" (the Localism Act 2011 (Commencement No.1 and Transitional Provisions) Order 2011), but to the best of my knowledge the prescribing order itself has also not yet been made or indeed consulted on. Incidentally, the Christian Alliance (who assisted Bideford Town Council in the litigation) would do well to advise the Council not to appeal. It has been held by Ouseley J that prayers do not offend human rights or equality legislation so the Council won on that. Amusingly, Mr Bone and the NSS can't appeal that point as they succeeded on a technicality, a technicality which is due to end in April this year.
Update 2 (20 February 2012): The Secretary of State has now made an order bringing into force Chapter 1 of Part 1 of the Localism Act 2011 earlier than he originally intended, and has laid another order for approval, in response to the decision of the court in this case. First he has made the Localism Act 2011 (Commencement No. 3) Order 2012 which brought the general power of competence referred to above into force for principal councils (county, district and borough councils) on 18th February. They can now pray as much as they like. Secondly (and most relevant to Bideford Town Council), he has laid before both Houses of Parliament the Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012 which, subject to the conditions mentioned in that Order, will make the Town Council an "eligible parish council" once in force. It cannot come into force immediately as it requires approval by resolution of both Houses.

Thursday, 9 February 2012

Tories renew Labour's Freedom of Information order

It is interesting that the Attorney General, Dominic Grieve, has decided to make a further order under section 53 of the Freedom of Information Act 2000 overriding a decision of the Information Commissioner under that Act that minutes of meetings of the Cabinet Ministerial Committee on Devolution to Scotland and Wales and the English Regions in 1997 should be released.

This is the second time this has happened. Jack Straw made a similar order in 2009, about which I wrote in some detail here. I will not repeat the legal issues concerned - those interested can follow the link. However, one of the arguments used then, pointing to a fear of prejudice to the public interest arising from disclosure, was that some ministers which had taken part in the meetings in 1997 were still in office in 2009, notably Jack Straw himself. That argument of course no longer applies.

Presumably in order to make his decision, Dominic Grieve looked at the minutes in question: at least, I certainly hope he did, since it was incumbent on him in law to acquaint himself with all the facts when making his decision. Presumably also, he had some kind of permission to do so by the Shadow Attorney General, because there is a convention that governments do not get to see the cabinet meetings and briefing papers of previous governments of a different party.

Given that the "ministers in office" argument at least no longer applies (although other ones employed in 2009 still do), there must have been some interest amongst the Tories in letting the world see Labour's internal manoeuvrings in 1997. Presumably what has stayed their hand is the forthcoming referendum on independence in Scotland, and a notably increased concern amongst some people in England about their position as (in their eyes) the union's whipping boys.

This implies that there must be some quite powerful stuff in these cabinet committee minutes and it is interesting that there has so far been no leak: perhaps there will be a nicely timed one before the referendum. One can also guess that Sir Peter Housden, viewed by some in government as Alex Salmond's accessory, has been kept well away from the papers.