National Secular Society & Anor, R (on the application of) v Bideford Town Council

The court held that the public saying of prayers as part of the formal business of a parish council meeting is beyond the powers conferred by section 111 of the Local Government Act 1972 and therefore unlawful. The judge analysed s111 LGA 1972 and concluded that the practice cannot be characterised as an act "calculated to facilitate, or conducive or incidental to, the discharge of" the council's functions where attendance is summoned yet participation may be optional. The claimant's indirect discrimination complaint, under the Equality Act 2006 / Equality Act 2010, and his Article 9 and 14 ECHR arguments were considered: the judge found that, on the factual premise that s111 authorised the practice, the way prayers were conducted at Bideford did not amount to unlawful indirect discrimination nor to a breach of Articles 9 or 14; however the primary vires point was decisive.

Background and parties. Bideford Town Council held Christian-led (occasionally Quaker) prayers at full council meetings to which all councillors were summoned. The National Secular Society, joined by a former Bideford councillor (Mr Bone), challenged that practice. The challenge contended that the practice exceeded the council's statutory powers under the Local Government Act 1972, amounted to indirect discrimination under the Equality Act 2006 (and the replacement public sector equality duty and provisions in the Equality Act 2010), and interfered with rights under Articles 9 and 14 ECHR.

Nature of application / relief sought. Not stated in the judgment.

Issues framed.

• Whether the saying of prayers as part of the formal business of a council meeting is within the powers conferred by s111 Local Government Act 1972.
• Whether the practice amounted to unlawful indirect discrimination under the Equality Act 2006 / Equality Act 2010.
• Whether the practice breached Article 9 (freedom of thought, conscience and religion) and Article 14 (non-discrimination) of the European Convention on Human Rights.

Court's reasoning and outcome on issues. On vires the judge concluded that prayers formed part of formal business (summons, agenda, minutes) and that s111 requires an objective link between the act and the functions to be facilitated. The court rejected the notion that a practice could be part of formal business yet rendered optional in attendance so as to remain incidental to functions. The judge also considered that a court should not be required to assess religious efficacy or divine guidance as part of construing s111. On discrimination, the court analysed indirect discrimination under s45 (Equality Act 2006) and s19 (Equality Act 2010), including the threshold for a "particular disadvantage", and concluded that the practical disadvantage identified by Mr Bone was marginal and that, on the alternative premise that s111 permitted prayers, the manner of their conduct was a proportionate means of achieving the legitimate aim the council advanced. On Articles 9 and 14 the judge accepted limits on manifestation rights and concluded that the conduct, as carried out in Bideford, did not amount to an infringement of Mr Bone's Convention rights, but that the primary legal bar remained the absence of statutory power in s111.

Subsidiary findings and context. The court emphasised the narrow scope of the challenge (prayers as part of the formal meeting) and noted that alternative arrangements (silent reflection or prayers held before the formal meeting) would not raise the same legal issue. The decision was framed as addressing only the particular statutory and equality/Human Rights arguments before the court.

The claim succeeded on the statutory vires point: the court held that saying prayers as part of the formal meeting of the Council is not authorised by section 111 of the Local Government Act 1972 and there is no statutory power permitting the practice to continue. The court further held that, on the alternative hypothesis that s111 did permit the practice, the manner in which prayers were conducted in Bideford did not unlawfully discriminate against Mr Bone nor infringe his rights under Articles 9 and 14 ECHR. The decisive rationale was that s111 cannot be construed to permit a religious observance as formal council business when attendance for that item is treated as optional and when the court would otherwise be required to assess religious effectiveness in relation to council functions.