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

A local authority may exercise implied powers only where the proposed act is objectively calculated to facilitate, or is conducive or incidental to, an identified statutory function. The saying of prayers as part of the formal business of a council meeting was outside that power. The court could not determine whether specifically religious prayers advanced the council’s functions by obtaining divine guidance, particularly where some councillors were excluded or permitted to absent themselves. A period of silent reflection, allowing each councillor to prepare in an individual way, stood on a different footing. Alternatively, if prayers had been lawful, the arrangements did not amount to unlawful indirect discrimination or an infringement of Articles 9 and 14.

The National Secular Society and Mr Clive Bone challenged Bideford Town Council’s practice of placing Christian prayers, occasionally led by Quakers, on the agenda of formal monthly council meetings. Councillors were summoned to the meetings, but could leave during prayers and were not marked absent because attendance was recorded afterwards.

The claim alleged that the practice was outside the Council’s powers under section 111 of the Local Government Act 1972, indirectly discriminatory under the Equality Act 2006 and Equality Act 2010, and incompatible with Articles 9 and 14 of the Convention. The central issue was whether prayers could lawfully form part of the Council’s formal business.

1. Vires. The practice was unlawful. Section 111 of the Local Government Act 1972 required identification of the Council function to which the act was said to be incidental. “Calculated” imposed an objective test; it did not mean merely thought likely by elected councillors. The court also rejected an interpretation extending to the incidental to the incidental: R v Richmond LBC, ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48.
2. Prayers formed part of the formal business because they followed the opening of the meeting, appeared on the summons and agenda, and were minuted. The Council’s position was internally inconsistent: it treated prayers as formal business while making attendance optional. Formal council business could not properly include a religious ceremony from which some equally elected councillors were expected to absent themselves or feel excluded.
3. The court accepted that quiet reflection could assist councillors in preparing for public duty. It could not, however, determine whether specifically religious prayers facilitated the Council’s functions by securing divine guidance. Nor should the statutory scheme be read as permitting the religious views of one group of councillors to impose burdens on others. The reasoning was consistent with McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 and R (Johns) v Derby City Council [2011] EWHC Admin 375.
4. Alternative discrimination and Convention findings. If prayers had been lawful, the Claimants had not established actionable disadvantage under the indirect-discrimination provisions. The embarrassment or inconvenience of leaving, arriving after prayers, or remaining silently was of no real significance and, in any event, the arrangements were justified and proportionate. Article 9 protected the right not to hold religious views, but did not require religious manifestation at any chosen time and place: R (SB) v Governors of Denbigh High School [2006] UKHL 15. The optional arrangements did not infringe Articles 9 or 14.
5. The court therefore concluded that the Council had no power to hold prayers as part of a formal meeting or to summon councillors to a meeting at which prayers were on the agenda.

First-instance judicial review decision. No earlier appellate decision is stated in the judgment.