When someone becomes a High Court Judge in England and Wales the appointment is usually of someone who has great legal intellect. The best of Judges are able to summarise great principles of law in a few words. The law is littered with complex doctrines which are explained in pithy sentences. There are all the maxims of equity, which a layman can understand, for example “he who seeks equity must do equity”. It is a well expressed statement of the law.
Even complex laws have been expressed simply: “estoppel is a shield, not a sword”. This principle prevents someone from using the doctrine of promissory estoppels to enforce a claim, rather than to defend a claim.
Legal principles should be founded on rational right, which is something that accords with most people’s sense of justice. That way we can, by rational and right behaviour, understand and act lawfully and advise, if we are lawyers, others on how to act and behave and what the consequences of any particular action may be. Expressing legal principles well, communicating them clearly, depends not only on the quality of the communicator, but also on the quality of the principle. A decision of the court that feels wrong is usually wrong and often means that a judge of great intellect has taken the wrong turning on his or her rational legal argument of has simple not stood far enough away to see the whole landscape.
However great a judge, if the judge is unable to express the principle clearly and well it probably means that the judge has got it wrong. Great principles are expressed simply, without footnotes. In matters of great moment and fundamental importance, such as matters of human rights, matters where we seek to uphold the principles of treating people equally without discrimination and matters which touch and concern freedom in recent years most of those who read the law reports of England and Wales will have been disappointed to find that the reports are increasingly short on simple clear expressions of law and long on footnotes, references and argument.
In England and Wales cases of principle about human rights not involving criminal behaviour usually are decided in the Administrative Division of the High Court, the most senior judge of which is Mr Justice Ouseley. The “Mr” is actually a courtesy title for judges are knighted when they are appointed to the High Court.
A recent case which illustrates the small minded and lack of principled approach of modern judges is The National Secular Society & Bone –v- Bideford Town Council.
The facts of the case are quite simple. The Town Council has been in the habit of spending a few minutes before each meeting saying prayers. The custom has been recorded since 1941 although some believe that prayers have been said before meetings for hundreds of years. When Mr Bone was elected to the council he tried to get the Council to abandon their habitual prayers but failed to do so democratically. As far as Mr Bone was concerned that wretched council kept saying their wretched prayers. So, with the help of the National Secular Society the case ended up in Court before Mr Justice Ouseley.
Mr Bone argued that the practice of saying prayers discriminated against people like him who had no religious beliefs, even though attendance at prayers was optional and the prayers took place before any business of the Council was conducted. Mr Justice Ouseley said that the issue was a narrow one:
I think it important that the narrow scope of the issue before me be explained. The issue is solely about whether prayers can be said as a part of the formal business transacted by the Council at a meeting to which all Councillors are summoned. It is quite wrong for the Defendant to suggest that the Claimants would be introducing a bar on acts of worship before the meeting, thus hindering the exercise by Councillors who wished to pray of their right to do so.
Mr Bone and the National Secular Society, not wanting to prevent the exercise of religious freedom on the part of those who wished to say prayers said they had no objection to the prayers being said, simple to the fact that they were part of the formal business of the Council, albeit the first item on the agenda before even apologies for absences were recorded.
Mr Justice Ouseley carefully considered the law about Town Council meetings and decided that it was silent about whether prayers could be said.
There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council. I do not accept (the) suggestion that saying prayers is an act of such a nature that it does not require statutory authority, even by reference to s111 of the 1972 Act. That provision is, as his later note showed, the basis for all the implied powers which a Council might wish to exercise; the word “functions” in s111 “embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions.”
So it seems that saying prayers at Council Meetings requires statutory authority. In order then for the saying of prayers to be lawful, Mr Justice Ouseley rules that the saying of prayers had to be, as a matter of law, conducive to the conduct of council business and that whether it was conducive is an objective test, not a subjective test. Further the fact that it was possible to absent yourself from prayers meant, of course that the saying of prayers could not possible be helpful to Council meeting deliberations.
The saying of prayers was discriminatory:
I do not think that the .. 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.
The practice of saying prayers indirectly discriminated against those as Mr Bone who did not hold religious beliefs, according to Mr Justice Ouseley. After considering the Human Rights Act implications of the matter Mr Justice Ouseley concluded that they cut both ways and that there were none. He concluded
The saying of prayers as part of the formal meeting of a Council is not lawful under s111 of the Local Government Act 1972, and there is no statutory power permitting the practice to continue. If it were lawful, the manner in which the practice is carried out in the circumstances of Bideford does not infringe either Mr Bone’s human rights nor does it unlawfully discriminate indirectly against him on the grounds of his lack of religious belief.
That is then the state of the law about the saying of prayers at Council meetings and presumably the saying of prayers at other meetings of public bodies. In essence, before the meeting can say prayers it must be sure that there is a statutory power to say prayers; if there is none, prayers may not be said as part of the formal meeting. If there is a statutory power then the saying of prayers does not infringe the human rights of those who do not wish prayers to be said.
It is a very narrow judgment, and to my mind a very odd one. Law develops from custom and usage, not from statute. Statutes change law, or consolidate the existing custom and usage. To hold, as has been held in this case, that the Council need a statutory power to do what they have done since 1941, and possibly for hundreds of years earlier is quite perverse and in the case the court has not seen the woods for the trees.
The saying of prayers is either a very important and critical human activity, or one that is completely harmless, depending upon your point of view. It cannot be described as a harmful activity, whatever your belief. Has a result of this case the Community Secretary, Mr Eric Pickles, has sought to put an end to this nonsense by bringing into force presently dormant sections of the Localism Act which will give Bideford the power to say prayers.
I wish that he had not done so. To my mind the foolish part of this judgment is not so much about the saying of prayers; in fact the court plainly reached the right decision that saying of prayers did not infringe anyone’s human rights. No, the dangerous part of this judgment is that we need the power of statutes to do things that we have done for hundreds of years (like saying prayers at meetings) before they can become lawful. That part of the judgment is dangerous because, as my old law professor Harry Street remarked, the law of England is based on the fact that any activity is lawful unless it is specifically prohibited, whereas the trend as evidenced by this case seems to be favouring the view that no activity is lawful unless it is specifically permitted by statute. That should be appealed; I do not think we should live in a society that permits us to conduct activities, but rather in one that prohibits activities of a certain kind. It is ultimately a matter of whether we control our governments or whether our governments control us.
This case (like so many modern cases) failed to provide us with a great principle of law that is easily understood. Only when we tease through the judgment do we find there is a principle of law behind it, but not one that is great, but one that is threatening.
You can read the judgment in full at http://www.secularism.org.uk/uploads/bideford-judgment-final.pdf
Filed under: justice, law Tagged: | Bideford Counciul, Eric Pickles, Harry Street, legal principles, Mr Justice Ouseley, National Secular Society, prayers, religious discrimination, saying of prayers by elected bodies