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english councils have no implied power to include prayers in formal meetings February 11, 2012

Posted by Bradley in : governance , trackback

Under s 111 of the Local Government Act 1972 local authorities have implied powers “to do any thing which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.” Mr Justice Ouseley held that Bideford Town Council did not have the power to have prayers as a formal part of council meetings under this provision. The Council didn’t do itself any favours here by arguing at the same time that the prayers were important and that Councillors who did not wish to participate would not be required to do so:

There is a contradiction at the heart of the Council’s position. It has made the prayers part of the formal business of the Council, yet it says that Councillors, summoned to its meetings, are not obliged to be present for this incident to the transaction of business nor to participate in it. I do not think that what falls within the scope of s111, as an incident to the transaction of the business of the meeting, can then be regarded as such that attendance for it is unnecessary or optional, in distinction from all other business. In effect it is treated as being outside the scope of the meeting. I do not see that it can be calculated to facilitate the transaction of business or any other functions if, for it to take place at all, it is necessary to give Councillors the choice not to attend. Nor can it be conducive to the transaction of business or to the exercise of any functions, if it does not matter if Councillors attend or not. If the Council does not regard it as business for which attendance is summoned, then it should not be on the agenda. If it regards it as business to which the summons applies, it cannot make attendance for it optional on the grounds that participation could be objectionable to some Councillors. No such arrangement would be necessary for a few minutes silent reflection.

The judge said that if the council had had the power to hold prayers during council meetings the way in which it had been managing the practice did not infringe the complaining Councillor’s human rights or unlawfully discriminate indirectly against him on the grounds of his lack of religious belief.

The Guardian says:

Lord Carey, former archbishop of Canterbury, said the judgment could have “incredibly far-reaching consequences”. “Will the next step be scrapping the prayers which mark the start of each day in parliament?” he asked.

This seems to me to be both wrong and unnecessarily inflamatory. It ignores the narrow basis on which the decision rests. This interpretation of the Local Government Act has nothing to do with the powers of Parliament, which is a sovereign authority in a way that local authorities are not. So here, the fact that the judge thought the Council’s practice did not violate human rights or constitute unlawful discrimination seems to be what is significant.

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