Raabe, R (on the application of) v Secretary of State for the Home Department

The Claimant, Dr Raabe, is a GP. On 13 January 2011 the Defendant appointed Dr Raabe as an unpaid member of the Advisory Council on the Misuse of Drugs (“the ACMD”), which was established under the Misuse of Drugs Act 1971. Shortly after his appointment and following criticism of it in the media, it came to the attention of the Defendant that Dr Raabe had co-written an article in 2005 called “Gay Marriage and Homosexuality: some medical comments (“the 2005 Paper”). Dr Raabe, who had been asked in interview if there was anything about his professional or personal history which, if brought into the public domain, might cause embarrassment or disrepute to the ACMD or the Home Office had not referred to the 2005 Paper. Following a number of exchanges between Dr Raabe and representatives of the Defendant, Mr James Brokenshire MP, the Parliamentary Under Secretary of State for Crime Prevention, revoked Dr Raabe’s appointment in a letter dated 4 February 2011.

In the letter the Minister stated that the emergence of Dr Raabe’s authorship of the 2005 Paper into the wider public domain, not disclosed by him in his interview and application, had raised concerns over his credibility to provide balanced advice on drug misuse issues affecting the lesbian, gay, bi-sexual and transgender (LGBT) community and impacts on the smooth running of the ACMD. He had therefore decided to revoke Dr Raabe’s appointment to the ACMD. He stated that the Department considered that his failure to disclose his authorship of the 2005 Paper raised serious issues of judgment and failure to appreciate that the views expressed in it could affect his credibility as an advisor on drug misuse issues.

In this application Dr Raabe seeks judicial review of the decision to revoke his appointment on four grounds. He alleges that (1) the principles of natural justice were infringed in that he was not given a fair opportunity to answer the charges against him; (2) the Defendant took into account irrelevant considerations; (3) the Defendant came to conclusions which were irrational; and (4) the decision was unlawful because Dr Raabe had not acted in breach of the terms and conditions of his appointment. Dr Raabe asserts that he has an absolute right to believe that “monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations between persons” and alleges that the Defendant’s decision to revoke his appointment because he held and others published those views was unlawful and also illiberal because the pluralism indissociable from a modern democratic society depends on persons who do not have mainstream views being entitled to participate in society.

The 1971 Act provided at the material time so far as relevant as follows:

“1The Advisory Council on the Misuse of Drugs.

(1)

There shall be constituted in accordance with Schedule 1 to this Act as Advisory Council on the Misuse of Drugs (in this Act referred to as “the Advisory Council”); and the supplementary provisions contained in that Schedule shall have effect in relation to the Council.

(2)

It shall be the duty of the Advisory Council to keep under review the situation in the United Kingdom with respect to drugs which are being or appear to them likely to be misused and of which the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem, and to give to any one or more of the Ministers, where either the Council consider it expedient to do so or they are consulted by the Minister or Ministers in question, advice on measures (whether or not involving alteration of the law) which in the opinion of the Council ought to be taken for preventing the misuse of such drugs or dealing with social problems connected with their misuse, and in particular on measures which in the opinion of the Council ought to be taken—

(a)

for restricting the availability of such drugs or supervising the arrangements for their supply;

(b)

for enabling persons affected by the misuse of such drugs to obtain proper advice, and for securing the provision of proper facilities and services for the treatment, rehabilitation and after-care of such persons;

(c)

for promoting co-operation between the various professional and community services which in the opinion of the Council have a part to play in dealing with social problems connected with the misuse of such drugs;

(d)

for educating the public (and in particular the young) in the dangers of misusing such drugs, and for giving publicity to those dangers; and

(e)

for promoting research into, or otherwise obtaining information about, any matter which in the opinion of the Council is of relevance for the purpose of preventing the misuse of such drugs or dealing with any social problem connected with their misuse.

(3)

It shall also be the duty of the Advisory Council to consider any matter relating to drug dependence or the misuse of drugs which may be referred to them by any one or more of the Ministers and to advise the Minister or Ministers in question thereon, and in particular to consider and advise the Secretary of State with respect to any communication referred by him to the Council, being a communication relating to the control of any dangerous or otherwise harmful drug made to Her Majesty’s Government in the United Kingdom by any organisation or authority established by or under any treaty, convention or other agreement or arrangement to which that Government is for the time being a party.

(4)

In this section “the Ministers” means the Secretary of State for the Home Department, the Secretaries of State respectively concerned with health in England, Wales and Scotland, the Secretaries of State respectively concerned with education in England, Wales and Scotland, the Minister of Home Affairs for Northern Ireland, the Minister of Health and Social Services for Northern Ireland and the Minister of Education for Northern Ireland.

SCHEDULE 1 Constitution etc. of Advisory Council on the Misuse of Drugs

1(1) The members of the Advisory Council, of whom there shall be not less than twenty, shall be appointed by the Secretary of State after consultation with such organisations as he considers appropriate, and shall include—

(a)

in relation to each of the activities specified in sub-paragraph (2) below, at least one person appearing to the Secretary of State to have wide and recent experience of that activity; and

(b)

persons appearing to the Secretary of State to have wide and recent experience of social problems connected with the misuse of drugs.

(2)

The activities referred to in sub-paragraph (1)(a) above are—

(a)the practice of medicine (other than veterinary medicine);

(b)the practice of dentistry;

(c)the practice of veterinary medicine;

(d)the practice of pharmacy;

(e)the pharmaceutical industry;

(f)chemistry other than pharmaceutical chemistry.

(3)

The Secretary of State shall appoint one of the members of the Advisory Council to be chairman of the Council……”

The ACMD is an independent expert body established under the 1971 Act to advise the Government on drug related issues in the UK. In particular it makes recommendations to the Government on the control of dangerous or otherwise harmful drugs, including classification and scheduling under the 1971 Act and its regulations. It also carries out in-depth inquiries into aspects of drug misuse that are causing particular concern in the UK, with the aim of producing considered reports that will be helpful to policy makers and practitioners.

As appears from the extract of the 1971 Act cited above the remit of the ACMD includes giving advice to the Government on measures which in its opinion ought to be taken for preventing the misuse of drugs or dealing with social problems connected with their misuse, including in particular measures for promoting co-operation between the various professional and community services which in its opinion have a part to play in dealing with social problems connected with the misuse of drugs, for educating the public (and in particular the young) in the dangers of misusing drugs, for giving publicity to those dangers and for promoting research into or otherwise obtaining information about any matter which in its opinion is relevant for the purpose of preventing the misuse of drugs or dealing with any social problems connected with their misuse.

In a witness statement served in these proceedings Dr Iain Williams, the Head of Science Secretariat within the Home Office which manages the Secretariat for the ACMD, gave evidence as to some of the issues considered by the ACMD. He said that it considers the issues of drug misuse in a variety of social contexts, for which it is important that it maintains a balanced and objective view of the evidence base to advise the government. One important aspect of that work is that the ACMD needs to consider minority populations that may be particularly vulnerable sectors of society or may have a particular profile in relation to drug misuse and thus particular needs in addressing such misuse. He gave as an example of a sector of the population which the ACMD has given particular attention to the LGBT community where there appear to be patterns of drug misuse which are quite particular to that community.

For example for its work on polysubstance use (the simultaneous or consecutive consumption of two or more substances where their acute effects are still apparent), the ACMD in July 2011 convened an evidence-gathering session which considered the current evidence base of patterns of polysubstance use in the LGBT community. Representatives of London Friend (Antidote), a drug and alcohol service for the LGBT community and The Lesbian and Gay Foundation presented emerging trends covering issues including trends being seen at Antidote in LGBT polysubstance use, trends having an impact on NHS Services, how LGBT clients can be assisted toward recovery, specific advice for LGBT communities and developing a resource to address the particular needs of LGBT drug and alcohol users.

One issue discussed at the evidence gathering meeting was that it was considered by presenters that there might be an association between the social exclusion experienced by some members of the LGBT community and patterns in recreational drug use.

Dr Williams said that the ACMD also considers specific substances for control under the 1971 Act, for some of which there appears to be a higher level of use amongst LGBT communities relative to the baseline population. Those substances include gamma-Hydoxybutyric acid in 2001, methylamphetamine (“Crystal Meth”) in 2005 and 2006 and both gamma-Butyrolactone (“GBL”) and 1, 4-Butanediol in 2008.

The ACMD planned service visits shortly before the date of his witness statement in November 2011 to a branch of London Friend (Antidote) which were part of the ACMD’s work on polysubstance and cocaine use.

On 25 October 2010 ministers were asked to approve the recruitment processes for three of the Home Office Advisory bodies including the ACMD. At that time the ACMD had 27 members, 10 of whom were due to stand down on 1 January 2011. Ministers were recommended to advertise for individuals to ensure that an appropriate balance of expertise was maintained. The recruitment included the position of Chair of the ACMD and eight other members. In particular ministers were recommended to advertise for individuals with the following areas of expertise: one GP, two in psychology/psychiatry, one in enforcement, one in chemistry, two in social sciences and one in law.

The recruitment of the GP was noted to be required as it was a statutory position on the Council pursuant to Schedule 1, paragraph 2(a) of the 1971 Act. Ministers were asked according to the guidelines published by the Office for the Commissioner for Public Appointments to nominate individuals to be considered for the post. Ministers approved the approach for the recruitment process on 1 November 2010 and the posts were advertised in the Sunday Times and on the Cabinet Office and ACMD websites on 2 November 2010.

There were 64 applications for ACMD member positions including that of Dr Raabe who was one of two applicants for the position of GP member. On 22 November 2010 a sift of applications was held by a panel comprising Dr Williams, Professor Les Iversen FRS, then acting Chair of the ACMD and Mr Tony Swabe, an OCPA accredited Independent Public Appointment Assessor.

The panel agreed that Dr Raabe should be invited for interview and he was interviewed on 13 December 2010 by the same panel as had conducted the sifting exercise.

During the interview Dr Raabe, in common with all candidates and as agreed with the OCPA accredited Independent Public Appointment Assessor, was asked: “Is there anything about your professional personal history which, if brought in to the public domain may cause embarrassment or disrepute to the organisation?” Dr Williams stated that Mr Swabe, who asked that question, clarified for all candidates that in that context the “organisation” applied both to the ACMD and the Home Office.

Dr Williams stated that Dr Raabe did not declare anything in response to that question. He started to refer to the political interests which he had held but was stopped short by Mr Swabe on the basis that, in line with OCPA guidelines, political affiliation played no part in the selection process. Dr Raabe confirmed that there was nothing he could think of which would cause embarrassment. This account was not challenged by Dr Raabe.

Dr Raabe is a practising general practitioner, who holds qualifications for the Royal College of General Practitioners, the Royal College of Physicians and the Diploma Examination for the Royal College of Obstetricians and Gynaecologists. He has a long standing interest in substance misuse and in 2003 obtained the Royal College of Practitioner’s Certificate (RGCPC) in the Management of Drug Misuse.

He was born in Germany 1964 and is a Christian of Catholic denomination. After moving to Leigh near Manchester in 1999 he became involved with the Maranatha community, which in his first witness statement he described as a dispersed community of men and women from all churches including Catholic, Protestant and Orthodox Christians. He stated that its work has been endorsed by a number of senior Church leaders of different denominations and by politicians from both Houses of Parliament.

Dr Raabe became involved in a Christian homeless charity in Manchester and said that he was very disturbed to see the grave toll which drug and alcohol addiction took on so many homeless people.

Dr Raabe said that in 2001 during an ongoing debate within the UK government to reclassify cannabis from a Class B to a Class C drug he became very concerned about the possible downgrading of cannabis. In association with the Maranatha community he organised a number of parliamentary consultations on drugs and drug policies in both Houses of Parliament and had been invited to speak in Parliament on drugs on drug misuse issues on a number of occasions. In conjunction with the Maranatha community he also started writing submissions to government and Parliamentary Select Committees on drugs and drug-related issues.

In 2005 whilst living in Toronto Dr Raabe co-authored the 2005 Paper. In his witness statement Dr Raabe stated that the main focus of the Paper was to preserve traditional marriage. He said that it was written because at that time in Canada there was an ongoing political debate to re-define marriage. That redefinition he said would involve a compete redefinition of traditional marriage. Because he considered traditional marriage as the basic building block of society he said that he was concerned about the impact on society in general and on families and children in particular should marriage be re-defined. In his view traditional marriage has been the predominant societal form for bringing up children for many centuries and throughout many including non-Christian societies. To redefine marriage therefore would lead to a serious change in the social fabric of society and to disregard the experiences of many societies throughout the world throughout time. He said that that was the starting point of the Paper and asserted that a significant proportion of it focussed on the benefits of traditional marriage and the adverse societal effects of family and marriage breakdown, especially on children.

Dr Raabe stated that the Paper was essentially a summary of peer-reviewed studies on various issues connected to the main topic of “gay marriage” and traditional marriage. In addition a number of, homosexual writers were quoted. He stated that all of the evidence quoted in the Paper had been in the public domain for many years. The Paper itself had been in the public domain since 2005. He had never published it himself but others had published it on various websites. It was sent by a Canadian women’s rights organisation called Real Women of Canada, an organisation which I was told at the hearing was in favour of preserving the status quo, to Canadian MPs who were debating a Bill in 2005 to change the definition of marriage and legalise same-sex marriage.

Dr Raabe said in his witness statement that his views had not affected his advice or the treatment which he had given anyone regardless of their practice or views.

The Paper was headed ‘Gay Marriage’ and Homosexuality – Some medical comments. There were seven co-authors including Dr Raabe. The other six were respectively a radiologist, a cardiologist, a paediatric neurologist, a family physician, a neurologist and a dermatologist.

The Paper was four pages long. It comprised the following seven headings: Background, Health risks of the Homosexual lifestyle, Homosexuality and paedophilia, ‘Gay marriage’, Biological evidence regarding gender development, Benefits of traditional marriage and Adverse effects of family breakdown. The format of the Paper was the making of a number of statements under each heading followed in each case by a series of bullet points apparently designed to support the statements. Some of them quoted sources, others made further statements and others expressed opinions. A number of statements or passages were highlighted in bold for emphasis.

In the Background section it was stated that despite the impression given by the media the actual number of homosexuals is quite small. “Essentially all surveys show the number of homosexuals to be only 1 – 3% of the population…The pressure for introducing same-sex marriages comes from a very small section of society”.

Under the heading “Health Risks of Homosexual Lifestyle” the Paper stated:

“The media portrays the homosexual lifestyle and relationships as happy, healthy and stable. However the homosexual lifestyle is associated with a large number of very serious physical and emotional health consequences. Many “committed” homosexual relationships only last a few years. This raises doubts as to whether children raised in same-sex households are being raised in a protective environment.”

There were four sub-points under the heading “Health Risks of the Homosexual Lifestyle as follows:

“A.

There are very high rates of sexual promiscuity among the homosexual population with short duration of even “committed” relationships.

B.

Among homosexuals, highly risky sexual practices such as anal sex are very common.

C.

Homosexuals have very high rates of sexually transmitted infections such as HIV which pose a major burden to the health service.

D.

There are increased rates of mental ill health among the homosexual population compared to the general population. Many studies show much higher rates of psychiatric illness, such as depression, suicide attempts and drug abuse among homosexuals than among the general population. The homosexual lifestyle is associated with a shortened life expectancy of up to 20 years.”

Under A there were five bullet points, each of which referred to a source but some of which were couched in language asserting a proposition of universal application, rather than summarising the findings of the particular study or source cited. Thus for example, having referred to a study of homosexual men said to show that more than 75% of homosexual men admitted to having sex with more than 100 different males in their lifetime, the second bullet point stated:

“Promiscuity among lesbian women is less extreme, but is still higher than among heterosexual women. Many “lesbian” women also have sex with men. Lesbian women were more than four times as likely to have had more than 50 lifetime male partners than heterosexual women. (Fethers K et al. Sexually transmitted infections and risk behaviours in women who have sex with women. Sexually transmitted Infections 2000; 76; 345-9.)”

The first sentence purported to be a general statement which on its face was not proved and did not follow from the third sentence which was presumably based on the cited source.

The third bullet point asserted that “Far higher rates of promiscuity are observed even within “committed” gay relationships than in heterosexual marriage”. However although two studies were cited, one showing that gay men have an average of 8 partners a year outside of their supposedly “committed” relationships and the other that gay men have sex with someone other than their primary partner in 66% of relationships within the first year, no sources or figures were quoted to show comparable figures in relation to promiscuity within heterosexual marriage. The fourth bullet point cited an online survey among nearly 8,000 homosexuals showing that 71% same-sex relationships lasted less than 8 years. No comparable figures were given for heterosexual relationships.

The fifth bullet point was in these terms:

This latter point, although quoting a source, was not based on a scientific or statistical study or analysis. Rather it expressed an opinion and extrapolated from a single source what purported to be a general historical fact based on what was described as an admission by “gay authors” as to the basis on which “gay liberation was founded”.

Under B the first bullet point asserted a general statement of fact as follows:

“The majority of homosexual men (60%) engage in anal sex, frequently without condom and even if they know that they are HIV positive.”

The source quoted for this proposition was a study of “Increasing Prevalence of Male Homosexual Partnerships and Practices in Britain 1990 – 2000. AIDS. 2004: 18: 1453-8.” Thus the findings of a geographically and chronologically confined study were cited in support of a factual assertion of apparently universal application.

The final bullet point made the point that while “always” condom use reduces the risk of contracting HIV by about 85% condoms even when used 100% of the time fail to give adequate levels of protection against many non-HIV STDs and that “the only safe sex is, apart from abstinence, mutual monogamy with an uninfected partner.” This point did not distinguish between homosexual and heterosexual practice but was cited as a point in support of the general bullet point that among homosexuals highly risky sexual practices such as anal sex is very common.

Under D the third and fourth bullet points were as follows:

“It is claimed, that the high rates of mental illness among homosexuals are the result of “homophobia.” However, even in the Netherlands, which has been far more tolerant to same-sex relationships and which has recently legalised same-sex marriages, high levels of psychiatric illness, including major depression, bipolar disorder (“manic depression”), agoraphobia, obsessive compulsive disorder and drug addiction are found. (A source was then cited).

Furthermore, if homophobia and prejudice were the cause of the high rates of psychiatric disorders and suicide attempts among homosexuals, one would similarly expect to find higher rates of suicide attempts and suicide among ethnic minorities exposed to racism. However this is not usually the case.”

I observe that no source was made for the latter proposition, which was couched in general terms. I also observe that both points give the impression of being deployed as arguments in support of an objection in principle to same-sex marriage on the basis that for a variety of reasons it is undesirable.

The bullet points under the heading “Homosexuality and Paedophilia” were as follows:

•

One well known historic example on the link between homosexuality and paedophilia is found in ancient Greece. Greek mythology is saturated with stories of paedophilia and ancient Greek literature praises paedophilia. The age group of boys that were used for “sexual pleasure” was probably in the range of 12 – 17. Male prostitution was very common with brothels in which boys and young men were available. There is evidence of an extensive trade in boys. (Churchill W. Homosexual Behaviour among Males. Hawthorn. New York. 1967)

•

There are links between paedophilia and homosexuality. The political scientist Prof. Mirkin wrote in a paper that: “paedophile organisations were originally a part of the gay/lesbian coalition…”. (Mirkin H. The pattern of sexual politics: Feminism, homosexuality and paedophilia. Journal of Homosexuality 1999: 37:1 – 24.). There is an overlap between the “gay movement” and the movement to make paedophiliaacceptable through organisations such as the North American Man/Boy Love Association (NAMBLA), as admitted by David Thorstad, Co-founder of NAMBLA writing in the Journal of Homosexuality. (Thorstad D. Man/Boy Love and the American Gay Movement. Journal of Homosexuality. 1990; 20: 251 – 74).

•

The number of homosexuals in essentially all surveys is less than 3%. (Statistics Canada found only 1% of the population who described themselves as homosexuals.) However, the percentage of homosexuals among paedophiles is 25%. (Blanchard R et al. Fraternal Birth order and sexual orientation in paedophiles. Archives of Sexual Behaviour 2000; 29: 463-78). Therefore, the prevalence of paedophiliaamong homosexuals is about 10 – 25 times higher than one would expect if the proportion of paedophiles were evenly distributed within the (hetero – and homosexual) populations.”

I comment on this section of the Paper below.

Under the heading “Gay Marriage” there were the following bullet points:

“

•

In a review of all the studies that purport to find no difference between children raised in families by same-sex parents and parents of different sex, major methodological flaws have been noted. For example, the studies have very small sample sizes, biased sample selection, or lack of control groups. (P. Morgan, Children as Trophies? Christian Institute. Newcastle upon Tyne, 2002).

•

Despite the limitations of the studies of same-sex parenting some differences are found. Children raised in same-sex parents are more likely to become sexually promiscuous and are more likely to become homosexual themselves. (Riggs SC. Co-parent or Second Parent Adoption by Same-sex Parents. (Letter) Paediatrics 2002; 109: 1193 – 4).

•

However, the main concern remains the inherent instability of same-sex marriages. In the above mentioned Dutch survey, the average length of a “committed” homosexual partnership was only 1.5 years. In the mentioned survey of nearly 8,000 gays 71% of relationships did not last a year. Furthermore, violence amongst homosexual partnerships is two to three times as common as in heterosexual relationships. Such an environment does not provide the stability required for raising children. Former homosexual Stephen Bennett who is married to his wife and has two children states: “Granting homosexuals the right to marry or adopt children is deliberately creating dysfunctional families.” ”

Under the heading “Biological Evidence Regarding Gender Development” the following bullet points were made:

“

•

A recent review by authors sympathetic to the gay movement shows clearly that homosexual development cannot be only determined by genes. Evidence from biology shows clearly that gays are not simply born that way. Environmental influences play a significant role in the development of gender identity and sexual behaviour (Bailey JM. Biological Perspectives on Sexual Orientation. In: Garnets LD and Kimmell DC: Psychological Perspectives on Lesbian, Gay and Bi-sexual Experiences. Columbia University Press, New York. 2003).

•

There is no convincing evidence for a “gay gene”. Indeed, if there were a “gay gene” those who carry it would probably be at a disadvantage in the natural selection process of evolution: “If there was a gene” this gene would cause a significant problem: homosexuality is associated with low fertility, indeed if a homosexual has only sex with same-sex persons he will have no offspring. (Bailey JM. Biological Perspectives on Sexual Orientation. 2003)

•

One way of finding out whether a condition is genetically determined is to examine the behaviour of identical twins (who have the same genetic material) and comparing them with non-identical twins. It is assumed, that twins grow up in the same environment. There have been several studies investigating whether the identical twin brothers of homosexual men are also homosexual. Concordance (both identical twins being homosexual) was found in only 25 – 50% of identical twin pairs. “Genes” therefore cannot entirely explain homosexual orientation and behaviour. (Pillard RC and Weinrich JD. Evidence of Familial nature of male homosexuality. Archive of General Psychiatry. 1986: 42; 808 – 12. King and McDonald E. Homosexuals who are Twins. A study of 46 probands. British Journal of Psychiatry. 1992; 160: 407 – 9).

•

Recently, a study was published by Professor Spitzer, a prominent psychiatrist. He is viewed as a historic champion of gay activism by playing a key role in removing homosexuality from the psychiatric manual of mental disorders in 1973. In his study he examined whether a predominantly homosexual orientation will, in some individuals, respond to therapy. He examined two hundred respondents of both genders who reported changes from homosexual to heterosexual orientations lasting five years or more. He writes: “Although initially sceptical, in the course of the study, the author became convinced of the possibility of change in some gay men and lesbians.” Although examples of “complete” change in orientation were not common, the majority of participants did report change from a predominantly or exclusively homosexual orientation before therapy to a predominantly or exclusively heterosexual orientation in the past year as a result of reparative therapy. These results would seem to contradict position statements of the major mental health organisations in the United States, which claim there is no scientific basis for believing psychotherapy effective in addressing same-sex attractions. (Spitzer RL. Can some gay men and lesbians change their sexual orientation? 200 participants reporting a change from homosexual to heterosexual orientation. Arch Sex Behav 2003; 32: 403 – 17; discussion 419 – 72. – further evidence see www.narth.com.).”

Under the heading “Benefits of Traditional Marriage” the following bullet points were made:

“

•

In reviews by Professor Oswald, Professor of Economics at Warwick University, UK it was found that marriage reduces mortality. The excess mortality of men who are not married is similar to the excess mortality by smoking. Marriage has a much more important effect on longevity than income does. For men, the effect is positive and substantial. It almost exactly offsets the large (negative) consequences of smoking. For women, the effect is approximately half the size of the smoking effect.

•

Marriage is associated with greater happiness, less depression, less alcohol abuse and less smoking. Marriage gives a beneficial effect in terms of reducing alcohol abuse especially for men and reducing depression for both men and women.

•

Health benefits of marriage appear to be limited to marriage. Co-habitation does not confer the same degree of benefit than marriage. Formal marriage itself seems to matter. In the few studies that compare marriage and co-habitation, the result end to show a beneficial effect from being married. (Gardner J, Oswald A, Is It Money or Marriage that Keeps People Alive?) August 2002. Wilson CM and Oswald AJ: How Does Marriage Affect Physical and Psychological Health? A Survey of the Longitudinal Evidence (January 2002: both papers available on Prof Oswald’s website – see “further reading”.”

I observe that this section of the Paper was silent on the question of what if any evidence existed or what if any inferences could be drawn as to the equivalent benefits or lack thereof of homosexual marriage.

Under the heading “Adverse Effects of Family Breakdown” the following bullet-points were made:

“

•

At the root of many of the problems we see in children and young adults – such as emotional and behavioural difficulties, poor school performance, substance misuse, precocious teenage sexuality including teenage pregnancy and juvenile delinquency – is the dramatic increase in family break-up and “relationship turnover” of parents, adversely affecting their children (for an overview see: Rebecca O’Neill. Experiments in living. CIVITAS. 2002)

•

As a result of family breakdown, children have on average more ill-health including higher mortality, emotional problems (including a higher suicide rate).

•

Children from broken families have poorer school performance including poorer performance in maths, reading and writing.

•

Children from broken families are more likely to live in poverty. As a result of family breakdown, many single parent families live in poverty.

•

Children from broken families are also more likely to have problems with substance misuse and poor sexual health including teenage pregnancy.

•

Furthermore, children from broken homes are more likely to be engaging in criminal activity and are disproportionally over-represented in the prison population.

•

In a study of more than 170 US cities, a clear link between divorce rate and crime was found. Low rates of divorce were associated with reduced crime rates. (Sampson RJ, Crime in Capital Cities. Tonry and Morris Eds, Crime and Justice Chicago 1992)”

The 2005 Paper concluded with a section headed Further reading listing the following:

“Health risks of gay sex, Effects of family breakdown on children and society, marriage research and Therapy of homosexual orientation.”

Dr Raabe was invited to become a member of the ACMD by Mr Brokenshire in a letter dated 10 January 2011. The letter said that the appointment would be for three years in the first instance commencing 1 January 2011 and ending 31 December 2013 unless terminated before that date for any reason. Dr Raabe accepted the invitation by letter dated 12 January 2011.

The Home Office issued a press release on 19 January 2011 announcing the appointment of a new chairperson and nine new members including Dr Raabe to the ACMD. It stated in notes to editors that:

“All appointments are made on merit and political activity plays no part in this election process. However, in accordance with the original Nolan recommendations, there is a requirement for appointees’ political activity (if any declared) to be made public. (Dr Hans-Christian Raabe declared political activity, standing in 2009 as MEP candidate in the North West region for the Christian Party/Christian Peoples Alliance Party)”.

On 20 January 2011 Dr Raabe’s appointment attracted comment in the media. Mark Easton, the BBC’s home editor posted a blog on the BBC news website under the headline “Another ACMD member threatens to quit”. He said that he understood that at least one member of the ACMD was so incensed by the appointment of Dr Raabe that he was considering resigning. The Home Office, which prompted seven resignations when it sacked ACMD Chair Professor David Nutt, might find itself facing yet more as it tried to replace those who had gone.

Mr Easton referred to the fact that Dr Raabe had long argued that the ACMD had been dominated by “groups and organisations that promote “liberal” drug policy or may even support the legalisation of drugs”. However he said that it was less Dr Raabe’s views on narcotics and more his opinions on homosexuality that were causing fury. He said that in 2009 Dr Raabe had stood as MEP candidate in the North West region for the Christian Party/Christian Peoples Alliance Party and was a leading light in what he described as the Manchester-based Maranatha Community which was dedicated to “re-establishing Christian values in society”. He said that it was an organisation with very strong anti-gay views and had briefed MPs against measures for homosexual rights. He said that one member of the ACMD had told him that afternoon: “The Council prides itself on basing its views on evidence. This man put his name to documents which included very questionable views … his appointment makes me extremely uncomfortable.”

Mr Easton quoted from a pamphlet which he said Dr Raabe had helped to write a few years earlier in which the Maranatha Community warned that drug problems were part of “a morally self-destructive society”. He said that the views of the Maranatha Community could lead to some frosty moments inside the ACMD committee room. Existing members were avowed “harm-reductionists” and regarded Dr Raabe’s appointment as provocative. However he said that he was informed that more than one member of the committee was gay or lesbian and it was Dr Raabe’s views on homosexuality which might lead to an ACMD member quitting.

Dr Williams said that after Dr Raabe’s appointment had been agreed by the selection panel he, as Chair of the panel, received the political activity declarations from the Home Office science recruitment team so as to inform Ministers. In accordance with OCPA Code of Practice they were held separately from the applications and had not been seen by the interview panel. Due to the contents of Dr Raabe’s declaration form in which he disclosed that he had previously stood for election for the Christian Party/Christian Peoples Alliance Party in European elections an internet search on his political activities was undertaken to inform ministers. It identified web pages relating to his activities for the Christian Party/Christian Peoples Alliance Party and evidence provided to a parliamentary committee on abortions. However it had not revealed the 2005 Paper or the views expressed within it. The advice on appointments to the ACMD provided to Ministers on 16 December 2010 had included Dr Raabe’s declared political activity.

On 20 January 2011 Dr Williams said that Dr Raabe contacted him to alert him to the fact that the Times newspaper had been in contact with him regarding his association with the Maranatha Community. On the same afternoon the Home Office had been alerted via the Press for the first time to Dr Raabe’s authorship of the 2005 Paper. At that point for the first time the existence of the Paper on the website of the Catholic Education Resource Center was established and a copy downloaded.

Dr Williams said that he contacted Dr Raabe by telephone later that day to notify him of the increasing media coverage. He said that Dr Raabe informed him at that stage that he did not consider his views on homosexuality relevant to drug misuse.

Dr Williams said that he provided an urgent briefing to Ministers regarding the 2005 Paper by email late on 20 January 2011. The email was marked for the attention of the Defendant and copied among others to Mr Brokenshire. It said that Dr Raabe’s appointment had “caused some controversy in the media … as he has been linked with at least one religious group (Maranatha Community) that are associated with strong opinions about homosexuality.” It was said that it had been reported in the press that one member of the ACMD was threatening to resign over the appointment. It was said that Dr Raabe’s opinions were not known at the time of his appointment. He had declared activity for the Christian Party/Christian Peoples Alliance Party. Along with other interviewees Dr Raabe had been asked in accordance with OCPA guidelines if there was anything in his personal history which could if brought into the public domain bring the Council into disrepute and he had advised that there was not, over and above his political activity. In the email Dr Williams said that he had spoken to Dr Raabe, who was currently in Germany and that he had indicated that he considered his views not relevant to drug misuse and that when on the Council he would only speak on issues relating to drug misuse.

Dr Williams proposed to ask Professor Les Iversen to canvass the opinion of ACMD members to see if Dr Raabe’s appointment was likely to disrupt the smooth running of the ACMD and its ability to provide advice and also to gather further information about Dr Raabe’s views in order to make a fuller assessment of them and their compatibility with the role of ACMD. That approach was said to be informed by the consideration that there was no clear breach of the appointment process and that there did not appear to be a clear basis to demonstrate that Dr Raabe had breached the Nolan Principles which govern the behaviour of advisory committee members. Therefore removing Dr Raabe from the ACMD without evidence that his appointment would adversely affect the function of the Council was highly problematic.

On 21 January 2011 in an internal Home Office email Mr Brokenshire’s Assistant Private Secretary stated that her Minister had made the following comments regarding the advice that Dr Williams had provided the previous evening:

“The Minister is disturbed by this issue and that given the one of the issues the ACMD needs to do is to gain a better understanding of drug use within the LGBT community where there are specific issues.

The Minister has added that another new appointee … will add some extra depth in this regard. He also stated that had we known the details which had now been made public, he would not have agreed to Dr Raabe’s appointment. Given the need for work around LGBT drug use, Dr Raabe’s continued membership is likely to be highly problematic. He would also like to know what the exact vetting process was for the application and interview stage for all applicants. He also agrees that Professor Iversen’s views should be canvassed urgently on the potential impact on the committee. But please can you advise as to if this canvassing will also involve Dr Raabe’s being approached as we are inclined to think that the Minister would want to be as open as possible but would like to know what Professor Iversen advises regarding canvassing the whole of the committee which now includes Dr Raabe.”

This was followed also on 21 January 2011 by a formal submission to Mr Brokenshire, the Minister for Crime Prevention and the Defendant. The submission was from Professor Bernard Silverman, Chief Scientific Advisor. The issue was described as follows:

“Dr Hans-Christian Raabe was appointed to the [ACMD] with effect from 1 January 2011. Subsequently media reports on the BBC website have brought to light his involvement with the publication on homosexuality that contains views inconsistent with those of government.”

The timing was said to be urgent and in a section headed “Summary and Consideration” reference was made to the fact that Dr Raabe had been judged by the appointment committee to be the only appointable candidate in the statutory category as a member with wide and recent expertise in the practice of medicine. Reference was made to Mr Easton’s blog concerning Dr Raabe’s connections with the Maranatha Community which was described as a religious group associated with strong opinions on homosexuality and to the report in the blog that one member of the ACMD was considering resignation over his appointment. Reference was made to Dr Raabe’s disclosure of his candidacy for MEP in the North West region for the Christian Party/Christian Peoples Alliance Party both in his application and at interview. It was said that Dr Raabe’s opinions on homosexuality were not known at the time of his appointment. The 2005 Paper was described as fairly obscure and as not having been found on a Google search carried out in the light of his declared political activity by the Chair of the interview panel.

The submission attached as an annex the 2005 Paper published on-line by the Catholic Education Resource Center with an associated note to the reader stating that the article sought to further understanding and not to expose gays and lesbians to hatred or intolerance. That note did not appear in what appeared to be the original version of the 2005 Paper exhibited by Dr Raabe.

The contents of the 2005 Paper were summarised as follows:

“Making heavy reference to other publications, the article claims that (1) the homosexual lifestyle is associated with a large number of very serious physical and emotional health consequences; (2) many “committed” homosexual relationships only last a few years raising doubts about whether children raised in same-sex households are being raised in a protective environment; (3) there are a disproportionately greater number of homosexuals among paedophiles and there is an overlap between the gay movement and the movement to make paedophilia acceptable; (4) studies seem to suggest that children raised by the same-sex parents may be more sexually promiscuous and more likely to become homosexual; (5) homosexuality is neither an entirely innate condition nor is it unchangeable … “it is possible to change sexual orientation” (6) heterosexually married couples are, on average, healthier and have fewer psychological problems; and (7) “gay marriage”, with its inherent instability, contributes to the many adverse effects family breakdown has on children and on society.”

Professor Silverman wrote that at interview all candidates were asked if there was anything in their past which, if brought into the public domain, would cause embarrassment to the ACMD or the Home Office. Dr Raabe had stated that there was not, only referring to his political activity which had already been declared. He had not disclosed his authorship of the article described or any association with the views contained therein. Reference was made to the conversation between Dr Williams and Dr Raabe on 20 January 2011 in which Dr Raabe had indicated that he considered that any views he might have on homosexuality were not relevant to drug misuse and that when on the ACMD he would only speak on issues relating to drug misuse.

Professor Silverman identified two options: immediate dismissal and “actively investigate and consult further, in particular allowing Dr Raabe to make his own representations, with further advice to follow to enable you to make a decision by 31^st January.” He identified arguments for and against both options.

For immediate dismissal it was said that the assessment of officials was that there were very strong grounds for saying that Dr Raabe’s co-authorship of the 2005 Paper was wrongly not disclosed by Dr Raabe at his interview. The Department could reasonably take the view that the appointment was not based on material facts and it should properly be terminated.

Against immediate dismissal there was a risk of legal challenge. Dr Raabe had not been approached to confirm whether he continued to endorse the content of the 2005 article. It could be expected that he at least be asked whether he endorsed the comments published and attributed to him. Next any immediate decision without consulting the ACMD could provoke a negative reaction from its members or others. Next there was a strong public movement which believed that the views of certain Christian groups were being unfairly marginalised and that could lead to negative media attention and could also be taken by those groups as a cause célèbre or even evidence of religious discrimination. Finally Dr Raabe held a statutory position within the ACMD. His instant dismissal without immediate replacement could mean that it could be regarded as not being properly constituted.

As to the second option the arguments identified in favour were that it provided Dr Raabe with an opportunity to clarify his position and allowed time for consultation with OCPA and the Cabinet Office Propriety and Ethics Team. It also allowed, if the Minister agreed consultation with the ACMD itself to establish if they were content to work with Dr Raabe giving him an opportunity to put his case to the Department that he could be a functioning member of the Council. The effective functioning of the ACMD could be considered to be implicit in the exercise of the Defendant’s duty under the 1971 Act and consultation with the ACMD on the issue was in line with the way that Government and the ACMD intended to work together under the protocols currently in draft.

The Department through the recruitment process had satisfied itself that Dr Raabe had the required expertise to fulfil the position and went through a competitive process of selections.

Against the second option it was said that it might appear that the Ministers were absolving themselves of the responsibility of making a ministerial appointment. In addition it should not be for the ACMD to make decisions on appointments to the ACMD. That responsibility was held by the Defendant. In addition the second option did not deal immediately with the issue that Dr Raabe held the views described, especially in the context of the Defendant’s position as Minister for Equality.

Professor Silverman recommended the second option. There should be further active investigation and consultation by officials with the expectation that the Minister would be provided with further advice within a week. In addition he recommended that the Minister should agree to officials consulting appropriately with the ACMD through its Chair.

There then followed a lengthy section of the submission under the heading “Handling”. Reference was made to an article in the Times and Mr Easton’s blog and it was stated that the claim of the media coverage was that Dr Raabe’s views on homosexuality and his membership of the Maranatha Community were incompatible with his appointment to the ACMD. It was stated that the media could potentially push “us” to take one of three decisions in coming days – to dismiss Dr Raabe immediately, to suspend him pending further enquiries or to keep him in post and take the view that his personal opinions were a private matter and did not affect his ability to give advice on drug misuse. It was said that any action taken would be scrutinised and questioned by the media and as such it would be important to demonstrate due process.

It was said that an immediate dismissal could appear reactionary. A considered approach where clarification from Dr Raabe was invited and there was consultation within ACMD would be preferable and would help to build a strong narrative “when we come to explain our actions publicly”. Should the outcome of enquiries result in Dr Raabe’s dismissal it was likely to provoke familiar debate around traditional values verses the liberal elite. Elements of the media could represent it as a further attack on Christian values but the severity of the publications to which Dr Raabe had put his name including linking homosexuality with paedophilia would mitigate that point.

It was said that if Dr Raabe were to remain in post his views on a range of other issues were likely to be reported on. In addition to the 2005 Paper it was said that another publication to which he was believed to be linked could attract attention. It was a leaflet entitled “The State of The Nation” which had been attributed to Dr Raabe by Mark Easton in his blog. The content was said to describe the UK as morally and socially bankrupt and to include the phrase “the holocaust of abortion”. It was said that leaving Dr Raabe in post could precipitate actions by ACMD members unhappy about his continuing presence on the committee and consequently negative commentary in the press. Reference was made to Mr Easton’s claim that a member of the ACMD was considering stepping down as a result of Dr Raabe’s appointment. It was said that the question might therefore be raised about whether the ACMD could continue to function should he remain in post and were no action to be taken.

While the link had yet to be made by the media it was said that the fact that Dr Raabe was appointed by the Defendant could anger equality groups given her dual role as Equalities Minister. Such groups could seek to generate further publicity in an effort to get Dr Raabe removed from the Council. It was worth noting that that followed the Home Office recently being named by Stonewall as top employee for gay people in the UK.

It was said that the Press Office recommended that, given that no decision was likely to be taken until the following week, the following holding line should be used over the weekend in the event of any media calls: “A Home Office spokesperson said: ‘We are currently looking into this matter’”. In offering that brief line it was said that “‘we’ are attempting neither to indicate one preferred course of action over another” but that “‘we’ are actively engaged in discussions on this matter.”

On 23 January 2011 there were two internal emails in the Home Office. The first noted that Dr Raabe was the only appointable GP on the basis of expertise as a GP. The second responded by stating that there were only two candidates for the statutory place for a GP and that it was understood that on the basis of the expertise and experience of the candidates Dr Raabe was the only candidate found suitable at interview.

Also on 23 January 2011 there was further media coverage in the form of an article in the Observer containing quotes from Dr Raabe. Late on 23 January 2011 Dr Raabe emailed Dr Williams expressing concern over media comment and stating “I realise that you’re having a potentially serious public relations problem here and I am sorry that it has come to this situation.” He said that he would write to Professor Iversen to clarify the position and to “apologise for the distress caused”.

On 24 January 2011 there was a further written submission to the Defendant and Mr Brokenshire. Two versions appeared in the papers, one of which may have been a draft. One version repeated the statement that media reports had brought to light Dr Raabe’s involvement with a publication on homosexuality which contained views inconsistent with those of the Government. It recorded that following the 21 January submission the Ministers had asked for further advice on the immediate termination of Dr Raabe’s appointment. It was reported that Dr Raabe had indicated that he considered any views he might have on homosexuality not relevant to drug misuse and that when on the Council he would only speak on issues relating to drug misuse. Reference was made to an email from Dr Raabe to the Department stating that “quite a few of the very negative press comments I really don’t recognise in that things are being attributed to me that I never said or wrote” and that “some of the “evidence” … is based on documents that were written several years ago, some even five or one I am sure more than ten years ago”. It was reported that Dr Raabe had requested that he speak with officials that day.

It was stated that Dr Raabe held a statutory position within the ACMD and that if he were dismissed since there was no other appointable candidate with such expertise a further recruitment process would need to take place.

It was recommended that if Ministers decided immediately to terminate Dr Raabe’s appointment they consider the handling approach which followed.

In a section headed “Handling” reference was made to coverage in the Daily Mail and the Observer, the former welcoming Dr Raabe’s appointment and suggesting that his supportive family values and hard line on drugs would benefit the ACMD, the latter reporting Dr Raabe’s views on homosexuality and saying that his appointment had been met by surprise from the drugs sector.

It was then said that if Ministers moved to dismiss Dr Raabe without consultation with the ACMD there was a risk of media reporting it as the government interfering with the Council, calling into question its independence. It continued:

“Given the sensitivities of the relationship between Government and the council and the [redacted] it would be preferable to have the ACMD calling on the Home Secretary to dismiss him, making it clear this is not a decision that has been imposed on the Council. While this would mean we are unable to dismiss Dr Raabe immediately, it would demonstrate due process when we come to explain our actions. You should note, any row around Government’s interference with the council may not just be limited to the ACMD and drugs policy, but broaden into the value Government places on independent scientific advice in general.”

It is not clear to me whether the version of the 24 January 2011 submission which contained this passage was a draft or the final version. I am bound to say that on its face I found this a troubling passage. On one reading it might be taken as suggesting that consideration should be given to dressing up any decision on the part of ministers to dismiss Dr Raabe as having been prompted by a request from the ACMD which in fact itself would have been solicited by the Department. Whether or not that is the correct reading of the passage, nothing turns on it because in the event it did not lead to any action. The ACMD did not call on ministers to dismiss Dr Raabe and there is no evidence that ministers or officials sought to persuade them to do so.

There was a repetition of the point previously made that any decision to remove Dr Raabe was likely to provoke a familiar debate around traditional values verses the liberal elite. Elements of the media could represent it as a further attack on Christian values, possibly criticising the Government for “policing” people’s private views. However the severity of the publications he had put his name to, which included linking homosexuality with paedophilia, would mitigate that point. In addition given the coverage in that day’s Daily Mail, it would also be said that the ACMD were unhappy with a “hardliner” being on the Council.

It was said that should Ministers decide to dismiss Dr Raabe immediately it would be helpful to find out, ahead of any decision, if reports by Mr Easton the previous week that another member of the ACMD was planning to step down as a result of Dr Raabe’s appointment were correct. Should a member threaten to step down “we” could also argue that Dr Raabe’s presence on the Council meant that they were unable to do their job effectively.

It was said that leaving Dr Raabe in post could precipitate actions by the ACMD’s members unhappy about his continuing presence on the committee and consequent negative commentary in the press. Reference was again made to Mr Easton’s claim that a member of the ACMD was considering stepping down as a result of Dr Raabe’s appointment. The question might therefore be raised whether the ACMD could continue to function should Dr Raabe remain in post and no action was taken.

Dr Williams stated in his witness statement that further advice was provided to Mr Brokenshire on 24 January 2011 in which the option of revoking Dr Raabe’s appointment due to his non-disclosure of the 2005 Paper was raised. He said that that advice was discussed at a meeting between officials and the Minister during which the Minister made it clear that a full and proper process should take place and that Dr Raabe should have the opportunity to state his case and for the facts of the case to be firmly established. The Minister requested that a telephone conversation take place between Dr Raabe, Dr Williams and Professor Silverman, the purpose of which was to confirm that Dr Raabe had co-authored the 2005 Paper, to understand his current position and to establish whether he still held the views expressed in the Paper.

Later that day Dr Williams said that he contacted Dr Raabe in accordance with the Minister’s wishes. He said that during the conversation Dr Raabe confirmed that he was co-author of the 2005 Paper. He said that he did not retract any of the statements made in the Paper but said that he thought that “the tone was in retrospect, a bit harsh” and that he acknowledged that “certain people would find themselves attacked by it.” He said that Dr Raabe also said that he “struggled” to see what this issue had to do with drugs policy. He said that a summary of the telephone conversation and a transcript was provided to Ministers for consideration.

The transcript of the conversation between Dr Williams, Professor Silverman and Dr Raabe contained the following passages:

“Can you confirm you authored the Canadian paper on homosexuality?

That paper was written by a group of people in Canada because of the decision in Canada to legalise same-sex marriage and obviously there was lots of discussion and we felt it would be good to make some comments.

Were you a co-author of that report?

Yes that is correct.

Do you still stand by the statements made?

I have not read it recently. I think some of the statements probably are somewhat strident and I recognise could be seen as offensive to some people. Perhaps I would not quite, in the same situation again, I probably would perhaps be a little less strident and more conciliatory… I think the tone was in retrospect a bit harsh. I could see certain people would find themselves attacked by it. I could see that, … obviously the aim or focus of that paper was on a political discussion … I was looking at a political decision on whether or not to legalise same-sex marriage… I think the general tone was harsh and I can understand some people would take issue with certain points. We believe we have researched the topic thoroughly. We have very much tried not to say anything without having it backed up by at least one or several sources… I struggle a little bit to see what this issue has to do with advising on drug policy?

Some of the concerns we have had here are the ACMD does provide advice, considering issues on certain drugs, for example GBL which is prevalent in the LGBT community. Just thinking about that, and would some of the views expressed in this article prejudice your advice?

I really don’t think so. I could reassure you I would look at the pharmacological profile of GBL and the data we have. I don’t think that would have any effect at all on my judgment. I am described as a raging homophobe [in press reports]. That is simply not the case. I can very clearly differentiate between medical evidence without letting any personal views I have on a subject interfere with that. I understand Mark Easton said some gay people on the ACMD could find it offensive. I am sorry if they find me offensive, I would not find them offensive.

You were asked at interview if there was anything in your personal or professional history that may cause embarrassment?

I remember that question; I did not think it would cause [embarrassment]. Everything you refer to has been in the public domain for many years, it’s nothing new. I was criticised [in the media] for writing a [ ] in 2004. Maybe I was a little bit naïve; I didn’t think this would cause any offence at all…

The section about homosexuals and paedophiles that was picked up in the Observer. What do you think about what is said in the Canadian paper on that issue?

This is very very problematic, a very hot topic. I seem to recall it’s from a paper by a man called Blanchard, a forensic psychiatrist in Toronto. He looked at sexual offences and from my reading of that paper he found a disproportionate number of gays among sexual offenders, including paedophiles. The other thing I seem to remember is that we were quoting what an overlap between the lesbian and gay movement and the movement for paedophiles, written by someone who is sympathetic to paedophiles. This was what was quoted based on a forensic psychiatrist and on an activist within the movement. I accept this is a very problematic thing and could easily be misunderstood. I am not here to condemn. That was not the intention against any person or individual. There’s a big discussion going on in Germany about a children’s home where there has been a lot of child abuse. It’s been described very clearly there’s always been an overlap between these two movements; that has been recognised for quite a while now. If that causes offence I apologise but I had what are scientific studies that have been published.

Anything else that we ought to be aware of that could be embarrassing?

I have had my fingers burnt with something; I didn’t think there was a problem. Could you tell me what you believe might be a problem? My first thought without question was criminal offence. To my knowledge I have never committed a crime, I’m not aware of anything else. I have probably caused enough embarrassment to the Home Office.

Obviously criminal offences are one thing. Any written views or exchanges you have expressed to individuals that could come out into the public domain that could be embarrassing for whatever reason? …

No

Can I ask what’s going to happen next? I had a telephone message from the Sunday Times asking me to give an interview. I want to ask your advice – what’s the next step? [Pass it on to Press Office – Les Iversen is the only spokesperson for the ACMD]

I will do that – can you comment on comments that at least another member is threatening to resign?

I can’t because I have only read what you have read.”

In a supplemental witness statement dated 10 June 2011 Dr Raabe said that the transcript was incomplete. He said that he was asked whether he would retract the 2005 Paper and said that he said that he could not retract scientific evidence or statements made by others that were quoted in the Paper. He denied having been asked if he would distance himself from the statements or views expressed in the 2005 Paper.

He said that he said in the conversation that the Paper was “a bit harsh” or “could be seen as offensive” because he was aware that some would view the Paper in that way. He said that he said that in order to show that he fully understood that it was a controversial subject (albeit on an unrelated topic to the work of the ACMD) and to reassure the Home Office that it would not affect his judgment when dealing with drug related issues relating to the homosexual community and his sincere willingness to cooperate with the ACMD.

On 24 January 2011 a written submission was sent to the Defendant and Mr Brokenshire reporting on Dr Williams’ telephone conversation with Dr Raabe. Under the heading “Summary and Consideration” the following was stated:

“At your request to ensure proper process a conversation was held with Dr Raabe on the afternoon of 24 January to discuss the recent press coverage regarding his appointment to the ACMD (full transcript at Annex A). Dr Raabe was polite, helpful and apologetic throughout the conversation.

Dr Raabe confirmed he was the author of the [2005 Paper]. He stated that this was written at a time of political controversy in Canada in relation to the legal position of same-sex marriage.

Dr Raabe stated that, with hindsight, he could see that the Paper was presented in a strident manner because of the purpose for which it had been written and it might have been better if the tone was more measured. He apologised if any offence had been caused.

However Dr Raabe did not distance himself from the views expressed in the Paper, but he did stress that the authors were careful to ensure that any statement made in the Paper was backed up with references. During the conversation Dr Raabe was given several opportunities to distance himself from the view expressed in the Paper which he did not take.

The section in the Paper that refers to the link between homosexuality and paedophilia was raised specifically and Dr Raabe quoted the sources the authors used in the papers for the opinions expressed. He did not in any way retract the overall conclusions about links between paedophilia and homosexuality.

Dr Raabe questioned why his views on homosexuality would be considered important in the context of drug misuse.

It was pointed out to him that the ACMD periodically advises on substances that may be particularly misused by the LGBT community. To this Dr. Raabe stated that his views would have no impact on the advice or his contribution to the ACMD, and he would only comment on the pharmacology, toxicology and medical aspects of the substance, without reference to his personal views.

Dr. Raabe was asked why he did not declare this paper during the interview when asked to declare anything that may cause embarrassment to the Home Office or ACMD. He stated that he remembered this question and considered it to refer to criminality. He also noted that this paper was in the public domain. He noted he might have been “naive” in [sic] considering that this paper would not have been a source of embarrassment.

When asked if there was anything else that might cause embarrassment to the Home Office he stated after a time for thought that he did not consider there was.”

The recommendation in the submission was that the ministers should note the summary of the conversation and if they chose to terminate the appointment or to forewarn Dr. Raabe of their intention of giving him a chance to put his case a handling advice would be prepared in line with that provided in the earlier submission.

On 25 January 2011 Dr. Raabe wrote a long e-mail headed “In Confidence” to Dr. Williams to clarify certain points arising out of their telephone conversation. He said that at his interview he was genuinely not aware of anything that would cause embarrassment to the Home Office regarding his appointment as advisor on drugs. He said that what now appeared to cause “embarrassment” were his personal beliefs and views which were essentially orthodox views held by the traditional Christian teaching of all the major Churches as it would be held by Jews or Muslims who have “orthodox” views of their faith. He said that if Christian views were not acceptable to the Home Office or if those views caused embarrassment that started being dangerous ground in that the Home Office position could be perceived as discriminating on the basis of belief.

He said that drug policy had nothing to do with views on homosexuality as it applies to all people equally irrespective of race, religion, beliefs and sexual orientation. If drugs policy had something to do with homosexuality “you need to ask the other ACMD members of their views on this subject too – would you agree? The reason I am writing this – and forgive me if I am being paranoid here – is that, reading between the lines, you/the Home Office are examining whether there is any way in which you can annul my appointment. If I am completely wrong in this and am being paranoid please forgive me. However it would be good to have reassurance that I am wrong in my impression. ……I have been working as a doctor for 18 years and have never had any complaints or concerns expressed towards me that I would be discriminating against gay or transsexual patients. Indeed I would say that I always treat gay or transsexual people with special respect. I would do exactly the same on the ACMD. …….my views regarding homosexuality are based mostly on reading “gay writers”. It was “gay authors” who first acknowledged (and I could provide you with many citations from “gay authors”) the link between the “gay movement” and the movement to further paedophilia. If now – so it appears – gay people are offended by what other gay people have written about the “gay movement” then I respectfully suggest that this is not really my problem.

I however accept that to mention this link in a paper regarding “gay marriage” in Canada was probably not helpful in this context and I could offer to say that I would, if I could turn the clock back and were to be involved in a similar publication in a similar context (please remember this was a political context discussing proposed legislation to legalise same sex marriage in Canada in early 2005) that I would not mention this particular issue. …..”

Also on 25 January 2011 Dr. Williams said that following consideration of the summary and transcript of the telephone conversation provided to him Mr. Brokenshire requested that a letter to Dr. Raabe be prepared allowing him to have a further and full opportunity to make representations regarding his position. He said that it was agreed that the letter should come from someone not involved in Dr. Raabe’s recruitment or in communications until that point to ensure that the seriousness of the communication was clear to Dr. Raabe. Accordingly Mr. Alan Pratt, the Director of Science, Engineering and Technology of Home Office Science was identified as the appropriate individual.

A draft letter to Dr. Raabe was sent to the minister for clearance. The letter was attached to a written submission from Dr. Williams dated 26 January 2011. It repeated for the third time under the heading “Issue” that media reports had brought to light Dr. Raabe’s involvement with a publication on homosexuality that contained views inconsistent with those of the Government. Dr. Williams recorded that following the submission of Professor Silverman on 24 January and the discussion regarding the telephone conversation with Dr. Raabe Mr. Brokenshire had asked for a letter to be sent from the Department asking Dr. Raabe formally to communicate his views on the issues raised following his appointment.

Dr. Williams highlighted that the draft letter stated that because of Dr. Raabe’s failure to declare the 2005 Paper and because of its contents the Home Office was minded to reconsider his appointment to the ACMD and asked if he would like to comment in response. The letter also asked if, in light of the position and embarrassment caused to date, Dr. Raabe wished to inform the Department if there was anything else that could cause embarrassment that he would wish the Department to take into account.

Dr. Williams recorded that it had been agreed that Mr. Pratt would sign the letter. He had not previously been in contact with Dr. Raabe during the recruitment process or subsequently and did not ordinarily work with the ACMD and therefore should Dr. Raabe remain on the ACMD it would not adversely affect working relationships. It also signalled an escalation of the issues.

Dr. Williams said that by sending the letter it allowed for due process should Dr. Raabe be dismissed from the ACMD. He said that the letter gave Dr. Raabe until Tuesday 1 February 2011 to reply. He said that was slightly less than a week which would be ideal but should allow for an assessment of his response and a decision to be made and communicated before the Minister met the ACMD on 7 February.

Dr. Williams said that there was a risk that Dr. Raabe would put the letter in the public domain before responding to it. However he said that it took care to specify the grounds that Dr. Raabe was being questioned on and did not bring into question his professional competence.

Under the heading “Handling” Dr. Williams reported that the issue continued to generate coverage which had been broadly speaking critical of Dr. Raabe’s appointment pointing out that it was incompatible given the Home Secretary’s equality brief. However he had received some support specifically from the Daily Mail who had welcomed the appointment of someone with traditional Christian beliefs onto the ACMD. It was worth noting that Dr. Raabe appeared to have provided a quote to a right wing American news website stating that his views on homosexuality were irrelevant and that the ACMD was in danger of believing that “if you are a Christian you are unfit for public office.”

As in a previous submission there was reference to the likelihood that any decision to remove Dr. Raabe would provoke further debate around traditional values versus the liberal elite. Should the Minister decide to dismiss Dr. Raabe Dr. Williams said that “we will need to be clear he failed to disclose information in his interview that could bring the Government or the Council into disrepute. Conversely should he remain in post “we can expect considerable criticism from the gay lobby and left wing media for employing someone with such extreme views as an official advisor to the Government”.

In his witness statement Dr. Williams said that on 27 January 2011 the Minister agreed to the letter being sent but asked for the deadline to be put back a day from that which had been proposed to ensure that Dr. Raabe had as long as possible to consider and present his case. It was agreed to give him six days to respond. The letter was accordingly sent to Dr. Raabe at 9.49 a.m. by e-mail and followed by a hard copy on 27 January 2011.

The letter, signed by Mr. Pratt sought further information relating to Dr. Raabe’s appointment to the ACMD. It referred to the fact that since Dr. Raabe’s appointment it had, as he was aware, been brought to wide public attention that, as he had acknowledged in his telephone conversation with Dr. Williams on 24 January, he co-authored the 2005 Paper. It said that the Paper expressed controversial opinions, inter alia around the issue of homosexuality and paedophilia and its emergence into public prominence had caused embarrassment to the Department.

The letter referred to the fact that in interview Dr. Raabe in common with all other candidates had been asked whether there was anything about his professional or personal history which might cause embarrassment or disrepute to the Home Office or ACMD. It said that he did not declare his authorship of the 2005 Paper nor was it listed on his curriculum vitae submitted in his application.

The letter continued:

“Because of your failure to declare this paper, and because of its contents, the Home Office is minded to reconsider your appointment to the ACMD and I am writing to give you the opportunity to make any comments you wish in response. Given the nature of this issue the Department would welcome your response by Wednesday 2 February.

It would also be helpful in your response if you could, in light of the position and embarrassment caused to date, inform the Department if there is anything else that could cause embarrassment that you would wish the Department to take into account.

The Department’s concern is irrespective of your religious beliefs, views on drug misuse or declared political activity. We do not in any way question your expertise as a General Practitioner knowledgeable in drug misuse issues.”

Dr. Raabe replied to Mr. Pratt in a letter dated 2 February 2011. He started by stating that there was no suggestion that any disrepute to the Home Office had been caused. The issue therefore was whether he made proper disclosure of matters in his professional and personal history and whether the Home Office had justifiable cause to revoke his appointment to the ACMD.

Dr. Raabe said that he had not referred to the 2005 Paper in his curriculum vitae or at interview for 4 reasons:

He asserted that a complaint about failure to disclose the Paper or about its contents could only be substantiated after a proper evaluation of both the Paper itself and the evidence on which it was based. The mere fact that some might not like the factual evidence set out in it or dispute the conclusions drawn on it ought to form no basis for revoking his appointment to the ACMD for in that event the Home Office would be acting on mere hearsay and without regard to the facts. That would be a flagrant breach of the principles of natural justice. He noted that those aspects of the Paper that were said to be objectionable or wrong had nowhere been specified so that he had no opportunity to address such points. He was sure that objective and dispassionate assessment of the Paper would show no just cause for revoking his appointment.

As to embarrassment, Dr. Raabe said that in his conversation with Dr. Williams on 24 January 2011 he had specifically asked him what was meant by “anything that could cause embarrassment”. As Dr. Williams had been unable to give him a clear answer he said that he would be grateful if Mr. Pratt would list the issues on which there might be embarrassment to the Home Office so that he could address his enquiry with greater precision.

He asserted that the principles of natural justice suggested that any embarrassment which was said to have been caused must result from proven failures on his part either in not making proper disclosure or with regard to the contents of the 2005 Paper. He repeated that there had been no failure on his part so that there was no legitimate reason for revoking his appointment to the ACMD. He asserted that the Home Office was seeking to review his membership of the ACMD on grounds which were not relevant to membership of the Council.

He said that the same principles required embarrassment to be objectively defined and determined. Nobody should be embarrassed by research evidence or legitimate opinion. He asserted that the 2005 Paper was essentially a summary of research. It drew on scientific papers that were in the public domain which had been subject to peer review. It would be surprising to find that the Home Office could possibly conceive scientific research date of that kind to be embarrassing. He asked Mr. Pratt to specify exactly which sentences, statistics, quotations and data in the Paper were said to be the cause for embarrassment.

Dr. Raabe said that Mr. Pratt’s letter raised a number of matters of concern which, given their seriousness, must necessarily be addressed with due particularity. In order to formulate his response he sought clarification of the identity of the person or persons by whom the review was being conducted, whether it was anticipated that the review was to be conducted by examination of documents or following a meeting with him, if he was to be given access to all documentary information relied on for the purposes of the review if it was to be conducted on paper, if the review was to take the form of a hearing whether he had the right to be accompanied or represented at such a meeting and whether it was envisaged that he would be granted a right of appeal.

Dr. Raabe asserted that he should not be discriminated against on the basis of his personal beliefs or opinions, especially those having no bearing on his remit as a member of the ACMD. In that context he asked whether other members of the ACMD had been or would be asked to state their position in relation to matters concerning homosexuality.

Dr. Raabe said that as a consequence of these issues being raised he had recently been subjected to the most vicious and hate-filled personal abuse which he had ever known in his life.

Dr. Raabe referred Mr. Pratt to the Maranatha Community website and asserted that it was a mainstream and respected Christian movement with thousands of members and close links to national Christian leaders.

On 3 February 2011 Professor Silverman sent a submission to Mr. Brokenshire copied to the Defendant attaching a copy of Dr. Raabe’s letter of 2 February 2011.

Under the heading “Issue” the reference to the 2005 Paper which in the three earlier submissions described it as containing views inconsistent with those of the Government now described it as containing views “that have caused some embarrassment to Government”.

The timing was described as urgent. If the Minister took a decision by Thursday 3 February it could be communicated ahead of his meeting with the ACMD on 7 February. Under the heading “Summary and Consideration” Dr. Raabe’s letter was described as written in terms which were naturally aggrieved but also measured and polite and expressing a willingness to work cooperatively with “us”. The following points in the letter were highlighted. Dr Raabe had:

The points raised in the letter were addressed in an annex. It was stated that any decision to remove Dr. Raabe was likely to provoke further public debate around the issues of “traditional values” and freedom of expression. His dismissal could attract criticism both from those who saw it as an attack on “Christian” or “traditional” values and from those who even if they disagreed with him would see it as an affront to religious freedom or freedom of speech.

It was noted that his dismissal could be interpreted as giving in to a “harm reductionist” agenda. “We” had good reason to believe that Dr. Raabe was very happy to engage politely in discussion with those of different views from his own and that he had no intention of being personally disruptive on the Council.

Reference was made to the assertion in the media that some ACMD members could resign as a protest against the appointment. It was reported that a small number of ACMD members had held informal discussions with the chair of the ACMD and it was understood that they had raised concerns over both that and one of the other new appointments. There might be at least a letter from some ACMD members on the matter but as yet there had been no formal representation.

Should Dr. Raabe remain in post there might be further criticism for appointing someone with his views to an advisory body to the Government. The Department had received about 500 e-mails opposing the appointment.

At the time of writing the media attention had died down and dismissing Dr. Raabe would re-ignite the issue. In addition no formal objection to Dr. Raabe’s or any other new appointments had been received from members of the ACMD. If Dr. Raabe were dismissed and subsequently took legal action, regardless of its outcome, it could significantly adversely affect the smooth functioning of the ACMD and its ability to provide timely advice to Government. In addition as a holder of a statutory position on the Council for which there was currently no immediately appointable alternative, dismissing Dr. Raabe would result in the requirement to commence a further recruitment campaign during which the ACMD would not be statutorily constituted. Retaining Dr. Raabe on the ACMD might cause some internal friction within the ACMD and the possibility that one or more members might resign in protest but that possibility also existed if he were dismissed. The Chair had informally expressed the view that he believed the situation could be managed and Dr. Raabe himself had stressed his willingness to work with all members of the ACMD for example explicitly stating in the telephone conversation that he was not in any way offended by the presence of gay colleagues.

Professor Silverman wrote that some aspects of Dr. Raabe’s past publications which had now come to light might cast some doubt on his strength as a scientist. However it was not in that capacity that he was appointed.

Whatever decision was taken it was important to note that the appointment was to a statutory position on the ACMD required to be filled by a GP. It had not yet been disclosed that the other candidate was found by the appointing committee not to satisfy the minimum requirement. Dr Raabe’s expertise as a GP with practical knowledge and experience of drug-related issues had been explored carefully by the appointing committee and was not in doubt.

If the minister decided to retain Dr Raabe on the ACMD it was proposed that Professor Silverman would write to him reminding him of the importance of upholding the Nolan Principles. If he determined that the appointment should be terminated further legal advice would be provided following further consideration of the points raised in Dr Raabe’s letter.

Professor Silverman recommended that the Minister consider two options. The first was that Dr Raabe should remain on the ACMD and that a letter be sent to him emphasising the importance of that hearing to the Nolan Principles. The second was that his appointment be terminated with immediate effect. Dr Raabe’s letter asked for a fuller and more transparent review before any action of that kind was taken. Dr Raabe had now had a reasonable period in which to explain himself and it was unclear what further purpose a review would serve. Dr Raabe had given no reason to think that there were additional facts relevant to his article or his failure to disclose it which were currently unknown by the Department and which would, if known, materially affect its decision. In reaching a decision in either direction the Department was entitled to balance the need to have a full knowledge of relevant facts against the need to act with reasonable speed to avoid Dr Raabe and the ACMD being mired in a protracted controversy.

On balance Professor Silverman’s recommendation was to retain Dr Raabe on the ACMD to minimise the risk of significant disruption to the ACMD’s smooth functioning.

In a section headed “Handling” it was stated that should the minister decide to dismiss Dr Raabe “we” would need to be clear that he had failed to disclose information in his interview that could bring the government or the Council into disrepute. Conversely should he remain in post “we” could expect considerable criticism from gay lobby groups and elements of the media for employing someone with such extreme views as an official advisor to the Government. Should “we” extend the deadline of “our” decision media might note that the minister was due to meet with the ACMD, including Dr Raabe, on 7 February. Although it was a closed meeting the fact that it was taking place was public knowledge and there was a chance that the content of the meeting could be briefed to media.

Annex C to the submission addressed points raised by Dr Raabe in his 2 February 2011 letter. It included the following:

“Disclosure

Dr Raabe states that no reference was made to the Paper in his application or interview because:

(a)

it has no relevance to matters which fall within the remit of the ACMD

This point is arguable, as the ACMD frequently consider the misuse of new substances that appear to be used largely within nightclubs favoured by the LGBT community. However Dr Raabe, citing his own treatment of LGBT patients within his medical practice nevertheless maintains that his views are irrelevant and would not influence his judgment.

(b)

Whilst some might not be prepared to accept the factual evidence cited in the Paper, that does not make it wrong.

Dr Raabe has stressed that in the Paper all assertions are based on reference material. Whilst this appears to be the case, and a full scientific assessment of this Paper has not been undertaken, it could be considered that the Paper selectively cites research work to demonstrate a point.

(c)

Neither the Home Office nor the ACMD should be embarrassed by factual evidence or brought into disrepute by upholding.

See above

(d)

I was asked whether “anything would come to light” that would cause embarrassment: the Paper was in no way hidden from view – it has been in the public domain for five years, would readily be disclosed by an internet search and could have been easily and quickly accessedby those responsible for vetting my application.

Whilst the Paper is in the public domain, Dr Raabe’s co-authorship is not easily identifiable as asserted. Owing to the declaration of political activity an internet search was conducted on Dr Raabe. This Paper, nor the views expressed within, were not found on an internet search under Dr Raabe’s name alone. Only when, retrospectively, searching the internet using Dr Raabe’s name together with additional search terms relevant to the Paper, such as “gay health”, is the Paper found. Searching on the paper with the name of the first author (Shea) finds the Paper, not Dr Raabe, but without using the additional search terms or the first author the Paper is not readily found. It would therefore be a matter of argument whether the paper was easily found especially given the difficulty of establishing the way internet search engines would have worked at the time the appointment was made.

Note also that Dr Raabe uses the term “vetting” – note that ACMD members are not vetting for high level security clearance as they do not need to access to, in the course of their work, classified material.

Embarrassment

Dr Raabe claims that his position appears to be undermined by “embarrassment” caused to the Home Office, but there is no clear objective definition of “embarrassment” in this context.

The question at interview that requests applicants to disclose anything that may cause embarrassment to the organisation is a question set out by OCPA and one asked for all appointments to advisory committees. However OCPA do not, as far as I am aware, provide a definition of “embarrassment”.

Dr Raabe also asks if the Department could specify exactly which sentences, statistics, quotations and data in the Paper are said to be a cause for embarrassment.

Some external observers have concentrated broadly on his (supposed) views on homosexuality, without being specific to any point raised in the Paper and in some cases attributing personally to him views that of organisations. Others have quoted the link in [sic] Paper makes between homosexuality and paedophilia, which may be considered to have caused particular embarrassment.

Dr Raabe asks numerous questions in relation to the review, which assert that a longer and more detailed review is required.

As noted in the body of submission, advice from LAB [the internal legal department in the Home Office] was that that was not necessary.

Dr Raabe asks whether other members of the ACMD have been, or will be, asked to state their position in relation to matters concerning homosexuality and whether there are any circumstances in which their answers will result in them being investigated.

There is no such intention to ask ACMD members their views on homosexuality or other issues.”

In an internal Home Office email addressed to Dr Williams and Mr Brokenshire and copied to the Defendant Mr Brokenshire’s Private Secretary stated:

“Ministers have now considered [Professor Silverman’s] submission and found that the key factors here are:

(i)

the non-disclosure of the information, and

(ii)

the impact on the smooth running of the Committee and the ability of Dr Raabe to be able to respond to provide balanced advice on drugs issues affecting the LGBT community.

Consequently Ministers find that Dr Raabe should be dismissed and the GP post re-advertised.

I would be grateful if you could provide a suitable letter and covering submission for James Brokenshire’s signature as soon as possible. Clearly it is important that this letter should issue today. The Minister has also asked that you ensure LAB has agreed the content of the letter…”

Dr Williams in his witness statement stated that ‘the Ministers’ response to the advice from officials which had been submitted on 3 February 2011 was received on 4 February 2011. ‘The Minister’ indicated that Dr Raabe’s appointment should be revoked due to his non-disclosure of the 2005 Paper, the potential impact on the smooth running of the ACMD and the ability of Dr Raabe to provide balanced advice on drugs issues affecting the Lesbian Gay and Bi-Sexual and Transgender (“LGBT”) community.

The draft letter was prepared to be sent to Dr Raabe revoking his appointment and was then amended by the Minister prior to being sent to Dr Raabe. On 4 February 2011 Mr Brokenshire sent a letter to Dr Raabe, approved by him and signed in his absence, informing him that he had decided to revoke his appointment to the ACMD. The letter was in the following terms:

“The emergence of your authorship of the [2005 Paper] into the wider public domain, not disclosed by you in your interview and application, has raised concerns over your credibility to provide balanced advice on drug misuse issues affecting the lesbian, gay, bisexual and transgender (LGBT) community and impacts on the smooth running of the Advisory Council on the Misuse of Drugs (ACMD). Therefore I have decided to revoke your appointment to the ACMD.

The Department considers that your failure to disclose your authorship of this Paper raises serious issues of judgment and a failure to appreciate that the views expressed in it could affect your credibility as an advisor on drug misuse issues.

I have carefully considered your letter to Alan Pratt of 2 February 2011 and would respond to the points you make as follows

Disclosure

You state that your Paper was irrelevant, was not “wrong”, should not be embarrassing and was in the public domain. I disagree that your Paper has no relevance to your role on the ACMD: as stated above it has the potential to undermine the credibility of its advice.

I disagree that it is necessary to effect a fuller evaluation of your Paper and the sources on which it is based. I consider that it is readily apparent your Paper is polemical and assembles material in a way in which disparages gay people and their lifestyles and relationships.

I do not accept that the fact that your Paper may have been publicly accessible absolved you from the need to mention it when invited to do so at interview. The views expressed in your Paper are such that if we had known of them at the time of your interview they would have prevented or inhibited your appointment.

Embarrassment

The Department re-iterates that the emergence of your Paper is embarrassing and to have an advisor who holds views expressed within the Paper could impact on the effective functioning of the ACMD. The Department takes equality issues very seriously, and under section 149 of the Equality Act 2010 it must, in the exercise of its functions, have due regard to the need, among other things, to eliminate discrimination, to advance equality of opportunity between persons who share a relevant protected characteristic (e.g. sexuality) and persons who do not share it and to foster good relations persons who share a relevant protected characteristic and persons who do not share it.

Review Process

The Department does not intend to establish a review process. In responding to correspondence you have now had a reasonable opportunity to explain your position. You have given no reason for us to believe that there are additional facts relevant to your article or your failure to disclose it which are currently unknown by the Department and which would, if known, materially affect our decision. In determining that the Department now has a knowledge of all relevant facts, it is entitled to take into account the need to act with reasonable speed to avoid you and the ACMD being mired in a protracted controversy.

Other issues

The Government accepts that in principle policy-making is enhanced if it is informed by a wide range of perspectives. However, in this case we believe that this consideration is out-weighed by the need to ensure the effective functioning of the ACMD and the weight placed on its advice.

I can confirm that other members of the ACMD are not questioned as to their views on homosexuality, just as you were not questioned until your Paper came to light.”

Mr Dingemans QC, who appeared for Dr Raabe with Ms Crowther, submitted that the decision to revoke Dr Raabe’s appointment was in breach of the principles of natural justice. Dr Raabe was not given a fair opportunity to respond to the points made against him. Had such an opportunity been provided he had a complete answer to the charges.

First it was procedurally unfair to take into account the fact that the Government did not share the views on homosexuality expressed in the 2005 Paper. That issue was never put to Dr Raabe. Furthermore the appointment was advertised as non-political and therefore the government’s views on homosexuality were irrelevant to the application and appointment process. This point featured again as one of the allegedly irrelevant factors taken into account in the decision.

Second the matters raised in the 4 February 2011 letter had not been put to Dr Raabe before the revocation of his appointment. The two specific matters which according to the letter led to the revocation of Dr Raabe’s appointment were (a) that the 2005 Paper “raised concerns over your credibility to provide balanced advice on drug misuse issues affecting … the LGBT community” and (b) that the Paper was “polemical and assembles material in a way which disparages gay people and their lifestyles and relationships”. They had not been put to Dr Raabe before they were formulated in the letter and Dr Raabe had not had an opportunity to answer them. He had an answer to those charges, namely that whatever his personal beliefs about the rights or wrongs of homosexual sexual relations he would advise, treat and serve, and had advised, treated and served, everyone equally. The 2005 Paper had been written in a specific context of the same sex marriage debate in Canada. It was based on scientific evidence and was not polemic. It relied on peer-reviewed materials. The Defendant’s attitude appeared to be based on a discriminatory and stereotyped assumption that persons holding Dr Raabe’s relevant religious belief are unable or unwilling to work with the LGBT community, which is wrong.

Next Mr Dingemans submitted that the decision to revoke was unlawful in that it took into account irrelevant considerations. He relied on the well-known principle enunciated by Lord Slynn in R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23, [2003] 2 AC 295 at paragraph 50 that: “If the Secretary of State … takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside”.

The allegedly irrelevant considerations allegedly taken into account in the decision to revoke Dr Raabe’s appointment were said to be (1) the fact that the Minister was also responsible for Equalities (2) that the Defendant wished to promote itself as a potential or actual employer of LGBT groups and (3) that Dr Raabe held views not consistent with those of the Government.

It was submitted that the Defendant displayed a misunderstanding of Equalities legislation, which protects the absolute freedom of individuals to hold beliefs and makes both sexual orientation and religious beliefs protected characteristics. The Defendant’s considerations were influenced by irrelevant considerations such as political embarrassment caused by media scrutiny of the decision in respect of Dr Raabe’s religious beliefs and the views expressed in the 2005 Paper. They were not relevant considerations to Dr Raabe’s appointment. They had no bearing on his ability to act on an advisory council as a GP with up-to-date experience of drugs misuse issues.

Mr Dingemans further submitted that the decision to revoke Dr Raabe’s appointment was irrational in the sense of not being reasonably open to the Defendant. Given that the effect of the decision was to interfere with Dr Raabe’s fundamental human right to hold and manifest religious beliefs any interference must satisfy the test of “anxious scrutiny” – see Preddy v Bull [2012] EWCA Civ 83; [2012] 1 WLR 2514 at paragraphs 56, 58 and 59 and R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173 at paragraph 58.”

The following matters were relied on under this head. First no one had suggested or could reasonably suggest that Dr Raabe’s views represented those of the Defendant and it was irrational to formulate the issue in those terms. Second, holding the views in the 2005 Paper or publishing the Paper either in the context of the debate about same-sex marriage in Canada in 2005 or generally could not be contended to be a bar to being a member of the ACMD. Reliance was placed on Redfearn v The United Kingdom (European Court of Human Rights, 6 November 2012) which noted that the provisions of the ECHR were “applicable not only to persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb”.

Third the Defendant’s decision that there would be disruption to the smooth running of the ACMD was said to be impermissible. The evidence advanced to the Minister was that such disruption was just as likely as a result of dismissal of Dr Raabe as through his retention. There was no lawful basis on which the Defendant could have relied on disruption of the smooth running of the ACMD given the evidence that there would be no greater disruption and the Defendant should not have taken that into account and made it a basis for the decision. That is particularly so in circumstances where it was noted that Dr Raabe was the only appointable GP.

Fourth the Defendant applied a standard of disclosure against the criterion of “embarrassment” which no reasonable decision-maker could have applied. The criterion was vague, the Defendant refused to define it and (whatever its proper meaning) it was not infringed on the facts of this case. The 4 February 2011 letter suggested that the failure to disclose the 2005 Paper raised serious issues of judgment and thereby concluded that it constituted a material non-disclosure of “embarrassing” facts. The section of the letter headed “embarrassment” addressed matters which were wholly irrelevant to the question of what objectively and properly constitutes “embarrassment in this context”.

Under the heading “unlawful” Mr Dingemans submitted that the Defendant did not have a right to terminate the appointment of Dr Raabe unless he was in breach of the terms and conditions of his appointment. The Defendant had not suggested and could not sensibly suggest that Dr Raabe had breached the terms of his appointment. In those circumstances the decision to revoke was not open to the Defendant and was unlawful.

In his written submissions Mr Dingemans submitted that the decision to revoke was further unlawful because it took into account discriminatory views regarding Dr Raabe’s religious beliefs which were based on incorrect assumptions about his ability to advise, treat and serve members of the LGBT community. In fact his ability to do so was not adversely affected either by his membership of the Marantha Community or by his religious beliefs, as proved by his successful practice as a GP. At the hearing Mr Dingemans accepted and clarified that Dr Raabe was not advancing a claim under the Human Rights Act or the Equalities Act. This was not advanced as a separate ground of challenge but rather as part of the irrationality challenge.

On behalf of the Defendant Mr de la Mare submitted that the 2005 Paper was not, as contended by Dr Raabe, “factual” “scientific research” or a balanced review of research material but was, or was reasonably considered by the Defendant to be, “polemical” and “assembling material in a way which disparages gay people and their lifestyles and relationships.” In particular the 2005 Paper advanced the assertion that “it is of grave concern that there is a disproportionately greater number of homosexuals among paedophiles and an overlap between the gay movement and the movement to make paedophilia acceptable.” The purpose of such linkage was clear: to demonstrate for political lobbying purposes the unsuitability of gay couples to marry and have a family. Such comments in the 2005 Paper were made without balance, context or a relevant review of all of the relevant strands of scientific literature/studies.

Mr de la Mare submitted that the capacity of the 2005 Paper to cause grave offence and generate distracting controversy was not only self-evident, particularly when presented as “medical opinion”, but was also demonstrated by the fact that, upon Dr Raabe’s appointment and the discovery of his role in co-authoring the 2005 Paper shortly thereafter, an entirely predictable storm of controversy descended. After giving Dr Raabe an adequate opportunity to be heard, the Defendant decided on 4 February 2011 to revoke his appointment to the ACMD, essentially on the basis that his failure to disclose his authorship of the 2005 Paper deprived the Defendant of information material to his suitability for appointment (as well as being an error of judgment in its own right) and had Dr Raabe’s views expressed in the 2005 Paper been known at the time of the appointment decision they would have “prevented or inhibited [his] appointment”.

In summary the challenge on the basis of fairness failed because Dr Raabe was given every chance to explain whether he wrote the 2005 Paper, which he admitted, whether he stood by the views articulated in it, which he did and defended at the time as “factual” or “scientific”, and whether the 2005 Paper was relevant to his appointment, particularly whether it might cause embarrassment or offence by its tone or content.

As to the allegedly irrelevant considerations taken into account into the decision to revoke, they were abstracted from isolated passages from civil service submissions taken out of context and represented no part of the revocation decision itself or even the path to it.

As to the rationality challenge, it was entirely reasonable to revoke Dr Raabe’s appointment to a public office position requiring engagement with, amongst others, the LGBT community which has particular patterns of drug misuse on learning of Dr Raabe’s co-authorship of the 2005 Paper. The Defendant was more than entitled to conclude that he should have disclosed his authorship of the Paper and that the original decision to appoint was flawed, because it was taken without this relevant consideration being taken into account. That was enough to invalidate the original appointment decision.

If, as he submitted they were, the contents of the 2005 Paper were a consideration relevant to Dr Raabe’s suitability for the post, the contention that the Defendant had no power to revoke the appointment was hopeless. Like any public law decision it could be revoked or withdrawn if there were public law grounds for doing so.

Mr de la Mare submitted that there was no basis for the suggestion, albeit not one articulated as a separate ground of challenge, that Dr Raabe was being impermissibly penalised for expressing his religious views. Article 9 of the ECHR guarantees only absolute entitlement to hold religious views. It does not guarantee absolute protection to the manifestation of them. In any event the 2005 Paper could not fairly be called a manifestation of religious beliefs. For instance it is no part of any Christian belief system that gay people are more prone to paedophilia or have a higher incidence of mental illness. The Article 9 ECHR right does not create a right to make public statements that cause offence with immunity simply because the making of them is in some way religiously motivated. The relevance of such past public positions to civil service or public appointments where the public as a whole must be served and be willing to be served was self-evident.

Further at the time of the revocation decision Dr Raabe did not advance or defend the views in the 2005 Paper on the grounds of religious expression but rather on the basis that they were “actual” or “scientific” and founded upon research, which they were plainly not in any sensible understanding of the term. The Defendant was fully entitled to take into account the embarrassment/offence stemming from the expression of disparaging or polemical opinions in an article that purported to be medical in nature particularly when appointing to a medical post.

Central to Mr de la Mare submissions was the proposition that the fact of Dr Raabe’s co-authorship of the 2005 Paper was relevant, indeed highly relevant, to the original decision whether to appoint him to the ACMD. If it was and the Defendant would have been entitled to take it into account when deciding whether to appoint Dr Raabe in the first place, he was entitled to revoke the appointment on the basis that (i) it should have been disclosed by Dr Raabe (ii) if it had been disclosed he would not have been appointed and (iii) the fact of him not having disclosed it was itself a reason justifying revocation of the appointment. Indeed the question was not whether the fact of Dr Raabe’s co-authorship was relevant to the initial decision to appoint him and should have been disclosed but rather whether that fact could reasonably be considered by the Defendant to be relevant to the initial appointment decision and a matter which should have been disclosed.

Mr de la Mare submitted that the revocation decision proceeded on the following bases:

1.

Its central conclusion was that the 2005 Paper was a relevant consideration in any appointment, because of its polemical nature and the way in which it disparaged gay people and their lifestyle.

2.

For that reason the 2005 Paper (and the embarrassment it engendered) raised relevant concerns over the ability of Dr Raabe/ACMD to work with the LGBT community and the credibility in the LGBT community of ACMD advice.

3.

Had its contents been known at the time of interview it would have affected or inhibited Dr Raabe’s appointment. His appointment was accordingly revoked.

Mr de la Mare submitted that the 2005 Paper was an ostensibly scientific or medical article. That he submitted was borne out by the title, which expressly indicated that it contained “medical comments” and by the prominent display of Dr Raabe’s and his co-authors’ medical qualifications. That he submitted was a stance maintained by Dr Raabe in his Amended Grounds of Claim which described it as “based on scientific evidence”, in his second witness statement in which he described it as “a scientific review of the relevant research available in 2005” and as “setting out scientific research” and in Mr Dingemans’ skeleton argument where it was described as “relying on peer reviewed material.”

By contrast the Defendant’s decision was premised on the basis that, viewed objectively, the 2005 Paper was a polemical, disparaging or, more bluntly, anti-gay opinion piece. It sought to link supposed scientific “facts” with a thesis that gay people are not suited to marry or to have a family. If that view of the Defendant was at the lowest a reasonable one, based on an objective reading of the 2005 Paper, then that must have a bearing both on (a) the nature and scope of any opportunity to be heard which was required, once Dr Raabe’s authorship was admitted and the views expressed in the 2005 Paper were not retracted – on that basis the fairness issue is simply whether Dr Raabe had a fair opportunity to explain whether he should have and/or why he did not disclose the 2005 Paper – and (b) the rationality of the Defendant’s subsequent judgement about the embarrassing nature of the 2005 Paper, the relevance of its non-disclosure and the implication of its contents for Dr Raabe’s ability to work within the ACMD and with the groups with whom ACMD must cooperate.

Mr de la Mare submitted that even on superficial scrutiny the 2005 Paper was anything other than factual or scientific in method. The clearest example he submitted was the section on homosexuality and paedophilia. He submitted that the purported link between homosexual orientation and child abuse is a highly controversial topic as Dr Raabe himself recognised in the telephone interview on 24 January 2011, not least for the offence that suggesting any such linkage undoubtedly causes to the homosexual community as also recognised by Dr Raabe.

Mr de la Mare submitted that, whereas neither the revocation decision nor these proceedings are the place for a scientific or final resolution of whether or not there is any such linkage, such a conclusive investigation is not necessary in order to see the obvious deficiencies of the 2005 Paper.

Thus the contents of the first two bullet points in this section were demonstrably non-medical in nature and unscientific in the way that they reached their conclusions. They were no more than vehicles for a pre-conceived and controversial opinion.

As for the third bullet point it employed a statistical argument to demonstrate a supposed linkage between homosexual orientation and paedophilia: if, say, 25% of reported incidents of child sexual abuse involve a male abuser and a male child victim in circumstances where, say, 3% of the male population is homosexual such shows, so it was argued, a substantially higher prevalence of paedophilia amongst homosexuals.

Mr de la Mare submitted that such an argument breaks down if sexual abuse and paedophilia are not the same thing, for example because sexual abuse may occur to inflict humiliation or confer a feeling of power rather than sexual arousal or gratification and/or in fact knowing the sex of molester and victim was no proper basis to infer the adult or normal sexual orientation of the molester.

Mr de la Mare submitted that the unsafe nature of that statistical argument was evident from materials which Dr Raabe himself put before the court. The study, Sex offending against Children: understanding the risk by Don Grubin (Police Research Paper 99) cited by Dr Raabe to support the contention that “approximately 20-33% of child sexual abuse is homosexual in nature” in fact demonstrated, when fairly read, only the complexity of the situation and the false nature of the statistical argument advanced by the 2005 Paper. It did so by distinguishing between sexual abuse and the narrower condition of paedophilia, the term employed by the 2005 Paper and by expressly pointing out that the sex of the victim of child sexual abuse “does not appear to reflect, however, sexual orientation towards adults” noting that a study that showed that even in a pool of offenders who had victimised exclusively boys between the age of five and ten, two thirds of the offenders had adult heterosexual preferences.

Such highly contestable statistical claims of a linkage between homosexuality and paedophilia, particularly ones not attempting to engage with the full complexities of sexual orientation in this context, were for that reason viewed by the gay community as based upon a false premise and, as such, a recurrent smear premised upon a recurrent false inference as to the sexual orientation of a child molester from his or her sex and the sex of their victim.

No balanced, fair or responsible treatment of such a sensitive topic, under the guise of medical opinion or a review of scientific research, could approach the matter in the way which section 3 of the 2005 Paper did. If there are rival analyses supported by evidence, a scientific paper would reflect that fact as well as areas of uncertainty in moderate language, rather than using the unequivocal and adjectival language employed by the 2005 Paper. Mr de la Mare submitted that it was in truth as, he submitted, Dr Raabe’s current case now made clear, the concealed expression of a religious opinion under a thin scientific veneer, which was neither balanced in its selection of material nor in its tone nor its conclusions. As Dr Williams put it in his witness statement:

“I use the term “views” [to describe the contents of the 2005 Paper] advisedly, as the Paper is written in an unbalanced way that includes personal opinion”.

Mr de la Mare submitted that it requires little explanation as to why linkage of homosexuality with a supposed increased predilection to be paedophilia is liable to cause grave offence as is the supposed overlap “between the gay movement and the movement to make paedophilia acceptable”, a claim introduced in the 2005 Paper without, as Mr de la Mare submitted, any attempt to identify or qualify the materiality of the supposed overlap. He submitted that that was merely the most striking example of a paper which provoked in similar fashion in a number of respects. The material commenting on his paper provided by Dr Raabe gave an idea of the controversy engendered by the opinions expressed in it.

The Defendant was thus right to conclude or at the very least was entitled reasonably to conclude that the 2005 Paper was polemical and disparaging of gay people. The defects with the Paper as a piece of balanced and responsible science were manifest and the views it expressed, even if religiously motivated, were self-evidently likely to cause substantial offence.

As regards natural justice Mr de la Mare submitted that the answer to the complaint that it was procedurally unfair to take into account the fact that the government did not share the views on homosexuality expressed in the 2005 Paper because that issue was never put to Dr Raabe is that that formed no part of the reasoning in the revocation decision or the process leading up to it. What was taken account of was the manner of expression of Dr Raabe’s views, namely a polemical/disparaging opinion attack of an offensive nature under the guise of science, the relevance of those views to the work of the ACMD and the fact that those views had not been disclosed.

In response to the complaint that Dr Raabe had been given no notice of the Defendant’s view that his authorship of the 2005 Paper affected his ability to work with the LGBT community and that it was polemical and/or disparaging Mr de la Mare made the following submissions. The first point was said to have arisen in response to Dr Raabe’s contention in his telephone conversation with Dr Williams on 24 January 2011 that he struggled to see what the 2005 Paper had to do with advising on drug policy. Dr Williams had responded to that that some of the concerns “we” had “here” were that the ACMD provided advice considering issues on certain drugs, for example GBL which was prevalent in the LGBT community and had asked Dr Raabe whether some of the views expressed in the article would prejudice his advice. Dr Raabe had also contended in his letter dated 2 February 2011 that no reference was made to the 2005 Paper in his Curriculum Vitae or at interview because it had no relevance to matters which fell within the remit of the ACMD.

Mr de la Mare submitted that the Defendant was entitled to conclude that Dr Raabe’s expression of views was a relevant consideration because they bore upon his suitability for appointment to a public-facing office which required periodically to work with amongst others the LGBT community, of which sections had their own distinct patterns of recreational drug misuse and innovation. He referred to the points made by Dr Williams in his witness statement that an important aspect of the work of the ACMD was to consider the issue of drug misuse in the particular context of the LGBT community, and that if the ACMD included a member with the views expressed in the 2005 Paper which were considered unacceptable to and highly offensive by many members of the LGBT community, there would be cause for concern as to whether it would still receive the co-operation from the LGBT community necessary for it to obtain evidence to carry out its functions. A further cause for concern might be that advice emanating from the ACMD would not have credibility within that community.

Mr de la Mare submitted that the LGBT community was one whose trust and confidence needed to be maintained and to whom the Defendant owed duties pursuant to the Equality Act 2010. He was entitled so to conclude and state in the revocation decision by way of response to Dr Raabe.

In any event Mr de la Mare submitted that the entire process of reconsidering the appointment decision because of the 2005 Paper was self evidently relevant because of the embarrassment it caused in the form of lost trust on the part of the LGBT community with which the ACMD had to work. That was specifically addressed in the telephone interview with Dr Williams in which Dr Williams adverted to the concerns as to the impact the 2005 Paper coming to light might have upon the ACMD’s ability to provide advice to and work with the LGBT community. That had been in response to Dr Raabe’s claim that his views were of no relevance. Dr Williams had given as an example the issues surrounding the drug GBL, which he said was a drug of choice in the LGBT clubbing community. He submitted that it was clear from that telephone conversation that Dr Raabe was well aware that at issue was the offence caused to the LGBT community and the consequences it entailed for the ACMD’s work, as his comments showed.

As to the point made in the revocation letter that the 2005 Paper was polemical and/or disparaging Mr de la Mare submitted that Dr Raabe was well aware of the fact that the content and tone of the 2005 Paper were considered unacceptable, particularly the passages dealing with paedophilia. The essence of the Defendant’s particular concerns about the passages in the 2005 Paper dealing with paedophilia was self evident from the letter dated 27 January 2011 giving Dr Raabe notice that the Home Office was minded to reconsider his appointment to the ACMD and giving him the opportunity to make any comments he wished in response. The nature of those concerns was already evident from the telephone interview of 24 January 2011 in which Dr Raabe had made realistic concessions about the tone and capacity to cause offence of the 2005 Paper, particularly the paedophilia section.

As to the contention that, if he had been given an opportunity to answer the allegedly new points raised in the revocation letter, Dr Raabe had a complete answer to it Mr de la Mare submitted that the answer suggested by Dr Raabe was nothing of the sort. That answer was said to be that whatever his personal beliefs about the rights or wrongs of homosexual relations Dr Raabe would advise, treat and serve and had advised, treated and served everyone equally.

Mr de la Mare submitted that that argument had in fact been advanced in his email of 25 January 2011. It had not been pursued and did not persuade because if gay people saw themselves as disparaged and were unwilling to work with Dr Raabe/the ACMD in consequence of his appointment, which was the risk detected by the Defendant, the fact that Dr Raabe considered himself willing and able to work with gay people was not a complete answer to the Defendant’s concerns. The Defendant’s concerns were not based upon a discriminatory and stereotyped assumption that persons holding Dr Raabe’s relevant religious belief are unable or unwilling to work with the LGBT community, an allegation which Mr de la Mare submitted was made for the first time in Mr Dingemans’ skeleton argument, but rather on the view that an offended/disparaged community or other ACMD members would not work with the person who was the cause of the offence or would cease to see the ACMD as a working partner or source of credible advice. Mr de la Mare referred to the extract from Dr Williams’ witness statement referred to above in support of the submissions that that was the Defendant’s concern.

Further and in any event Mr de la Mare submitted that the 2005 Paper constituted the presentation of ostensibly scientific conclusions which were in fact grounded in or motivated by Dr Raabe’s and no doubt his co-authors’ beliefs about homosexual people. Such an evident failure to separate personal beliefs from ostensibly scientific/medical method would affect the confidence of the LGBT community in Dr Raabe’s medical advice or judgements on questions concerning drug abuse.

As to the contention that irrelevant considerations were taken into account in the decision to revoke Mr Raabe’s appointment Mr de la Mare made the following detailed responses to the three allegedly irrelevant considerations asserted by Dr Raabe. All three were said to be based on a number of statements taken out of fair context which had nothing to do with the actual basis for the decision.

As to the allegation that it was a motivating factor for consideration in the revocation decision that the Defendant was also responsible for Equalities, that was said to be based on two passages in the initial written submission to the Minister dated 21 January 2011. In commenting on the option of investigation and consultation it was said that that did not immediately deal with the issue that Dr Raabe held the views described especially in the context of the Defendant’s position as Minister for Equalities. It was also said that while the link had yet to be made by the media the fact that Dr Raabe was appointed by the Defendant could anger equality groups given her dual role as Equalities Minister.

Mr de la Mare submitted that those remarks were plainly directed at a potential case for immediate dismissal without further consultation, an option which was rejected by the Defendant. Similar reasoning he submitted played no further part in any later submission. The other references relied on by Mr Dingemans in his skeleton argument were all dealing with media handling. Moreover the comments were directed at the potential for media controversy to escalate and mutate. It was for that reason that the statement appeared in the section of the submission entitled “Handling” which meant “Media Handling”. Mr de la Mare submitted that there was no trace of any such reasoning either in the revocation decision as drafted, or in the Defendant’s short explanation of the reasoning which preceded it or in the third submission which was the final basis for the Defendant’s decision.

As to the second alleged irrelevant consideration, namely a desire on the part of the Defendant to promote itself as a potential or actual employer of LGBT groups, Mr de la Mare submitted that the basis for that alleged irrelevant consideration was nowhere explained. It did not appear anywhere in the three submissions to ministers or in the decision itself in any form.

As to the assertion that the decision took into account the fact that Dr Raabe held views inconsistent with the Government, Mr de la Mare submitted that Dr Raabe had taken out of context a phrase in the first submission to ministers which was repeated in the second but not the third submission that “media reports on the BBC website have brought to light his involvement in the publication on homosexuality that contains views inconsistent with those of Government” (emphasis added). He submitted that that was self evidently a short hand for “views causing some embarrassment to Government” or “views bringing disrepute upon the Government” as was made plain by the changes in the formulation of that point as it appeared in the third submission.

Mr de la Mare submitted that Dr Williams was merely trying by that phrase to capture or describe the emerging problem. The suggestion that anything more lay behind that, such as Dr Raabe’s submission that what was being said was that everyone had to agree with the Government’s views and that such wider meaning somehow fed into the revocation decision, was said to be unreal, particularly in circumstances where the third submission better explained that issue before going on to recommend that Dr Raabe should in fact be retained.

As to Mr Dingemans’ submission that the Defendant’s considerations were influenced by irrelevant considerations such as political embarrassment caused by media scrutiny of the decision in respect of Dr Raabe’s religious beliefs and the views expressed in the 2005 Paper, Mr de la Mare submitted that that was too broad and unsupported by the careful and focused documentation and reasoning process which led up to the decision to revoke the appointment. The 2005 Paper was a polemic which caused offence, was not disclosed and was rightly thought to be relevant to Dr Raabe’s ability to work for a body which of necessity had to work effectively with LGBT groups.

In response to the contention that the decision to revoke was irrational Mr de la Mare made the following detailed submissions. The contention that it was irrational to formulate the issue in terms of a concern that it could be suggested that Dr Raabe’s views represented those of the Defendant, was a straw man. It was no part of the Defendant’s case that Dr Raabe’s views must represent those of the Defendant or that there was a concern that it might be thought that in fact they did. That was no part of the basis on which the decision was made.

As to the case of Redfearn in that case the Claimant’s Article 9 case based on the protection of freedom of thought and religion was rejected by the ECHR because his freedom to think was not impacted on by his dismissal from his job as a bus driver driving a largely Asian client group because he was a member of the BNP. By parity of reasoning nothing in the Defendant’s actions impacted on Dr Raabe’s freedom to hold the religious beliefs which he did or to “manifest his religion…in worship, teaching, practice and observance”. Writing a public political lobbying document which presented itself as “medical opinion” did not fall within the scope of Article 9.1 because it was not a manifestation of religious belief. It was no tenet of Dr Raabe’s faith that gay men are more likely to be paedophiles or to have greater incidence of mental illness. Still less was taking account of such offensively expressed views an interference with Article 9.1 rights. There is a difference between acts that are a manifestation of religious belief and acts which are motivated by it. This case was squarely in the latter category and Article 9 offers no protection to such acts. Offensively expressed views which would undoubtedly be of relevance if held independently of religious belief are not rendered irrelevant or immune from comment by their religious motivation. Mr de la Mare submitted that this ground of challenge illustrated an inconsistency in Dr Raabe’s case. He simultaneously sought to characterise the 2005 Paper as “science” or “factual” when contending that it was not polemical or disparaging and was irrelevant to his appointment to the ACMD while also characterising it as a manifestation of his religious beliefs. It could not simultaneously be both.

As to the argument that there was no evidence to support the conclusion that Dr Raabe’s appointment against the backdrop of his known views would affect the smooth running of ACMD, even in the period between the appointment and the revocation decision his putative appointment was plainly disrupting the smooth operation of the ACMD and was controversial amongst other ACMD members even if no formal objection had been received. The third submission noted that Dr Raabe’s retention might cause “internal friction within the ACMD” and the possibility that one or more ACMD members might resign in protest.

As to the contention that the disruption caused by the dismissal of Dr Raabe was evidenced by the fact that the statutory requirement for GP members on the ACMD was abolished because of this affair, that was without foundation. The Bill which led to the Police Reform and Social Responsibility Act 2011 which made the relevant amendments to the 1971 Act removing the requirement for a GP member of the ACMD was introduced to Parliament on 1 December 2010 before Dr Raabe was even appointed to the ACMD and on introduction already contained those amendments. Moreover a GP, Dr Linda Harris, was subsequently appointed to the ACMD in July 2011.

As to the contention based on the vagueness of the criterion of embarrassment and the contention that the Defendant applied a standard of disclosure against that criterion which no reasonable decision maker could have applied, Mr de la Mare submitted that the purpose of the question asked of candidates was to require an applicant for a post to identify any feature not disclosed by the application process which might, if known, be thought to diminish their suitability for appointment. Even if that was not clear it would not alter the fact that the 2005 Paper having come to light the Defendant was entitled to consider that it was a relevant consideration which should have been taken into account in the appointment decision and to revoke it accordingly.

As to the contention that the Defendant did not have a right to terminate Dr Raabe’s appointment unless he was in breach of the terms and conditions of appointment, that failed to address the right of the Defendant to revoke an appointment which was invalidated by the non-disclosure of a material consideration. If an LGBT group had wished to challenge Dr Raabe’s appointment on the ground that the Defendant had failed to take into account a relevant consideration, namely the views expressed in the 2005 Paper which would impede the gay community’s willingness to work with him, they could have done so. The revocation decision was premised on the same logic. The non-disclosure of a material consideration invalidated the original appointment and entitled the Defendant to revoke it. Were it otherwise there would be a bizarre lacuna in the ability of appointers to deal with non-disclosure and even cases of concealment or fabrication of qualifications.

In his skeleton argument Mr Dingemans submitted that the decision to revoke was unlawful for the additional reason that it took into account discriminatory views about Dr Raabe’s religious beliefs which were based upon incorrect assumptions about his ability to advise, treat and serve members of the LGBT community. In fact his ability to do so was not adversely affected either by his membership of the Maranatha community or by his religious beliefs as proved by his successful practice as a GP. At the hearing Mr Dingemans confirmed that although that challenge appeared under the heading of unlawfulness rather than irrationality it was not intended to be a free standing claim based on a breach of the Human Rights Act or the Equalities Act but rather an additional reason why the decision was irrational.

Mr de la Mare’s response to that submission was that the assertion that the revocation decision was based on stereotypical assumptions about the ability of Christians holding religious views hostile to homosexuality to be effective in treating and serving the LGBT community had no foundation in fact. The problem stemmed not from Dr Raabe’s beliefs or his ability to advise, treat and serve LGBT members despite those beliefs but rather from the views which he expressed in the 2005 Paper which were not religious beliefs, from the impact such views would have on the ACMD’s ability to work well with the LGBT community and to secure its co-operation and from Dr Raabe’s failure to disclose such views.