Jewish Rights Watch (t/a Jewish Human Rights Watch), R (on the application of) v Leicester City Council

The public sector equality duty applies primarily to those framing and implementing policy. It is less readily engaged by broad, non-binding political resolutions of a local council. It will usually arise only where a resolution is closely focused and the resulting policy is to be directly implemented.

Courts should not scrutinise council debates as though every speech must demonstrate compliance with the duty. The question is whether the statutory duty was discharged in the relevant policy-making process. A resolution does not unlawfully control procurement where it does not bind the executive, is expressly qualified by legality, and has not affected the exercise of statutory procurement functions.

Jewish Rights Watch challenged resolutions passed by Leicester City Council, Gwynedd Council and the City and County of Swansea. The resolutions criticised Israeli policies and referred to boycotts, trade embargoes, investment and procurement.

The claimants alleged breaches of the public sector equality duty under section 149 of the Equality Act 2010 and the restriction on non-commercial considerations in public procurement under section 17 of the Local Government Act 1988. The central issues were whether the elected councils owed the equality duty when passing the resolutions, whether the resolutions unlawfully affected procurement, and whether relief should be refused for delay.

The court dismissed all three claims.

1. Public sector equality duty. The principles identified in Bracking v Secretary of State for Work and Pensions and related authorities were not an all-embracing code applicable in the same way to every public function. The statutory duty was directed primarily, if not exclusively, to those framing and implementing policy. It was more readily applied to a formal and developed policy than to a broad resolution adopted after political debate. The duty might arise for a council resolution where it was closely focused and the policy would be directly implemented.
2. The court rejected the submission that the legality of the resolutions depended on a councillor raising the effect on the Jewish community in debate. Scrutinising the Leicester debate was unrealistic and would inhibit political discussion. In Swansea, the absence of a transcript made that exercise impossible. The relevant question was whether the duty had been addressed in the process of framing and implementing policy.
3. Procurement. Section 17 of the Local Government Act 1988 prohibited reliance on non-commercial matters in specified procurement functions, subject to section 17(10). The resolutions did not bind the executive, did not constitute procurement policy, and had not affected any contract or potential contract. The section 17 challenge therefore failed.
4. The qualifications that the resolutions operated only insofar as legal considerations allowed, or so long as relevant legislation was not breached, were not irrational. Such qualifications were relevant to the legal effect of the resolutions and, at least, to discretionary relief.
5. Although the Leicester and Gwynedd claims were brought outside the three-month period, substantial merit would have prevented refusal solely for delay. The Swansea claim involved unexplained delay from 2010 to 2015, causing significant prejudice because records of the debate were no longer available. Relief was therefore refused under section 31(6) of the Senior Courts Act 1981.

First instance decision. No lower-court decision is stated in the judgment.