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

The claimants sought judicial review of full council resolutions critical of Israel on the grounds that the councils had failed to comply with the public sector equality duty in s.149 of the Equality Act 2010 and had acted unlawfully in procurement terms under s.17 of the Local Government Act 1988. The court held that the contested motions were non-binding political resolutions and that the functions regulated by s.149 and s.17 are principally engaged when a decision maker is framing and implementing policy (the executive), not when full council members debate broad motions. The evidence established that procurement and contract decisions were carried out by executives and that no contracts or procurement processes had been affected. The claim against Swansea was in any event time-barred by undue delay. For these reasons the claims were dismissed.

Subsidiary findings included that the court should not adopt an over-strict approach to standing in attacks on racism but that here the claimant produced little or no evidence of consultation with local Jewish communities; that scrutiny of councillors' debate transcripts to establish compliance with the PSED was inappropriate and would inhibit political debate; and that qualifying words in resolutions (for example "insofar as legal considerations allow") are material to the court's discretionary relief analysis.

Background and parties: Jewish Human Rights Watch (JHRW) challenged resolutions passed by Leicester City Council, Gwynedd Council and City and County of Swansea which were critical of the State of Israel. JHRW, joined in two actions by Jonathan Neumann, sought declarations quashing the resolutions on the basis that the councils had failed to comply with statutory duties when adopting the motions and had unlawfully sought to influence procurement and investment decisions.

Relief sought: declarations that the resolutions were unlawful and orders quashing or preventing their operation in relation to council functions (including procurement and investment).

Issues framed by the court:

• whether full council resolutions engage the public sector equality duty (PSED) in s.149 of the Equality Act 2010;
• whether the resolutions impermissibly introduced non-commercial considerations into procurement contrary to s.17 of the Local Government Act 1988;
• standing of JHRW to bring the claims and the sufficiency of evidence of local Jewish community impact;
• whether delay barred relief, particularly in the Swansea claim; and
• the proper place of freedom of expression in assessing challenges to political debate.

Reasoning and findings: The court accepted that the PSED is a personal, non-delegable duty requiring a conscientious focus on the statutory criteria, but concluded that its practical ambit is principally directed at those who frame and implement policy (the executive), not at non-binding full council motions resulting from political debate. The court rejected the submission that every council motion must be proved, by reference to debate transcripts, to have given "due regard" to equality matters, observing that such a rule would stultify democratic debate. Evidence showed that procurement and investment decisions were executive functions and that the contested motions did not bind the executives or alter procurement practice; accordingly s.17 challenges failed for the same factual reasons. The court adopted a permissive approach to standing but noted the claimant's lack of evidence of local consultation. Finally, the Swansea claim was refused for undue delay because the claim was brought some five years after the resolution with no adequate explanation and material prejudice (loss of debate records) resulted.

Other observations: The court emphasised the need to protect freedom of expression in political debate and noted that qualifying words in motions and the non-binding nature of council resolutions are relevant to remedies.

The claims are dismissed. The court found that the contested motions were non-binding political resolutions and did not constitute council policy implemented by the executive; the public sector equality duty under s.149 of the Equality Act 2010 and the procurement restriction in s.17 of the Local Government Act 1988 were not engaged in the factual circumstances because procurement was an executive function and no contracts or procurement processes were affected. The Swansea claim was also refused for undue delay, with resulting prejudice.