Jewish Rights Watch Ltd v Leicester City Council

The Court of Appeal held that the public sector equality duty (PSED) in section 149 of the Equality Act 2010 applied to a resolution passed by an assembly of elected councillors. The court concluded that, on the evidence, the councillors had had "due regard" to the need to eliminate discrimination and to foster good relations between those who are Jewish and others when they debated and adopted the resolution. The council's resolution was a political, symbolic gesture which did not and could not in practice change the council's procurement policy because procurement was an executive function exercisable by the elected mayor and was constrained by section 17 of the Local Government Act 1988. The appeal was dismissed because there had been substantive consideration of equality duties in the terms of the motion, the amendment adding explicit reference to community harmony, and the content of the debate.

This judicial review concerned a motion passed by Leicester City Council on 13 November 2014 which resolved, "insofar as legal considerations allow, to boycott any produce originating from illegal Israeli settlements in the West Bank...". The claimant sought quashing of the resolution on the ground that the Council breached the public sector equality duty (PSED) in section 149 of the Equality Act 2010 by singling out Israel and failing to have due regard to the impact on the Jewish community.

The procedural history was that the Divisional Court (Simon LJ and Flaux J) dismissed the claim ([2016] EWHC 1512 (Admin)). The claimant appealed to the Court of Appeal. The sole ground of appeal was that the Divisional Court erred in finding no breach of the PSED. The respondent Council also relied on a respondent's notice arguing that the claim should have been dismissed for delay and lack of standing, but the Court of Appeal did not have to decide those points.

Issues framed by the court included (i) whether the PSED applied to a resolution adopted by an assembly of councillors, (ii) what "due regard" required in that multi-member, political context, and (iii) whether the evidence showed the Council had complied with the duty. A related factual issue was whether the resolution had any practical effect on council procurement, given that procurement was an executive function of the elected mayor and subject to s.17 of the Local Government Act 1988.

The Court of Appeal reasoned that the PSED does apply to the exercise of council functions by an assembly of councillors. The statutory duty is one to have "due regard" and is fact-sensitive as to the degree of consideration required. Political free speech by individual councillors was not inhibited by application of the PSED to the Council as a corporate body. The court examined the text of the motion (including an amendment added at the start of the debate emphasising good community relations) and the transcript of the debate, noting explicit references to tolerance, concern for how Jewish residents might feel, and recognition that the resolution was a limited, temperate political gesture. Those features, together with evidence that procurement remained an executive matter for the mayor, meant the assembly had in substance had due regard to section 149. For these reasons the appeal was dismissed.

The court also summarised relevant authorities on the PSED (including Hotak v Southwark) and accepted that while it is good practice to record explicit consideration of the PSED, absence of officer reports or a formal opening statement was not fatal where councillors were familiar with the duty and the debate and motion demonstrated substantive regard to equality considerations.

Appeal dismissed. The Court of Appeal held that section 149 of the Equality Act 2010 applied to the assembly's resolution but that, on the evidence (the wording of the motion and amendment and the transcript of the debate), the councillors had had "due regard" to elimination of discrimination and to fostering good relations; the resolution was a symbolic political gesture and had no practical effect on procurement, an executive function constrained by section 17 of the Local Government Act 1988.

Claim for judicial review was dismissed by the Divisional Court (Simon LJ and Flaux J) [2016] EWHC 1512 (Admin). The claimant appealed to the Court of Appeal, which dismissed the appeal: [2018] EWCA Civ 1551.