R (Jewish Rights Watch) v Leicester City Council (2018) EWCA Civ 1551 concerns a non-binding Full Council Resolution on a controversial matter. The Council resolved “insofar as legal considerations allow, to boycott produce originating from illegal Israeli settlements in the West Bank until such time as it complies with International law an withdraws from Palestinian Occupied territories.” Jewish Human Rights Watch argued that the resolution singled out Israel for criticism, and that the Council failed to consider the effect of so doing on the Jewish community in the UK, and in particular in and around Leicester, in breach of the PSED. The Court of Appeal, upholding the judgment of the Divisional Court, held that on a reading of the Resolution, and of the transcript of the debate which preceded its adoption, it was clear that the Councillors had due regard to the matters set out in Section 149 of the Equality Act 2010 and had thus satisfied the PSED.
Even though the Resolution has had and will have no substantive effect on the way in which the Council carries out its procurement functions, it was common ground that in passing the Resolution the assembly of elected Councillors was acting for the Council, and was exercising a “function” of the Council for the purposes of Section 149. It was common ground that in Section 149, as was held to be the case in a similar statutory context addressed in Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1, “the word ‘functions’ embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it” (see p. 29E-F per Lord Templeman). As a relevant function in this case, the parties pointed to section 1 of the Localism Act 2011, which provides that “A local authority has power to do anything that individuals generally may do.” Since an individual can call for a boycott of goods, so can the Council, acting by its relevant organ, which in this case is agreed to be the assembly of elected Councillors. That was sufficient for present purposes; but even if Section 1 of the 2011 Act did not exist it could still be said that passing resolutions of this character falls within the “functions” of a local authority, derived from some other statutory source.
Sales LJ said:-
27. “In my judgment, the PSED in section 149(1) of the 2010 Act does apply in relation to the passing of the resolution by the assembly of councillors as the relevant organ of the Council. That much is obvious from the terms of section 149(1) and the agreement between the parties that the passing of the resolution involved the exercise of one of the Council’s “functions”. On the question whether section 149(1) applies at all, it does not matter that the resolution would not have any impact so far as the practical conduct of the Council’s affairs is concerned. However, that is a feature of the case which is capable of bearing on the question of the extent of consideration required of the Council in respect of the matters referred to in section 149(1) in order to satisfy the “due regard” obligation in that provision.
28. Accordingly, what is in issue in this case is whether the Council, acting by the assembly of councillors, had due regard to the need to eliminate discrimination, harassment, victimisation etc (section 149(1)(a)) and to the need to foster good relations between persons who share a relevant protected characteristic (being Jewish or practising the Jewish religion) and persons who do not share it (section 149(1)(b), read with subsection (5)).
Sales LJ referred to several judgments which set out in some details what may be required of a public authority under Section 149(1) in a range of situations and summarise the relevant principles, notably Hotak v Southwark LBC (2015) UKSC 30, (2016) AC 811, at paragraphs 73-75 inclusive, and R (Baker) v SoS for CLG (2008) EWCA Civ 141, at paragraphs 36 and 37. Sales LJ continued (emphasis added):-
“32. … Given the enormous range of functions to which the PSED applies, it may be justified in some contexts for a decision-maker not to advert to the matters in section 149(1) if, at the time of acting, they appear to have nothing to do with the action in question or if it appears positively that they can have no bearing on the decision under consideration … But in the present context, councillors were rightly well aware that adoption of the resolution might have an impact on community relations, so they were not entitled to leave the PSED out of account and give no regard to the matters set out in section 149(1).
33. The application of the PSED to the adoption of the resolution does not infringe upon rights of political free speech, save only that the Council, acting by the assembly as a whole, has to comply with its obligation under section 149(1). As Hotak and other authorities emphasise, that is a limited obligation to have regard to certain matters, rather than to achieve a result. Individual councillors are not, in their capacity as such, personally subject to the duty. They are free to express whatever political opinions they like. The application of the PSED to the Council does not prevent them from doing that. In any event, since, as is common ground, section 149(1) does apply to the adoption of the resolution, there is no species of statutory interpretation which could render the PSED of no effect and debar the court from examining whether it has been complied with, simply by reason of the political context.
34. It is true that it may be less straightforward to assess whether there has been compliance with the PSED by a multi-member body than by one individual, but that is no different from assessing whether other legal duties to take particular matters into account when acting have been complied with by multi-member bodies such as a local authority or one of its committees. There is no requirement that each councillor file a witness statement. As is entirely normal, inferences can be drawn from the materials placed before the body, from the terms of any resolution or report adopted by it and from the minutes of debate. Elected councillors can be expected to have a good understanding of issues affecting their area, in particular in respect of community relationships. Again, since it is common ground that the PSED does apply, the court is obliged to assess whether it has been complied with, and it may do so using familiar techniques and forms of evidence.”
“36. Since the motion for the resolution was dealt with as a political matter for councillors rather than as part of ordinary business for the administration, it was not the subject of preparation of reports by Council officers. Nor were councillors expressly reminded at the outset of the debate of the Council’s PSED. In line with what was said about good practice in the Baker case, it would have been desirable for this to be done, perhaps by the monitoring officer who attended the debate or the chair of the meeting, so that minds were focused on the duty during the meeting. However, that was not a legal requirement …”
“37. In the absence of reports and an opening statement, what is particularly important in this case is the terms of the motion for the resolution and the content of the debate. …”
“39. In my view, the terms of the proposed resolution were such that it is clear that the councillors had due regard to the matters set out in section 149(1). The resolution referred in substance to the need to eliminate discrimination, harassment and victimisation in relation to any community and to the need to foster good relations between persons from different faith and ethnic groups. Councillors voting on the resolution clearly did have regard to those matters.
40. This was “due regard” in the circumstances. The weight to be attached to these considerations was a matter for the Council, acting by the assembly. The resolution was a political gesture. It recognised that the Council was likely to be subject to legal constraints regarding what might be possible, so the assembly was not attempting to set out a detailed and binding procurement policy for the authority. The elected councillors were familiar with their area and with issues of community relations in it and did not need to call for reports or inquiries to inform themselves further. … Assessment of the possible impact of the resolution on community relations was a matter of political judgment and good sense on the part of councillors.”
“42. …The importance of maintaining good community relations in Leicester was a major theme in the debate. Explicit reference was made to the Jewish community, and how they might feel. Clearly, the thrust of the debate was that it was important that they should not feel the resolution was aimed against them, as Jews. … I consider that on any fair reading of the transcript of the debate it is clear that the elected councillors had due regard to the matters referred to in section 149, as a matter of substance.”