Was The Spectator right to mock councils for calling for a Gaza ceasefire?

Matt Lewin looks at some of the legal issues arising from "political" resolutions passed by local authorities.

“Self-regarding narcissists”?

In November 2023, after a number of local authorities across the UK had debated and passed motions calling for a ceasefire in Gaza, The Spectator published an article suggesting that the conflict had had “the unfortunate side-effect of bringing out the self-regarding narcissist” in the councillors behind these motions.

At its meeting in December 2023, Bradford Metropolitan District Council was asked to consider two Gaza-related motions. The first – “Stopping genocide in Gaza” – was voted down but a separate motion – calling for “an immediate and lasting ceasefire” – passed, with only 15 abstentions.

The leader of the Conservative Group was quoted by the BBC as having said it was not in the Council’s “remit” to intervene:

"We are a metropolitan district council, we are not the United Nations or an international organisation."

In response, the Council’s Labour Leader commented that it “cannot be silent” on the issue:

“We are not naive, neither are the people of Bradford, they know we are not international diplomats. But they do expect us to hear their calls, to listen to their pleas and use the voice they have given us to express their deep concerns."

Moreover, as the BBC’s local political reporter observed, increasing pressure from local party groups had the potential to change the policy direction of the national parties, particularly that of the Labour Party.

 A short history of “political” resolutions

“Political” resolutions such as these have a long tradition in local government and, in principle, there seems to be little if any restriction on the ability of councils to debate and pass resolutions on any topic.

As elected representatives, councillors enjoy “enhanced protection” when commenting on matters of public concern – whether local, national or international – in connection with their rights of free speech, protected by the common law and Article 10 of the ECHR.

Even though most authorities’ standing orders include a rule to the effect that “motions must be about matters for which the council has a responsibility or which affect the council’s area”, in practice this tends to be given a generous interpretation to allow “political” motions to be brought forward where there is a political will.

Their high watermark was perhaps the 1980s, when a number of councils sought to directly intervene in a number of high-profile controversies of the day. In 1984, Leicester City Council resolved to suspend Leicester Tigers rugby club from using the council-owned Welford Road stadium after several of its players joined an England tour to Apartheid South Africa. The decision to penalise the club in this way – it had not acted in anyway unlawfully – was quashed by the House of Lords on the grounds of unfairness and unreasonableness: R v Leicester City Council, ex p Wheeler [1985] AC 1054.

The modern trend – exemplified by the Bradford motion – is to stay away from direct involvement and instead to make declarations of more symbolic than practical significance.

For instance, in Jewish Rights Watch v Leicester City Council [2018] EWCA Civ 1551, the resolution under challenge called for the council “insofar as legal considerations allow, to boycott any produce originating from illegal Israeli settlements in the West Bank until such time as it complies with international law and withdraws from Palestinian Occupied territories."

That initial qualification was highly significant: as the Court of Appeal noted, the resolution

“has had no effect on the conduct of the Council in any practical way, and will not do so”.

PSED concerns

I have been asked a number of times to advise authorities which are being called on to debate complex and sensitive issues, whether by motions proposed by individual councillors or external petitions. From a legal perspective, the topic that tends to cause most concern is how to ensure compliance with the Public Sector Equality Duty (PSED).

The lessons to be drawn from the case law are:

• The PSED undoubtedly applies when full council is exercising the function of passing a resolution. Therefore the terms of the final resolution need to be carefully crafted to make clear that council has given due regard to the three equality objectives in section 149 of the Equality Act 2010 – particularly, in this context, to the “need to foster good relations” between protected groups and those without that protected characteristic.
• However, individual councillors are not personally subject to the PSED and therefore may express their political views as they wish.
• The PSED generally applies with less rigour to symbolic resolutions, as opposed to those which will have real, practical consequences.
• In order to assist councillors in ensuring that, acting corporately, the council has complied with its duty under the PSED, basic advice and guidance on the PSED should be provided in the reports pack or orally at the outset of the debate. Nonetheless, councillors can generally be expected to have a good understanding of community relations in their area.
• Resolutions which refer to maintaining good community relations and respect for all sides, and which emphasise values of tolerance, diversity, unity and non-discrimination are likely to be PSED-compliant.

Ultimately, however, this is a political process that the law will generally let play out without too much interference. Provided councillors have been properly advised, they are more or less free to exercise their rights of free speech however they wish.

Whether, in doing so, they are responding to real community concerns or suffering from delusions of grandeur is a matter for voters to decide.

Matt Lewin is a barrister at Cornerstone Barristers. He is the editor of Cornerstone on Councillors' Conduct and Standards in Public Life, the second edition of which is published on 22 February 2024. You can pre-order a copy here.

Ahead of the book’s publication, and to encourage you to read it, over the next few weeks Matt is going to share a series of posts on some of the many interesting topics that feature in it.

Matt is a particular specialist in the area of standards in public life and is regularly called on to act as an external investigator into allegations of misconduct by holders of public office, most recently by the Greater London Authority in relation to controversial comments about “far-right” ULEZ protestors made by the Mayor of London, Sadiq Khan.