Judges reject appeal over motion boycotting produce from Israeli settlements

The Court of Appeal has rejected an appeal by Jewish Human Rights Watch over the Divisional Court’s refusal to quash a motion passed by Leicester City Council calling for a boycott of produce from Israeli settlements in the West Bank.

Passed by members of the council on 13 November 2014, the resolution stated that “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."

In June 2016 the Divisional Court (Simon LJ and Flaux J) dismissed JHRW’s claim for judicial review against the council to quash the resolution.

In doing so, it held that Leicester did not breach its obligations in respect of the public sector equality duty set out in section 149 of the Equality Act 2010 nor its obligations under s. 17 of the Local Government Act 1988.

Simon LJ and Flaux J also dismissed claims for judicial review of similar resolutions passed by two other local authorities (Swansea and Gwynedd Councils). JHRW did not appeal in relation to those claims.

The group did however appeal in relation to the Leicester motion. The sole ground of appeal was that the Divisional Court erred in concluding that there had been no breach by the council of the PSED under section 149 of the 2010 Act when it adopted the resolution, acting by its elected members.

In Jewish Rights Watch Ltd (t/a Jewish Human Rights Watch), R (On the Application Of) v Leicester City Council [2018] EWCA Civ 1551 the Court of Appeal (Underhill LJ, Floyd LJ and Sales LJ) rejected this appeal.

Lord Justice Sales said the PSED did apply in relation to the passing of the resolution by the assembly of councillors as the relevant organ of the council.

He said that what was in issue in this case was “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)).”

The judge said:

• 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).
• The application of the PSED to the adoption of the resolution did not infringe upon rights of political free speech, save only that the council, acting by the assembly as a whole, had to comply with its obligation under section 149(1).
• 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.
• It had been made out that the evidence showed that the council, acting by its assembly of councillors, did comply with the PSED by having due regard to the need to eliminate discrimination, harassment, victimisation etc and to the need to foster good relations between the Jewish community and others.
• 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 and there is no reason to doubt the evidence of Sir Peter Soulsby [Leicester’s elected mayor] that councillors were generally very familiar with the PSED obligations of the council.
• 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.
• On any fair reading of the transcript of the debate it was clear that the elected councillors had due regard to the matters referred to in section 149, as a matter of substance.

Lord Justice Sales, with whom Lord Justice Floyd and Lord Justice Underhill agreed, dismissed the appeal.

A spokesman for JHRW claimed that the ruling amounted "to an important victory against anti-Semitism and indeed all forms of discrimination.

 "Whilst the appeal was rejected, the ruling has made a number of very important changes to the law which are a much bigger victory."

The spokesman added: “The ruling brings a vital change in the law to the way in which councils can propose and discuss these controversial boycott motions. It in effect spells the end for anti-Semitic and any other discriminatory resolutions in local government.

“In future councils will not be able to hide behind the unpleasant excuse that because a motion is non-binding that there is no need to consider its statutory equality duty to work to eliminate discrimination, harassment and victimisation.

“Leicester Council also argued that to apply the public sector equality duty to its debate on this would infringe the freedom of speech of councillors. The Court roundly rejected this argument. It is clear that councillors now have to fully understand the duty on the council before making statements in any future debate."