Jewish Rights Watch Ltd (t/a Jewish Human Rights Watch), R (On the Application Of) v Leicester City Council [2018] EWCA Civ 1551

[2018] EWCA Civ 1551Case No C1/2016/2887
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2016] EWHC 1512 (Admin)
ON APPEAL FROM THE HIGH COURT
THE ADMINISTRATIVE COURT SITTING AS A DIVISIONAL COURT
(The Rt Hon. Lord Justice Simon and the Hon. Mr Justice Flaux)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/07/2018
Before
LORD JUSTICE UNDERHILLLORD JUSTICE FLOYDLORD JUSTICE SALES
Between
The Queen on the Application of:AppellantJewish Rights Watch LtdAppellantLeicester City CouncilRespondent
Robert Palmer (instructed by RHF Solicitors) for AppellantAndrew Sharland QC and Zac Sammour (instructed by Leicester City Council, Legal Services) for RespondentHearing Hearing date: 20 June 2018
Judgment Approved
[1]This is an appeal from the Divisional Court (Simon LJ and Flaux J), which dismissed the appellant’s claim for judicial review against the respondent (“the Council”) to quash a resolution passed by members of the Council on 13 November 2014. The resolution is appended as Annex A to this judgment (“the resolution”). It was expressed to be a resolution of 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.” The Divisional Court held that in passing the resolution the Council did not breach its obligations in respect of the public sector equality duty (“PSED”) set out in section 149 of the Equality Act 2010, nor its obligations under section 17 of the Local Government Act 1988.[2]In its judgment, the Divisional Court also dismissed claims for judicial review of similar resolutions passed by two other local authorities. There is no appeal in relation to those claims and it is unnecessary to make further reference to them.[3]The appellant’s sole ground of appeal is 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. The Council seeks to support the conclusion and reasoning of the Divisional Court. The Council has also filed a respondent’s notice in which it says that the claim for judicial review should also have been dismissed by the Divisional Court in its discretion, on grounds of delay and for want of standing on the part of the appellant.[4]Section 149 of the 2010 Act provides in relevant part as follows: “(1) A public authority must, in the exercise of its functions, have due regard to the need to -(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. … (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. … (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act. (7) The relevant protected characteristics are— age;disability;gender reassignment; pregnancy and maternity; race;religion or belief; sex;sexual orientation. …” (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

Factual background

[5]The appellant was incorporated as a vehicle to challenge rising antisemitism in the UK which was felt by its founders to be particularly acute during the course of 2014. Its director, Mr Neumann, filed evidence which explained that what concerned him was that various groups and individuals were using condemnation of Israel as a means to attack British Jews. He also expresses particular concern about any local authority motion concerned with boycotting goods in the context of Israel in relation to the impetus it gives to a movement he says is called Boycott, Divestment and Sanctions (“BDS”). He says the BDS movement has been created to maximise political pressure brought to bear upon the state of Israel and ultimately to see it destroyed, which movement he says also increases the level of hatred experienced by Jewish people in the UK and elsewhere.[6]Mr Neumann exhibited a report from a charity, Community Security Trust, for 2014 which documents antisemitic incidents in that year (“the CST report”). The CST report observes, “Clearly it would not be acceptable to define all anti-Israel activity as anti-Semitic; but it cannot be ignored that contemporary antisemitism can occur in the context of, or be accompanied by, extreme feelings over the Israel/Palestine conflict.”[7]It is the appellant’s case that, by passing the resolution, the Council singled out Israel for different treatment than that adopted in respect of other countries and failed properly or sufficiently to consider its effect on the Jewish community, in particular that community in and around Leicester. The appellant contends that in passing the resolution the Council failed to comply with the PSED to which it is subject by failing to have due regard to the need to eliminate discrimination and harassment of Jewish people and the need to foster good relations between those who are Jewish and those who are not. The appellant seeks an order for the resolution to be quashed.[8]There are a number of models of local authority organisation. Leicester City is a local authority which has chosen a model with an elected mayor. As explained to us, this means that the responsibility for the vast majority of local government functions in the authority’s area, including adoption of policies for administration and the delivery of services and the implementation of those policies, rests with the elected mayor and a cabinet of councillors appointed by him. The elected mayor in Leicester at the material time and currently is Sir Peter Soulsby.[9]In addition to the mayor and his cabinet, there are elected councillors who are able to deliberate upon matters and pass resolutions. These may influence the mayor and his cabinet when deciding what policies to adopt and how they should be implemented, but the mayor is not legally obliged to act in accordance with them.[10]As the body with responsibility within the Council for adoption of policies for administration and the delivery of services and the implementation of those policies, when so acting the mayor and cabinet are subject to a legal obligation under section 17 of the 1988 Act to exercise the functions of the Council in relation to any public supply or works contracts of the Council “without reference to matters which are non-commercial matters for the purposes of [the section]”. This means that procurement contracts and arrangements cannot be made by the Council on the basis of political considerations such as disapproval of some foreign regime. The Council, therefore, acting by its relevant internal organ, is not able to act to implement the boycott of produce originating from illegal Israeli settlements in the West Bank called for in the resolution.[11]Sir Peter Soulsby provided a witness statement in which he confirmed that in Leicester procurement is an executive function for the mayor; the mayor, as the relevant executive organ within the Council, is not bound by resolutions passed by councillors; and the Council’s procurement policies have not been framed with reference to non-commercial matters such as are set out in the resolution and these will not form any part of the Council’s procurement process for the future. Thus the resolution has had no effect on the conduct of the Council in any practical way, and will not do so. Sir Peter Soulsby also explains that elected councillors in Leicester have extensive experience of considering the PSED in other contexts and are thus well aware of the obligations it imposes. This was not called in question by the appellant, which, however, submits that there is no sufficient evidence that they in fact complied with the PSED when they voted to pass the resolution.[12]A small group of councillors visited Israel in their personal capacity in August 2014. As appears from comments made in the debate leading up to the vote on the resolution, they were affected by what they saw there in relation to the treatment of Palestinians by the Israeli government. It seems that this was part of the reason why Councillor Dawood brought forward the motion for consideration at the council meeting on 13 November 2014 to propose the adoption of the resolution, seconded by Councillor Kitterick. Notice of the motion was posted on the Council’s website on 4 November 2014 in proper time before the debate.[13]The motion for the resolution was introduced by councillors acting in their capacity as elected representatives seeking a debate on it. As explained above, it was not a resolution which could have any direct practical effect upon the procurement and purchasing policies actually adopted by the Council. For these reasons, the councillors who prepared the motion did not receive assistance or advice in doing that from Council officers.[14]At the outset of the debate on 13 November 2014, Councillor Dawood introduced an amendment of the motion, to add these words at the end of it:
“Furthermore, Leicester City Council continues the example of good community relationships by developing a sustainable city, promoting harmony and respect for all people to live in a neighbourly way.”
As appears from its terms, this amendment was introduced to emphasise that the Council attaches great value to eliminating discrimination and to fostering good relations between different communities in the city. It is clear from the transcript of the debate that this carried weight with some councillors, in allaying anxieties that the adoption of the resolution might foster a sense of disharmony and aggravation between different communities.[15]Councillor Dawood spoke in favour of the resolution (as amended) and was seconded by Councillor Kitterick. Councillor Choudhury also spoke in favour of the resolution, emphasising that he did so because of what he regarded as injustices perpetrated by the Israeli state against Palestinians and not out of antisemitism or on religious grounds, because he was a Muslim.[16]Councillor Grant spoke against the resolution, not because he wished to defend the treatment of Palestinians in Israel and the occupied territories, but because of the way the resolution singled this issue out for criticism (as compared, for example, with Russian actions in Ukraine), even though he noted that the resolution “talks about us being a city that is tolerant, diverse, unified against discrimination”. He suggested that by highlighting one problem in the world, it made it look as though the Council would be saying that others are less important, which in his view was problematic:
“It doesn’t then make us look like this unified city which actually deals with all groups equally …”; the resolution was purely symbolic, and by highlighting this one problem, all the people who felt strongly about other problem areas in the world because of the connection they felt “either through their ethnicity or race or their spirituality or their sexuality will all wonder why we have done nothing about those issues in this chamber.”
As well as calling attention in this way to the potentially divisive impact of the resolution on community relations, he also called attention to the potential, as he saw it, that the Council’s action in passing such a resolution could be “misconstrued”:
“Some people may take a lead from this, they may focus on the unique dynamic of the situation in Israel and Palestine, compared to the others, and draw substance from that in some other reprehensible views and I know that in the past I have been approached by constituents with concerns about some of the issues that I have raised …”
. I think it is clear, in context, that Councillor Grant’s reference to “reprehensible views” was to antisemitic views, which in his opinion might be fed or stoked up by a resolution of this kind.[17]Councillor Riyait spoke in favour of the resolution, echoing points made by Councillor Dawood and stating that in his view it addressed an issue “which goes to the heart of our common humanity with people across the world.” Councillor Waddington also spoke in favour. In answer to Councillor Grant, she emphasised that the city council had a long radical tradition of concerning itself with international matters, for instance debating whether Britain should enter the First World War and voting to condemn apartheid in South Africa. In her view, the fact that there were other problems in the world as well did not mean that it was wrong to debate and pass the resolution in issue here. Councillor Clarke also spoke in favour, to emphasise that even though the gesture of passing the resolution might be a small one, it could still be significant. It was not wrong to seek to address this issue. He also referred to the struggle to end apartheid, among other matters.[18]Councillor Chaplin also spoke to support the motion. She agreed with Councillor Grant that there were many other issues in the world which needed to be addressed, but she did not consider that this made it inappropriate to discuss this subject matter in the chamber of the Council. However, she also stated that she had talked to people in her ward, parts of which had “a long established Jewish community”, in which people had differing views. She referred to a recent television programme and quoted an interviewee who had emphasised, “we shouldn’t look at the differences in terms of faith or no faith or race and those things”. She said she was glad for the amendment to the resolution which Councillor Dawood had introduced at the start of the debate (i.e. to emphasise the importance of good community relations in Leicester); and then went out of her way to emphasise that councillors should never forget “how lucky we are, in Leicester, that we do have good community relations and neighbourliness”, as indeed had particularly been brought home to her by comments by one of her Jewish constituents.[19]Councillor Moore spoke in favour of the resolution. She acknowledged that Councillor Clarke had made important points, but nonetheless considered that it was right for councillors to debate and vote for the resolution. She too mentioned the potential significance of such gestures to support the end of apartheid in South Africa. Councillor Sood likewise spoke in favour of the resolution. He said, “The purpose of justice is the appearance of unity among human beings. In all circumstances, one should seize upon every means which will promote security and tranquillity among the oppressed people of Palestine … The diversity of religions should be strengthened, the differences of race be annulled”. He too called attention to good community relations and mutual support between different faiths in Leicester.[20]Councillor Westley spoke in favour of the resolution. He too referred to the points made by Councillor Clarke. He stated that he particularly welcomed the statement in the resolution about recognising the right of Israel to exist and referred to internal opposition in Israel to the actions of the Israeli government. Councillor Osman spoke next, again in favour of the resolution. Like others, he emphasised that councillors should remember that Leicester is a city which prides itself on being culturally diverse, where all faiths and communities live together in harmony.[21]Councillor Porter spoke against the resolution. In his view, it would be seen merely as a cheap publicity stunt. Councillor Cole spoke for the resolution. He also thanked Councillor Clarke for raising the points he had, but considered that it was right to pass the resolution as a gesture, albeit small, against injustice. Councillor Aqbany also spoke briefly in support of the resolution.[22]The debate was wound up by Councillor Kitterick and Councillor Dawood. Councillor Kitterick referred to Councillor Grant’s comments, which he said he respected but disagreed with. He referred to public interest in Leicester in relation to the topic under debate. He said that he saw Israel “as an old friend, but an old friend that needs to be told some home truths.” Councillor Dawood also referred to Councillor Grant’s comments, but said he respectfully disagreed with him that it was not right to discuss the subject matter in the chamber. He emphasised that the resolution did not call for a boycott of all Israeli products, but only those originating from illegal Israeli settlements in the West Bank.[23]A vote was then taken on the motion. It was carried by what the councillor acting as the chair for the meeting, Lord Mayor Thomas (not to be confused with Mayor Sir Peter Soulsby), described as a “vast majority” in favour, with one abstention. We have not been provided with detailed figures.

Discussion

[24]The Council is, of course, a public authority to which the PSED in section 149 of the 2010 Act applies. 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 is 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.[25]In light of that agreement, it is not necessary to dwell upon the precise source of the function in question. It is 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 us 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 is sufficient for present purposes; but it may well be that 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. The passing of resolutions of this character is part of a long tradition in local government, which goes back well before 2011.[26]Mr Palmer, for the appellant, was critical of the reasoning of the Divisional Court at [32], which on one reading could be taken to say that the PSED does not apply to Council resolutions passed following debate, unless the resolution is “closely focussed and the policy will be directly implemented” (which was not the case in relation to the resolution in issue in these proceedings). On another reading of the judgment, taken as a whole, the Divisional Court could be taken to be making a point directed not so much to whether the PSED applies in such a case, as to the content of the obligation of “due regard” comprised within that duty: see [37]. I incline to read the Divisional Court’s judgment in the latter sense, but it is unnecessary to arrive at a final view about that.[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)).[29]There are several judgments which seek to set out in some detail what may be required of a public authority under section 149(1) in a range of situations and to summarise the relevant principles. It is not necessary or appropriate to refer to them all. As Lord Neuberger of Abbotsbury PSC (speaking for the majority of the Supreme Court) said in Hotak v Southwark London Borough Council [2015] UKSC 30; [2016] AC 811 at [73]-[75]: “73. The equality duty has been the subject of a number of valuable judgments in the Court of Appeal. Explanations of what the duty involves have been given by Dyson LJ (in relation to the equivalent provision in the Race Relations Act 1976) in Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, [2009] PTSR 809, paras 30-31,Wilson LJ (in relation to section 49A of the Disability Discrimination Act 1995, as inserted by section 3 of the Disability Discrimination Act 2005, the predecessor of section 149 of the 2010 Act) in Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104, [2011] PTSR 565, paras 28 and 32, and McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, [2014] Eq LR 60, para 26 which pulls together various dicta, most notably those of Elias LJ in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills[2012] EWHC 201 (Admin), paras 77-78 and 89. I do not propose to quote those passages in extenso: they are not challenged in these appeals, and in my view, at least as at present advised, rightly so.74. As Dyson LJ emphasised, the equality duty is "not a duty to achieve a result", but a duty "to have due regard to the need" to achieve the goals identified in paras (a) to (c) of section 149(1) of the 2010 Act. Wilson LJ explained that the Parliamentary intention behind section 149 was that there should "be a culture of greater awareness of the existence and legal consequences of disability". He went on to say in para 33 that the extent of the "regard" which must be had to the six aspects of the duty (now in subsections (1) and (3) of section 149 of the 2010 Act) must be what is "appropriate in all the circumstances". Lord Clarke suggested in argument that this was not a particularly helpful guide and I agree with him. However, in the light of the word "due" in section 149(1), I do not think it is possible to be more precise or prescriptive, given that the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment.75. As was made clear in a passage quoted in Bracking, the duty "must be exercised in substance, with rigour, and with an open mind" (per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506, para 92. And, as Elias LJ said in Hurley and Moore, it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that "there has been rigorous consideration of the duty". Provided that there has been "a proper and conscientious focus on the statutory criteria", he said that "the court cannot interfere … simply because it would have given greater weight to the equality implications of the decision."[30]It is not necessary for a decision-maker to refer in terms to the PSED, provided that he addresses it in substance: R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, [36]-[37] (addressing the operation of section 71 of the Race Relations Act 1976, a predecessor provision of section 149 of the 2010 Act which was in similar terms). Although there is no legal requirement to refer to the PSED when exercising a relevant function, it is good practice for a decision-maker to do so: Baker, at [38].[31]Mr Sharland QC for the Council submits that “due regard”, as that expression is used in section 149(1), can mean that in some contexts it is permissible to have no regard to the matters set out in that provision, and that this is the case here. In particular, he submits that this is the position in the current context of a resolution passed after debate by the assembly of elected councillors, since otherwise there would be an unwarranted infringement of rights of political free speech. Also, he says, there is difficulty in applying the PSED where a multi-member body such as the assembly exercises a function, since it cannot be known whether each member did or did not have regard to the matters set out in section 149(1).[32]I do not accept these submissions. 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 (as in R (London Borough of Lewisham) v Assessment and Qualifications Alliance [2013] EWHC 211 (Admin), [145]-[148]). 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.[35]It is therefore necessary to turn to the next part of Mr Sharland’s submissions, namely that in this case the evidence shows 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. In my view, this is indeed made out on the 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 and there is no reason to doubt the evidence of Sir Peter Soulsby that councillors were generally very familiar with the PSED obligations of the Council.[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. That is why I have taken some care in this judgment to summarise the contributions which were made. It is also significant that the proposed resolution was amended at the beginning of the debate, to add further reference to maintaining good community relationships and promoting harmony and respect for all people to live in a neighbourly way. This meant that express reference to these values was at the forefront of councillors’ minds when the debate commenced.[38]As regards the contents of the proposed resolution, the preamble emphasised the values of tolerance, diversity, unity and non-discrimination which were important in Leicester as the foundation for different communities to live together. The motion itself recognised the right of the State of Israel to exist in peace and free from incursion, and was concerned only to condemn certain actions of the Government of Israel. The condemnation was in line with a respectable body of opinion, including the UK government, the United Nations General Assembly, the European Union and the International Court of Justice. The criticism made was temperate and legitimate. The proposed boycott had a limited target in line with that criticism. As the CST report correctly points out, there is legitimate scope for criticism of Israel without that implying antisemitic attitudes. There was nothing in the context set by the proposed resolution and the debate to suggest that the resolution was in fact being proposed as a cover for or incitement to antisemitism. By the amendment, the body of the resolution itself made reference to the importance of good community relationships and promotion of harmony and respect for all people.[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. Nor did Mr Palmer suggest that they did. 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.[41]There is nothing to suggest that councillors were on notice of the so-called BDS movement described by Mr Neumann, such as to require any reference to be made to that in order to disassociate the Council from any such antisemitic movement. Calling for boycotts of goods is a well-known gesture of political solidarity with oppressed groups overseas, as illustrated by calls for boycotts of goods from South Africa during the apartheid era. In any event, the resolution expressly stated that the Council recognised the right of existence of the State of Israel, so clearly was not being adopted as part of a wider antisemitic movement of the kind described by Mr Neumann.[42]The terms in which the debate was conducted reinforce these points. 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. Councillor Grant referred to the possible danger of the resolution being misconstrued, and his remarks were treated with respect by other speakers, even though they disagreed with him on whether the resolution should be adopted or not. 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.[43]For these reasons, I would dismiss this appeal. It is unnecessary to address the points made in the respondent’s notice.[44]I agree.[45]I also agree. Annex At a meeting of Leicester City Council held … on Thursday 13 November 2014 duly convened for the business hereunder mentioned. Business 11. Notice of Motion. 2. Proposed by Councillor Dawood, seconded by Councillor Kitterick Preamble Leicester is a City renowned for its tolerance, diversity, unity and its strong stance against all forms of discrimination, this position enables different communities to live together. It is also important when there is oppression and injustice, that Leicester City Council takes up a position to support communities experiencing such inequalities and in this instance it is the plight of the Palestinian people, which is why the following motion is being moved. The Motion Leicester City Council recognises the right of the State of Israel to exist in peace and free from incursion, but condemns the Government of Israel for its continuing illegal occupation of Palestine's East Jerusalem and the West Bank; for its continuing blockade of Gaza; and the illegal appropriation of land in the West Bank and settlement buildings. The Council welcomes the decision of the United Nations on 29 November 2012 to recognise Palestine 'non-member observer State', but for the people of Palestine the suffering since 1967 continues. The Council also welcomes UK Parliament's vote on 13th October 2014 to recognise Palestinian Statehood even though the United Kingdom Government fails to do so. It is with regret we note the Government of Israel continues to ignore and breach International Law, Geneva Convention and UN Resolutions and continues with its occupation of Palestinian territories. Therefore, Leicester City Council resolves, 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. Furthermore, Leicester City Council continues the example of good community relationships by developing a sustainable city, promoting harmony and respect for all people to live in a neighbourly way.

Cited in 5 later judgments