Antisemitic councils celebrate the right to demonise the Jewish state
How a UK court ignored clear law and Parliament's purpose

4 July 2016

Introduction

This note summarises key parts of the 21-page judgment given on 28 June 2016 in an action brought by Jewish Human Rights Watch (JHRW) against Leicester City Council, Gwynedd Council, and Swansea City Council. We attended the trial on 4 and 5 May 2016, at the end of which the Administrative Court reserved judgment.

The judgment

The case was about anti-Israel resolutions passed by the three councils in 2014 (Leicester and Gwynedd) and 2010 (Swansea), which criticised and condemned the Jewish state and called for, or purported to impose, a trade embargo or boycott.

The Administrative Court held the case against Swansea to be out of time. It rejected JHRW's claim that the resolutions passed by Leicester and Gwynedd were unlawful and should be quashed: essentially because the resolutions did not create policy or have any executive effect.

Numerous councils, as well as the Employment and Human Rights Commission, have taken the same view as the Administrative Court, though the chief legal officer of at least one authority - Brighton City Council - appears to share our view that the public sector equality duty (PSED) does apply to such resolutions, according to information supplied to us in August 2014.

We think the court was wrong, because the wording of the PSED is clear and doesn't need any special construction.

JHRW intend to appeal, and we wish them every success.

The resolutions

These resolutions (which are set out at the end of the judgment) did not bind the councils to comply with or act upon them; the three councils operated through an Executive, which developed and implemented policy, and procurement was a function of the Executive rather than the full Council. All this is the norm throughout the UK.

Two of the resolutions - those by Leicester and Swansea - were qualified by wording to the effect that they were to operate only to the extent that the law allowed. This too is a common qualification.

Scope of the public sector equality duty

The court noted that in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 at [274], the Court of Appeal "made clear" that the purpose of the PSED was to require public bodies to give advance consideration to equality issues "before making any policy decision that may be affected by them."

This statement in Elias was made by Lady Justice Arden, as one of a number of "supplementary points". She went on emphasise the importance of that requirement, and to "express the hope that those in government will note this point for the future." She did not say that this was the sole purpose of the PSED.

It seems to us that Lady Justice Arden's statement may have been made in passing, for the purpose of sending a message to government, and hence was not binding; and that she did not intend to exclude other uses of the PSED.

Returning to the present case - and this really is the reason for the decision - Lord Justice Simon said: "... while it is clear that a public authority must comply with its PSED under s.149, this obligation is more easily applied to a formal and developed policy than it is to resolutions of a local council following debate. In our view the obligations which are described apply primarily, if not exclusively, to those involved in the process of framing and implementing policy (the Executive, in constitutional terms) rather than those who debate broad issues which may result in policies subsequently drafted and framed in accordance with the law ... While we would not exclude the possibility that the duty may arise in relation to Council motions following a debate, it is likely only to arise where a resolution is closely focussed and the policy will be directly implemented."

Procurement law

Given (a) that procurement is a function of the Executive and not the full Council, (b) the qualifying wording of two of the resolutions, and (c) the fact that the councils had not implemented any boycott, the court was clear - not surprisingly to us, since it is also our view - that the resolutions did not override or even affect the lawful exercise of the council's public functions in relation to public supply or works contracts.

Our conclusions

We think a strong Administrative Court has produced a coherent judgment which won't be easy to attack. It has said that the PSED does not apply to non-executive, non-policy-setting resolutions of the kind which some councils pass in order to make a political statement.

However, the judgment does contain significant weaknesses. One is the court's reliance on Lady Justice Arden's passing remark in the Elias case. Another is its failure to consider section 1 of the Localism Act 2011 (which post-dated Elias and in effect makes such resolutions a local authority function).

But by far the biggest weakness is the court's failure to construe Parliament's words in accordance with the legislature's clear intent.

If and when the courts, and regulators, ever decide to enforce the laws for protecting Jews against antisemitism, in the same way that they are happy to protect other minorities, we shall be well on the way to being able to close this website and retire content.