Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…
2 May 2012
“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator Julia Donaldson, the latest high profile recruit to the campaign against planned library closures.
There have been a number of developments since we last blogged on this issue:
First, in R(Bailey And Others) V Brent London Borough Council & All Souls College (Interested Party) & Ehrc (Intervener)  Ewca Civ 1586, The appellants failed to overturn the dismissal of their application for judicial review of a local authority’s decision to close half its public libraries. See previous post here. The Court of Appeal dismissed the appeal on every ground, noting that the local authority’s decision to reduce its expenditure on public services was primarily one for it to make as a democratically elected body. Given the scale of the spending reductions required the decision was not unlawful.
Fanciful’ race discrimination claim
An argument that the closures would indirectly discriminate against the large Asian population in the affected area was developed extensively on appeal. It was roundly rejected as “artificial and wrong”. The court held that it was “fanciful” to suggest that it was so obvious that reduction in library provision, as opposed to other services, had a discriminatory effect upon the Asian community that it needed to be a significant factor in fundamental decisions as to the apportionment of resources.
In exercising its duty under the Equalities Act 2010 the local authority had correctly considered a comparator pool of library users as opposed to a pool of the general population of Brent.
Lord Justice Davis observed:
The importance of complying with s.149 is not to be understated. Nevertheless, in a case where the council was fully apprised of its duty under s.149 and had the benefit of a most careful Report and EIA[Equality Impact Assessment], I consider that an air of unreality has descended over this particular line of attack. Councils cannot be expected to speculate on or to investigate or to explore such matters ad infinitum; nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court. The outcome of cases such as this is ultimately, of course, fact specific (see Harris). All the same, in situations where hard choices have to be made it does seem to me that to accede to the approach urged by Miss Rose in this case would, with respect, be to make effective decision making on the part of Local Authorities and other public bodies unduly and unreasonably onerous. 
Requirements of Equalities Act duty fact sensitive
Considering R (Harris) v Haringey LBC  EWCA Civ 703 P.T.S.R., it was noted that the duty under s.149 of the 2010 Act had to be kept in mind throughout the decision-making process, but what observance of that duty required in each case was fact-sensitive – “it inevitably varies considerably from situation to situation, from time to time and from stage to stage” . In this case the local authority exercised its functions appropriately, putting forward reasoned proposals for closures, a reasonable reaction to circumstances including the urgent need to economise. It was not necessary for an EIA to be conducted before the formulation of those proposals.
Flexibility under the Public Libraries and Museums Act
It was noted that the local authority had had regard to its duty under s.7 of the 1964 Act and that the proposals included improved ways in which the expectations of users might be met and identified mitigation measures. The section contemplated flexibility in meeting the needs of users and detailed consideration had been given to those needs by the local authority in this case.
Permission to appeal has been refused by the Supreme Court.
A successful challenge
Notwithstanding the decision in Bailey, it is still possible for campaigners successfully to challenge library closures on Equality Act grounds, as the judgment of Mr. Justice Wilkie in Williams & Anor, R (on the application of) v Surrey County Council  EWHC 867 (QB) demonstrates – and see earlier successful challenge here.
The claimants applied for judicial review of the local authority’s decision to staff some libraries with volunteers. The court held that the local authority had failed to consider a relevant matter that had arisen from the consultation period, namely the nature and extent of the equality training needs of the volunteers and how such training needs might be met. It had therefore failed to have due regard to the equality issues referred to in s.149(1) of the 2010 Act and its decision was unlawful (see paras 123, 129-130 of judgment).
This decision is unlikely to significantly undermine the position of strength that local authorities must be in following Bailey on library closures. The Defendant has characterised the case as having been lost on a technicality, and stated that it would not necessarily prevent the plans going ahead.
That may be so, and the key parts of Bailey are rehearsed in this judgment, but we are also reminded of other cases with a different emphasis, such as R(Elias) v SS for Defence  EWCA Civ 1293 in which it was held that:
The clear purpose of (Section 149) is to require public bodies to give advance consideration to the issue of (race) discrimination before making any policy decisions that may be effected by such an issue. This is a salutary requirement which must be seen as an integral part of the mechanisms for ensuring the fulfillment and aims of anti discrimination legislation. It is not possible to take the view that non compliance is not a very important matter. [Section 149] has a significant role to play”
and R(Bapio Action Ltd) v SSHD (2007) EWCA Civ 1139, where it was stated that
Due regard must be an essential preliminary to any important policy decision, not a rearguard action following a concluded decision.
The court’s power to review decisions under section 149
Mr. Justice Wilkie also addressed the issue of whether “due regard” under section 149 of the 2010 Act is a matter to be determined by the Court or by the Defendant, subject only to a challenge on the “Wednesbury” grounds. He considered that the preponderance of first instance decisions suggested that the question whether there has been “due regard” is a matter for the Court to determine. However, once there has been due regard, the question whether the decision ultimately taken is lawful is a matter to be determined by the Court applying the Wednesbury principles.
This judgment accordingly provides a chink of light to opponents of library closures. The need for local authorities to do more than pay lip service to the PSED is reiterated post-Bailey and the court’s power to review such decisions on more than pure Wednesbury grounds asserted.
The Library Inquiry
Meanwhile, the Department for Culture, Media and Sport has heard evidence at a select committee inquiry into library closures. Culture Minister Ed Vaizey emphasised the role of volunteers in the future of library provision, perhaps suggesting that Williams turns on more than its facts.
That there is widespread unease with library closures is beyond doubt, and the unpopularity of such decisions has even been deployed by council leaders highlighting the crisis in elderly care funding.
Can the growing opposition to library closures be seen as part of an austerity backlash? This article provides an interesting discussion of austerity measures and the EHRC. Such measures have the potential to undermine the social and economic rights of the most vulnerable in our societies, albeit that the Convention appears to offers limited protection.
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The appeal in the Brent libraries case was unsuccessful. However, the Court of Appeal did accept submissions on behalf of the Equality and Human Rights Commission (who intervened in the case) about the importance of compliance with the public sector equality duty (PSED) at the formative stage of any policy proposal. The Commission submitted that the PSED cannot be put to one side pending an ultimate decision as to the adoption of a policy.
While finding that on the facts, it could not be said that PSED was “put on one side pending the ultimate decision”, the Court agreed that “it is necessary that consideration of the duty required to be regarded – most obviously here, [the PSED] – properly informs the decision-making process before the ultimate decision is made.”
“There may, for example, be cases – as the EHRC Guidance warns – where the very late and unheralded production of an EIA immediately prior to a final scheduled meeting may, depending on the circumstances, not suffice. To the extent that the judge may at one stage in his judgment have indicated that a full EIA will always suffice provided only that it is produced prior to the decision finally being made that may be going too far.” EHRC Guidance on PSED can be found on our website at:
John Wadham, General Counsel, EHRC
Lauren and Ian – we covered the Gloucester case – see http://ukhumanrightsblog.com/2011/11/24/successful-challenge-to-library-closures-lip-service-not-enough-for-equality-duties-shaheen-rahman/ which is linked to a couple of times in the above post.
Adam – apologies, it wasn’t initially clear that you had done so. It is, however, worth reinforcing the point that the judgement regarding Gloucestershire libraries is probably THE most important judgement so far. For some reason it is often overlooked when it should be at the forefront of any discussion on legal judgements impacting upon proposed library closures.
Ian – we have not overlooked it, we covered it in detail! The above post wasn’t presented as a review of all of the cases so far. And, arguably, the most recent case (Bailey) is as if not more important as it was in the Court of Appeal.
Sorry, by that I think the Gloucestershire case should be particularly highlighted as it was quite a key judgement. After all, the council’s decision to cut library provision was ruled unlawful.
*cough* Gloucestershire *cough*
You appear to have missed a significant judicial review – that of Gloucestershire and Somerset County Councils, which were ruled unlawful: http://www.guardian.co.uk/society/2011/nov/16/court-challenges-against-library-closures
Why has this JR not been mentioned?
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