Judicial Review Of Libraries Closure.

Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin) concerned an application for Judicial review. The Defendant, Lincolnshire County Council, had for some years concluded that they would have to make improvements to the Library services offered by them and to increase their overall efficiency.

Lincolnshire County Council sought to defend a decision to adopt the proposals, which would have seen 30 libraries handed to community groups. The authority would continue to staff the remaining 15 libraries and offer online and mobile services.

Judicial review is an audit of decision making by public bodies such as a Local Authority.
The courts will not re make the decision, or inquire into the merits, but to review the process by which the decision was reached in order to assess whether it was flawed and should be revoked.

The decison can be challenged on the following grounds.

  • The public body does not have the power to make a particular decision,
  • Used a power for an improper purpose;
  • The decision is irrational;
  • The procedure followed by the public body is unfair or biased;
  • The decision breaches of the Human Rights Act;
  • Is in breach of European Law;
  • Failed to comply with its legal duties, eg equality duties.

The Claimant, a Lincoln resident challenged the decision by judicial review,

  • The consultation by Lincolnshire was unlawful as the decision had already been taken;
  • The council failed to ensure that the harm that was going to be caused by their decision was prevented, as required by the Equality Act;
  • That they failed to properly consider a proposal by Greenwich Leisure Limited.

Under s.7 of the Public Libraries and Museums Act 1964 (1964 Act) it was their duty

“to provide a comprehensive and efficient library service for all persons desiring to make use thereof”.

The Defendant firstly reviewed services in 2007 and made recommendations for improving them by reorganising the opening hours, making the libraries more attractive and bringing in self-service technology. The Defendant’s subsequent report in 2009 again did not refer to any reduction in the static libraries which at that time numbered 48.
When the Government made cuts to local authority funding in 2010, the Council had to make an overview of all its services and consequently their libraries.

The Head of Libraries,had indicated in his contribution to the review that he respected the idea of communities being involved in the operation of those libraries which had small areas of population.

The libraries, with community involvement, which were referred to as “community hubs”, would operate as centres with library and other facilities.. The Council’s library service consisted of 44 static libraries comprising 12 district libraries, 11 neighbourhood libraries and 21 community libraries all with varying opening hours.

They also ran a mobile service for outlying areas and those people who were either housebound or in nursing or residential homes. A service for schools was available for those that requested the library facilities. There was a further library service intended for any others who were not part of the above groups such as blind or other people who were unable to participate in the existing services.

The Council carried out another review in 2012 to ascertain who was using the library facilities and the findings were that more than 323,000 people used the libraries and were within 30 minutes of a static library using public transport with 98% of that number, 15 minutes using a car.

The Council held a meeting on the 3rd December 2013 and an in-depth report was presented to the effect that they could not continue to sustain the library services in its present form and that they must address this to find a solution to make the service more efficient thus saving money.

In the meantime, in a report of 2nd July 2013 it had been decided that there be a public consultation in order to let people know about the proposed cuts and remodelling of the service in accordance with the statutory provision under the 1964 Act and with the Trade Unions involved in respect of any staff redundancies.

The case law on consultation, R v Brent, that if the people being consulted do not like the proposal and suggest something different, the Authority should look at it again and R (Partingdale) v London Borough of Brent where

“it must a proposal, and not something which has already been decided”.

A consultation document and survey was sent out to those to be consulted with instructions stating that Council seeks views from them in respect of the overhaul of the library services

“in light of the agreed £2 million costs savings”

and they continued by saying this would ensure a decision could be made how to run the service by 3rd December 2013, which was the date of the Councils meeting when the in-depth report was discussed by them.

As well as the statutory services under the 1964 Act the Council proposed other library services for populations under 550, a two weekly mobile library or a community centre run by volunteers with advice given by staff members for 6 hours weekly called “community hubs” and a mobile library service for 66 communities ranging from 100-549 households.

There were two parts to the consultation process, firstly, the decision to reduce the static libraries from 44 to 15 and secondly, the establishment of the community hubs and the mobile service to the 66 communities both of which did not fall within the statutory requirement under the 1964 Act.

Meetings were also held which were attended by Mr Platt Head of Libraries and Heritage and a website put up to answer questions. One of the questions to be answered by those invited to be part of the Consultation was

“Are there any other options you would like to put forward?”

which appeared to be an invitation to them to suggest how savings could be made.

There were two organisations who came forward, one commercial the other a charity both offering to make the saving without a reduction in the statutory service defined by the 1964 Act.

The Judge, Mr Justice Collins, found the Consultation exercise was flawed because of the proposal of reducing the statutory library service to 15 libraries and the selection of populations living more than 30 minutes away could not be altered. In theory the 30 minutes travel might be changed but at the same time would put more people who use the facilities out of the scope of the libraries.

The consultation had been arranged by Sheffield Hallam University who presented a summary of their findings to the Council, the result being unanimously against the proposals.

An information pack was produced by the Council where organisations could put forward an Expression of Interest to be submitted within a time period. The introduction stated it was for “Community and Voluntary Sector Organisations wishing to deliver library services in Lincolnshire”.

A charitable organisation Greenwich Leisure Ltd (GLL) applied. They already ran libraries in Greenwich and Wandsworth, only finding out about Lincolnshire end of September 2013. They subsequently put in an Expression of Interest on the 30th September 2013 which was the end of the consultation period. They said they could save 1.8 m by reducing operating costs and increasing income. The Council rejected GLL’s application. The Claimant contended that they should have asked for more information before dismissing them.

The in-depth report submitted on the 3rd December 2013 to the Council had given due consideration to GLL’s proposals saying that the limited detail given by them combined with reductions to the mobile service did not allay concerns from the public and staff given in the consultation.

Expressions of Interest is defined under s.81 of the Localism Act 2011 (2011 Act). This requires the Local Authority when looking at an Expression of Interest by an organisation (“relevant body”) to see whether it can provide a particular service for the local authority and in this matter, GLL is a “relevant body” as defined in s.81(6) of the 2011 Act. The Judge said in this case that GLL had submitted all required information in its application.
Counsel for the Defendant, Helen Mountfield, QC, submitted that the GLL’s proposals had not been treated by the Council as an Expression of Interest under s.81 of the 2011 Act but the Judge said GLL’s proposals were and had been described as that in their application form for those organisations submitting Expressions of Interest under the 2011 Act. Miss Mountfield also contended that the application by GLL fell outside the period of April to June stated by the Council.

A panel report by the Council on the GLL bid was prepared and was rejected as being outside the area of the consultation. The judge said he could not see how the Defendant could back the consultation process because the statutory service under the 1964 Act was not fixed at only 15 static libraries but then dismiss the Expression of interest from GLL because it did not fall within the area of the consultation process.

David Lawson acting for the Claimant relied on a breach of the public sector equality duty under s.149 of the Equality Act 2010 which requires an authority to remove discrimination and give equality of opportunity. The Judge, however, said that the Defendant did fulfil its duty under s.149 having already identified where the discrimination could be and putting in hand measures to prevent this.

The Judge concluded that the decision made by the Defendant did not mean it was unlawful, they had to make £2m in cuts in accordance with the directions received from the Government, this could not be challenged in the Courts.

The Judge looked closely at the consultation process and the proposition made by GLL. His view was that the decision made by the Defendant be quashed. He went on to say that had he only been considering the consultation process he might not have granted relief as the proposals were accepted and considered.

However, with regard to GLL and the way that the Defendant dealt with their proposition, which was that in their view the proposals did not come within the consultation process then the Judge considered in the light of this that the decision be quashed.

The Judge thought the best way ahead for the Council was to go back to GLL and obtain more details from them to ascertain whether there are any alternatives that can be considered.

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