I spent yesterday evening reading the judgement of Mr Justice Ouseley in the Brent hearing. Here are my comments, although I must stress that I am not offering any legal advice or guidance on this!
Brent Council's proposals for the library service were contained in a document called the Libraries Transformation Project (LTP). References below are to paragraph numbers in the judgement.
It is worth making clear that Mr Justice Ouseley was not asked for, and did not give, an opinion on the issue of whether the decision by Brent Council to close six libraries was in breach of Section 7 of the Public Libraries and Museums Act 1964 (s7), i.e. the "comprehensive and efficient library service" clause. He states:
"It is the Claimants' contention that the LTP involves a breach of s7 on its merits, regardless of the information gathered by the Council. This contest is not before me, and it will be for the Secretary of State to decide what to do under ss1 and 10 about the complaints made by the Claimants and others in that respect. Before me, their allegation is a more limited one concerning the way in which the Council obtained information and then analysed it when carrying out its assessment of needs. This, they contend, was irrational or failed to meet the necessary standards." (p92).
"… I would put it on the basis that if the Claimants can show that something has gone seriously or obviously wrong in law in the information gathering or analysing procedure, they should have their remedy in this court. Otherwise it should be left to the Secretary of State." (p 94).
Given that the Secretary of State has not responded to the complaints of the campaigners in Brent or elsewhere the focus of the argument was on the way in which the Council had gone about its assessment of the LTP. The Claimants hoped that if they could establish that this process was unlawful then the High Court would stop the Council from going ahead with the closures. They failed and the closures have happened, but in principle the Secretary of State can still consider whether the LTP is in breach of the 1964 Act.
The court considered the Complainants' case under 4 headings
1) The Council unlawfully ignored the role which community libraries and groups could play in fulfilling the s7 duties.
The FTP report proposed that by reducing the number of library buildings in the borough and concentrating resources in the remaining buildings; and by developing online and digital services, the Council would improve the quality of library provision while contributing to reduction in funding. This improved library service would, it was claimed, fully meet the requirements of s7. The Council said that it would consider bids by community groups to run private or community libraries providing that they met certain conditions, but that these would be in addition to the Council's provision and not part of the Council's statutory provision. The campaigners argued that the Council failed to consider the possibility of keeping libraries open through the use of volunteers. A key factor was that the Council's conditions for community libraries included there being no cost to the Council while the proposals that were submitted included continuing Council support. The ruling was that failure to proceed with community run libraries was not unlawful.
Some campaigners who are opposed to the use of volunteer libraries may welcome this ruling. Other local groups feel that they are being denied an opportunity to keep local libraries open. It would be a very different situation if a Council was intending to maintain community run libraries as part of its statutory requirements under s7.
2) The Council unlawfully failed to consult.
The Claimants recognised that there had been consultation but argued that way in which this was done was unfair and unlawful because it had not told the public what it needed to know about the running costs of libraries so that groups could make informed responses in support of voluntary arrangements. It was further suggested that the Council had only consulted on its own proposals rather than on a wider range of possible options. The judgement rejected both of these arguments saying that: "The Council was not obliged to consult on alternative means of achieving the same ends; there is no such general principle and such a requirement would make consultation inordinately time-consuming and complex". However it also said: "There was no evidence that the Council was unwilling to reconsider its proposals in the light of the consultation process if a strong enough case had been made". This could imply that a council that was unwilling to consider alternative scenarios could be in breach of its duty.
3) The Council unlawfully failed to assess the needs of library users.
Reference was made to the DCMS Wirral enquiry report which said that in deciding how to provide a ‘comprehensive and efficient library service’ the council must assess and take into account local needs. This does not have the force of law but is a significant document. The Claimants case was that the Council had failed to inform itself properly of the needs of the residents, and then to analyse those needs. It was at this point that the judge made the point that these issue are best considered by the Secretary of State in respect of s7 rather than in the process of a judicial review. Justice Ouseley concluded that the evidence showed that the Council had assessed users needs and that their analysis of these needs was reasonable. In this section he made the following observations:
"There is no requirement that all residents of an urban area should have access to a library within 1 mile of their homes; that is not a measure of a “comprehensive” service. Such a measure could readily have been enshrined in statute. And whatever may have been the guidance of government years ago for example in the Bourdillon report of 1962, it does not now represent the measure of a comprehensive service." (p106)
"The availability of resources is relevant to what constitutes a comprehensive and efficient service; the library service and s 7 duty are not exempt from resource issues and were not entitled in law to escape the budget reductions faced by the Council." (p107)
"The Council’s reliance on mitigation measures which included the use of the internet was criticised as falling outside the scope of s7 which focussed on “facilities for borrowing books and other material”. … In reality, a service which includes the provision of books and other materials by technology and goes beyond the loan of books or other physical items, or the provision of reading facilities on the printed page, falls within the scope of s7, which is not confined to the loan or use of physical items." (p116)
4) The Council was in breach of its public sector equality duty
The Claimants put forward a number of points relating to the Equality Act 2010. It was argued that the closure of the 6 branch libraries would result in indirect discrimination as there was differential impact on some groups, such as young people or particular ethnic groups. Justice Ouseley concluded
"... it did not put persons who shared the relevant characteristic at a disadvantage compared with those who do not. All users of the libraries to be closed have to travel further, irrespective of their protected characteristic or none. No issue of justification for indirect discrimination on race or religion therefore arose". (p139)
"Disproportion in impact may evidence indirect discrimination, and require its examination but it is not of itself proof of it." (p141)
"I do not think that a council can be said to discriminate indirectly against a group with protected characteristics when it closes a facility among the users of which that group is disproportionately represented, unless all those who share the same protected characteristic are adversely affected in their use of the facilities which are left." (p142)
The outcome of this decision was that six libraries in Brent were closed down. The case probably sets a standard against which the decision of other councils to close libraries can be judged. It is possible that other councils will not meet this standard and will have their decision overturned but generally as long as they can show a reasonable level of consultation, needs assessment and equality impact assessment they will not be judged to have acted unlawfully. Attention will now shift to the Secretary of State and whether he will respond to complaints that s7 of the Public Libraries and Museums Act 1964 has been breached. It can be argued that in the long term it is better that the future of libraries is decided by a debate about the value of libraries and not by narrow legal arguments over whether a council has breached this or that piece of legislation. The library profession now faces the task of advocacy and of deciding what model of library provision best meets our current needs.