Library closures – learning the lessons

Local authorities looking to reshape their libraries service can easily end up having to defend a judicial review challenge in the courts. John Sharland looks at how to avoid the pitfalls. 

Considering how small a part of a local authority’s budget library services account for, decisions that affect them attract more than their fair share of publicity.

On 30 October 2012 the Parliamentary Culture, Media and Sport Committee issued a report on the subject of library closures. On 23 November the writer Jeanette Winterson joined in the debate, arguing in the Reading Agency’s inaugural lecture that there should be an expanding network of “people’s palaces of books” and suggested that Google, Amazon and Starbucks might like to emulate the example of Andrew Carnegie (the nineteenth century steel magnate and philanthropist who funded the creation of hundreds of libraries in the United Kingdom and the United States) and contribute the necessary money out of their past tax savings.

Jeanette Winterson’s intervention illustrates why authorities need to tread with particular care when dealing with the library service. The supporters of libraries will not greet the news of their closure with a shrug of the shoulders and think to themselves that the local authority knows best. If the local authority has done something that leaves them vulnerable to challenge then a challenge is what they can expect.

In their report, the Culture, Media and Sport Committee said that a number of local authorities appeared to be insufficiently aware of the available guidance on the definition of “comprehensive and efficient” and that they also appeared to lack information about the requirements emerging from multiple judicial reviews. So, for the benefit of the authorities in this unhappy state of insufficient awareness, here is a summary of relevant guidance and the lessons to be learnt from the judicial reviews.

The expression “comprehensive and efficient” comes from section 7 of the Public Libraries and Museums Act 1964 which provides that: “It shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof.”

There is no definition of the expression “comprehensive and efficient”. The Secretary of State has a statutory duty to superintend and promote the improvement of the library service and an ability to order an investigation if there is a complaint that a library authority has failed to carry out its duties.

The Secretary of State has only once ordered such an investigation. That was into the provision of library services provided by Wirral Metropolitan Metropolitan Borough Council and was conducted by Sue Charteris. Her report in September 2009 was recommended by many of the witnesses before the Committee as a guide to how local authorities should ensure compliance with their statutory duty. The background was that Wirral MBC had decided to close 11 of its libraries. It had commissioned a report from leisure consultants before deciding to proceed with the closures.

The Charteris report found that the council was in breach of its statutory duty to provide a comprehensive and efficient library service. This was primarily because it had failed to carry out an assessment of local needs. The council had focused mainly on asset management and cost savings. The proposed closures were taking place in the absence of any strategic plan or vision for the library service. In view of this the council was in breach of its duties to provide a comprehensive and efficient service. In the light of the report Wirral MBC decided to reconsider its proposals.

The report provided a summary, approved by the committee, of what a needs analysis might be expected to contain. In outline this is:

• Consideration of the needs of those who live work and study in the area;
• An assessment of accessibility;
• Consideration of the views of existing users;
• An assessment of whether any specific communities or groups would suffer adverse impacts;
• Consideration of information from partner organisations and other departments.

Sue Charteris also said that she would expect the analysis to look at ways of changing how the service is operated to make it more efficient. This would include an assessment of the fitness for purpose of the library buildings, whether resources could be used more efficiently and whether a physical presence is necessary, taking into account the needs of the community.

Some who gave evidence to the committee, such as Andrew Coburn of the Library Campaign, regretted that the DCMS no longer set out public library standards for England. (They have been retained in Wales.) However, the committee made no recommendation for their revival. The reason for this is that these standards, like those imposed elsewhere in the public sector, concentrated on what could easily be measured (numbers of books borrowed, numbers of visits etc.) and did not give a rounded picture of the quality of service.

The committee also declined to recommend further guidance on what constituted a comprehensive and efficient library service though they commented that, in the light of several judicial reviews, this had become a “legal minefield”. In practice, however, the prospects of an authority being found to be in breach of this duty are low. The decided cases have involved challenges on a variety of grounds. The most important of these have been alleged failures to comply with the duty to provide a “comprehensive and efficient” library service and to comply with the public sector equality duty.

Judicial reviews, by their nature, are concerned with the legality of an individual decision. The court is not a good forum for judging the adequacy of a local authority’s library service. The judgments in these cases should therefore be studied by local authorities as a guide to avoiding challenges, but not as a way of judging the quality and effectiveness of their libraries.

The three most important decisions on library closures are the Court of Appeal decision of R (Bailey) v Brent London Borough Council [2011] EWCA Civ 1586 and the decisions of the High Court in R (Green) v Gloucestershire County Council; R (Rowe and Hird) v Somerset County Council [2011] EWHC 2687 (Admin) and R (Williams and Dorrington) v Surrey County Council [2012] EWHC 867 (QB).

In the first of these the Court of Appeal rejected all criticisms of the way in which the authority had gone about restructuring its library service. In the other cases the High Court held that the decisions of the authorities needed to be quashed on the basis that the authorities had breached their duties under section 149 of the Equality Act 2010 to “have due regard to the need to” eliminate discrimination, advance equality of opportunity and foster good relations between people who have protected characteristics and those who do not (the “public sector equality duties”). What then did Brent do right that the other three councils did wrong and what are the lessons to be learnt from the cases?

Brent planned to close six libraries. This was a deeply controversial decision and there was a high profile campaign against it. The authority conducted a three month consultation on its proposal and then prepared an equality impact assessment. In the light of this, it decided to proceed go ahead with the decision to close the libraries.

The decision was challenged mainly on the grounds that the council had acted in breach of its equality duties and also its duty to provide a comprehensive and efficient service. There were two arguments in relation to equalities. The first was that there was a disproportionately adverse impact on the Asian community because of the high proportion of people of Asian origin who were library users. The second was that the council had not carried out its equality impact assessment until too late in the process, after the six libraries proposed for closure had already been named.

The first of these arguments raises the question: what is the “pool” of affected individuals that an authority should be looking at when assessing whether a course of action is discriminatory? The council had looked at the ethnic composition of library users and, using library users as the pool rather than the population of the borough as a whole, there was no disproportionate impact. The Court of Appeal said that the council had used the correct comparator, on the basis that there was no reason why those who had no interest in the matter, i.e. those who did not use libraries, should be brought into the comparison.

On the second ground the appellants placed emphasis on previous decisions that the public sector equality duty needed to be embedded in the process and could not simply be referred to at the time the final decision is made. The court said that the council had acted with due regard to its equality duties. Given the need to make savings, the council’s response, to put forward a proposal for closures, was reasonable. The council decided to carry out a full impact assessment and report this with the results of the consultation. There was no need for an impact assessment before the proposals were formulated. This was not a case of an authority putting the requirements on one side until the final stage of the decision-making process.

The argument that the council had breached its duty under s7 of the 1964 Act was based on the claim that it had not carried out an adequate needs assessment and in particular that it had not had regard to the needs of Asians, young children and children who attended schools at which the library had closed. This was decisively rejected by the court. The decisions were taken with the duty in mind. The proposals addressed ways in which the needs of users could be met and included mitigation measures.

The decisions by Gloucestershire and Somerset County Councils were also challenged on the grounds of breach of the equality duty and the duty to provide a comprehensive and efficient library service. However, in this case both authorities were found to be in breach of their equality duties.

The reasons were to do with deficiencies in their equality impact assessments. Gloucestershire (“GCC”) had prepared three such assessments. (This is not a good sign. Successive assessments look like an admission that there was something wrong with the earlier versions.) In the first there was an absence of evidence that the needs of vulnerable groups played a part. The second contained no analysis of the needs of disabled and no impact of the impact on female users and whether for example single mothers may be more dependent on libraries than others. The third was criticised as being too late to inform the Cabinet decision and in any event repeated the flaws of the previous assessments. Somerset (“SCC”) had also prepared impact assessments but there were also substantial criticisms which could be levelled at these. There was no assessment of the impact of the closures on children, young people or people with disabilities.

The question for the court was whether there was a conscious directing of the mind by the decision makers to their obligations and in particular to the need to exercise the duty in substance and with rigour and based on sufficient information, appropriately analysed. The duty on both GCC and SCC was to carry out a sufficiently rigorous information gathering exercise and then properly analyse this information. Both authorities had failed in this duty.

However, the court did not find that either council was in breach of its duty to provide a comprehensive and efficient library service. Both had undertaken a needs assessment. The claimants criticised these documents and in the case of SCC suggested that, because the council’s report indicated that it was deciding what services it could provide within the budget, it was not seeking to fulfil its duty under s7. The judge rejected these criticisms and made some helpful comments. The requirement to produce a needs assessment did not meant that there necessarily had to be a discrete information gathering exercise. A council could rely on the expertise of its officials and on information gathered from a variety of reliable sources. The requirement for comprehensiveness did not mean that there had to be blanket coverage. Without an unlimited budget there would always be gaps and SCC’s statements were simply a reflection of economic reality.

When Surrey County Council decided that 11 of its libraries should be run on the basis of a “community partnership model” (managed by local community groups and staffed by volunteers) the only ground of challenge was on the basis of the public sector equality duty. The council’s cabinet made a decision on 1 February 2011 to work with parish councils and other community groups to develop a model for locally managed libraries. On 27 September, following a process of consultation, the matter went back to cabinet to approve the implementation of the scheme. The report to the February cabinet said that significant training of the volunteers who would be working in the libraries would be required. However, the report to the September cabinet simply repeated this assertion without saying anything more about the nature of the requirement and how it could be fulfilled.

The judge said that this meant that the council had not had “due regard” to its equality duties. By September many discussions with the community groups had taken place but there was nothing in the report about the nature and extent of the training needs, how officers’ thinking had developed and how such training might be delivered and maintained. This decision might be regarded as harsh. Having identified the need for training and stated that it would be provided, officers might be forgiven for thinking that the issue had been addressed and that if members of the cabinet wanted more detail, they could ask for it.

The lessons from the cases may be summarised as follows:

Provided that a proper needs assessment is carried out and property taken into consideration, councils are able to make changes to library provision without falling foul of their duty to provide a comprehensive and efficient library service. There is guidance – the Charteris report is particularly clear and helpful – about how a needs assessment should be carried out. There may be a need to put in place appropriate mitigation measures.

The real “minefield” is the public sector equality duty, and this is where authorities are more likely to be subject to a successful challenge. There is a need to ensure that regard is had to equality considerations throughout the process. This does not mean that there needs to be an impact assessment before any consultation is commenced but the whole process needs to be approached with equality considerations in mind. There will need to be an equality impact assessment before any final decision is made and this will need to be robust. The duty is not fulfilled simply by having a document called an equality impact assessment. The court will look at this document critically to ensure all relevant equality issues have been addressed and the impacts on groups with protected characteristics have been identified and analysed. Again, it may be necessary to put mitigating measures in place. The specific duties under the Equality Act should be mentioned in the report to the decision maker so it can be shown that they were taken into account.

A council that takes the above steps may not satisfy Jeanette Winterson, but it should be able to satisfy the courts. No doubt most local authorities would like to be able to provide an expanding network of “people’s palaces of books” but at the moment they will need to use their dwindling resources in a way that still allows them to fulfil their legal duties.

John Sharland is a partner at Sharpe Pritchard.