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Decision by cash-strapped county to close 21 libraries unlawful: High Court

A decision by cash-strapped Northamptonshire County Council to close 21 of the 36 public libraries in its area was unlawful, a High Court judge has ruled.

The case of WX, R (On the Application Of) v Northamptonshire County Council [2018] EWHC 2178 involved two applications for judicial review, one brought on behalf of an infant (WX) by her mother who was concerned that she would not have the same opportunity afforded to her older siblings, and the other by a resident (John Connolly) involved in a campaign to save his local library.

Northamptonshire had originally backed ‘Option 1’, allowing for some of the 21 libraries to stay open as ‘community managed libraries’.

However, on 20 February 2018 auditors KPMG issued an advisory notice under section 29 and Schedule 8 to the Local Audit and Accountability Act 2014. The notice’s effect was that the council was not lawfully able to continue its process of setting a budget and precept for 2018/19.

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The council then opted for ‘Option 21’ which involved closure of the 21 libraries and no support for community managed libraries.

The judge, Mrs Justice Yip, noted the extent of the cuts but also the financial troubles faced by Northamptonshire. “While austerity measures have led to the closure of many libraries around the country, evidence placed before me suggests that the scale of these cuts is unprecedented. They must be seen in the context of a local authority facing unprecedented financial difficulties. Although the claimants suggest that many of the problems are of the defendant's own making, the simple truth is that action must be taken to regain control of a very precarious financial situation.

She said there was no doubt that the provision of libraries was an essential public service, but that it must also be recognised that the council must fund other essential services, including safeguarding children and vulnerable adults. “The pressure on all statutory services is enormous. Some very tough decisions are still to be made in the coming weeks and months.”

The judge concluded that she was satisfied as to the lawfulness of the defendant's approach up to and including its cabinet meeting of 13 February 2018.

However, she found that the decision-making process “broke down” after KPMG issued its advisory notice.

Mrs Justice Yip said: “I recognise and appreciate that this serious step called for a response and that decisions had to be taken in the context of real financial pressure. However, while the need to make further savings was a legitimate, indeed necessary, driver for further cuts, it did not relieve the defendant of the need to act lawfully.

“Important decisions needed to be taken, having regard to the core duty [to provide a comprehensive service] under s.7 of the 1964 Act [the Public Libraries and Museums Act 1964] and other statutory duties. When taking decisions that would impact on the library provision, the Cabinet and the full Council needed to be properly informed as to the decisions required, the legal framework and all relevant considerations.

“Instead, the decision to move to Option 2 appears to have been presented as something about which they had ‘no choice’ without any real cost benefit analysis or weighing of the financial interaction with children's centres or the consultation feedback.

The council did not meet its public sector equality duties, and did not take into account the risk of the Department for Education clawing back money if children’s centres in the affected libraries could not be relocated.

The judge said she agreed with a submission by counsel for WX that the apparent confusion over the division of responsibilities between Cabinet and full Council “perhaps explains why the Cabinet did not comply with their duties”.

Mrs Justice Yip considered that the flaws identified infected the Cabinet's decisions on 27 February 2018 and 13 March 2018 and the full Council decision on 28 February 2018.

The judge said her provisional view was that the Cabinet decisions of 27 February 2018 and 13 March 2018 should be quashed. “I do not believe it would be appropriate to refuse relief on materiality grounds. The flaws in the defendant's decision making which I have identified are such that I consider that the whole question of library provision needs to be revisited by the defendant, paying attention to its legal obligations and all material considerations.”

She stressed that she was not deciding any issue as to the merits of any proposed library closures. “This remains a matter for the authority. I do recognise, as indeed the claimants indicated they did, that the defendant may still decide to take the same libraries out of the statutory service, provided that decision is reached lawfully.”

Mrs Justice Yip said the decision was more difficult in relation to the budget decision on 28 February 2018. “In considering the quashing of the budget allocation for the libraries, it seems to me that I would, at least as a matter of discretion, have to consider the practical realities of the current situation. There are no reserves to draw on. Therefore, consideration would have to be given as to the extent to which there is any flex available. That would require a further update from the defendant. Having been told that there is simply no money available, it is not entirely clear how this fits with the letter of 2 August 2018, which provides an undertaking that there will be no library closures until further work has been undertaken. I regard the information I currently have from the defendant as somewhat vague and uncertain.”

Mrs Justice Yip said it would be “unfortunate” if this litigation were to distract the defendant from the serious business of seeking to resolve the financial crisis while meeting its statutory duties across its range of services.

“I have no doubt that the claimants and their supporters will have concerns extending beyond the library service and will be supportive of genuine attempts to resolve the problems. It seems to me that some encouragement is to be gained from the recent correspondence. Judicial review provides a practical remedy and the claimants need to be very aware of the limits of what might be achievable in the current circumstances,” she said.

“For those reasons, I would strongly urge the parties to give serious consideration to agreeing the appropriate relief and consequential orders in this case. It seems to me that there is a very strong public interest in bringing this litigation to an end as swiftly and efficiently as possible.”

A further hearing will be held if such agreement between the parties cannot be reached.

Responding to the ruling, Cllr Matthew Golby, Leader of Northamptonshire, said: “We are considering the judgement very carefully.

“We are pleased that the judge has recognised that the council’s public consultation and equality impact assessments were indeed lawful, and that she acknowledges the severity of the council’s financial challenge.”

He added: “As we announced earlier this month, we had already made a decision to pause the proposed changes to the local library service for further consideration and are continuing to work closely with community groups, partners and interested parties within the wider context of the council’s budget recovery programme.

“The judge has noted that the county council is continuing these discussions with the community groups. In light of this, she has instructed that the legal parties use their best endeavours to agree all outstanding issues.

“The county council is committed to finding a way forward that is satisfactory and achievable for all parties.”

Caroline Barrett, Senior Associate at WX’s lawyers Irwin Mitchell, said: “The closure of libraries has a disproportionate effect upon children and vulnerable people and our client’s family was extremely concerned that she would not have access to the same library provision as her elder siblings. Local schools also relied upon the local library services.

“The ruling shows that the family was right to challenge the council. Many other local residents have also supported the judicial review proceedings, and all the residents who came forward and urged the council to review and change its decision are vindicated by this ruling.”

Barrett added: “Our client recognises that the council is in a precarious financial position. Commissioners have been appointed to run the council’s executive functions by the Secretary of State and a raft of further cuts was announced by the Council in a highly charged meeting last week.

“Nevertheless, this ruling confirms that all councils, regardless of their financial position, simply must comply with their statutory and common law duties. This is in principle with the rule of law. The council has duties to its local residents and it must continue to make decisions in a lawful manner.”

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