Brent defeats Court of Appeal challenge to library cuts

December 19, 2011

Brent Council has successfully fended off an appeal by campaigners against its decision to close six of the 12 public libraries in the borough.

But the lawyers acting for campaign group Brent SOS Libraries, Bindmans, immediately said they were considering an appeal to the Supreme Court.

The campaigners had appealed a refusal by Mr Justice Ouseley in the High Court to quash the decision. They argued in the Court of Appeal that:

Brent had breached s. 149 of the Equality Act 2010 in failing to have due regard to the risk of indirect discrimination against Asian residents of the borough
The council had also breached s. 149 in failing to have any regard for the requirements of the section until too late a stage in the decision-making process. The six libraries had been named for closure in November 2010, before the equality impact assessment
Brent had breached s. 7 of the Public Libraries & Museums Act 1964 with its duty to “provide a comprehensive and efficient library service for all persons desiring to make use thereof” in failing to conduct an adequate investigation of needs
There had been procedural unfairness in having invited community groups to submit business plans for running libraries proposed to be closed but failing to tell them the criteria by which the plans would be assessed.

However, in Margaret Bailey and others v London Borough of Brent Council [2011] EWCA Civ 1586 the Court of Appeal dismissed the challenge. Giving the lead judgment, Lord Justice Pill said: “Given the scale of the spending reductions the council was required to make, and the information available following earlier studies, a decision that the library service should bear a share of the reduction was not, in my judgment, unlawful."

The judge said that the argument in relation to indirect discrimination against Asian residents had only fully emerged before the Court of Appeal. He added: “It is, in my judgment, fanciful to suggest, taking the best view that one can of the appellants’ evidence, that it was so obvious that library provision, as distinct from other services had discriminatory effects upon the Asian community that it needed to be a significant factor in fundamental decisions as to apportionment of resources.”

Lord Justice Pill added that:

The decision as to which libraries to close had been carefully considered by the council, and a full consultation had been conducted and fully reported to the decision makers
The council was “not plainly confronted either on behalf of the Asian community, or otherwise, with the issue now said to exist”. Factors were rightly and rationally considered when making the decisions as to which libraries should be closed and decisions were explained in the reports
He did not accept that a racial dimension rendered the choice unlawful. The s. 149 duty to have due regard did not require further consideration and analysis of that dimension when the decision was taken
He accepted that an adverse effect on the Asian population, as distinct from other racial groups, was capable of creating a breach of s. 149 of the 2010 Act, read with s. 19. However, it was legitimate to take, as the council did at that stage of the argument, the pool of library users rather than a pool comprising the entire population of the borough, in making an assessment. "Adopting that pool, the figures accepted by the judge....do not support a claim that there was indirect discrimination"
It was not necessary for an EIA to be conducted before the formulation of the proposals on which the public were to be consulted. The Court of Appeal judge accepted “that the council had s. 149 properly in mind from an early stage and for that reason decided to carry out a full EIA for consideration together with the results of the consultation.” Brent did not put the relevant requirements to one side until the ultimate decision was taken but had regard to them as an integral part of the decision-making process.
Decisions as to closures were taken with the duty under s. 7 of the 1964 Act in mind, with the council’s proposals including improved ways in which the expectations of users might be met. Mitigation measures had also been proposed. Matters raised by the appellants did not create a breach. “The section contemplates flexibility in meeting the needs of users and detailed consideration had been given to those needs.”

Lord Justice Richards and Lord Justice Davis also dismissed the appeal.

“In my view, and in agreement with Pill LJ, there was on the evidence here sufficient consideration by the council for the purposes of s. 149,” Lord Justice Davis said. “In my view, as a matter of substance ‘due regard’ was had to the specified needs. The finding of Ouseley J to the effect that the EIA was informed and thorough and addressed the relevant issues in substance and with rigour was also a justified finding.”

The judge acknowledged that the importance of complying with s. 149 was not to be understated. “Nevertheless, in a case were the council was fully apprised of its duty under s. 149 and had the benefit of a most careful report and EIA, 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.”

Lord Justice Davis described the final EIA as a thorough and detailed document which was thereafter fully and properly considered by the council before the final decision was made.

“In my view the extent of the continuing obligations throughout the process sought to be imposed here on the council by the applicants is far too extensive and intensive to be realistic,” he said, adding that the public sector equality duty had not been “put to one side pending the ultimate decision”.

Brent hailed the Court of Appeal's ruling as being unequivocally in its favour.

It insisted that the six libraries identified for closure were in unsuitable locations and “badly in need of expensive and unaffordable repairs”. The closures would help fund improvements to the remaining library service and contribute towards £104m of savings the council needed to make, it added.

Cllr Ann John, the council’s Leader, said: "We are pleased that the Court of Appeal found unanimously in the council's favour, upholding the decision of Mr Justice Ouseley that the council acted lawfully. We will now be able to begin implementing the improvement plan that will deliver a better library service for the people of Brent."

John Halford of Bindmans LLP, the campaigners' solicitor, claimed that the Court of Appeal's ruling was "very difficult to reconcile with what Parliament intended when it enacted the equality duty that obliges Brent, and all other local authorities, to properly grapple with the impact withdrawal of local services of this kind has on communities".

He added: "The Court of Appeal appears to accept that there is a risk of indirect discrimination against significant numbers of people in Brent resulting from its plans to impose devastating cuts on local library services, but it has excused the council from properly taking that risk into account before it deciding to make those cuts. Our position is that this is simply wrong in principle. If the Supreme Court is willing to hear this case, we anticipate the outcome being very different.”

Philip Hoult