ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE OUSELEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE DAVIS
| R (on the application of Margaret Bailey & Others)
|- and -
|London Borough of Brent Council
|- and -
|All Souls College
|- and -
|Equality and Human Rights Commission
Miss E Laing QC and Miss Deok-Joo Rhee (instructed by London Borough of Brent) for the Respondent
Miss K Monaghan QC for the Intervener (written submissions only)
Hearing dates : 10 and 11 November 2011
Crown Copyright ©
LORD JUSTICE PILL :
"In anticipation of budgetary cuts and building on earlier work, officers had presented a report to the executive on 15 November 2010 recommending public consultation on changes proposed to the public library service in the Borough; these included the closure of the six libraries. There was opposition to that report from various deputations. The report was approved. An extensive process of public consultation followed over a three month period. An Equality Impact Assessment or EIA was prepared under the Equality Act 2010, taking into account the results of the public consultation. The budgetary cuts came much as feared. A careful report, with the EIA, was presented to the executive for its meeting on 11 April 2011, leading to the decision now challenged."
The population of Brent is about 290,000 and it is the second most ethnically diverse local authority area in the country.
(1) Breach of section 149 of the Equality Act 2010 ("the 2010 Act") in failing to have due regard to the risk of indirect discrimination against Asian residents of the Borough.
(2) A further breach of section 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 EIA.
(3) A breach of section 7 of the Public Libraries & Museums Act 1964 ("the 1964 Act") 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.
(4) 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.
The November 2010 Report
"1.1 The Libraries Transformation Project is a One Council project to improve the quality of library provision in Brent, while contributing to the Council's need to meet efficiency targets in response to reductions in funding. The number of library buildings in the borough will be reduced, enabling resources to be concentrated on the best located libraries. An enhanced core library offer for residents will be established that provides value for money and reflects the needs of all customers. Online and digital services will be expanded to widen access and comparable services will be provided to those who are unable to visit a library. Libraries will be co-located with council services and local agencies to provide community hubs with cultural activity. In order to do this the project will deliver:
- Modern, multi functional, library buildings
- A realignment of resources to achieve both improvements and efficiencies
- A clear definition of what residents can expect from their library service, wherever they live, based on an assessment of user needs
- A review of digital provision and online services in libraries
- Staff training to equip a multi skilled workforce
- Savings to the Council in the region of £1 million."
"Rationalisation of resources by closing six library buildings that are poorly located and have low usage: Barham Park, Cricklewood, Neasden, Tokyngton, Kensal Rise and Preston.
A commitment to ensuring that residents have high quality library facilities in accessible locations."
Following the consultation Ms Harper submitted a further Report to the council in April 2011 ("the April Report").
"(1) A public authority must, in the exercise of its functions, have due regard to the need to-
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
. . .
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are -
pregnancy and maternity;
religion or belief;
. . ."
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are-
pregnancy and maternity;
religion or belief;
. . ."
This case is concerned with indirect discrimination in the provision of services, and in that context, by virtue of sections 28 and 29, 'age' is not a relevant protected characteristic, as far as it relates to persons who are under the age of 18.
"(1) 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,
Provided that although a library authority shall have power to make facilities for the borrowing of books and other materials available to any persons it shall not by virtue of this subsection be under a duty to make such facilities available to persons other than those whose residence or place of work is within the library area of the authority or who are undergoing full-time education within that area.
(2) In fulfilling its duty under the preceding subsection, a library authority shall in particular have regard to the desirability—
(a) of securing, by the keeping of adequate stocks, by arrangements with other library authorities, and by any other appropriate means, that facilities are available for the borrowing of, or reference to, books and other printed matter, and pictures, gramophone records, films and other materials, sufficient in number, range and quality to meet the general requirements and any special requirements both of adults and children; and
(b) of encouraging both adults and children to make full use of the library service, and of providing advice as to its use and of making available such bibliographical and other information as may be required by persons using it; and
(c) of securing, in relation to any matter concerning the functions both of the library authority as such and any other authority whose functions are exercisable within the library area, that there is full co-operation between the persons engaged in carrying out those functions."
It was common ground that in order to fulfil the duty under section 7 the council had to make a reasonable assessment of the needs which the library service should meet.
The April 2011 Report
- "Statutory duties: the Council has a legal responsibility to provide a comprehensive and efficient library service to facilitate the borrowing of books. It has several other relevant legal responsibilities, including that of setting a balanced budget, and to assess the impact of its service proposals on communities who may be disproportionately disadvantaged."
"In considering whether the service delivered by the Library Transformation Project is comprehensive, officers have had regard to a wide range of information about the borough's population, the active borrowers, people who are not library users, participants in consultation, the result of research and needs assessment, opportunities offered by a range of different forms of distribution and access, the differing needs of people with a range of characteristics, and other related factors, all of which are addressed in different parts of the main report and appendices.
In considering whether the service is efficient officers have had regard to detailed information and analyses of the costs of the existing service, the resources available to the Council for delivering library services, the balance between costs of different parts of the service, particularly the proportion available for spend on stock, alternative means of distribution and access and opportunities (some already well established) for savings through joint procurement and alternative provision."
"6.13 The council's duty under Section 149 of the Act is to have 'due regard' to the matters set out in relation to equalities when considering and making decisions on the provision of library services. Accordingly due regard to the need to eliminate discrimination, advance equality, and foster good relations must form an integral part of the decision making process. Members must consider the effect that implementing a particular policy will have in relation to equality before making a decision.
6.14 There is no prescribed manner in which the equality duty must be exercised. However, the council must have an adequate evidence base for its decision making. This can be achieved by means including engagement with the public and interest groups, and by gathering details and statistics on who uses the library service and how the service is used. The potential equality impact of the proposed changes to the library service has been assessed, and that assessment is found at Appendix Four and a summary of the position is set out in paragraph 9 of this report. A careful consideration of this assessment is one of the key ways in which members can show "due regard" to the relevant matters.
6.15 Although the information on equalities issues relating to libraries was gathered before the new duty came into force, officers anticipated the change in the legislation and accordingly the information is sufficient to enable compliance with the new duty.
6.16 Where it is apparent from the analysis of the information that the policy would have an adverse effect on equality then adjustments should be made to avoid that effect (mitigation). The steps proposed to be taken are set out in paragraph 9 of the report and in more detail at Appendix Four.
6.17 Members should be aware that the duty is not to achieve the objectives or take the steps set out in s.149. Rather, the duty on public authorities is to bring these important objectives relating to discrimination into consideration when carrying out its public functions (which includes the functions relating to libraries). 'Due regard' means the regard that is appropriate in all the particular circumstances in which the authority is carrying out its functions. There must be a proper regard for the goals set out in s.149. At the same time, Members must also pay regard to any countervailing factors, which it is proper and reasonable for them to consider. Budgetary pressures, economics and practical factors will often be important, which are brought together in Appendix One. The weight of these countervailing factors in the decision making process is a matter for members in the first instance."
- "a comprehensive service cannot mean that every resident lives close to a library. This has never been the case. 'Comprehensive' has therefore been taken to mean delivering a service that is accessible by all residents using reasonable means, including digital technologies
- an efficient service must make the best use of the assets available in order to meet its core objectives and vision, recognising the constraints on Council resources
- decisions about the Service must be embedded within a clear strategic framework which draws upon evidence about needs and aspirations across the diverse communities of the Borough."
"A reasonable geographical spread across the borough was also important. High street locations and proximity to public transport were preferable to ensure maximum footfall.
7.5 Libraries such as Cricklewood, Kensal Rise, Barham Park and Tokyngton are limited by their position and their proximity to better located buildings such as Willesden Green, Kilburn, Ealing Road and Harlesden.
7.6 Issues of deprivation and community access were also considered, particularly in relation to the three libraries at Preston, Neasden and Kilburn. Key issues relate to the access to libraries for younger people (under 19) older people (over 60) and people with disabilities. Population centres for these communities have been mapped, and are shown at the annexes to Appendix Four (the Equalities Impact Assessment.) Looking at these maps, it is clear that populations of all three of these groups are disproportionately centred around Kilburn, and therefore this library building was prioritised for the future Library service. (It is much easier to understand this issue by reference to the maps than by purely numerical presentation.)
7.7 Long term viability of buildings has also been considered and the fact that long term repairs of some of the underused libraries [are required]. Refurbishment of libraries over the past three years has been achieved through both external funding (such as Big Lottery), prudential borrowing and partnerships with other council services. The current financial climate means that many of these sources are now unavailable."
"The EIA shows that there is a restricted number of library users, particularly in the Cricklewood area (where the PTAL rankings are the poorest), who will experience the worst impact in relation to access to libraries either because they cannot use public transport, cannot walk to nearby public transport or alternative libraries, or cannot afford transport. Across all equality strands where a potential adverse effect due to issues of access and affordability has been identified, a range of mitigation measures have been established including outreach services, online and digital services, home delivery and home visits, books by mail and monthly outreach deposit collection to specific centres. These mitigations, which are considered sufficient to address much of the impact, will be particularly tailored to those areas and communities most affected.
. . .
The current economic situation and its impact on local government necessitate a review of all services at local, regional and national level. Brent's library service is looking to transform service delivery. The aim of this project is to both secure efficiencies and to deliver a better focused, more transparent and better supported Library service, offering better facilities and services in 6 locations."
"Of the six libraries proposed for closure, five had the lowest number of annual visits, and the greatest costs per visit. The sixth, Neasden was a little cheaper per visit and had a few more visitors than Kilburn, which was not suggested for closure and to which particular community considerations applied."
"It is, in my view, on the face of it at least, a careful and full analysis of the issues, and provides a deal of data on needs and how they could be affected. The key issues are the obvious ones which library closures could give rise to."
The judge added, at paragraph 68:
"Before the executive reached its decision on 11 April 2011, it heard representations from a number of residents wishing to keep one or more of the six libraries open. Ward councillors were also able to address the executive. After debate, the proposals were accepted."
Submissions on grounds 1 and 2
"The Council accepted that the April 2011 report did not analyse indirect discrimination, but Miss Laing [Miss Laing QC, for the council in this court and below] submitted that it did not have to do so and that this involved no unlawfulness unless, after a proportionate investigation of the issue, a reasonable public body would have concluded that the LTP created an obvious risk of unlawful conduct. There was nothing on the facts of this case to warrant such a conclusion."
"Ms Mountfield [Ms Mountfield QC appeared for the appellants before the judge] developed orally an argument in relation to indirect discrimination which went somewhat beyond what had been foreshadowed. This led to written submissions at my request from Ms Laing and then in reply from Ms Mountfield in the course of which this subsidiary argument took on a life of its own. She did not initially say that the Council's decision involved indirect discrimination, but rather that defects in its analysis of data meant that obvious potential indirect discrimination had not been analysed and without that it could not have given due regard to the s149 duty. This failure prevented the Council saying that its EIA had been done with rigour and with due regard to the needs in s149."
The judge set out the arguments then advanced and dealt with them in some detail.
"In any event, since Asians are the largest ethnic group among the users of Brent libraries, it would be expected that they would be the most numerically disadvantaged. But the Asian users of the libraries were not proportionately more disadvantaged or indeed advantaged than non-Asians. 76% of Asian users and 76% of non-Asian users use the libraries that remain and 24% of Asian users and 24% of non-Asian users use the libraries that will close. Moreover, once accurate figures were used, and the effect removed of using rounded figures for the purpose of further calculations which magnified the effect of the roundings, the Claimants' analysis showed that the percentage of users of all Brent libraries who were Asian and the percentage of users of the six to be closed who were Asian differed by 0.04."
The council also refers to evidence that the percentage of Asian library users of the six libraries proposed for closure (49%) is very close to the percentage of active borrowers across the Borough who are Asian (46%).
"A provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage."
Miss Rose submitted, and I agree, that to establish indirect discrimination it is not necessary to show that all Asians suffer a disadvantage.
". . . the Commissioners and the court are entitled to take a broad approach and to find that indirect discrimination is liable to affect a significant number of migrant workers on the ground of nationality without statistical proof being available."
"It was enough in cases of discrimination based on nationality that the effect of the provision is 'essentially' 'intrinsically' 'susceptible by its very nature' 'by its own nature' liable to be discriminatory."
Indirect discrimination may be established without sociological or psychological evidence as to why Asians like using libraries, it was submitted. The word "intrinsic" was used in O'Flynn because the link between migrant workers and burying members of the family in other countries was intrinsic, that is by its own nature, and did not need statistical evidence to establish it.
"But in my view one should not be bringing into the comparison people who have no interest in the advantage in question."
"The common feature is that all these people are in the pool who want the benefit - or not to suffer the disadvantage - and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question. If it were, one might well wish to ask whether the fact that they were not interested was itself the product of direct or indirect discrimination in the past."
That approach justifies the adoption of library users as the appropriate pool for analysis in this case, Miss Laing submitted.
"Rutherford (No 2) seems to me to be a striking illustration of Lord Nicholls' proposition that the assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic. In discrimination claims the key determinant of both elements is the issue which the claimant has elected to pose and which the tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested. Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen. We do not accept that Rutherford is authority for the routine selection of the widest possible pool; nor therefore that any question arises of "looking at" a smaller pool for some unspecified purpose short of determining the case."
A discretion in pool selection is thereby recognised as are the problems facing a decision maker, including one under the 2010 Act, in deciding upon the scope of his investigation in a context where "due regard" is required.
"The essential procedural failures . . . turned on the failure of Ealing to carry out the necessary racial equality impact assessment at a stage when it was formulating the criteria according to which it would offer grants to those providing services to victims of domestic violence. Throughout the process leading to its decision it failed to assess the impact on black minority ethnic women . . ."
It was submitted that there was a failure to consider the present issue "throughout" the procedure because a proposal that six specified libraries should be closed had been tabled before an EIA was conducted.
"The formative stage at which the duty must be performed, in the sense meant by the guidance and decisions, is not one or all of the earlier stages when the officers or Council are contemplating and working up various options. It must be performed before the decision is made and be part of the decision-making process, rather than as a justification for the decision after it has been taken. The issue has to be addressed in the exercise of the functions, using the statutory language rather than judicial exegesis. The point at which the Council here exercised its functions under s.7 was when it decided, at the April 2011 meeting, that the LTP should proceed, including the six closures …."
The judge said at paragraph 123 that the issue was very much bound up with the contention that the council approached the issue of equality and closures in April 2011 with a closed mind; and, having referred to the absence of evidence to support that contention, he continued:
. . . Nor is there anything in the EIA itself to support it since, whatever criticisms the Claimants may make of it, it is on its face a conscientious and thorough effort to grapple with the duty in s149, in substance and with rigour. It set out to ask and answer the relevant questions which library closures give rise to in relation to the equality duty. The EIA was genuinely in my judgment a core part of the decision-making process. It cannot fairly be said that the decision to adopt the LTP and to close six libraries, and which ones, had already been taken; there really was no factual basis for that submission, which ran as a leitmotif through many of Ms Mountfield's points."
"I see no conflict between the Council keeping an open mind and its consulting on the preferred route identified by officers and approved by the executive for consultation in November 2010. I accept Ms Laing's submission that the Council was entitled to consult on the proposals which it had approved for consultation, rather than on a series of options which it did not propose. A lawful consultation process does not require that all the anterior phases in the selection of a preferred course be formally and specifically opened to consideration. 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."
"The mitigation measures addressed the problems. The accessibility of the nearest open libraries was described. Specific measures for children and young people, including those with disabilities were set out to address both accessibility, and for those who could not use free public transport to get to the nearest library, other measures were proposed such as enhanced outreach, virtual homework help, and outreach services to schools. The specific problems at Preston which a local school used as its school library and at Barham Park which was used as a children's centre were known to the Council and covered by its general mitigation proposals for outreach to schools, and indeed to homes as well."
These mitigation measures were insufficient to satisfy section 7, Miss Rose submitted.
"I have no doubt that there is room for legitimate debate about the effectiveness of these measures, and whether every point raised has been addressed, but that is not a measure of the lawfulness of the needs assessment."
- "Viability of the group making the proposal
- Viability of the proposals
- Quality of the proposals
- Extent to which proposal promotes inclusion and diversity
- Ability to meet the Council's savings targets
- Acceptable contract terms and transfer of risk
- Risks to the Council the context of procurement legislation"
"The second point concerns the use of the seven factors or criteria for a robust business case, which were not declared to the public in the consultation process. This is untenable as a basis for asserting the consultation to be unlawful: it is obvious that such a case will include the nature and experience of the group in running such a venture, the financial resources available to such a group, the cost to the Council in the light of its warnings that there was no financial support if the savings envisaged were to be made, and its prospects of delivering a worthwhile contribution to the library service. The factors or criteria are not, save for one, more than an elaboration of the test which was fully notified to consultees, and of which I accept any group capable of making a worthwhile contribution would have been aware, without it having to be spelled out to them. The goalposts were not moved. The contribution to diversity and inclusion is not one of which the need to promote a robust business case would necessarily have forewarned a group looking to make a contribution to running a library. But the Claimants should have been aware that any failing in the public sector equality duty, such as that with which they charge the Council, would have been a failing on their part as well. No proposal failed on that one ground anyway: they failed because they were not a viable proposal run by viable groups. Considerable detail on the process whereby groups sought and were provided with information which they sought for their proposals was set out in the documents and brought together in a speaking note from Ms Laing, along with detail on the basis for the rejection of the alternative proposals in Appendix 6 to the April 2011 report. They contend that had they known that the groups needed to show that they were capable of running a library, they would have been able to demonstrate that. I am satisfied that any group wishing to run a library, whether at its own expense and even more so if at public expense to some degree, should have realised that its experience and financial capability was an issue to be addressed in the consultation process."
R (Harris) v London Borough of Haringey
"I find it impossible . . . to find any focus on the substance of the section 71 duty when the complex issues to be decided by the council's committee are set out and debated."
Conclusions on grounds 1, 2 and 3
LORD JUSTICE RICHARDS :
LORD JUSTICE DAVIS :