QUEEN'S BENCH DIVISION
B e f o r e :
|MARGARET BAILEY & OTHERS
|- and -
|LONDON BOROUGH OF BRENT COUNCIL
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|ALL SOULS COLLEGE
Miss E Laing, QC and Miss J Clement (instructed by London Borough of Brent) for the
Hearing dates: 19th, 20, & 21st July 2011
Crown Copyright ©
Mr Justice Ouseley:
The statutory framework: the Public Libraries and Museums Act 1964
"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…."
The omitted words confine the duty to those who live, work or study full time in the authority's 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 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;"
"(a) any premises which are occupied by a library authority and are premises where library facilities are made available by the authority, in the course of their provision of a public library service, to members of the public;
(b) any vehicle which is used by a library authority for the purpose of providing such a service and is a vehicle in which facilities are so made available;"
The statutory framework: the Equality Act 2010
"(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.
(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- age;
gender reassignment; pregnancy and maternity; race;
religion or belief; sex;
"(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."
"s.29(1) A person (a "service-provider") concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
s.29(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a) As to the terms on which a provides the service to B;
(b) By terminating the provision of the service to B;
(c) By subjecting B to any other detriment."
the age of 18;
(b) marriage and civil partnership."
"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"
The first sentence shows the relationship between the anticipated budgetary problems and the need to improve the service anyway.
1. "1. 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.
2. A commitment to ensuring that residents have high quality library facilities in accessible locations.
3. A review of staffing and development of a staff training programme to ensure that staff are equipped to meet customer needs.
4. The development of a clear offer to residents of what they can expect from their library service, regardless of where they live, in terms of the loan of books and other items, downloads, e-books and online services, accessibility and community engagement.
5. A review of back office processes and development of proposals to share functions with other London boroughs.
6. The development of a strategy to ensure that, where libraries are proposed for closure, residents are offered alternatives to regular activities where possible. The strategy will also address the issue of partner organisations who deliver services in libraries scheduled for closure.
7. The development of a clear approach to voluntary organisations who wish to present a robust business case for running library services in vacant buildings (subject to agreement of building owners and at no cost to the Council)."
"We will develop a clear approach to voluntary organisations who wish to present a robust business case for running library services in vacant buildings (subject to agreement of building owners and at no cost to the Council)"
- "All consultation documentation including the questionnaire was available on Brent Council's consultation Tracker website
- A LTP specific email address was provided to deal with any requests for information or to log supplementary comments. All correspondence has been logged and has served to inform this report.
- Detailed enquiries, e.g. requests for financial calculations, were responded to directly by the Head of Libraries, Arts and Heritage and logged as above.
- A letter outlining the proposals and providing details of how to access consultation documentation was sent to more than 125,000 stakeholders including community organisations, the voluntary sector and the Brent Citizens' Panel.
- Paper copies of the documentation were distributed upon request and were available at all Brent Libraries, Sports Centres and One Stop Shops. Alternative formats and languages of background documentation were available on request
- A feature on the consultation was published in the December edition of the Brent Magazine and the programme was published in the December edition of the Brent Magazine and the programme was widely publicised in the local press.
- Two borough-wide public meetings were held at Willesden Green Library Centre and Brent Town Hall.
- An open day was held at Willesden Green Library Centre
- LTP proposals were outlined by the Lead Member and the Head of Libraries, Arts and Heritage at the Area Consultative Forums.
- Council officers attended Service User Consultative Forums to present the LTP proposals and participate in a Q and A session
- Specific consultation was undertaken with Brent schools on the provision of the class visits programme
- Council officers and the Lead Member met with community groups and individuals on request to discuss the proposals in more detail and/or to explore options for alternative models of service delivery."
There was also extensive media coverage.
- "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.
- Strategic influences: the Council's own 2008-2010 Library Strategy recognised the need for change as new investment becomes more difficult while customer expectations grow. The One Council programme closely influences the service. The project has also considered the broader pattern of provision in London, and the DCMS Future Libraries Programme. Officers have also surveyed the complex changes driven by new technologies and the new possibilities and challenges they create.
- Needs assessment: the Project has drawn on national and local research and the strategic thinking embodied in the investigation into Wirral Library proposals, as well as the comprehensive analysis embodied in the Equalities Impact Assessment (para 10 and Appendix Four).
- Resources: this report is contextualised by the very difficult financial settlement for the Council both in 2011/12 and future years, and the importance of setting a balanced budget.
- Performance: the proposals also consider the current performance of the twelve libraries and how this has informed the new Library offer.
- Partnerships and shared services: the Project has reviewed a range of existing partnerships and consortia as well as ongoing discussions about future joint working.
- Buildings: this report reviews the current library premises and in particular usage figures, costs and issues of location and access."
"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."
"6.3 A Local Inquiry into the Public Library Service Provided by Wirral MBC undertaken by the Secretary of State dated September 2009 concluded that in deciding how to provide a 'comprehensive and efficient library service' the council must assess and take into account local needs. The Secretary of State set out the matters to be considered when undertaking that assessment, including the needs of various adults and of children and the need for a strategic plan. Although the 'Wirral report' does not have the force of law, it indicates the circumstances in which the Secretary of State may intervene under his/her default powers set out in section 10 of the Act.
6.4 Members must have regard to the assessment of need incorporated in Appendix One in deciding whether they are satisfied that the proposals will provide a "comprehensive and efficient" library service for the persons referred to above."
No complaint can be made of that advice.
"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."
"9.3 A wide range of potential adverse impacts were identified for analysis and possible mitigation as a result of the assessment. The management of the information and presentation of the analysis was made more complex by the clear overlap of impacts between different communities, even if the mitigation might be different. In undertaking the analysis, four impacts were particularly identified as potentially affecting several equalities strands. The first three annexes to the EIA look at the analysis of impact by equality strand, then look at the analysis of issues raised and then address proposed mitigation of those potential impacts. The four shared issues are:
- Accessibility and affordability
- Impact on educational standards
- Impact on social cohesion
- Impact on lifelong learning and associated employment figures.
9.4 Detailed mitigation has been considered for these potential adverse impacts. These are shown in detail in Annexe 4.3, and it is also important to note that these are reflected in the new Library offer, set out at paragraph 4 above. That offer has been expressly designed to address these points.
9.5 The EIA shows that the identified adverse impacts are mitigated by proposed actions, in particular through targeted activities, specific outreach services and stock management. The financial constraints on the Council do not permit even further mitigation, although the reinvestment within the Transformation Project has ensured a wide range of measures. Introducing further bus services is outside the Council's powers.
9.6 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 affect 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 the impact, will be particularly tailored to those areas and communities most affected.
9.7 Officers have carefully considered the potential adverse impacts which may remain after all the mitigating measures are taken into account, and how these should be evaluated given the other drivers for change within the Library Transformation Project. In this context, the EIA has considered:
• "Numbers of users
• Known information about transport and access difficulties particularly relating to age, ethnicity, gender and disability
• The access of relevant sections of the community to free or subsidised transport
• The other mitigations for difficulties of access and affordability
• The costs of maintaining the current service and the potential impact on delivery of the broader Transformation project
• The costs and difficulty of introducing public transport improvements
• The acute financial challenge facing the authority
9.8 Officers therefore consider that the potential adverse impact on a small group of residents which is not completely mitigated by other steps is justified by the benefits of the Transformation Project and the tight financial restrictions on the Council."
"12.1 As set out in this report, the Libraries Transformation Project will deliver a service that is comprehensive and efficient, and fulfils the Council's duties. This judgement is based on a detailed assessment of need and analysis of the impact of the changes proposed, including closing 6 library buildings. Any organisations, groups or individuals who delivered a private or community library, whether or not they used buildings currently or previously used by the Council as libraries, would be doing so in addition to the Council's provision and not as a contribution to the Council's fulfilment of its statutory duties."
"12.2 Members were clear, in public consultation meetings and through correspondence, that they would consider proposals from the community, but that they needed to meet the Council's concerns around enabling a balanced budget, and not represent either ongoing costs or risks to the Council.
12.3 Cllr Powney, as Lead Member, and officers met with a number of groups and organisations, and provided a significant amount of detailed information about local libraries, including analyses of central costs (eg for ICT, insurance etc). It was agreed, and widely circulated, that the cut-off date for proposals was the same as the closing date of the consultation, namely 4 March 2011."
"12.5 Before receiving these submissions, officers reviewed the complex financial, legal and risk issues surrounding this emerging process. Officers then prepared a detailed guidance note for apprising proposals, which is at Annexe 1 to the Appendix. In particular, it must be noted that this does not constitute a formal procurement exercise.
12.6 It was clear in apprising these proposals, as the reports in Annexe Two to the Appendix spell out, that none of them represent viable business cases. All of them rely on ongoing subsidy from the Council, none of them relieve the Council from all risk relating to buildings and assets, some of them would require formal procurement processes and very few of them come from groups who can show relevant expertise or longevity. Officers therefore do not recommend further engagement with any of these proposals."
"All of these documents and analyses highlight the current pattern of service is not sustainable. The service is seeing declining numbers of visitors and loans in older and poorly located buildings, growing expectation is for stock and equipment (particularly digital services including wifi), and hence a need for increased investment in the service alongside increasing maintenance requirements in ageing buildings."
"It should also be noted that several of the older library buildings cannot be made compliant with the Disability Discrimination Act (DDA) and fully accessible for people living with mobility disabilities except at extraordinary cost.
This has already resulted in the effective closure of upper floors at Cricklewood, Kensal Rise and Tokyington libraries, meaning that the libraries become small and much less efficient."
Those three are among those proposed for closure.
"The assessment of visits (see section 6 below) shows that there is a wide disparity in the use of existing buildings. A number of reasons have been hypothesised for this, but a key factor is location (high street, transport links), as the increased usage after Kingsbury library was relocated demonstrates. There have been vocal community campaigns against closure of specific buildings, but usage remains consistently low. Although demand is there, it is not at a level that is sustainable in the current financial context."
"The future six library buildings will be supplemented by the enhanced home visit service, the outreach service and our online offer. These are set out in detail in the new library offer at paragraph 4 of the main report. In particular, as more material is available through digital routes, delivering a comprehensive service is less reliant on physical buildings. Marketing of all these services will promote access to the library offer for all residents, wherever they live in the borough.
It is also noteworthy that, although inevitably consultation focuses on closure, many residents across the borough have not lived close to a library building while the Council has run twelve sites."
- "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."
[My insertion, to give the sense intended]
"In summary, 4 key issues emanated from the public consultation and needs assessment exercises which in effect will impact on 4 of the equality strands namely gender, disability, age and BME.
The 4 key issues identified through the consultation process are:
1. Accessibility and Affordability
2. Negative impact on educational attainment and standards
3. Negative impact on social cohesion
4. Negative impact on lifelong learning and interlinked unemployment rates.
Whilst these are common issues across the equality strands, the nature, extent, challenge and proposed mitigation varies. Equality strands are analysed in Annexe 4.1 and the issues have been explored in Annexe 4.2 and the proposed mitigation cited in Annexe 4.3. Mitigation has been applied where possible within the confines of restricted budgets."
"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 affect 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."
Ground 1: unlawfully ignoring the role which community libraries and groups could play in fulfilling the s7 duties
Ground 2: unlawful failure to consult
Ground 3: an unlawful failure to assess needs
"(1) Library management system data, including detailed data about existing library usage across the borough over a number of years, such as data about the number of visits to each library, the number of "issues" and the cost per issue.
(2) Recent surveys about library use, conducted as part of the national model for surveying users of public libraries. The most recent Adult Public Library User Survey ("PLUS") was carried out in 2009; and the Children's PLUS in 2010.
(3) Strategic trends in the development of library services, as set out in national policy documents about the future of libraries provision (e.g. the Museums Libraries and Archives report, "What People want from Libraries").
(4) Research carried out by Red Quadrant consultants about what people in Brent wanted from their library service; and
(5) Information obtained through the consultation process, which specifically sought to obtain information about what people "want and need from their library service for the future"
(6) Demographic data about the Brent population as a whole (including non library users) obtained from the latest census figures and Mayhew reports; and
(7) The equality impact assessment."
Ground 4: breach of the public sector equality duty