England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/11/2015

The Honourable Mrs Justice Elisabeth Laing DBE :

1. This is an application by the Claimant for judicial review of a decision of the Cabinet of the Defendant ('the Council'), made on 9 March 2015. There is a dispute about what the Council's Cabinet ('the Cabinet') decided, so I will say no more at this stage than that the decision concerned, among others, Rhoose Library ('the Library'), and whether it should become a community-led library. The Claimant and her children use the Library.
2. The Claimant was represented by Mr Williams QC and Mr Howells, and the Council by Mr Swift QC and Miss Clement. I am grateful to both teams of counsel and to their instructing solicitors for the hard work which has evidently gone into preparing for the hearing, and for the help I was given during the hearing.
3. The main issues in this case are

(1) what the Cabinet decided, and

(2) in the light of that

(a) whether this application is premature in so far as it is a challenge to the decision,

(b) whether it is too late in so far as it is a challenge to the consultation which preceded to the decision and if not,

(c) whether the Council's decision was unlawful.

The facts

April 2014

4. On 28 April 2014 the Cabinet met to consider a report by the Leader of the Council ('the Leader'). That report discussed the Council's review of the library services in its area. The purpose of that report was to seek cabinet approval for proposals following the library review. There were three recommendations. The first was that the Cabinet approve the Library Strategy ('the Strategy') which was attached to the report at Appendix A. This, in turn, included 15 recommendations. The second was that delegated authority be given to the Council's Director of Learning and Skills ('the Director'), in consultation with the Leader, to implement the plan attached to the Strategy, after considering the results of further consultation and specific equality impact assessments ('EIAs'), where relevant. The third was that the report be referred to the Lifelong Learning Scrutiny Committee ('the Committee') for consideration.
5. This report said that in view of the Council's financial position a fundamental review was necessary. 'Areas to be examined and desired outcomes' were said to include 'the delivery of the Council's statutory duties, work to Welsh Government standards and development frameworks, and provide a high quality service in the most cost effective manner'.
6. The financial implications were discussed. The Council's 2013-14 medium-term financial plan required £50,000 to be saved from the library budget in 2014-15 and £115,000 in 2016-17. In view of the actual local government settlement for 2014-15 and the forecast reduction in funding in the future, it was considered necessary to review the future savings target and bring forward savings where possible. Paragraph 8 of the report dealt with the savings which it was anticipated might be needed. The contribution of the library service to the target was £500,000 in 2015-16 and 2016-17. Most of that, that is £309,000, would come from employment costs, and £165,000 from premises costs.
7. Paragraph 10 referred to two key strands of the Strategy. One was 'community supported/managed' libraries. The second was reduced opening hours. Those proposals would have implications for staff. In the section headed 'Legal Implications (to Include Human Rights Implications)' paragraph 12 briefly quoted the duty imposed by the Public Libraries and Museums Act 1964 ('the 1964 Act') on the Council as a library authority to 'provide a comprehensive and efficient library service'.
8. Under the heading 'Equal Opportunities Implications...', paragraph 15 said that an intended outcome was that the service should be accessible to all and should support 'the most vulnerable individuals as required throughout their lives'. The Council had carried out an EIA. It was considered that there was no potential for discrimination and no adverse impact for 'groups protected under the Equality Act 2010' ('the 2010 Act'). The EIA was at Appendix K. Further consideration and consultation would be needed during implementation of the plan, and 'before some location-specific proposals are implemented', further impact assessments ('IAs') would be done and considered by the Director. Those proposals included the 'increase in community supported/managed libraries' ('CSML') in recommendation 1.
9. Paragraph 18 referred to a consultation done in November to December 2013. The responses were attached at Appendix G. The plan provided for consultation in areas where a CSML was proposed. This would help 'shape' the detailed location-specific plans and inform specific EIAs where relevant.

The 2014 Library Review

10. The Library Review ('the Review') dated April 2014 had an executive summary in section 2. Section 2.2 was headed 'CSML'. The Council had researched different models. In many authorities a move to 'community managed' libraries had allowed libraries to stay open. To ensure a smooth transition to this new model it was said to be important that the community was fully supported and equipped with the necessary skills and knowledge to deliver community library service. During 2014-15, work would be done on the development of a volunteer workforce, business planning, data protection agreements and formal agreements between the Council and the communities concerned. It was envisaged that community libraries would be fully operational by April 2015 and supported by a Community Development Librarian ('CDL').
11. Recommendation 1 was that the Council develop a phased approach to the development of CSML and that this was applied to St Athan, Dinas Powys, Sully and Wenvoe Libraries. Three of these libraries are classified by the Council as 'village libraries'. The Council classifies Dinas Powys as a 'community library'. This version of the Review did not say that the alternative to the plan to develop community libraries was that they should close.
12. Under the heading 'Next Steps', paragraph 2.7.1 repeated the point that two key strands of the plan, the development of CSML and the reduction in opening hours would have staff implications. Paragraph 2.7.2 said that consultation with communities where CSML were proposed would be 'critical to the success of the Strategy'. This should start shortly after the Strategy was approved.
13. There was further discussion of the Council's aims in paragraph 3.1 of the Review. These included 'deliver statutory duties, work to Welsh Government standards and development frameworks and provide a high quality service in the most cost-effective manner', identifying gaps in the service and how they could be filled, and 'ensuring the service is accessible to all, supports the most vulnerable and individuals throughout their lives'.
14. The duty imposed by the 1964 Act was described at paragraph 4.1.1, in more detail than in the report. Paragraph 4.2, under the heading 'National Policy' referred to Welsh Library Standards and to CyMAL (Museums, Archives and Libraries in Wales). 'Inspire', a document published by CyMAL was said to 'set the direction of travel for all libraries in Wales'. It was said that the Council 'uses this document'.
15. At paragraph 4.4.1 there was a breakdown of the library budget. The Library had the biggest budget of the village libraries: £55,058, compared with a range of £19,377 to £21,074. The budget for Dinas Powys was £130,220, the smallest budget for the community libraries. Wenvoe was the most cost effective of the libraries (£1.80 per visit and £2.10 per issue). The most expensive for visits was St Athan; £4.64 per visit. The most expensive based on cost per issue was Barry, at £6.87. Appendix B contained a full analysis of all the costs. 94% of the population of the Council's area live within 2 ½ miles of a library. Some users visit more than one library. Money had been spent on premises and most libraries were fit for purpose. St Athan was in a prefabricated building and its condition was a concern.
16. Paragraph 5.2.1 explained how the Council classifies its libraries into three groups: town libraries, community libraries and village libraries. Classification is decided in accordance with levels of use, opening hours, and space. Which group a library is in then determines its stock and level of service. Barry and Penarth are town libraries. Cowbridge, Llantwit Major and Dinas Powys are community libraries, and the remaining libraries are village libraries. St Athan and Sully are open for 10 hours a week, Wenvoe for 11 hours, and the Library for 27 hours. All are open on Saturdays and on at least one evening. Outreach services were described in paragraph 5.4. A home library service is run by volunteers from 5 libraries.
17. Paragraph 5.10 referred to existing 'community led' library provision in St Brides Major. A community link library was established by the community after the withdrawal of the mobile library stop. The service is provided in a church hall by volunteers.
18. Service performance statistics were set out in section 6. The Council has more active library customers than the Welsh and UK averages. The Council's spending on library services was said to be well above the UK and Welsh averages, but its per capita funding for 2014-15 was the 20th lowest of 22 authorities. Paragraph 6.8 referred to the performance of the Council's library service measured against the Welsh Government Library Standards. The Council was predicted to achieve 7 of the 9 standards in 2013-14. The details were in Appendix D. The Review noted that a revised framework had just been published and would come into force in April 2015.
19. Section 7 described the consultation in 2013. There were 2725 responses to a survey. Overall, users were said to be averse to change. 62% of respondents travelled to a library on foot, 51% by car, 12% bus and 5% by bicycle. A high proportion of residents thought that Community run libraries would not work as well as the current service [my emphasis]. Some respondents did not comment and some thought that they would work well and would be supported in their local community.
20. Section 8 was headed 'Options and Recommendations'. It said that a range of options for change, including library closures, had been considered. The Strategy set out to provide a comprehensive library service to all users. An EIA was attached at Appendix K. This concluded that the policy was 'robust' and that there was no potential for discrimination or adverse impact. Further location-specific EIAs would need to be done.
21. Paragraph 8.1 referred to community libraries. The involvement of a community is not new. There had been, since 2010, a rapidly growing trend to involve communities in libraries in more significant ways, and in some places for the community to manage and run them. Two 'models', 'community-supported libraries' which are 'Council led' (model 1), and 'community-managed libraries', which are 'community led' (model 2), are described. The former 'remain part of the statutory provision'. The latter may do so, in some cases, depending on the level of support provided by the Council. Once assets and services have been transferred to the community, that is not reversible.
22. The advantages and disadvantages of community libraries were listed at paragraph 8.1.9. The one example in the Council's area, at St Brides Major, was described. Paragraph 8.1.12 says that the model which the Council would seek to develop in consultation with communities was one where Council's support was limited to the provision of materials, access to relevant parts of Library Management System, and professional support and advice. It was said that the branches were likely to remain part of the Council's library service and to operate under a service-level agreement within a framework of policies set by the Council. There would be a high level of community involvement in running the libraries and arrangements might vary between libraries. This model had the advantage of supporting community libraries within the framework of the Council's library service and ensuring that users had access to similar services.
23. Recommendation 1 was that the Council develop a phased approach to development of CSML and apply it to St Athan, Dinas Powys, Sully and Wenvoe. Paragraph 8.1.3 said that it was important that the community be supported with necessary skills and knowledge to deliver community library services. Specific EIAs for each library would be done 'in respect of the impact on protected groups'. The work which would take place in 2014-15 was then described, in line with the Leader's report. No reference was made here to the potential closure of libraries, but such a reference is made in the equivalent paragraph in the amended version of the review, as I explain below.

The Cabinet meeting on 28 April 2014

24. There was a Cabinet meeting on 28 April 2014. The Leader read out a statement 'to clarify a number of important issues' and to reassure staff and users. The objective of the proposal for community libraries was to maintain, not to cut, services. The report set out proposed changes. These should not be seen as 'a fait accompli'. There was a long way to go. The Committee would need to consider the matter. There would be a full consultation with service users before 'implementation of the individual proposals'. A particular focus would be engagement with communities where CSML were proposed. The direction of travel was clear but the way of getting there would be informed by consultation (paragraph 10).
25. The Leader wished to amend the recommendations in the report. As amended, they were that the Cabinet approve the Strategy in Appendix A in principle, that the report be referred to the Committee, and that final approval of the Strategy be made at a further meeting; and that delegated authority given to the Director in consultation with the Leader to implement individual proposals in the plan after considering the results of further consultation and any specific EIA. The minutes recorded that the Cabinet's resolution followed the recommendation, as revised by the Leader.

The August 2014 Leader's Report

26. The Leader prepared a report for a further meeting of the Cabinet on 11 August 2014. The report was to advise the Cabinet of representations about the draft Strategy and to seek approval of the proposals. The revised Strategy was at Appendix 1. The Cabinet were also asked to agree that consultation take place with the communities affected by recommendation 1 (that is, the proposed development of community libraries), and that the Cabinet consider the responses to the consultation 'before a final decision is made'. This point was made at recommendation 10, and echoed in the section giving reasons for the recommendations. The report continued, 'The requirement is for the Council to have due regard in substance and with rigour based on sufficient information which has been properly analysed'. The report did not explain to what the Council was required to have 'due regard'.
27. The list of affected communities now included Rhoose. The inclusion of Dinas Powys and Rhoose was explained in paragraphs 11 and 12. People had asked why the proposal was being applied to Dinas Powys but not to the Library. The other village libraries were initially included because of their comparatively low opening hours and small offering. Analysis of consultation responses showed that 25% of users used more than one library. Further analysis showed that 38% of respondents from Dinas Powys used other libraries; it is close to two town libraries, at Penarth and Barry. It was thought the community model was the best way to sustain Dinas Powys.
28. The recent budget strategy showed a range of potential necessary savings. The Library was not chosen initially primarily because of its distance from Barry and Llantwit Major. On reflection, because of the increased pressure on the budget, it was considered appropriate to apply the proposal to the Library, which, otherwise, would be the only village library operating under current arrangements. 40% of respondents from Rhoose said that they used other libraries. This would result in the other libraries 'being developed as [CMSL] if feasible'. Paragraph 13 said that if the Strategy was given 'final approval' by the Cabinet a Project Board would be set up to manage its implementation.
29. Under the heading 'Legal Implications', the duty imposed by section 7 of the 1964 Act was referred to. Somewhat cryptically, the report continued, 'Reference shall be had to the duties in section 7 of [the 1964 Act] and section 149 of [the 2010 Act] and any relevant case law on the consideration of libraries'. Under a further heading about equal opportunities, the aspiration referred to in the paragraphs 8 and 13, above, was repeated. The report referred at paragraph 25 to the EIA in terms similar to those used in the first version of the Library Review, and made similar comments about further consultation and IAs which will be done and considered by the Cabinet before 'a final decision is made'. The proposals to which this related were the development of 'CSML'.

The July 2014 Library Review

30. A revised Review dated July 2014 was appended to the Leader's report. Paragraph 2.2 referred to CSML. I have not compared the two versions of the Review line by line. Paragraph 2.2.2 changed. The final passage as amended reads, 'It is envisaged that community libraries will be supported by a [CDL]. But that will require a confirmation that a community partner can be identified. If not then closure must be considered as a possible option'. Recommendation 1 was revised to include the Library.
31. At paragraph 2.7.3 the Review said that a comprehensive library development delivery plan would emerge after 'final approval of the strategy'. Under the heading 'Community Libraries' paragraph 8 had changed. The first sentence as amended said 'During this review a range of options for change have been considered, including library closures as a last resort, but this is not the desired outcome of the Council'.
32. Paragraphs 8.1.13 and 14 were new. They explained why the Library was added, in line with the explanation given in the Leader's report. Recommendation 1 was amended accordingly. Paragraph 8.1.13 ended differently from its predecessor, in line with the amendment to paragraph 2.2.2 described above.

The Cabinet meeting of 11 August 2014

33. The minutes of the Cabinet meeting of 11 August 2014 recorded the background. The Committee considered the draft Strategy on 19 May 2014. The Strategy had been 'revised in response to some of the representations made', among other things to include the Library in the community library proposals. 'If following consideration, the Cabinet give final approval to the [Strategy]', a Project Board would be set up. The Cabinet resolved among other things that consultation take place with communities on recommendation 1; that EIAs be further developed, that responses to consultation be considered by the Cabinet before a final decision was made, and that the revised Strategy be considered by the Committee as part of the consultation process.

The consultation document

34. The consultation document included a sheet for each library giving basic information about the services it offered, its premises, computer facilities and usage, the costs of running that library in 2013-14, and customer satisfaction levels in from a survey in 2012. The document explained that the Council was facing significant financial pressures and would need to save £32m over the next three years. The Council's library service had been in decline, with fewer visitors and books issued. This reflected national trends and increasing use of the internet. This had led to the Review and to a new Strategy, which balanced the need to save money against the need to help the library service to evolve and 'remain a vibrant community resource'. 'Business as usual is simply not an option'. The Strategy would mean a fundamental change to how services were delivered, and changes to library opening hours. The recommendations of the Review were summarised, including the proposed phased approach to the development of community libraries.
35. 'To ensure that all those likely to be affected by these significant proposals have the opportunity to make an input into the process we are now undertaking a process of public engagement to gather the views of Vale residents and library users'. As well as a questionnaire, there would be drop-in sessions at which people could give their views. Their dates and times were given. Under the heading, "Where can I find more information" a link was given to the Review, and a telephone number. The consultation document explained what a community library is, and that the Council's preferred option was community-led libraries where there would be 'a link' between the Council and the group running the library. There would not be a 'one size fits all approach'. If the policy were introduced, the Council would support community groups with professional advice and help. Library staff would continue to provide information, help and guidance where needed. The Council would also help with book stocks. A link was given to further information about successful community libraries elsewhere; or it could be provided on request.
36. The Council set out the advantages of community libraries under the heading 'Why is the Council considering introducing community libraries?'. As Mr Williams QC pointed out, unlike the Review, the consultation document did not list the disadvantages. If elements of the service could be transferred to the community the Council would save about £210,000, to add to other savings being made elsewhere in the library service. A further advantage of the proposal was that it would keep the libraries open. It was not a quick fix, but needed to be done in phases, with training and investment. The roles of volunteers in community libraries were then explained. The Council would ensure that appropriate training was given to volunteers. The Council said it would like to know whether respondents thought that a community library could work in their area, what roles they felt volunteers could play and whether they were willing to support a community library in their area. Views could be expressed by filling in the form, or at one of the drop-in sessions.
37. The second section of the consultation document dealt with opening hours of the Council's four town libraries. This was proposed because the Council's library information showed that those libraries were not well used in the early morning and in the evening. It would save £185,000. The third section in the document dealt with the library at St Athan.
38. The questions which were asked in the consultation were in three parts, in line with the text of the consultation document. The questionnaire said this about the community library proposal, that is, 'community-run libraries.... We believe this is the best way to prevent library closures. Before any decisions are taken we need to understand the views of library users and the local community'. Among other things, respondents were asked whether they would support a community-led library as an alternative to closure; and 'if no, please tell us why'. Question 7 said, 'If you would like to make any further comments on the potential for community libraries in the Vale, please let us know'. The phrase 'community led library' was also used in question 3.

The Leader's report for the Cabinet meeting on 9 March 2014

39. The Leader produced a further report for a meeting of the Cabinet on 9 March 2015. The purpose of the report was for the Cabinet to consider the outcome of the consultation and, if minded to, to approve the implementation of the proposals. The recommendations included that the Cabinet consider the consultation report and have regard to the EIAs, that it consider whether expressions of interest ('EIs') be sought from community groups interested in developing a community-led library by 18 May 2015, that if an EI were not received from any of the libraries, 'the Cabinet considers closure and grants delegated authority to the [Director] to' take steps to close the library, that the Cabinet consider any EI, and decide whether to ask for a business case, and if none was received, 'the Cabinet considers closure of the library in question and granting delegated authority' to the [Director] to take steps to close the library, and that appropriate support be commissioned for community groups. The report also recommended that if Cabinet were minded to approve the recommendation about community libraries, it consider giving delegated authority to develop and implement a phased restructure of library services to support implementation, and subject to its consideration of recommendation 5, that the Cabinet agree to receive a further report on the evaluation of the business cases early autumn 2015.
40. It is clear both from recommendation 3, and 8, as it was from the consultation document, that what was at issue was community-led libraries. This is also clear from other passages in the report to, for example, reasons, paragraphs 3, and 9, and background, paragraph 2 bullet one, paragraph 6 (on p 434 of the bundle) and paragraphs 6 and 7 (on p 435 of the bundle).
41. I should mention here that Mr Swift QC sought to persuade me that nothing much turned on the language used in these documents (similar language was used in the meeting of the Cabinet on 9 March, as the minutes show). In the light of the clear distinction drawn in both versions of Library Review between council-run/managed/led libraries and community-run/managed/led libraries, and the explanation of that distinction, that submission is untenable, and I reject it. He also made a related but different submission which was that the term 'community-led library' did not imply a specific relationship between the Council and any community group. That submission is supported by the documents and I accept it. But what follows from that is that, on the Council's view, expressed in more than one place in its documents, it could not be sure, until it had made a specific agreement with a community group, whether a 'community-led' library would, or would not, count as part of its statutory library provision. It expressed a hope that community libraries would do so, but as at 9 March 2015, it could not know, one way or the other. I therefore accept the submission of Mr Williams that the Council consulted on, and decided to adopt, a policy of promoting community-led libraries. But on my analysis of the Council's decision (see below), this does not, on its own, assist the Claimant's case.
42. The report explained that the results of the consultation suggested that community libraries would be viable in four of the communities, but would not get significant support in Sully. There was a clear indication that the establishment of a community library in Rhoose would not be welcomed (paragraph 6). Paragraphs 8 and 9 also dealt with Rhoose. The survey responses showed that community would not support a community library. This also emerged from the drop-in session and public meeting. However, residents' responses also showed that they did not want their library to be closed. The consultation document had made it clear that the status quo was not an option, but Rhoose residents wanted things to stay as they were. The residents felt that Rhoose gets far fewer council services and has a growing population. Paragraph 9 explained that the residents 'have a great deal of passion for their local library'. That suggested that there could be an interest in sustaining a community library with support from the Council. The alternative to community libraries was closure, and it was recommended that all five communities be 'offered the opportunity to make a successful transition to a community library'.
43. There is a significant difference between the recommendations summarised in the text of the report and the recommendation at the head of the report. In paragraph 9 (p 435 of the bundle), the report says that if an EI is not received, 'the library ...would close'. Similarly, if a business case is not received for a particular library, 'the library.... would close'; and if a business case was considered to be 'unviable, the library...would close'. The text at paragraph 9 suggests that closure would be an automatic consequence of, for example, no EI; whereas the recommendations at the top of the report suggest that the Cabinet would consider the matter first.
44. The report recommended a range of support and advice for community groups so that they could develop 'robust' business cases. The timetable, where viable business case had been submitted, would be clarified as part of evaluation of the business case.
45. The legal implications were considered. The report said that the Council had a duty to provide a comprehensive and efficient library service. It then repeated, 'Reference shall be had to the duties in Section 7 of [the 1964 Act] and section 149 of [the 2010 Act] and any relevant caselaw on the consideration of libraries.' Equal opportunities were referred to. The report repeated the aspiration described at paragraph 8, 13 and 29 above. 'In reshaping library services, the Council carried out an [EIA] and it was considered that there was no potential for discrimination or any adverse impact for groups protected under the [2010 Act]. Further [EIAs] have been carried out on the three proposals…. In the case of the proposal to establish community led libraries as an alternative to closure, area specific EIAs have been carried out'.
46. The library-specific EIAs contain a good deal of generic material. They do not seem to have been informed by the information gathered in the 2013 consultation. They summarise section 149 of the 2010 Act accurately. The Rhoose EIA identifies an adverse impact. It has a section in which the author is supposed to provide a justification for continuing with the policy despite its adverse impact, but no justification is expressed. It is, in places, difficult to follow.

The Cabinet meeting of 9 March 2015

47. The minutes of the Cabinet meeting 9 March 2015 record that there had been a petition from Unison with 2000 signatures. Unison opposed the proposals because the Council had £40m in its reserves. The minutes record that those were said to be earmarked for other projects. A Cabinet member explained the cuts which the Council faced. A Cabinet member explained that the administration did not want to shut libraries, but wanted to work closely with communities to develop community-led libraries so that they would not have to close but could be managed by the communities. This was the best chance of keeping the libraries open. The Cabinet member hoped that all the libraries would stay open.
48. The minutes show that in discussion the recommendations were described inaccurately (but in a way that mirrors paragraph 9 on page 435 of the bundle). It was said (bundle p 591C) that if an EI was not received, the library in question would close, and that if a business case was not received, or was received but not considered to be viable, the library in question would close. The Cabinet resolutions do not entirely reflect, either, the formal recommendations in the Leader's report, or the way in which they were described in the body of that Report, or in the discussion on 9 March 2015. The resolutions included that (1) if an EI was not received, delegated authority be given to take all actions necessary to close the library in question; (2) that if an EI was received, delegated authority be given to consider whether or not to invite the group in question to submit a business case; and (3) subject to what happened as a result of the other resolutions, a further report on the evaluation of the business cases be submitted to the Cabinet in the autumn. Resolution (2) (as I have summarised it) is silent about what would happen if it was decided not to invite a group to submit a business case.
49. There is no explanation in the reports or minutes of the different ways in which the resolutions were described in the Leader's report, and in the discussion on 9 March 2015, or of the difference between those and what was actually resolved on 9 March. I see, in contrast, that at the meeting on 28 April 2014, the Leader had explained expressly that he wished to amend recommendations in a report. Nor does the Leader explain any of this in his witness statement. On balance, I have concluded that the Council adopted the resolutions I have described deliberately. In the absence of any explanation of the reason for the various iterations which preceded, and include, the recommendations and the resolution passed on 9 March, I have to construe that resolution as it is. But where I am in any doubt about what it means, I take into account the context (that there have been different versions). I infer from that context, on the balance of probabilities, that each version was intended to have a different effect.
50. The witness statement from the Leader does not mention the EIAs. There is thus no evidence that members of the Cabinet either read the location-specific EIAs, or were told in the meeting that, in contrast with the earlier general EIA, those EIAs had identified negative impacts. I return to this topic below.

The meeting of the Committee on 16 March 2015

51. The Committee were aware that there was significant opposition to the Strategy. There was a vote on a motion to amend the resolutions by removing the libraries at Rhoose and Dinas Powys. That motion was not carried. The Council's Head of Strategy, Community Learning and Resources (Ms Ham) explains in her witness statement that she told the Committee that, if necessary, the support provided to community libraries by a peripatetic librarian could be increased.

Events after March 2015

52. This claim was lodged on 4 June 2015. By then the Council had received EIs from groups connected with all the relevant libraries, including Rhoose. As Ms Ham explains, they were received by 18 May 2015. There were two EIs for the Library. The Council suggested that the two groups who had submitted them work together. At a later date, which is not specified in the Council's witness statements, the Council decided to ask for business cases to be submitted in relation to every library. It has since then received business cases from every library. Those were received by 12 July 2015. The Rhoose group submitted its business case on 10 July 2015.

Discussion

What did the Cabinet decide on 9 March 2015?

53. The Claimant submitted that the Council decided on 9 March that if no EI was received from a library, it would close. I accept that submission. That is what resolution (5) means. If the matter ended there, the Claimant's application for judicial review would succeed. That is because, as I think Mr Swift QC accepted, the Council had not complied with a duty which, on the authorities, is implicit in section 7 of the 1964 Act. That is, a duty to assess needs for library services before making a decision to close any library. This difficulty is compounded by the fact that the Council did not, and could not, know (a) how many libraries would become community-led libraries and how many would close, and, (b) whether any community libraries would form part of its statutory provision.
54. I would also have held that the decision was unlawful because I cannot conclude on the material I have seen that the Cabinet had due regard to the needs referred to in section 149 of the 2010 Act. First, there was, in the report, no analysis, let alone a rigorous analysis, of the proposal in the light of the needs referred to in section 149. Second, the report was positively misleading, as it did not draw attention to the conclusions of the area-specific EIAs that there was an adverse impact (in contrast to the conclusion of the earlier EIA, which was expressly mentioned, that there was not). The text of the report could be read as implying that the specific EIAs did not reveal an adverse impact, either.
55. Not much would have been required, but the report should have summarised the effect of section 149 for the Cabinet, told them clearly that in contrast with the general EIA, the area-specific EIAs did reveal an adverse impact, and explained why despite that impact, officers recommended that the proposals be adopted. The available information was not presented to the Cabinet in a way which enables me to say, on the balance of probabilities, that the Cabinet did have due regard to the statutory needs. I bear in mind that there is a full and accurate exposition of section 149 in the EIAs. But as I have said there is no evidence (for example, in the Leader's witness statement) that members of the Cabinet followed the recommendation in the report that they take the EIAs into account. Members were given no help or direction either in the report or at the meeting about why they should look at the specific EIAs, or what they would find there. One function of an officer's report is clearly to present the issues and the evidence to members in a way that enables them to reach an informed and lawful decision. In the case of a decision such as this, the function of appendices to a report is to provide supporting information for reference purposes. Members should not be expected to research appendices for material which is significant to the decision and which should, instead, be drawn to their attention in the text of the report. This report did not perform its function in relation section 149 of the 2010 Act.
56. But the matter does not end there. Before this claim was issued, two EIs were received in respect of the Library. The Library was then, and is still, therefore, open. The authority delegated by the terms of resolution (5) has not, in the event, fallen to be exercised. I accept Mr Swift's submission about resolution (5). It is a conditional decision to close those libraries for which no EI was received. That it was understood as a decision that the library would close if no EI were received seems clear from the way the recommendation was described during the meeting of 9 March 2015. But by the time this claim was lodged, it was clear that the condition had not been fulfilled, and the Library was still open.
57. The next issue is the effect of the remaining resolutions. As I have indicated, Resolution (6) does not state what is to happen if the Director (in consultation with the Leader and Cabinet member for Adult Services) decides not to accept a business case. For this purpose I ignore the Leader's evidence that the intention was to accept all business cases which were not frivolous. That is not what the resolution says. In the light of the various iterations of this proposal, I consider that the necessary implication is that those libraries for which no business case was received would close (see, in particular, the way this proposal was described earlier in the minutes of the 9 March meeting). So; like resolution (5), this, too, was a conditional decision to close the libraries. But at some point before 12 July 2015 the Council decided to invite business cases from all the groups, so, as in the case of resolution (5), the condition on which closure depended was never met. All the libraries are still open.
58. The position now, under the resolutions which were passed on 9 March, is that any further decision on the future of the libraries will be made by the Cabinet: see resolution (9). That means that, as of the time of the hearing of this claim, there is now no operative decision to close any library, and no-one has authority delegated by the Cabinet to take steps to close any library.

Is this challenge premature, or too late?

59. One consequence of my construction of the decision is that, in so far as this is a challenge to a decision to close any library, it is premature. When this claim was issued, there was no such operative decision. It does not necessarily follow that the remaining grounds of challenge were brought at the right time. Mr Swift submitted that, in so far as this is a challenge to the Council's consultation, it is out of time. This is the logical place to deal with that argument, but I have found it convenient to consider, first, the grounds on which the Claimant argued that the decision was unlawful.

Was that decision unlawful?

60. Since the decision of 9 March was a conditional decision to close the libraries and the conditions on which their closure depended have not been fulfilled, the deficiencies in the report which I have identified are water under the bridge, as they are flaws which would vitiate a decision to close libraries. If the fate of the libraries is to be considered again by the Cabinet in the future, before any actual decision to close is taken, they are flaws which can be remedied in any report to the Cabinet for the meeting at which any actual decision to close a library may be made.
61. That is not the end of the matter, however. The decision of 9 March 2015 was also a decision to adopt a proposal to explore the potential for community-led libraries to operate in the Council's area. I have also to consider whether that aspect of the decision is unlawful.
62. Mr Williams submitted that it was, on two grounds.

(1) The consultation was unfair and unlawful. Consultees should have been given an alternative option. The obvious alternative here was a reduction in hours. That was what had originally been proposed for the Library.

(2) The decision was irrational, for a variety of reasons. For example, the Council knew from the responses to the consultation that there was vocal opposition to a community library in Rhoose.

Consultation

63. Both sides referred to the recent decision of the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947. I accept Mr Swift's submission that it is clear both from this decision and from decisions of the Court of Appeal, such as R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 that the test whether or not a consultation is lawful is the test in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 (paragraph 108, recorded there as 'common ground'). Whether or not there is a statutory obligation to consult, consultation must take place when proposals are still at a formative stage; it must include sufficient reasons for the proposals to enable consultees to consider them, and respond to them intelligently; enough time must be given for that; and the consultation responses must be taken conscientiously into account when the decision is taken.
64. I am grateful to both sides for their submissions on the effect of Moseley and, in particular, to Mr Williams and Mr Howells for their written submissions. There was an issue whether the Council was obliged by section 5 of the Local Government (Wales) Measure 2009 to consult about its library proposals. I am also grateful to Mr Howells and to Miss Clement for their notes on that provision, which they provided to me after the hearing. The statutory guidance from the Welsh Assembly Government on section 5 (Local Government Improvement Wales Programme for Improvement 2010) suggests that the consultation obligation imposed by section 5 attaches to proposals of a general, strategic character, rather than specific service-level proposals. Nonetheless, I will assume, without deciding, that section 5 imposed a statutory obligation on the Council to consult about its library proposals. I accept that a statutory obligation to consult may be detailed and precise (although the obligation imposed by section 5, as it happens, is not). But given the broad statement of the law in Coughlan, I do not consider that the reason why an authority consults (ie whether it is obliged to do so by statute, or chooses to) can make any difference in principle to the content of that obligation. In particular, it does not, in principle, determine whether or not there was an obligation to consult on alternatives. Whether there is an obligation to consult on alternatives will depend on the facts of the case in hand, and, in particular, on whether there are any realistic alternatives, as Mr Williams and Mr Howells accepted in paragraph 80 of their skeleton argument. Moseley gives limited help on the question when there will be an obligation to consult on alternatives. It is clear from paragraphs 40 and 41 of Lord Reed's judgment that in some cases there will be no obligation to consult on alternatives; and even when such an obligation does arise, it may not require an authority to discuss alternatives in detail, or the reasons why they have been rejected.
65. I accept Mr Swift's submission that it was for the Council to decide, in the circumstances, how much it wanted to save from the library service budget. In my judgment the Council was also entitled to consult on what it described in the consultation document as its 'preferred option', that is community-led libraries, in the places served by the existing village libraries, and in Dinas Powys. It provided enough information to enable consultees to understand the reasons for the proposals to respond intelligently. The document itself and the page with library-specific data, coupled with the signpost to the Review (the link and the advice that it was available on request) were sufficient for that purpose. I do not consider that the consultation is vitiated by the fact that the consultation document did not refer to the disadvantages of community libraries. Anyone who was interested could see those described in the Review.
66. Did the consultation take place while the proposals were still at a formative stage? The Cabinet had decided to consult before making any further decisions on the Strategy. The Council clearly had a preferred option, and, as I have held, was entitled to consult in the way it did on that option. It was clear that what the Council was consulting on was community libraries or closure. But the tenor of the consultation document is that the Council had an open mind on what form arrangements for community libraries would take. I also consider that the presence of the open-text box on the questionnaire shows that the Council was prepared to consider any suggestions which were made to it, provided that they enabled it to make the savings it had decided were necessary. Consultees were able to suggest, for example, if that was their view, that Rhoose should not be included in the proposal, or that there should be more Council involvement than the Council preferred, thus making the library a community-supported library.
67. I do not accept Mr Swift's submission that the juxtaposition of the consultation on community libraries with the consultation on a reduction in hours for different libraries of itself made it clear that consultees could suggest that the opening hours in the Library should be reduced. The real question is whether the Council was obliged, when consulting on its preferred alternative, explicitly to invite views about reducing hours in the Library. I do not consider that it was, because the Council had decided that it wanted, subject to consultation, to make the savings it had calculated would flow from the community library proposal. That meant that reducing hours instead of introducing community libraries was not, on the facts, a realistic alternative. In any event, there was a free-text box in the questionnaire in which consultees could have made that suggestion. This was, therefore, a very different case on its facts from Moseley. None of the choices made by the Council in this case was disguised: the choices were evident from the consultation document and from the Review.
68. Were the results of the consultation taken conscientiously into account? I can see no reason for concluding that they were not. The responses to the consultation were fully, and apparently accurately, reported to the Cabinet. As it turned out, the consultation showed, with the exception of Wenvoe and Rhoose, that there was support for the proposal. I will consider the Rhoose responses when I deal with the rationality challenge.
69. For these reasons, the consultation was not unlawful. It met, in my judgment, the test in Coughlan. This decision means that I do not need to consider whether the consultation challenge is out of time. For completeness, and since I have read and heard argument about it, I briefly consider this question. In the note to which I have already referred, Miss Clement drew my attention to the decision of McGowan J in R (Draper) v Lincolnshire County Council [2015] EWHC 2694 (Admin), which was handed down after the hearing.
70. In my judgment the consultation was in this case not of itself, a decision, and did not, of itself, have any legal consequences. It is even less legally significant than the outline planning permission in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23; [2002] 1 WLR 1593. This case is also quite different from R (Nash) v Barnet London Borough Council [2013] EWCA Civ1004; [2013] PTSR 1457. In Nash, the claimant challenged two contracts to outsource functions on the grounds that the Council had failed to comply with a statutory obligation to consult. That obligation arose, however, when the Council made the decision in principle to start the procurement process, not when the decision was made to let the contract. In this case the Council decided (or perhaps was obliged) to consult before it made the decision which it is sought to challenge here. As Arden LJ observed in the Brompton case (at paragraph 93) a consultation process is inherently self-correcting. The courts should avoid stepping in too quickly, and in most cases, should let the consultation take its course. I therefore reject the submission that the Claimant was obliged to bring proceedings promptly after the end of the consultation. In any event, even if the submission were correct, the rationality challenge would still have been brought in time.
71. I consider that Draper is a special decision on its facts. The consultation which, in that case, McGowan J held should have been challenged promptly, was a second consultation carried out, for a limited period, and for a limited purpose, after an earlier decision of the council, which had also been the subject of consultation, had been quashed by Collins J. The second consultation ended on 31 October 2014. It produced three expressions of interest, one of which the council decided to accept on 3 December 2014. The defendant was then obliged to start a procurement exercise. On 3 February 2015, the council made the decision which was the subject of the challenge. It is not clear to me what that decision was, although I infer it was a decision to accept a proposal by GLL to run the council's library service. The claim was not brought until very nearly three months after 3 February 2015. On its facts, Draper seems to me to be closer to Nash than it is to this case.

Was the decision irrational?

72. Mr Williams submitted that the decision was irrational for four main reasons. His first argument was that it was irrational to consult, and then decide, on community-led libraries, because that was inconsistent with the Review, and deprecated by a research document produced by the Welsh Government. There are two answers to this argument. First, it was not irrational for the Council (as I have held it did) to move from the general proposal for CMSL (in the two versions of the Review) to expressing a preferred option (for a community-led library) in the consultation document, and then to choose that option. It is clear from the Review and from the consultation document that, in the Council's view, there was a range of different types of arrangement which could result in a community-led library. One significant difference between a community-led and a council-led library is that the former, because it involves less spending by the Council on support, is likely to save more money.
73. Second, the document which Mr Williams relied on is neither statutory nor non-statutory guidance. The Council could, no doubt, have taken it into account if it chose to, but did not act unlawfully if it did not. The fact that it was raised in the Committee meeting of 16 March 2015 means that it was brought to the Council's attention, for what that was worth. But the fact that the Council did not comply with the views expressed in this document does not make the decision on 9 March 2015, or the Committee's decision on 16 March 2015, unlawful.
74. Mr Williams submitted, second, that the decision was irrational because the reasoning in the July 2014 Review does not support the inclusion of the Library in the community proposal. I reject that submission. First, how the Council chooses to classify its libraries is a matter for it. The classification of the Library as a 'village library' pre-dated the Review. Second, the Council was entitled to revisit its initial view that the Library should not be included in the proposal (because of its geographical position) in the light of its change of view about the savings it wished to make, and in the light of the fact that in the initial proposal, the Library was the only village library not to be included in the proposal.
75. His third submission was that the decision to include the Library in the proposal post-consultation was irrational. It is true that considerable opposition to a community library in Rhoose had been expressed by people who lived there and by those who used the library. But as the report for the meeting on 9 March 2015 explained, the Council's view was that, because the people who lived in Rhoose were so enthusiastic about their library, they might well decide, if the alternative was that the Library should close, to support a community library despite that expressed opposition. In my judgment, that was an assessment which it was open to the Council to make. As it happens, though this is not relevant to the question whether it was rational to come to that view in March 2015, events proved that it was correct. If Mr Williams is right in his submission that there is a risk that the Council has 'set up Rhoose to fail', and that risk were to materialise, the Cabinet will have a further decision to make.
76. He submitted, fourth, that the Council's views about the savings it could make were irrational. I reject that submission. It is not for me to second guess the financial calculations and assumptions made by the Council, absent something very striking. The criticisms made by Mr Williams do not approach that high threshold. My conclusion, then, is that the decision was not irrational.

Conclusion

77. For these reasons, I dismiss this application for judicial review.