Culture, Media and Sport CommitteeWritten evidence submitted by Public Interest Lawyers

Public Interest Lawyers (“PIL”) are a law firm based in Birmingham which has an international reputation for its work, which is exclusively focused on claimant judicial review and human rights cases. See http://www.publicinterestlawyers.co.uk/ for more information.

Introduction

PIL acted on behalf of library users in Gloucestershire and Somerset challenging the planned library closures (both mobile and static libraries) in both counties. The cases were entirely successful and the High Court quashed the library closures in both counties on 16 November 2011. PIL also currently acts on behalf of library users in Surrey, who are to launch a similar challenge shortly.

Whilst prompted by the scale of library closures, all of these cases are challenges to the way that the cuts have been imposed, rather than the cuts themselves. The principal ground of challenge has not been the Public Libraries and Museums Act 1964 (“PLMA”) but rather the public sector equalities duties (in the Equalities Act 2010 and predecessor legislation). However, it should not be said that these cases are entirely blind to the substance of largescale cuts. The larger the scale of cuts, the greater the importance of the service, and the more essential that that service is to vulnerable users who fall within statutory equalities groups, then the more onerous are the requirements of the legal duties imposed on councils. In failing to grasp this reality, local authorities have strayed into unlawfulness, and it is likely that they will continue to do so without further ministerial or parliamentary guidance.

We shall address the four queries raised by the Committee below. However, we first provide a brief summary of the Gloucestershire and Somerset cases, as these are the only successful legal challenges to library closures to date.

The Gloucestershire and Somerset Cases

Gloucestershire County Council (“GCC”) had proposed to withdraw funding from 10 of 38 static libraries and to withdraw the much-loved mobile library service—a lifeline to isolated communities and elderly care home residents—altogether. Similar cuts were proposed by Somerset County Council (“SCC”), with 11 of 34 static libraries due to lose their funding and 4 of 6 mobile libraries already off the road.

In a judgment dated 16 November 2011,1 the High Court found that the planned library closures were unlawful due to the Councils’ breach of their statutory equalities duties. As a consequence it quashed all of the relevant library closure decisions in both cases. The judge gave a second judgment at that time,2 in which he strongly condemned the closures (emphasis added):

“the decisions under challenge … were not merely unlawful decisions but were, in substance, as Ms Mountfield submits, amounted to bad government. It is important to the rule of law to give due respect to these issues of equality. The breach of the equality duties is a substantive and not merely a technical or procedural defect.” (2nd judgment, paragraph 7).

“the decisions, if allowed to stand, would result in major and unfavourable changes to the provision of statutory services for persons generally in Somerset and Gloucestershire and in particular for the classes of persons most affected by library closure, including the equality groups intended to be protected” (2nd judgment, paragraph 8).

The breach of the statutory equalities duties that the Court identified were said to impose “important and onerous burdens” (1st judgment, paragraph 118) which must be complied with “in substance (1st judgment, paragraph 118) ie not as a merely technical box-ticking exercise. The Councils relied on a number of Equalities Impact Assessments (“EIAs”) in the case, but these documents were not enough to convince the Court that they had due regard to these important duties. Moreover the Court found that the duties must be exercised “as part of the decision making process” (1st judgment, paragraph 121). It found that as part of that process the Councils did not “undertake … a sufficiently thorough information gathering exercise and then properly analyse … that information” (1st judgment, paragraph 131).

The judge awarded the claimants all of their costs, enabling the return of monies provided by local residents to support the cases (£11,250 in Gloucestershire and £9000 in Somerset), and refused permission to appeal.

In considering whether to quash the decisions, the Judge referred to the message to be sent to other local authorities by the judgment:

“failure to do so [quash] would be to my mind to send quite the wrong message to other local authorities who may be considering restructuring their library services” (2nd Judgment, paragraph 9).

Library services in both counties are therefore currently being restored to pre-cuts levels. In Somerset, this has been done through a further council decision.3 In Gloucestershire, it is being done piecemeal as the effect of quashing the earlier decisions is that they have in effect ceased to exist.

This judgment doesn’t of course insulate libraries in these counties from future decisions. New decisions will no doubt be made. But they will need to be in accordance with the Council’s decision-making procedures and subject to the democratic scrutiny that this entails and they will also have to be made in accordance with the Council’s legal duties. What follows now must be an marked improvement.

Both Councils are currently reviewing their services, and have worked with the Equalities and Human Rights Commission to try to get it right second time around. Campaigners await the new proposals with eagerness. They are all willing to engage with the Councils to produce a fairer proposal.

In making their new decisions, the Equalities Act 20104 is now in play (the cases had been based principally on the predecessor legislation). This means that, in addition to race, sex and disability inequalities, it must now have regard to age (both young and old) and pregnancy/maternity considerations.

What constitutes a comprehensive and efficient library service for the 21st century

Although Gloucestershire CC has said publicly that the Court in the judicial review had ruled that their proposals complied with the duty to provide a “comprehensive and efficient library service” under section 7 PLMA, a closer look reveals that this is not the case. Paragraph 117 of the 1st judgment gives this impression, but the judge did not receive submissions on whether the proposed library service was or was not “comprehensive and efficient”, nor do his findings elsewhere relate to this. We did not argue the point.

In fact the judge found only that:

(i)resource limitations are a relevant consideration in complying with section 7 PLMA;

(ii)the Councils had sufficient regard to the duty when they were making their decision; and

(iii)the Councils adequately assessed users needs for the purposes of compliance with the duty.

Clearly therefore, he did not rule on whether the proposed library provision actually was “comprehensive and efficient”. Because of judicial deference to primary decision makers this is a matter for the Secretary of State’s supervision under s10 of the Act.5 However, even the limited findings on the facts above would have been appealed by us if we had faced an appeal by the Councils. The Councils have not appealed, and we have been entirely successful in quashing the decisions, therefore we have not appealed the above findings. We are confident that we could have demonstrated to an appeal court that section 7 PLMA had been breached.

Nor did the Judge rule that community libraries comply with the PLMA. On the contrary, he notes at paragraph 117 that community libraries are outside statutory provision and therefore irrelevant to his considerations. All the judge is saying in this paragraph is that, in his view, the fact that the community libraries may not in fact materialize does not in itself affect compliance with the section 7 duty.

We will leave further submissions on this issue to those with libraries expertise. However, we stress that the section 7 duty is an entirely appropriate and relevant duty. It moves with the times and is quite capable of assimilating IT access and other new developments in service provision. However, in moving with the times it also assimilates changes to the way that libraries are viewed and used. It cuts both ways. For example, the broader significance for communities that libraries have acquired in the years since the Act was passed (particularly since cuts in other areas left libraries as the last remaining community resource in many areas) is now to be considered as part of the section 7 duty. Where libraries play an important role in an increasingly atomised society, then their importance, and the need to provide physical library facilities as part of the statutory service, is also elevated.

Only libraries that remain connected to the council’s statutory library service can be considered to be part of that council’s statutory library provision. But a local authority can of course take account of successful community libraries outside that system in planning what provision it needs to provide to ensure that a comprehensive and efficient service is being provided to all users in a county. However, any taking into account of community run libraries must take strong account of their limitations, and the lower level of service and reliability that they are able to provide. Community libraries’ contribution must therefore be strongly discounted in any calculations, especially so in the current era in which community libraries effectiveness is untested. One particularly questions their longevity once the current generation of elderly library enthusiasts are unable to contribute their free time. For this reasons, councils must maintain substantial library provision on a county-wide basis. Until the longterm sustainability of community-run libraries is assured (which can only be evaluated in 10–20 years’ time), community libraries can only supplement an already comprehensive and efficient library provision.

It is also important to note that all of the library judicial reviews have supported the principle that an assessment of library users needs must have taken place in order for a local authority to comply with its section 7 duty. See paragraph 28 of the 1st Judgment in the Gloucestershire and Somerset cases:

“To my mind the duty under Section 7 of the Act could not be fulfilled unless an assessment of the needs which the library service should meet had been undertaken. In the absence of such information, the Defendants could not possibly form a lawful or rational view of whether the service was comprehensive and efficient and I accept the submission of counsel for the Claimants”.

The extent to which planned library closures are compatible with the requirements of the Libraries & Museums Act 1964 and the Charteris Report

See above.

Scale of closures is not determinative of this question, but it is impossible to conceive of a significant cut (such as the 1/3 reductions in Gloucestershire and Somerset) that could still result in a comprehensive and efficient service remaining. The judicial reviews are no assistance on this question.

It is important to take into account pre-existing cuts that have already drastically reduced book stocks etc.

If applied to the currently proposed set of library closures, they would in our submission all fail the “Charteris test”. Although she may now resile from some of the principles put forward in that report in her role as private consultant.

The impact library closures have on local communities

We will leave responses on this question to others, but evidence from the Gloucestershire and Somerset cases shows this effect to have been great. Additional witness evidence obtained as part of that case can be provided if requested. Libraries perform an important community role, which section 7 PLMA requires to be provided comprehensively to all county residents. When considering cuts, councils cannot simply adopt a “hub libraries and market towns” approach, without taking into account the community importance of smaller libraries. That importance may prevent closure.

The effectiveness of the Secretary of State’s powers of intervention under the PLMA

This is an illusory safeguard. The Secretary of State has not exercised his supervisory duty during the greatest round of library closures since public libraries were conceived. The DCMS appears only to have acted as a sort of taxpayer funded cuts consultant more occupied with presentation than substance. Strong ministerial guidance is now called for.

The democratic safeguards afforded to taxpayers are failing when the courts are unwilling to declare a council’s library provision in breach of the PLMA because of the Secretary of State’s primary supervisory role (see paragraph 28 of the 1st judgment and paragraphs 94 and 95 of the High Court judgment in the case of Bailey—the challenge to closures in Brent LBC) yet the Secretary of State refuses to exercise that role despite the present circumstances which cry out for intervention.

January 2012

1 Appendix 1—Not printed.

2 Appendix 2—Not printed.

3 www1.somerset.gov.uk/council/portfolio%2010/2012%20January%2011%20Reinstatement%20of%20Library%20Services.pdf

4 See www.equalityhumanrights.com/advice-and-guidance/public-sector-equality-duty/

5 See paragraph 28 of the 1st judgment.

Prepared 5th November 2012