Culture, Media and Sport CommitteeWritten evidence submitted by Professor John Irven, Treasurer of Watchet Library Friends and Friends of Somerset Libraries

Executive Summary

Submission made as coordinator of the successful legal challenge against Somerset County Council (SCC) decisions on library closures in the judicial review 2011.

Details the problems and challenges of dealing with the DCMS, Secretary of State (SoS) and SCC to get any changes in library closure plans.

Due to inaction of DCMS/SoS, details need for, and challenges imposed by, the need for legal action in which the judgement ruled the decisions illegal, categorising the behaviour of SCC as an example of “bad government”.

Identifies a requirement for the DCMS and with select committee input to rule on what is expected of a “comprehensive and efficient” library service under the 1964 act going forward.

Offers specific recommendations detailed in section 7.

1. Introduction

I am Treasurer of Watchet Library Friends (WLF) and Friends of Somerset Libraries (FOSL).The former is dedicated to supporting my local library in Watchet, a small coastal town on the Somerset Coast, the latter an umbrella organisation that supports and helps co-ordinate library friends groups across the whole of Somerset. I acted to coordinate and lead the successful High Court Judicial review mounted against SCC decisions on library closures. This involved raising a community contribution to legal costs that were imposed by the Legal Services Commission (LSC) and consolidating the evidential submissions through our representatives, Public Interest Lawyers (PIL) in Birmingham, as well as acting as expert witness.

2. Consultation over initial proposed library closures by SCC, Autumn 2010–February 2011

Informal consultations with limited interested groups were conducted in autumn 2010, leading to formal proposals and consultation 14 December 2010–14 January 2011 where open meetings were held in only some affected areas. During this period several libraries due to close formed “Friends Groups” to support and campaign for libraries to stay open, including FOSL campaigning county wide.

As no open meeting was called by SCC in Watchet, I was only aware of plans to close our library by attending an open meeting in nearby Williton on 10 January 2011, reporting back to our local Watchet Town Council, who immediately set up working party of councillors, which I joined as lay member. We called an open meeting for Watchet on 10 January 2011 (after closure of the SCC consultation), inviting SCC officials. We had one week to raise a 500 signature petition against closure, presented to a full SCC council meeting 16 February 2011, alongside many other local groups and a 35,000 county wide petition. Despite SCC saying the meeting was not aiming to choose which libraries to close, only setting the budget, at 5.00 pm that day we were emailed notifying us that based on the decisions taken at the 16 February council meeting, Watchet Library and others would close.

3. Request for intervention to DCMS SoS Jeremy Hunt

As all entreaties to SCC fell on deaf ears, I personally wrote to Jeremy Hunt, SoS on 28 February 2011 asking him to use his powers under the 1964 library act to intervene and stop the closures, describing the actions by SCC to date. No answer was forthcoming, nor to a reminder sent on 14 April 2011. On 5 May 2011 I sent another communication indicating the launching of a legal action against SCC, asking him again to intervene before more public money was wasted on legal challenges, to which I then received a standard “form” letter in reply. This was identical to that sent to other communicators, and did not answer any specific questions I had raised.

4. WLF Launch, Spring 2011

Helped launch WLF as treasurer, a group supporting a campaign against closure, affiliated to FOSL. Other members of both groups continued to send letters to SCC and the SoS and DCMS to no effect. Held meetings with SCC about potential for friends groups to support libraries as “community run” or “community supported” libraries, but needing to find all funding & manage the facility. FOSL arranged for Tim Coates, ex MD of Waterstones Books to present ideas to SCC on how to make the savings they needed but whilst keeping all libraries open. SCC ignored advice, saying that we had no experience of running library services (despite saying we would have to learn to run community libraries). Savings of £30k per annum identified as part of the FOSL proposals were not used to keep more libraries open under SCC management, but to offer a £5k “one off” inducement to the 11 libraries scheduled for closure for local communities to take them on. Despite protesting to SCC that the community run and supported models were unproven and might not work for all areas, especially those of high deprivation like Watchet, inputs were ignored. Decided that legal action as warned to both SCC and the SoS would have to be pursued as a last resort if SoS and SCC remained unprepared to act.

5. Legal campaign against SCC decisions—May 2011

5.1 Launch of legal campaign

Took up leadership of legal campaign through FOSL, also being elected to local Watchet Town Council who had opposed the cuts by written letter to SCC.

With PIL, took on task of co-ordinating evidence for a judicial review in the high court. Found candidate qualified for legal aid (R Hird) in Watchet who could act as a test case for all Somerset, not just Watchet. Asked for permission to take case to the high court, plus funding through legal aid from LSC. They refused, saying there was no merit or public interest in our case. Our barrister opinion said there was more likelihood of winning than losing, and it was in the public interest. Therefore we took this to the LSC appeal panel who ruled in our favour, saying that the case had merit, should proceed to the high court, with LSC funding the legal aided case.

5.2 Community contributions and LSC position—May 2011

LSC turned to the “Access to Justice Act 1999”. This had never been used previously. They stated that under this legislation, although they could not force the candidate to pay any contribution because she qualified for legal aid, the act allowed LSC to levy a community contribution where the result would have impact and benefit to the community.

Initially asked for the full cost of a two day judicial Review hearing ie £30k from the “community”. No elected councils were prepared to run the challenge, and although Library Friends Groups had no revenue raising power, we campaigners within such groups were faced with accepting the challenge to run the case and raise funds from the community or not having the case heard. When we objected to the amount, LSC halved this to approx £15k. Our lawyers advised that LSC could not legally levy such a high charge under the guidance rules for community contributions, which required a “means test” of the community’s ability to pay, based on population, those using/benefitting from the libraries, deprivation indices, numbers of retired, unemployed etc.

We had to research all the data which PIL used with the LSC guidelines to calculate the correct contribution level. Their estimate was for £3–4k, so as treasurer together with Chair of FOSL we went public with an appeal for £5k, not knowing whether we would be able to raise the funds, especially with no major celebrity or individuals backing the campaign. We were advised by PIL to go back to the same appeals panel who had overruled the LSC refusal to allow the case to go forward, expecting a ruling in our favour at the lower estimated contribution level.

We successfully raised £5k from hundreds of individual and group supporters across Somerset, together with holding numerous fund raising events by Friends groups. The appeals panel did rule again in our favour and insisted LSC fund our case through legal aid, with a maximum community contribution of £3,500—exactly as predicted by PIL from the guideline and calculations.

LSC, however, refused to accept the ruling of their own appeals panel. This was unprecedented and we believed unfair, and probably illegal. Our only recourse would have been a higher appeal or even a judicial review of the LSC funding decision. The LSC knew that if we refused to accept their demand on funding level or appealed further we would “run out of time” to get the case to court—six months maximum from date of decision. All they had to do was prevaricate further (note the IOW campaigners refused to accept an LSC ruling on cost contribution, and eventually ran out of time and were unable to get a case to court) We negotiated and reluctantly accepted a figure of £9,000 community contribution in order to get the case heard. We had to go back to the community asking for nearly double our original request of £5k.

5.3 First hearing in High Court—July 2011

Based on the agreement with LSC we went to court and obtained an injunction preventing closures due in October 2011 pending the full hearing. PIL rolled together Somerset and Gloucestershire cases into a three day hearing 27–29 September to reduce costs.

5.4 DCMS position related to providing relevant information during July

I received no answer to my formal FOI request to DCMS for information relating to all discussions, meetings, and resulting decisions between DCMS the SoS and SCC officials over the library decisions.

After a reminder to DCMS on 6 July 2011 I received an answer that although information falling legitimately under FOI exists, they refused to release citing:

“I can confirm that the Department holds this information. We are able to confirm that there was a meeting between Somerset County Council and DCMS officials on the 30 March, and that Paul Kirkman, (DCMS Head of Arts), Sheila Wheeler (Somerset County Council Chief Executive), and four other junior officials attended.

The rest of the information within the scope of your request is exempt from disclosure under section 36(2)(b) (would be likely to inhibit) (i) (the free and frank provision of advice, or (ii) (the free and frank exchange of views for the purposes of deliberation) of the FOI Act.”

5.5 Judicial review September

We reach £9k just in time before the hearing. Last twist from LSC—they indicate despite verbal agreement with PIL that we have proceeded on, they will issue a funding certificate only funding the case hearing with a £9k community contribution, BUT they refuse to pay the PIL costs associated with appealing and “winning” the argument at the LSC appeals panel hearings. (This leaves PIL and therefore the campaign nominally £5,000 short ie we need a total of £14,000 which will have to be found after the hearing to avoid leaving PIL internal costs uncovered). The judgement was reserved, to be handed down in November.

5.6 Handing down of judgement 16 November 2011

The full result is documented in the public record as transcripts of the judgement, and can be made available to the committee. SCC found to have taken unlawful decisions and failed to meet their public sector equalities duties. Actions of campaigners ruled as “considered, appropriate and in proportion”, whereas those of SCC dubbed an example of “bad government”. Judge finds for campaigners with full costs awarded (so the PIL shortfall disappeared). All decisions quashed, with the defendants SCC needing to reinstate all services. Warned he was sending a very strong message to all councils and pubic sector bodies of their need to undertake and meet their public sector equalities duty. The judge indicating that it was up to the SoS to interpret and rule on the 1964 Library Act.

5.7 DCMS appeal November 2011

Following the handing down of the judgment based on “final decisions” I have been appealing the DCMS decision to refuse to release my requested FOI information. In November I was advised by DCMS the appeal is “minded still to refuse permission to release the FOI data”. I contended that the decisions by SoS and DCMS were no longer “provisional” nor still in “a formative stage”—they were, and are final. Following the definitive judgement these “final” DCMS and SoS decisions should also be subject to evaluation through access to information legitimately requested under FOI. The DCMS internal appeal still ruled to refuse release, so I am currently appealing the DCMS refusal through the Information Commissioner.

6. Impact of judgement

6.1 November–December 2011 SCC state they will reinstate library services to comply with the judgement, but that they meet statutory requirements of 1964 Act as given in the judgement

SCC officers and councillors indicate their intention to reinstate services, but conduct a new planning exercise from April 2012 which may still lead to service change. In their public statements they claim that because the judgement did not find for us on the grounds of failure to supply a comprehensive and efficient library service under the 1964 Libraries Act, only being unlawful under equalities legislation, the judgement in effect gives them a green light that their proposals were legal and met the requirements of the 1964 Act.

6.2 My letter to SCC about judgement and proposals 21 December 2011

This informed SCC that FOSL, acting on behalf of hundreds of members of the community contributing to the legal costs and main supporters of the legal action, would expect to be consulted about how the services are being reinstated and on any future plans that may come forward. We noted that following the judgement requiring SCC to pay our full legal costs, the monies have been returned to us. Save for persons who wished to have their contribution returned to them immediately, with the agreement of the remainder (99%) we are holding all the monies raised pending reformulation of the Council’s plans and in case of any further action we need to take.

Whilst appreciating the commitment about reinstatement of services, we contested the SCC interpretation that:

“In summary, the judgment concluded that the service proposed would meet the statutory duty, and there was no evidence to suggest that the consultation was flawed.
However, the judgment found that the decision taken by Full Council was nevertheless unlawful because of a failure to comply with the public sector equalities duties.
The Council was therefore directed to restore services to their pre-decision state and to pay the claimants’ legal costs.”

Offering the following comments:

The Court’s Written Judgment—What it said (ref to paras in the record of the judgement)

On 16 November 2011 His Honour Judge McKenna ruled that SCC’s decisions to cut library provision were unlawful due to the Council’s breach of its statutory equalities duties, and quashed those decisions. The breach of the statutory equalities duties that the Court identified was a serious one, which it condemned as “bad government”. These duties it identified as imposing “important and onerous burdens” (paragraph 118); which must be complied with “in substance (paragraph 118) ie not as a merely technical box-ticking exercise.

The Court’s Judgment—What it didn’t say

SCC have claimed that the Court has ruled that the previously proposed shape of library provision complied with the duty to provide a “comprehensive and efficient library service” under s 7 Public Libraries and Museums Act. This refers to paragraph 117 of its judgment. On a straightforward reading it may superficially appear as if the Judge is ruling as to the service’s adequacy, but the passage must be read in context. 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. In fact his findings are only that (i) resource limitations are a relevant consideration for the Council; (ii) that the Council had sufficient regard to the duty when it was making its decision; and (iii) that it adequately assessed users needs for the purposes of compliance with the duty. He did not address whether the library provision actually is “comprehensive and efficient”. Because of judicial deference to primary decision makers as to the merits of their decisions, actual compliance with the substance of the “comprehensive and efficient” duty is a matter for the Secretary of State’s supervision under s 10 of the Act. It is for this reason that we did not mount a “head on” challenge to the proposals as intrinsically breaching the Libraries Act and leave this to the DCMS and any influence the select committee enquiry can bring.

It is unclear whether SCC, having reinstated services before April 2012, will try to reintroduce the same cuts dressed up differently after April.

7. Conclusions

7.1 Summary

I have submitted evidence of the challenges faced by our community in Somerset in overturning the illegal SCC decisions on library closures, contending that DCMS and the SoS have failed in their duties to provide adequate oversight to SCC and intervene as required under the 1964 Act.

7.2 Recommendations to the Select Committee

I would respectfully request that the committee consider the following recommendations:

Review action/inaction by DCMS & SoS with SCC, identifying whether DCMS and SoS discharged their duties properly under the 1964 Act.

Review whether DCMS used refusal to release information under legitimate FOI requests to obscure scrutiny of their actions/inactions.

Identify whether they contributed to the “bad government” verdict of the SCC judgement.

Committee to call for a public inquiry into library closures to identify what is required to provide a “comprehensive and efficient” service under the 1964 act for the 21st century, particularly meeting equalities needs. This is especially relevant for areas like Somerset and where SoS/DCMS have not properly intervened.

DCMS to direct councils considering closures to freeze any action pending the result of the Select Committee and Public Enquiries.

Direct authorities to engage with interested groups county wide, not just at individual library level, to prevent a “divide and rule” approach.

To consider whether the actions of the LSC in the Somerset case were proper as they made access to justice much more difficult, and to recommend solutions.

January 2012

Prepared 5th November 2012