Bailey & Ors, R (on the application of) v London Borough of Brent Council & Ors

The public sector equality duty requires informed consideration of the statutory equality objectives throughout decision-making. Compliance is assessed in substance and depends on the circumstances and stage of the process. An equality impact assessment is neither invariably necessary nor conclusive. A completed assessment need not precede consultation proposals where equality considerations already inform their development.

Indirect discrimination may be established through comparative evidence without proving an intrinsic connection between a protected characteristic and use of a service. The comparison must employ a suitable pool. Library users were a legitimate pool for assessing library closures.

The duty to provide a comprehensive and efficient library service requires a reasonable assessment of needs. It allows flexibility in provision and mitigation. Disagreement about particular omissions or mitigation measures does not itself establish unlawfulness.

Margaret Bailey and other Brent residents challenged Brent London Borough Council’s decision to close six of its twelve public libraries. Two occupied premises provided for library use by All Souls College, the interested party. The council proposed concentrating resources on six remaining libraries while improving other forms of access and achieving savings. Its final decision followed public consultation and consideration of an equality impact assessment.

Ouseley J refused to quash the decision in [2011] EWHC 2572 (Admin). The residents appealed, alleging inadequate consideration of indirect discrimination against Asian residents, late compliance with the public sector equality duty, an inadequate assessment of library needs, and unfairness in assessing community proposals without disclosing the assessment criteria. The Equality and Human Rights Commission intervened through written submissions concerning the continuing equality duty.

The appeal concerned the lawfulness of the decision-making process, rather than the merits or rationality of the closures themselves.

The appeal was dismissed unanimously. Richards LJ expressly agreed with the reasons given by both Pill LJ and Davis LJ.

1. The closure decision was a provision, criterion or practice within section 19 of the Equality Act 2010. Indirect discrimination did not require proof of an intrinsic connection between race and library use. Comparative evidence could establish particular disadvantage, and every member of the protected group need not suffer it. The council had not relied on justification. Library users were a legitimate comparator pool; their inclusion accorded with the approach in Secretary of State for Trade & Industry v Rutherford (No.2). Within that pool, the statistics did not establish disproportionate disadvantage to Asian users (paras 9, 43, 49–54, 82, 100–101).

2. Section 149 required conscious consideration of the statutory objectives. The duty had no fixed content: the consideration required depended on the circumstances and stage of decision-making. Compliance was a matter of substance. An equality impact assessment was neither invariably necessary nor conclusive. The council had considered detailed racial information and the effects of closure. The evidence disclosed no obvious risk requiring further racial analysis. Public bodies were not required to investigate indefinitely or undertake the forensic analysis deployed in litigation (paras 75, 81–83, 92–102).

3. The equality duty applied throughout the process. It was unnecessary here to complete an assessment before formulating proposals for consultation because equality considerations had informed the proposals from an early stage. The final assessment reflected prior research and was properly considered before the decision. Production of an assessment immediately before a final meeting would not invariably establish compliance. The duty must meaningfully inform the process before the ultimate decision (paras 83–84, 103–104).

4. Section 7 of the Public Libraries & Museums Act 1964 required a reasonable assessment of library needs and permitted flexibility in meeting them. The council had considered those needs, improved provision and mitigation measures. Particular matters identified by the appellants, even if not expressly addressed, did not establish breach. Legitimate debate about the effectiveness of mitigation was distinct from unlawfulness (paras 11, 63–64, 85).

5. The assessment of community proposals was procedurally fair. Groups asked to provide robust business cases could reasonably be expected to address their experience, financial capability and the viability of their proposals. The council had considered the proposals in detail and given cogent reasons for rejection. No proposal had failed solely on the undisclosed diversity and inclusion criterion. No error of law was established (paras 65–71, 105–106).

• Court of Appeal (Civil Division): [2011] EWCA Civ 1586 . Dismissed the residents’ appeal unanimously and upheld the refusal to quash the library closure decision.
• High Court, Queen’s Bench Division, Administrative Court: Ouseley J, [2011] EWHC 2572 (Admin) , 13 October 2011. Refused the application to quash the council’s decision.