R. (Bailey) v Brent LBC

The Court of Appeal dismissed the challenge to Brent Council's decision to close six public libraries. The court held that the council had fulfilled its statutory duties under section 7 of the Public Libraries & Museums Act 1964 (duty to provide a comprehensive and efficient library service) and under section 149 of the Equality Act 2010 (public sector equality duty). The court accepted that indirect discrimination (as defined by section 19 of the Equality Act 2010) could arise from apparently neutral measures, but concluded on the facts that the council had no obvious risk of indirect discrimination to justify further investigation and that the Equality Impact Assessment (EIA) and consultation process had been a core part of the decision-making process.

The court addressed subsidiary grounds: (1) the choice of the appropriate comparator pool for assessing disparate impact (the court accepted the council's focus on library users rather than the whole borough population), (2) the timing of the equality assessment (the court held that the duty must inform the decision-making process but need not be investigated exhaustively at every formative stage), (3) compliance with section 7 of the 1964 Act (the council had made a reasonable assessment of needs and proposed mitigation), and (4) alleged procedural unfairness in the handling of community proposals (the court found no legal error in the criteria or process). The appeal was therefore dismissed.

Background and parties: The appellants, Brent residents, sought judicial review of Brent London Borough Council's decision of 11 April 2011 to close six of twelve public libraries. The council had consulted from proposals first promoted in a November 2010 report and produced an April 2011 report incorporating an Equality Impact Assessment. The decision was confirmed by the council's Overview and Scrutiny Committee and was the subject of an earlier refusal to quash by Ouseley J ([2011] EWHC 2572 (Admin)). The Court of Appeal heard the appeal against that refusal.

Relief sought: The appellants sought quashing of the council's decision to close six libraries (Barham Park, Cricklewood, Kensal Rise, Neasden, Preston and Tokyngton) on public law grounds including alleged breaches of the Equality Act 2010 and the Public Libraries & Museums Act 1964 and alleged procedural unfairness.

Issues before the court:

• Whether Brent Council breached section 149 of the Equality Act 2010 by failing to have "due regard" to the risk of indirect racial discrimination against Asian residents (including whether the correct comparator pool was the whole borough population or library users);
• Whether the equality duty was addressed at the proper (formative) stage of the decision-making process;
• Whether the council breached section 7 of the Public Libraries & Museums Act 1964 by failing to make a reasonable assessment of needs;
• Whether the council acted unfairly by inviting community groups to submit business plans without stating the criteria by which those plans would be assessed.

Court's reasoning (concise):

• The court accepted that decisions about library provision fall within the expression "provision, criterion or practice" for the purposes of indirect discrimination (section 19 Equality Act 2010) and that indirect discrimination can be shown either by intrinsic ties between a characteristic and the disadvantage or by statistical/adverse impact evidence. The court reviewed authorities including O'Flynn, Rutherford (No.2), Gibson and Bobezes on those points.
• On the facts, the council had conducted a detailed consultation, prepared an EIA and considered statutory duties in the April 2011 report. The EIA and report were treated by the decision-makers as a core element of the decision-making process; there was no evidence the council had a closed mind.
• The court concluded the appropriate comparator pool was the pool of library users rather than the whole borough population; adopting that pool, and on the figures the judge accepted, there was no material disparate impact to show indirect discrimination.
• The court held that the equality duty must inform the decision-making process and be embedded in it, but it does not require exhaustive investigation of every conceivable combination of protected characteristics at an early stage; the EIA conducted and timing here were adequate.
• Section 7 duties had been considered reasonably; mitigation measures and alternative provision had been addressed. Community proposals were evaluated against reasonable and foreseeable criteria and no unfairness in procedure was established.

Result: The appeal was dismissed. The court emphasised that public authorities must keep the equality duty in mind and analyse relevant material, but that decision-making in difficult budgetary circumstances is fact-sensitive and does not require infinite forensic inquiry.

The appeal is dismissed. The Court of Appeal held that Brent Council had given due regard to the public sector equality duty under section 149 Equality Act 2010 and had complied with its duties under section 7 of the Public Libraries & Museums Act 1964. The council conducted a thorough Equality Impact Assessment, embedded equality considerations in the decision-making process, reasonably selected the comparator pool (library users), and lawfully evaluated community proposals; there was no established indirect discrimination or procedural unfairness requiring quashing of the decision.

This is an appeal to the Court of Appeal (neutral citation [2011] EWCA Civ 1586) from a decision of Mr Justice Ouseley in the Queen's Bench Division, Administrative Court ([2011] EWHC 2572 (Admin)), which had refused the appellants' application to quash Brent Council's decision of 11 April 2011 to close six libraries. The Court of Appeal heard argument and dismissed the appeal on 19 December 2011.