R (Bailey) v Brent LBC

The court reviewed judicial review challenges to Brent Council’s decision to adopt part of its "Libraries Transformation Project" including the closure of six branch libraries. Key legal principles considered were the duty in section 7 of the Public Libraries and Museums Act 1964 to provide a "comprehensive and efficient" library service, the scope for community or voluntary provision under that duty, and the public sector equality duty in section 149 of the Equality Act 2010. The court held that the Council lawfully informed itself of needs, carried out an extensive consultation and a detailed Equality Impact Assessment, and properly considered proposals from community groups. The court rejected claims that the consultation was unfair, that the Council had fettered its discretion or misconstrued section 7, and that the equality duty was breached or that there was an obvious risk of unlawful indirect discrimination.

Background and parties. The claimants were local residents challenging Brent Council's executive decision of 11 April 2011 to implement parts of the Libraries Transformation Project, notably closures of six of twelve libraries. The Interested Party was All Souls College. The hearing was a rolled-up permission and substantive hearing.

Nature of the claim and relief sought. The claimants sought judicial review relief contending the Council had (i) misdirected itself as to the scope of its duties under s7 Public Libraries and Museums Act 1964, (ii) closed its mind to voluntary/community arrangements and therefore fettered its discretion, (iii) failed to inform itself properly about local needs and carried out an inadequate needs assessment, (iv) carried out an unlawful consultation and failed to provide necessary information to consultees, and (v) breached the public sector equality duty under s149 Equality Act 2010 (including arguments about indirect discrimination).

Procedural posture. The court heard evidence and argument over a multi-day rolled-up hearing of permission and the substantive application. The judgment addresses statutory framework (Public Libraries and Museums Act 1964, Local Government Act 2000 and Equality Act 2010), the consultation material, the User Needs Assessment and Equality Impact Assessment appended to the April 2011 report, and the appraisal of community proposals.

Issues framed. Whether the Council (A) misconstrued s7 or unlawfully excluded community provision as part of fulfilling s7 duties; (B) carried out a lawful and adequate consultation and provided sufficient information to enable meaningful responses and proposals; (C) took reasonable steps to inform itself and carried out a lawful assessment of needs for the purposes of s7; and (D) complied with its public sector equality duty in s149 and properly assessed risks of indirect discrimination.

Court’s reasoning and conclusion. The judge accepted that s7 may encompass provision by other authorities or by other appropriate means but found no legal error in the Council’s premise that, if the proposed Transformation Project as a whole fulfilled s7 duties, additional voluntary provision would be additional rather than required to meet the authority’s statutory duty. The consultation was extensive and provided sufficient information; officers responded to requests for further detail and the Council was not required to disclose the internal seven appraisal factors as precondition of fair consultation. The needs assessment and EIA, read together with the consultation report and background papers, provided a sufficiently informed and proportionate basis for decision-making; the judge emphasised the availability of the Secretary of State’s supervisory and default powers under ss 1 and 10 of the 1964 Act as an alternative remedy to resolve disputes about the sufficiency of the service on the merits. On equality issues the court held that the EIA was conscientious and formed part of the decision making, that the duty must be performed as part of the decision-making process (up to the point the executive made its decision), and that the Claimants had not shown an obvious risk of unlawful indirect discrimination that would have required further structured analysis. The court granted permission for judicial review but dismissed the substantive application.

The claim is dismissed. The court concluded that Brent Council lawfully carried out the statutory assessment of need under s7 Public Libraries and Museums Act 1964, conducted an extensive and fair consultation, properly considered community proposals and appraised them on legitimate grounds, and complied with the public sector equality duty in s149 Equality Act 2010. The Equality Impact Assessment and supporting materials were regarded as timely, detailed and integral to the decision-making process. The court noted that complaints on the merits of whether the LTP meets s7 are a matter for the Secretary of State under the supervisory/default powers in ss1 and 10 of the 1964 Act, but found no judicial-reviewable error in the Council's process and reasoning.