Draper v Lincolnshire County Council

A consultation on changes to a statutory library service is lawful if, read with earlier material, it gives consultees a fair opportunity to propose affordable alternatives and explains the relevant legal and financial constraints. A consultation need not achieve perfection.

Under the Localism Act 2011, accepting an expression of interest requires procurement concerning the relevant service required by the authority. It does not require procurement of every service within the wider scope of the bid. The best-value duty requires the authority to seek continuous improvement, but the means of pursuing that objective fall primarily within its expert judgment.

The claimant, a Lincolnshire resident and library user, challenged the defendant council’s decision of 3 February 2015 concerning the future delivery of its library service. The challenge followed an earlier successful judicial review, in which the council’s first consultation and treatment of an alternative proposal had been found defective: R (Draper) v Lincolnshire County Council [2014] EWHC 2388 (Admin).

The council subsequently conducted a further consultation, considered proposals including those from Greenwich Leisure Ltd and Northamptonshire County Council, accepted GLL’s expression of interest under the Localism Act 2011, and commenced a procurement exercise. The claimant alleged defects in the consultation, the scope of the procurement, compliance with the best-value duty, and rationality. The central issues were whether the consultation was fair, what constituted the relevant service, and the extent of judicial review of the council’s decisions.

1. Consultation. The consultation ground failed. The October consultation document, read with the earlier documents and linked material, made clear that previous responses would be reconsidered, that shortcomings in the first process had been identified, and that alternative proposals were invited subject to affordability and the statutory duty. It met the acceptable minimum standard of fairness. A consultation is not required to be a counsel of perfection. The ground was also brought out of time under CPR r.54.5(1).
2. Scope of procurement. On the proper construction of ss.81 and 83(2) of the Localism Act 2011, acceptance of a qualifying expression of interest requires procurement relating to the service subject to the expression of interest. It does not extend to the widest limits of the bidder’s proposal irrespective of the authority’s requirements. The relevant service is the service required by the authority. Permission was refused on this ground.
3. Best value and rationality. Section 3(1) of the Local Government Act 1999 requires continuous improvement, having regard to economy, efficiency and effectiveness. The duty requires the authority to seek improvement; it is not an absolute duty to succeed. The method adopted is a matter for the council’s expert judgment. The court must not substitute its own assessment of competing savings and service models or audit the merits of the process. The decision was not Wednesbury unreasonable.
4. The claim failed and no basis for successful judicial review was established.

The judgment records an earlier judicial review concerning the same dispute, in which Collins J partly allowed the challenge and quashed the council’s earlier decision: R (Draper) v Lincolnshire County Council [2014] EWHC 2388 (Admin). The present claim concerned the council’s subsequent consultation and decision.