R Buck v Doncaster Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice McCombe,Lady Justice Gloster |
| Judgment Date | 08 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1190 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/2339 |
| Date | 08 October 2013 |
[2013] EWCA Civ 1190
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE THE HIGH COURT, QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT
MR JUSTICE HICKINBOTTOM
CO47822012
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice McCombe
and
Lady Justice Gloster
Case No: C1/2012/2339
David Wolfe QC and Sam Jacobs (instructed by Public Interest Lawyers) for the Appellant
Nigel Giffin QC and Edward Capewell (instructed by Doncaster Legal Services) for the Respondent
Hearing date: 29 July 2013
Approved Judgment
Introduction
Ms Buck lives in Doncaster. She uses one of the public libraries in the town (Scawthorpe library) a great deal. The council's former executive (which at the relevant time consisted of Peter Davies, a directly elected mayor and his cabinet) wished to change the library services in Doncaster and thereby save public money. I shall refer to the executive as "the mayor". On 23 November 2011, he decided to make changes which included replacing employed staff with volunteers or self-service facilities in twelve of the Doncaster public libraries and closing two of the libraries altogether. These changes affected Scawthorpe library. The full council wished to retain the existing level of library services.
The full council held its final budget and council tax setting meeting for 2012–13 on 5 March 2012. It passed an amendment to the budget that had been presented for approval by the mayor. The mayor's proposed budget for library services had been lower than that for 2011/12, principally because of the changes to the service that he had decided to make. The proposed budget amendment was in these terms:
"Create a contingency budget to provide support for 14 community libraries (including reopening Carcroft and Denaby). This will include funding for up to 14 FTE library assistants for community libraries and self-service units at nine of the sites that don't have one. The total cost for 2012–13 is £382,250 with £306,250 required from 2013–14 onwards. The fund will be available to ensure that no library is allowed to fail and to ensure delivery of the library services within communities. It can be accessed via AD-ICT [and] customer services who will liaise with local ward members and neighbourhood managers to agree priorities in community libraries. ( £382k increased expenditure 2012–13, £306k on-going) (Original emphasis)".
Following the passing of the amendment, the mayor said that he would not spend the £382,250 "as per the amendment". In other words, he did not intend to use the money to return the fourteen libraries in question to being fully-staffed council library facilities.
In these proceedings, Ms Buck claims a declaration that the mayor has acted unlawfully in refusing to implement the budget amendment determined by the full council. Her case is that the mayor is bound by the full council having resolved to spend the £382,250 on reopening or re-staffing or continuing to staff the libraries in question. The claim raises important issues as to the division of powers between a directly elected executive and the full council of a local authority.
Hickinbottom J rejected the challenge on two grounds. First, he held that, as a matter of construction, the amendment passed by the full council did not purport to be and was not a direction to spend the money allocated by it. Rather, it was in the nature of a contingency fund, and that was how the mayor treated it. Secondly, even if the amendment had been such a direction, the mayor would not have been bound by it. How to run the libraries was a matter for him as the executive. For reasons which he developed in detail (and to which I shall refer) the mayor's decision remained one for him, because it was neither contrary to the budget nor contrary to a "plan or strategy" within the meaning of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 ("the Functions Regulations").
The litigation is now academic. The financial year to which the amendment relates is at an end. The money was not spent on the library service, since in the mayor's view, all the twelve community libraries have continued to function successfully without it. No similar provision has been made or attempted to be made in the 2013/14 budget.
Aikens LJ was, however, persuaded that the second ground of decision, concerning the division between executive and non-executive functions, was of sufficient general importance to justify the giving of permission to appeal. Although he also gave permission to appeal on the first ground of decision, it seems to me that no useful purpose is served by construing the wording of the amendment of a budget which relates to a year that has passed. It is not suggested that the wording is in a standard form which is in widespread use. The issue of the meaning of the amendment is entirely academic. The court should not devote its resources to deciding such issues. Accordingly, I do not intend to decide the first ground of appeal which is exclusively concerned with whether the first basis for the judge's decision was correct.
I turn, therefore, to the second ground of decision which forms the basis of the second ground of appeal.
The legal framework
Prior to the Local Government Act 2000 ("the 2000 Act"), the power to make all decisions on behalf of a local authority was vested in the full council, although it could and did delegate much decision-making to committees or officers. Such arrangements were radically changed by the 2000 Act. The purpose of this Act was to replace the previous system in favour of a clear separation between executive and backbench councillors. Section 9C describes three forms of executive. These include an elected mayor with a cabinet of councillors appointed by the mayor. This is the model that was adopted by Doncaster.
Section 9D requires that all functions of a local authority are the responsibility of the executive unless otherwise specified in regulations. At paras 20 to 43 of his judgment, the judge set out in detail the relevant statutory material. There is no need for me to repeat it here. I have reproduced these paragraphs in the Appendix to this judgment. I should point out that section 11(1) of the 2000 Act (mentioned at para 4 of the Appendix) is now the section 9C to which I have just referred.
It is not in dispute that library functions are executive functions. Thus, as Mr Giffin QC says, decisions about the provision and operation of libraries, whether at the macro-level (of how many libraries there should be), or at the micro-level (of precise opening hours, stock, staffing etc) are for the executive to take.
There are only two provisions in the Functions Regulations which could lead to a different result. Paras 2 and 3 of Schedule 4 specify two situations in which what would otherwise be a function which is the responsibility of the executive becomes the responsibility of the full Council. These are, in summary, where the executive is minded to determine a matter (i) in a manner "contrary to or not wholly in accordance with the authority's budget", or (ii) in terms "contrary to [a] plan or strategy adopted or approved by the authority" unless it is authorised by the authority's "executive arrangements, financial regulations, standing orders or other rules or procedures to make a determination in those terms".
Ms Buck seeks to rely on both of these provisions. In a nutshell, she says that, in refusing to implement the budget amendment in relation to library services, the mayor acted (i) contrary to and not wholly in accordance with the budget and (ii) contrary to a plan or strategy adopted or approved by the authority.
Contrary to the budget
The case advanced by Mr Wolfe QC is that, once the £382,250 had been allocated by the full council by its budget amendment, the mayor...
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