R Kirsty Green v Gloucestershire County Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge McKenna |
| Judgment Date | 16 November 2011 |
| Neutral Citation | [2011] EWHC 2687 (Admin) |
| Docket Number | Case No: CO/4093/2011 CO/4097/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 November 2011 |
[2011] EWHC 2687 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (BIRMINGHAM)
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge McKenna
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Case No: CO/4093/2011 CO/4097/2011
Helen Mountfield QC and Mathew Purchase
(instructed by Public Interest Lawyers Limited) for the Claimants
James Goudie QC and Edward Capewell (instructed by Nigel Roberts Director of Law and Administration Gloucestershire County Council and Catherine Witham County Solicitor, Somerset County Council, Solicitors) for the Defendants
Hearing dates: 27, 28 and 29 September 2011
Approved Judgment
Introduction
In these proceedings, the Claimants, residents respectively of Gloucestershire and Somerset, seek to challenge the following decisions made by Gloucestershire County Council ("GCC") and Somerset County Council ("SCC"), made in the exercise of their duties under Section 7(1) of the Public Libraries and Museums Act 1964 ("the 1964 Act") to provide comprehensive and efficient library services in their respective counties, to make changes to their respective public library services:-
i) In respect of GCC, the decisions taken by the Executive on 2 February 2011 and 12 April 2011 and by the full Council on 16 February 2011;
ii) In the case of SCC, the decisions taken by the Executive on 2 February 2011 and the full Council on 16 February 2011.
The GCC decisions were to withdraw funding from 10 of its 38 static libraries (subject to the possible "big community offer" if volunteers came forward to run them,) and to provide 7 libraries with a library link which would open 12 hours a week (or more if volunteers came forward from the communities); to withdraw its mobile library services altogether and radically to reduce its expenditure on and the opening hours of 5 of the remaining 21 libraries.
The SCC decisions were to withdraw full funding from 11 of its 34 static libraries; to reduce its fleet of mobile libraries from 6 to 2 and to cut the opening hours of the remaining libraries by 20% and "in the case of all …. unfunded libraries" to explore options for management by the community.
The Claimants in these two joined claims are users of libraries in Gloucestershire and Somerset respectively. Ms Green, the Claimant in the first (Gloucestershire) challenge is an unemployed single mother who lives in one of the most deprived areas of the country in Gloucestershire and is a user of Hester's Way Library, a library which, under the proposals, will close completely unless a community group is willing and able to run it. Mr Rowe, the First Claimant in the Somerset challenge is an unemployed man who uses his local library at Wiveliscombe, a library whose opening hours will be reduced by 20% under SCC's proposals, for leisure and social contact, to seek work and to assist his son with his education. Ms Hird, the Second Claimant in the SCC challenge has a reading disability. She uses her library (Watchet) for books especially audio books and internet access. That library will no longer be funded under SCC's proposals and will therefore close unless its running can be taken over by a local group.
The cases have generated considerable strength of feeling in the respective communities and raise similar issues albeit in different factual contexts. The Claimant in the GCC case was granted permission by Beatson J after an oral hearing on 7 July 2011 and on 21 July 2011 Beatson J ordered that the SCC case should proceed to a rolled up hearing to be heard at the same time as the substantive hearing in the GCC case.
The Claimants' case is that the decisions were taken
i) in breach of the respective councils' duty to provide a comprehensive and efficient library service pursuant to Section 7 of the 1964 Act;
ii) in breach of the Public Sector Equality Duties under Section 49A of the Disability Discrimination Act 1995 ("the DDA") and Section 76A of the Sex Discrimination Act 1975 ("the 1975 Act") and in respect of those decisions postdating 5 April 2011, section 149 of the Equality Act 2010 ("the 2010 Act") and;
iii) without adequate consultation.
It was submitted on behalf of the Claimants that they readily appreciated the pressure on local authorities to cut spending in the face of significant funding cuts from central government but that limited resources could not justify a failure to comply with the statutory duties or the requirements of public law. The Claimants believed that each of the Defendants had adopted a fundamentally flawed and unlawful approach to the objective of making savings in their respective budgets, in particular, because they had each started by identifying budget cuts and then worked backwards to what would be provided (and thereby failed to identify with adequate particularity the needs which their services were required to address); failing to comply with equality legislation and properly to consult.
For their part it was conceded by the Defendants that whilst local authorities could not but face economic reality, it was no part of their case that challenging financial circumstances excused compliance with the requirements of public law or that those requirements were in any sense thereby diluted. On the contrary it was the Defendants' case that their decision making processes were undertaken with great care, were reasonable and lawful and that the decisions ultimately reached were well within the permissible bands of legality and reached with appropriate regard to all relevant considerations and as such should not be disturbed.
Legal Framework
Section 7 of the 1964 Act imposes a statutory duty on library authorities to "provide a comprehensive and efficient library service" to everyone who lives, works or attends full time education in the library area. The duty is contained in Section 7(1) which provides as follows:-
"(1) It shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof …
Provided that although a library authority shall have power to make facilities for the borrowing of books and other materials available to any person it shall not by virtue of this subsection be under a duty to make such facilities available to persons other than those whose residence or place of work is within the library area of the authority or who are undergoing full time education within that area".
Section 7(2) provides further statutory instruction as to the factors which a library authority must take into account in order to fulfil its duty under Section 7(1):
"(2) In fulfilling its duty under the preceding subsection, a library authority shall in particular have regard to the desirability:
(a) of securing, by the keeping of adequate stocks, by arrangements with other library authorities, and by any other appropriate means, that facilities are available for the borrowing of, or reference to, books and other printed matter, and pictures, gramophone records, films and other materials, sufficient in number, range and quality to meet the general requirements and any special requirements both of adults and children; and
(b) of encouraging both adults and children to make full use of the library service, and of providing advice as to its use and of making available such bibliographical and other information as may be required by persons using it; and
(c) of securing, in relation to any matter concerning the functions both of the library authority as such and any other authority whose functions are exercisable within the library area, that there is full co-operation between the persons engaged in carrying out those functions".
The expression "library service" is not defined nor are the concepts "comprehensive" and "efficient". Library facilities are referred to but not defined but they are clearly not the same as library premises which are defined (in Section 8(7)).
Section 9(1) confers a power on a library authority to contribute towards the expenses of "any other person" providing "library facilities for the public" and Section 20 empowers local authorities to generate revenue by allowing library premises to be used for holding meetings, performances and the like in return for payment.
Section 1(1) is also material and provides:-
"From the commencement of this Act it shall be the duty of the Secretary of State to superintend, and promote the improvement of, the public library service provided by local authorities in England and Wales, and to secure the proper discharge by local authorities of the functions in relation to libraries conferred on them as library authorities by or under this Act".
Section 10 provides the Secretary of State with default powers as follows:-
"(1) If –
(a) a complaint is made to the Secretary of State that any library authority has failed to carry out duties relating to the public library service imposed on it by or under this Act; or
(b) the Secretary of State is of the opinion that an investigation should be made as to whether any such failure by a library authority has occurred,
and, after causing a local enquiry to be held into the matter, the Secretary of State is satisfied that there has been such a failure by the library authority, he may make such an order declaring it to be in default and directing it for the purpose of removing the default to carry out such of its duties, in such manner and within such time, as may be specified in the order".
In the cases of GCC and SCC no decision has been made by...
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