R (on the Application of Margaret Bailey & Others) v London Borough of Brent Council All Souls College (Interested Party) Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE RICHARDS,LORD JUSTICE DAVIS |
| Judgment Date | 19 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1586 |
| Docket Number | Case No: C1/2011/2655 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2011 |
and
and
[2011] EWCA Civ 1586
Lord Justice Pill
Lord Justice Richards
and
Lord Justice Davis
Case No: C1/2011/2655
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE OUSELEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss D Rose QC and Mr G Facenna (instructed by Bindmans LLP) for the Appellants
Miss E Laing QC and Miss Deok-Joo Rhee (instructed by London Borough of Brent) for the Respondent
Miss K Monaghan QC for the Intervener (written submissions only)
This is an appeal by Mrs Margaret Bailey and others ("the appellants"), residents of Brent, against a decision of Ouseley J dated 13 October 2011 by which the judge refused an application by the appellants to quash a decision of Brent London Borough Council ("the council") on 11 April 2011. It was decided to close six of the twelve public libraries in the Borough, including two in premises given to the council for use as libraries by All Souls College ("the interested party"). The decision was confirmed by the council's Overview and Scrutiny Committee on 27 April 2011, subject to the libraries remaining open throughout the 2011 public examination period for young people.
Interim relief has subsequently been granted by consent to the extent of requiring the council, pending the determination of this appeal, not to take any steps to dispose of the buildings closed as libraries or to take any steps to dispose of the stock in them. The libraries are located at Barham Park, Cricklewood, Kensal Rise, Neasden, Preston and Tokyngton.
The sequence of events was summarised by the judge at paragraph 2 of his judgment:
"In anticipation of budgetary cuts and building on earlier work, officers had presented a report to the executive on 15 November 2010 recommending public consultation on changes proposed to the public library service in the Borough; these included the closure of the six libraries. There was opposition to that report from various deputations. The report was approved. An extensive process of public consultation followed over a three month period. An Equality Impact Assessment or EIA was prepared under the Equality Act 2010, taking into account the results of the public consultation. The budgetary cuts came much as feared. A careful report, with the EIA, was presented to the executive for its meeting on 11 April 2011, leading to the decision now challenged."
The population of Brent is about 290,000 and it is the second most ethnically diverse local authority area in the country.
Numerous points were taken before the judge. The points now taken were succinctly summarised by Miss Rose QC, for the appellants:
(1) Breach of section 149 of the Equality Act 2010 ("the 2010 Act") in failing to have due regard to the risk of indirect discrimination against Asian residents of the Borough.
(2) A further breach of section 149 in failing to have any regard for the requirements of the section until too late a stage in the decision-making process. The six libraries had been named for closure in November 2010, before the EIA.
(3) A breach of section 7 of the Public Libraries & Museums Act 1964 ("the 1964 Act") with its duty "to provide a comprehensive and efficient library service for all persons desiring to make use thereof" in failing to conduct an adequate investigation of needs.
(4) Procedural unfairness in having invited community groups to submit business plans for running libraries proposed to be closed but failing to tell them the criteria by which the plans would be assessed.
The November 2010 Report
The background to the proposals of 15 November 2010 is set out in the Report ("the November Report") of Ms Harper, the council's Director of Environmental and Neighbourhood Services. The November Report was entitled 'Libraries Transformation Project' ("LTP"). It provided at paragraph 1.1:
"1.1 The Libraries Transformation Project is a One Council project to improve the quality of library provision in Brent, while contributing to the Council's need to meet efficiency targets in response to reductions in funding. The number of library buildings in the borough will be reduced, enabling resources to be concentrated on the best located libraries. An enhanced core library offer for residents will be established that provides value for money and reflects the needs of all customers. Online and digital services will be expanded to widen access and comparable services will be provided to those who are unable to visit a library. Libraries will be co-located with council services and local agencies to provide community hubs with cultural activity. In order to do this the project will deliver:
• Modern, multi functional, library buildings
• A realignment of resources to achieve both improvements and efficiencies
• A clear definition of what residents can expect from their library service, wherever they live, based on an assessment of user needs
• A review of digital provision and online services in libraries
• Staff training to equip a multi skilled workforce
• Savings to the Council in the region of £1 million."
The November Report referred to a Library Strategy which the council had adopted in January 2008 for the period 2008/12. After 2008, new factors had arisen including a plan for £90m savings across the council's functions. The proposed new strategy, on which the public were to be consulted included, as its first and second proposals:
"Rationalisation of resources by closing six library buildings that are poorly located and have low usage: Barham Park, Cricklewood, Neasden, Tokyngton, Kensal Rise and Preston.
A commitment to ensuring that residents have high quality library facilities in accessible locations."
Following the consultation Ms Harper submitted a further Report to the council in April 2011 ("the April Report").
The statutes
Section 149 of the 2010 Act provides, in so far as is material:
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
…
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—
age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.
…"
Reliance is primarily placed on section 149(1)(a), that is, due regard for the need to eliminate discrimination, race being one of the characteristics concerned. The word "discrimination" in the paragraph leads to section 19 of the Act where indirect discrimination is introduced and defined:
"Indirect discrimination
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are—
age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.
…"
This case is concerned with indirect discrimination in the provision of services, and in that context, by virtue of sections 28 and 29, 'age' is not a relevant protected characteristic, as far as it relates to persons who are under the age of 18.
I have no doubt that the decision of the council, with its consequences, came within the meaning of "provision, criterion or practice" in section 19 of the 2010 Act. The expression, which comes from Council Directive 97/80/EC, was considered by Lord...
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