Library - Public library - Duty of library authority
R (on the application of Bailey and others) v Brent London Borough Council: Court of Appeal, Civil Division (Lord Justices Pill, Richards and Davis): 19 December 2011
The population of the defendant local authority was about 290,000 and it was the second most ethnically diverse local authority area in the country. In anticipation of budgetary cuts, and acting on a report suggesting changes to library services, the authority commenced a public consultation relating to cutting library services. As part of that process of extensive public consultation, an ‘equality impact assessment’ (EIA) was prepared pursuant to the Equality Act 2010.
It was reported that whereas 28% of the population of the borough was Asian, 46% of the active borrowers from libraries were Asian. The corresponding figures for white ethnicity was 45% of the population, which made up 29% of the active borrowers. The authority’s executive decided to close six of the twelve public libraries in the borough, including two in premises given to the authority for use as libraries by All Souls College (the interested party).
The claimants, who were residents in the borough, sought judicial review of the decision to close the libraries. The judge refused to quash the decision. The claimants appealed.
They alleged: (i) breach of section 149 of the Equality Act 2010 (section 149) in failing to have due regard to the risk of indirect discrimination against Asian residents of the authority area; (ii) a further breach of section 149 in failing to have any regard for the requirements of that section until too late a stage in the decision-making process in that the six libraries had been named for closure in November 2010, before the EIA had been carried out; (iii) a breach of section 7 of the Public Libraries & Museums Act 1964 (section 7) which contained a 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; and (iv) 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. Consideration would be given to section 19 of the 2010 act.
The appeal would be dismissed.
(1) Having regard to the duty under section 149 of the 2010 act to have due regard to the need to eliminate discrimination, the authority had not been in breach of duty in failing to give further consideration to the racial dimension, in so far as it affected the Asian community in relation to other communities. Undoubtedly there were serious concerns, across the communities, about library closures and the authority had been made aware of them fully and forcefully.
Factors were rightly and rationally considered when making the decisions as to which libraries should be closed and decisions were explained in the reports. A racial dimension had not rendered the choice unlawful. The section 149 duty to have due regard did not require further consideration and analysis of that dimension when the decision was taken.
An adverse effect on the Asian population, as distinct from other racial groups, was capable of creating a breach of section 149 of the 2010 act, read with section 19. It was legitimate to take, as the authority had at that stage of the argument, the pool of library users rather than a pool comprising the entire population of the borough, in making an assessment. Adopting that pool, the figures accepted by the judge at first instance in his judgment had not supported a claim that there was indirect discrimination (see , , ,  of the judgment).
O'Flynn v Adjudication Officer: C-237/94  All ER (EC) 541 considered; Bobezes v Secretary of State for Work and Pensions  All ER (D) 234 (Feb) considered; Armstrong v Newcastle Upon Tyne NHS Hospital Trust  All ER (D) 341 (Dec) considered; Rutherford v Secretary of State for Trade and Industry  4 All ER 577 considered; Grundy v British Airways plc  All ER (D) 345 (Oct) considered; Gibson v Sheffield City Council  All ER (D) 117 (Feb) considered; R (on the application of Harris) v London Borough of Haringey (Equality and Human Rights Commission intervening)  All ER (D) 177 (Jun) considered.
(2) The authority had exercised its functions in the instant case with due regard to the requirements under section 149. To put forward a reasoned proposal for closures was a reasonable reaction in the circumstances, including the urgent need to economise. It had not been necessary for an EIA to be conducted before the formulation of the proposals on which the public were to be consulted.
The authority had kept section 149 properly in mind from an early stage and for that reason decided to carry out a full EIA for consideration together with the results of the consultation. Factors under section 149 were in mind at each stage. The authority had not put the relevant requirements to one side until the ultimate decision was taken but had had regard to them as an integral part of the decision-making process (see  of the judgment).
(3) The authority had also had the duty under section 7 of the 1964 act in mind. Decisions as to closures were taken with that duty in mind, the proposals including improved ways in which the expectations of users might be met. Mitigation measures were proposed in that regard. The claimants had drawn attention to detailed matters which, even if they were not expressly considered, did not create a breach of section 7. That section contemplated flexibility in meeting the needs of users and detailed consideration had been given to those needs (see  of the judgment).
(4) In the circumstances, those contributing to the consultation process had been well aware of the factors or criteria which had been relevant. No error of law could be established on that ground (see ,  of the judgment). Decision of Ouseley J  All ER (D) 123 (Oct) affirmed.
Dina Rose QC and Gerry Facenna (instructed by Bindmans LLP) for the claimants; Elisabeth Laing QC and Deok-Joo Rhee (instructed by London Borough of Brent) for the authority; Karon Monaghan QC for the intervening Equality and Human Rights Commission (written submissions only); The interested party was not represented and did not appear.