Localism Act complicates service consultation.
Local authorities proposing sensitive budget cuts inevitably cross minefields laden with lethal legal ordnance. This generally includes volatile consultation and equalities devices. But following the decision of Collins J on 17 July in Draper v Lincolnshire County Council  EWHC 2388 (Admin), consultation may have become more complex.
The council had a compliant expression of interest under the community right to challenge provisions in part 5 of the Localism Act 2011. And this was one of the mines that took out the council’s library service cuts proposals.
Lincolnshire sought budget cuts because of a £125m decrease in public funding. The council decided that library service costs must be reduced by £2m. Consequently, the authority consulted on proposals designed to achieve this and to address longstanding efficiency concerns.
The proposals included the reduction of 44 static libraries to 15, with additional mobile libraries or community-run facilities operated by volunteers with advice from a staff member for less populous areas. A 2012 exercise found that 93% of library users were within 30 minutes of a static library by public transport. Access to the static libraries was consequently assessed by taking a 30-minute travel time by public transport. ‘Targeted provision’ would be aimed at the 24% of households falling outside the 30-minute travel time.
The consultation document highlighted areas which the consultation process could and could not influence. Those potentially changeable included the impact of the proposed changes and proposal criteria. In addition, the document sought views on ideas for what the council considered to be ‘non-statutory services’ (that is, community-run and mobile services since they were subject to volunteer availability and user demand) and if there was any interest in running a community library.
The immovable areas in the consultation included the £2m saving to be made towards the overall £125m budget cut; library usage data; the proposed number of static libraries; the money available for community provision; and the definition of a mobile service, given the limited number of available vehicles.
The council had also produced an information pack in which organisations wishing to submit an ‘expression of interest’ in operating a community library should complete the expression of interest form.
There were three applicants, two of which were (as Collins J indicated) ‘not surprisingly’ rejected. The other was Greenwich Leisure Ltd (GLL currently manages libraries in the London boroughs of Greenwich and Wandsworth) and had submitted an expression of interest on the council’s relevant form.
On 3 December 2013, the council decided to proceed with the proposals with some minor amendments. The GLL proposal was rejected (among other things) because of: ‘limited detail on how the management operation would work in practice’; unacceptable level of reduction to the mobile library service; and the need for a Europe-wide procurement ‘with no guarantee that the savings sought by the council would be achieved and a comprehensive and efficient library service delivered’.
Also, outsourcing the entire library service was considered potentially as outside the scope of the consultation
The claimant (described by Collins J as ‘one of a significant number of users of libraries in Lincolnshire who have objected to the decision to cut back the provision of library services in the county’) challenged the decision on four grounds: (i) failure to comply with the statutory requirements of section 7 of the Public Libraries and Museums Act 1964; (ii) flawed consultation; (iii) breach of the public sector equality duty; and (iv) failure lawfully to consider an expression of interest by a charitable organisation to take over the provision of library services and avoid the proposed cuts.
In the claimant’s view, ‘further information should have been sought before rejecting GLL’s application since it appeared to be a decidedly possible means of avoiding the cuts which were opposed by the vast majority of library users’. The claimant succeeded on (ii) and (iv) in which the latter had more secure grounding.
The statutory base for local authority library duties is in the 1964 act. Section 7 requires ‘every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof’. Section 7(2) requires authorities in fulfilling the primary duty to have particular regard to various matters, including keeping adequate stocks by arrangements with other libraries, the availability of records, films and other media, and ‘encouraging both adults and children to make full use of the library service’.
As to a ‘comprehensive service’, per Ouseley J in Bailey v London Borough of Brent  EWHC 2572 (Admin), this ‘cannot mean that every resident lives close to a library. This has never been the case. Comprehensive has therefore been taken to mean delivering a service that is accessible to all residents using reasonable means, including digital technologies’.
Per R v Brent LBC ex parte Gunning  84 LGR 168, consultation must be at a time when proposals are still at a formative stage; the proposer must give sufficient reasons for any proposal to enable intelligent consideration and response; adequate time must be given for consideration and response; and the product of consultation must be conscientiously taken into account in finalising any proposals.
Section 81 of the 2011 act requires relevant authorities to consider a compliant expression of interest in providing (or assisting in providing) a relevant service (that is, other than health-related) on behalf of the authority. By section 81(6), a ‘relevant body’ includes a voluntary or community body and an organisation or trust established for charitable purposes only.
Decision of the court
While there was no issue with the equalities or statutory library duty, Collins J found the consultation exercise to be flawed ‘despite the efforts of the council to seek advice and to try to ensure that it could not be impugned’. In his view a ‘central element in relation to the statutory service, namely to reduce it to 15 libraries with the targeting for those outside the 30-minutes travel area, could not be changed’.
And while the 30 minutes might be alterable, ‘that would be difficult to achieve since any reduction in the travel time would take more households and users out of the range’. In reality, Collins J said, ‘if there was the proposed reduction, the travel time would itself be virtually impossible to change’.
As to the GLL expression of interest, Collins J noted that the council ‘rejected it as being potentially outside the scope of the current consultation’. In his view, this ‘strongly suggests that in reality the consultation was not intended to extend to proposals for other means of achieving the necessary savings’. Nevertheless, ‘assuming in favour of the defendant’s case, they did, the expression of interest should have been properly considered’.
So the proposals were quashed because of what the court considered to be a flawed consultation and the manner in which the GLL bid had been dealt with. Collins J nevertheless concluded by saying that if the consultation had been the only ground he ‘might not have granted relief since the proposals were accepted and considered’.
However, ‘the manner in which GLL’s proposals were dealt with coupled with the view that they did not fall within the consultation exercise persuade me that the decision must be quashed’. So ‘the council must, I fear, reconsider. It may be that the most sensible way ahead is to obtain the necessary further details from GLL and perhaps consult further for a shorter period on whether any overall alternative proposal is forthcoming. That is a matter for the council’.
Although campaigners welcomed the decision, courts have no standing to interfere with the substance or merits of lawful local authority decisions. The proposals in question were quashed because of what Collins J found to be an unlawful process.
However, in practical terms, the council is ultimately likely to achieve its aim following an improved decision process.
Nicholas Dobson, Freeths