June 3rd, 2013 by James Goudie KC

What is the relationship between judicial review and the intervention powers of the Secretary of State (“the SoS”) in relation to changes in local library provision? On 31 May 2013 the SoS announced her decisions not to direct Inquiries under the Museum and Libraries Act 1964 into such changes in the Isle of Wight and in Bolton.

The SoS stated the Principles as follows:-

“The Secretary of State has considered the duty of a local authority to provide a comprehensive and efficient service under section 7 of the 1964 Act. What constitutes a comprehensive and efficient service is a question involving a significant element of judgement. Those judgements are, in the first instance, for the local authority to make. It has good knowledge of local conditions and needs and has direct democratic accountability to the local population. This is a significant factor. The Secretary of State’s view is that decisions about local issues should ordinarily be taken by democratically elected local representatives accountable to local voters. The duty of the Secretary of State is one of superintendence. A wide range of approaches were open to the local authority when deciding how to provide a comprehensive and efficient library service. The Secretary of State also notes that the local authority is entitled to take account of cost in deciding whether a proposal is efficient.

The Secretary of State seeks to promote and secure the proper discharge of the statutory duties on local authorities.  She has power to direct a local inquiry. Her approach in deciding whether she is minded to intervene to direct an inquiry has been to ask herself whether, having regard to the duties on her and the local authority, there is good reason in all the circumstances for her to direct an inquiry at the present time.

In taking that decision, the Secretary of State has given consideration to a number of factors. They include:

  • Whether there is any serious doubt or uncertainty as to whether the Council is (or may cease to be) complying with its legal obligation to provide a comprehensive and efficient library service.
  • Whether the Council appears to be acting in a careless or unreasonable way.
  • Whether the decision is or may be outside the proper bounds of the Council’s discretion, such as a decision to stop serving a particularly vulnerable group.
  • Whether the Council, has failed to explain, analyse or properly justify its proposals.
  • Whether the local proposals are likely to lead to a breach of national library policy.
  • Whether substantial further investigation is needed. A local inquiry would be more likely to be appropriate in a case where there are substantial uncertainties as to compliance with the statutory duty, and inadequate public consultation and discussion of proposals.  The converse is also true.
  • The advantages of local decision making by democratically accountable local representatives.
  • The cost and delay of an inquiry.
  • Whether there is any further good reason why a local inquiry would be appropriate or inappropriate.

The Secretary of State has also borne in mind that too ready an intervention would risk preventing or discouraging prompt and efficient reforms of library services. Equally, failing to intervene in an appropriate case would risk the delivery of an efficient and comprehensive service.”

There were two particular features in the case of the Isle of Wight.

First, as regards community libraries, the SoS said:-

“For the purposes of her assessment as to whether to order a local inquiry, the Secretary of State has based her view solely on the council run libraries, and the mobile library service.  The community libraries have not been taken into account, although they appear to be successful and to form an important part of Island life.  Accordingly, if the community service were to be taken into account, it would only reinforce the Secretary of State’s view.”

Second, the SoS noted that a claim for judicial review of the changes failed, and that permission was refused on grounds not only that there had been delay in bringing the claim, but also that, in any event, the claim was not of sufficient merit to justify the grant of permission.  She said:-

“In the view of the Secretary of State it is clear that the Isle of Wight continues to offer a comprehensive and efficient library service through its core libraries and mobile library service.  The Secretary of State has taken into account that the Court has decided that the changes were lawful (and it was unarguable to suggest the contrary).”

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