September 16th, 2016 by James Goudie KC

In R (Tilley) v Vale of Glamorgan Council [2016] EWHC 2272 (QB), in the Administrative Court in Wales, Lewis J concluded that the Council’s Cabinet Decision to establish five community libraries was lawful. The Council did not act irrationally in its approach to the determination of whether there would be sufficient volunteers to enable a community library to operate.  It had sufficient information to enable it to consider the viability of the revised Business Case for establishing a community library.  There was nothing to indicate that its decision would result in a failure to provide a comprehensive and efficient library service under Section 7 of the Public Libraries and Museums Act 1964 (“the 1964 Act”).  It complied with its PSED obligations under Section 149 of the Equality Act 2010 and had due regard to the matters set out in that Section.  Section 28 of the Children Act 2004 (“the 2004 Act”), the Welsh equivalent to Section 11 of the 2004 Act in England, was not intended to incorporate Article 3 of the UN Convention but, even if it did, the decision in the present case would either not involve any breach of Article 3 or would not call for the grant of any remedy in the present case.

As to the assessment of the viability of the revised Business Case, Lewis J found, at paragraph 36, that the Cabinet did approach the decision on whether to establish a community library on the basis that the viability of the revised Business Case was a material consideration which they wished to take into account when reaching its decision. The Court therefore needed to identify the relevant principles, and their application to the facts of the case, to determine whether the Council could, and did, consider the question of the viability of the revised Business Case. The Report to Cabinet (supplemented, if appropriate by further information provided at the Cabinet Meeting) would need to provide adequate information to enable the Cabinet Members to reach a conclusion on the issue of viability.   Furthermore, if there were significant concerns on the part of the Officers as to viability, those particular concerns would need to be drawn to the attention of the Members of the Cabinet.  That approach appears from, amongst other decisions, that of Richards J as he then was in R (Georgiou) v Enfield London Borough Council [2004] LGR 497. A similar approach was adopted in the different, but analogous, context of how much information a Minister needed to be provided with in order to reach a decision in R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154.

At paragraph 38, Lewis J said that it may be permissible to infer that Councillors will have read a document where they have been given a copy of the document or if they have been expressly referred to it and advised that they need to have regard to it. It may not be possible, however, to infer that they have read an ancillary document if they are not advised to do so. Thus, it could not be inferred that Councillors would have read an Equality Impact Assessment for the purposes of discharging their PSED duty under Section 149 of the Equality Act 2010 when its contents were summarised in an Appendix but they were not provided with a copy and not, expressly or impliedly, told to consider the contents of the document itself.

Lewis J recognised, at paragraph 43, that, ideally, more information could have been provided. The Report itself (or an Appendix to it) could have dealt in more detail with the criteria used to assess the Business Cases, the assessment made on each of the relevant issues and the reasons why the Officers were satisfied that the revised Business Cases did address the relevant criteria. Ultimately, however, the question was whether the information actually submitted enabled the Cabinet to reach an informed conclusion on whether to establish the proposed community libraries and whether any information about significant concerns had been omitted from the Report in a way that rendered the Report misleading. On the facts of this case, the information provided was sufficient to enable the Cabinet to conclude that the revised Business Cases were viable and to agree to establish the community libraries and to delegate authority to enter into legally binding agreements on the running of the library (with the matter returning to the Cabinet if such agreements could not be reached). No information was withheld from the Cabinet. This ground of challenge, therefore, failed.

As Lewis J observed, at paragraph 47, the scope of the duty under Section 7 of the 1964 Act has been considered by the Courts on a number of occasions. It was sufficient to refer to the decision of Collins J in R (Draper) v Lincolnshire County Council [2014] EWHC 2388 (Admin), [2015] PTSR 769.   Collins J recognised that a comprehensive and efficient service did not mean that every resident had to live close to a library but rather that it meant providing a service that is accessible to all using reasonable means including digital technologies.

At paragraph 57, Lewis J found that the Council did carry out an assessment of the needs for library services within its area. There was no basis for the contention that the Council’s assessment was superficial or conducted at too high a level. In particular, the Council was entitled to assess needs and service provision by reference to the needs of the population of its administrative area as a whole. It was not under a duty to consider whether the residents of each of the catchment areas where a community library was proposed would continue to receive a comprehensive and efficient library service. There was no basis for concluding that the service that it would provide would fail to meet the requirements of a comprehensive and efficient library service for its area.

As to the PSED, the principles were usefully summarised by Wilkie J in R (Williams) v Surrey County Council [2012] Eq.L.R. 656; and the decision of the Court of Appeal in R (Bailey) v Brent LBC [2012] LGR 530 offered helpful guidance on how to determine whether a public body has complied with the PSED. From paragraph 64, Lewis J concluded that it was clear in the circumstances that the Cabinet did have regard to its duty under Section 149 of the 2010 Act. The Members were provided with full and detailed information on the potential impacts on groups with protected characteristics both of establishing each of the five proposed community libraries to replace existing Council-run libraries and of closure of a particular library. They were told that they had to analyse the relevant material with the specific statutory considerations in mind. On any fair and reasonable reading of the material, it was clear that the Cabinet did discharge its duty under Section 149 of the 2010 Act. In any event, Cabinet did consider in the Report and in the Appendices, including the Equality Impact Assessment, potential adverse effects and potential mitigating measures if a community library were established but were to fail in the future resulting in its closure. Again, on any fair reading of the material, the Council did conscientiously have due regard to the matters in Section 149 of the 2010 Act. They were aware of the potential adverse impacts on protected groups that closure of a library could have and considered mitigating measures. The reality was that the Report was a full, detailed and thorough report. It summarised the duty under Section 149, explained how Members should set about discharging their duty, and provided the information necessary to enable the Members to do so. The Appendices, including the needs assessment, the Equality Impact Assessment and the summary of the potential impact and mitigating measures, were detailed, clear and comprehensible. These documents were provided to Members and they were asked to confirm that they had the opportunity to read them. There was no basis for inferring that there was any failure to have due regard to the matters set out in Section 149 of the 2010 Act when Cabinet took the decision to establish community libraries.

Finally, as to Section 28 of the 2004 Act, that Section was not intended to incorporate, or give effect to, Article 3 of the UN Convention, in the law of England and Wales, principally for the following reasons. The language used in Section 28 of the 2004 Act is different from the language used in Article 3 of the UN Convention and reflects a different concept. The obligation under Section 28 of the 2004 Act is an obligation to make arrangements to ensure that the relevant body’s functions are discharged having regard to the need to safeguard and promote the welfare of children. By contrast, Article 3 of the UN Conventions uses different language and is concerned with a different concept, namely ensuring that the best interests of the child is a primary consideration in the decision-making of relevant bodies. The language used in Section 28 is not apt to be read as providing that the best interests of the child are to be a primary consideration in the exercise of any local authority function. It is true that the two obligations may well often, perhaps frequently, overlap. The arrangements made to promote or safeguard welfare may well lead in particular cases to decisions which result in the best interests of the child being taken into account as a primary consideration. The two obligations are, however, conceptually and linguistically separate. The language of Section 28 of the 2004 Act does not lead to the conclusion that Parliament intended that Section to be the vehicle by which the public authorities to which the Section applied were to be required to ensure that the best interests of the child were to be a primary consideration when exercising any of their functions.

In short, Section 28 of the 2004 Act does not incorporate the requirements of Article 3 of the UN Convention but, even if it did, the decision taken in this case either did not involve any breach or, if there was any breach, the decision reached in this case would have been the same and no remedy would have been granted. The Claimant’s real case is that the decision is in substance a decision which will result in the closure of the library and such a decision would involve a breach of Article 3 of the UN Convention. As that is not, in fact, an accurate description of the decision in question (which is a decision to establish a community library, not close a library), and as Section 28 of the 2004 Act was not intended to incorporate Article 3 of the UN Convention, it was not necessary to consider what the position would be if at some stage the Council did decide to close a library.


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