July 25th, 2014 by James Goudie KC

Many rounds of cuts include library closures.  In Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin) a judicial review challenge to a decision to reduce library provision from 44 to 15 libraries succeeded.  It did so on two grounds.  One ground was that the authority had not properly considered an expression of interest from a charitable organisation to provide the services. The other ground was that consultation had not taken place at a formative stage.

Chapter 2 of Part 5 (Sections 81-85) of the Localism Act 2011 (“LA 2011”) introduced a mechanism by which civil society organisations can require local authorities to consider conducting a procurement exercise in relation to one or more of the services that they provide.  The basic structure is that a local authority is under a duty to consider an “expression of interest” that has been submitted to it by a “relevant body”.  An “expression of interest” is an expression of interest in providing or assisting in providing a service on behalf of the local authority.  A “relevant body” is a voluntary or community body, a charitable body, a parish council or two or more employees of the local authority at issue.  A voluntary body is one whose activities are not carried on for profit.   A community body is a body carrying on activities primarily for the benefit of the community.  There is no requirement that a “relevant body” have local connections.

Upon consideration of an expression of interest, one of three things can happen: it can be accepted, rejected or modified, but an expression of interest can be modified only in circumstances where the authority thinks that the expression of interest would not otherwise be capable of acceptance and the relevant body agrees to the modification.  In deciding whether to accept an expression of interest, the local authority must consider “whether acceptance of the expression of interest would promote or improve the social, economic or environmental well-being of the authority’s area”; and if a local authority accepts an expression of interest it must then carry out a procurement exercise: the exercise “must be such as is appropriate having regard to the value and nature of the contract that may be awarded as a result of the exercise”.

There have been made the Community Right to Challenge (Expressions of Interest and Excluded Services) (England) Regulations 2012, SI 2012/1313, Schedule 1 to which specifies requirements for expressions of interest.  Also, the Secretary of State has issued statutory Guidance.

In the Lincolnshire Libraries case, Greenwich Libraries Ltd (“GLL”), which manages libraries in the London Boroughs of Greenwich and Wandsworth, and which is a “relevant body”, submitted what Collins J found to be an Expression of Interest within Section 81 of LA 2011 made in time.  It proposed taking over the provision of the County’s library services and stated that it could do so retaining what existed and achieve savings.  Collins J found that the Expression of Interest was not “properly considered”: paras 46/47.

Further, consultation must of course be when proposals are at a “formative stage”.  At para 17 Collins J said:

“It is clear that it is proper for an authority to have a preferred option and to consult on the basis that that is what is proposed by the authority.  But for consultation to be meaningful the authority must be prepared to think again if those consulted are unhappy with the proposal and suggest a different solution.”

Collins J found, at para 27, that the consultation exercise was flawed.  This was because 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.

However, the inevitable PSED challenge failed, as did an irrationality challenge. The authority had identified the possible areas of discrimination and identified measures which it believed would ensure that there was no unlawful discrimination (para 50).  The “overwhelming objection” to the decision did not in itself mean that it was unlawful (para 53).  The decision to make the cuts was “a political one … which cannot be challenged in the Courts”:  “The need for cuts will inevitably produce hard decisions for many, but that does not make them unlawful”.

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