The decision of McGowan J in Draper v Lincolnshire County Council [2015] EWHC 2964 (Admin) was with respect to the second challenge Mr Draper brought to the Council’s proposed library changes and the process by which those changes were to be brought into effect. The first challenge had succeeded, in part, before Collins J, and a second consultation process was commenced. The second challenge failed.
The Judge followed the definition of a “comprehensive and efficient library service” within the meaning of Section 7 of the Public Libraries and Museums Act 1964 given by Ouseley J in the Brent Libraries case. She observed that before Collins J the fundamental decision to re-design services in an attempt to make savings of £2 million was not challenged. The challenge to the substance of the Council’s proposals did not succeed on grounds of irrationality, for breach of the statutory duty under the 1964 Act or for breach of the public sector equality duty. It was the consultation exercise and the method of considering alternative proposals for the provision of services that was under scrutiny. The Council failed in not being seen to be open to proposals which sought to make the required savings without reducing the number of static libraries provided. One such set of proposals came from Greenwich Leisure Ltd and the Council failed in not treating those proposals as a statutory expression of interest under the Localism Act 2011.
The second consultation period closed without challenge. The Council accepted one expression of interest as a qualifying one satisfying the statutory requirements, but rejected two others, because they did not meet those requirements. The Council then duly commenced a procurement exercise.
There were 3 grounds for the second challenge. First, it was alleged that the second consultation process was flawed. This was on the basis that it failed adequately to deal with alternative proposals. Second, it was alleged that the procurement exercise was flawed. Third, it was alleged that the Council had failed to comply with its “best value” duty, under Section 3 of the Local Government Act 1999.
McGowan J rejected the first challenge upon analysis of the consultation document. It made clear that, although the Council had a preferred option, it was looking at and for alternatives, provided that they were within the budgetary limits. It was not challenged, or even complained about, when it was published. She said (paragraph 26) that a consultation document “has to achieve an acceptable minimum standard” but “it is not a counsel of perfection”.
On procurement, the Judge accepted that the Council was bound only to conduct a procurement exercise for those services it was seeking to procure.
Finally, the Judge (paragraph 32) described the “best value” duty as a duty to seek improvement, that is a duty to seek to achieve a target. It is an obligation to try. It is not an absolute duty to succeed in that attempt.
The Judge observed (paragraph 35) that it is not for the Court to place itself in the position of decision maker and to say that a particular issue, if decided in a different way might have brought about greater savings and/or an enhanced service. How the Council goes about seeking to try to achieve the “improvement” is a matter for the expert judgment of the Council. The report to the Executive was lengthy and detailed. It set out the issues, canvassed options and by reference to the financial information and the details of the various proposals made a recommendation. It drew on the expertise of the officers of the Council. The Executive then considered the matter and reached a decision. It was not for the Court to audit that process.