Legal: Arguments

• a statement of what the council is trying to achieve
• a description of local needs, including the general and specific needs of adults and children who live , work and study in the area
• a detailed description of how the service will be delivered and how the plans will fully take into account the demography of the area and the different needs of adults and children in different areas (both in general and specific terms)
• the resources available for the service, including an annual budget.

A legal challenge in the Isle of Wight is currently in progress due to the lack of an equality impact assessment by the local council before it announced library closures.  Official UNISON guidance on  using equalities legislation is available.

The Brent legal action (above), in part, also includes reference to section 149 of the Equality Act 2010

Friends of Gloucestershire Libraries have, as part of their campaign and, most recently, during the county’s legal challenge, been very successful in using Indices of Deprivation (click on the link for the FoGL guide to how to use them) to show that the council was disproportionately affecting poorer areas.   These indices show which areas are, crudely speaking, better or worse off and are collected for all councils and should be publicly available.

Equalities Impact Assessments: R (Brown) v Secretary of State for Work & Pensions [2008] EWHC 3158 (Admin) 

Mrs Brown lived with her husband in Sussex. Mrs Brown was disabled and she could not stand or walk for long periods without acute discomfort and pain.  In late 2007, Mrs Brown discovered that there was a proposal to shut down a number of post offices in Sussex, including the branch in her village. Because of her disability, this would make it very difficult to access another post office further away.

In a legal challenge to the decision about the Post Office closures, Mrs Brown claimed that there had been a failure to comply with the Disability Discrimination Act 2005. Of particular concern was the fact that there had been a failure to pay ‘due regard’ to their equality duties evidenced by the lack of a disability equality impact assessment of the Post Office closure proposal.

The Court stated that rather than carrying out a formal equality impact assessment, the Authority had to demonstrate that it had paid ‘due regard’ to its equality obligations. In other words, the Court held that public authorities did have to assess the impact their proposed policies had on equality but that there was no prescriptive way to do so.  Consideration could be shown in a number of other ways, for example in the form of various reports, including research/data gathered from fieldwork and consultations.

The Court also set out some general principles about the steps a public authority should take to comply with the duty to give ‘due regard’ to the relevant equality needs.  These include that:

• When a public authority makes decisions that do or might affect an equality group, it must be made aware of its duty to have due regard to the equality goals in the equality duties. An incomplete or erroneous appreciation of these duties will mean that ‘due regard’ has not been paid.
• The ‘due regard’ must be exercised with rigour and with an open mind.  It is not a question of “ticking boxes”. The duty has to be integrated within the discharge of the public functions of the authority. It involves a conscious and deliberate approach to policy-making and needs to be thorough enough to show that ‘due regard’ has been paid before any decision is made.
• If the public authority has not specifically mentioned the relevant general equality duty when carrying out a particular function, this does not mean that the duty to have ‘due regard’ has not been performed. However, it is good practice for the policy itself or the public authority to make reference to the duty and any code or other non-statutory guidance.  This will reduce the chance of someone successfully arguing that ‘due regard’ has not been paid to equality considerations. This is also likely to enable a public authority to ensure that factors relevant to equality are taken into account when developing a policy.
• It is good practice for public authorities to keep an adequate record showing that they had actually considered their  equality duties and pondered relevant questions.  Appropriate record-keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously.  If records are not kept, it will be difficult, evidentially, for a public authority to persuade a court that it has fulfilled its general equality duty. 
  

Legal argument four – “double taxation”.

It is argued that the Local Government Act 2000 makes it illegal for any council other than the statutory provider (the “top tier” one – usually the unitary or county authority) to pay for and run libraries.  Therefore, it may be illegal for a town council to spend its money on providing for a library which the county council has decided it wishes to “divest”.

This argument is being used in the Isle of Wight where East Cowes Town Council has been prevailed upon by Isle of Wight Council to help run the local library, raising their precept by 21% in order to do so.  This has resulted in “double taxation” where the local taxpayer is paying for both the still-surviving-but-no-longer-local county service and at the same time paying extra for the local “divested” library.

“Books are no longer necessary”

Some politicians and even library volunteers have argued that books are now no longer necessary as technology has replaced them.  UK law clearly states that printed books are necessary,  However, the same statement also includes gramophone records and the phrase “to meet the general requirements and any special requirements both of adults and children” may mean that there is no requirement if the public no longer needs them.  Certainly, this is the case with gramophone records which no library now stocks and few would argue are even a desirable service in contemporary public libraries;

“of securing, by the keeping of adequate stocks, by arrangements with other library authorities, and by any other appropriate means, that facilities are available for the borrowing of, or reference to, books and other printed matter, and pictures, gramophone records, films and other materials, sufficient in number, range and quality to meet the general requirements and any special requirements both of adults and children” 1964 Public Libraries and Museums Act.