Legal: Arguments

 

Legal argument one –  the 1964 Public Libraries and Museums Act

 

This sets down as a statutory duty that each authority must run a “comprehensive and efficient” public library service.  This is “comprehensive and efficient” for the user and not for the council.  If the Council can be shown to failing in this duty, a court challenge can be raised either by local groups or by the Government to overturn the proposal.  This article by the drafter of the Act makes clear that the implications of the legislation, as well as technical compliance, needs to be borne in mind.
Other grounds for challenge include if inadequate consultation was made beforehand, a judgement reinforced by the reversal of a decision by Birmingham to cut down on social care for this reason. The Birmingham decision is also important as libraries are a statutory service – so if councils can no longer take it for granted that they can keep on cutting back on social care – a statutory service after all – just because money is tight” then the same applies to libraries.
The DCMS set out the full considerations that councils need to take before closing libraries in a letter that says the council must produce:
  • 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 detailed letter sent to Bolton Council descibes in very legal terms what the potential problems can be with an inadequately thought out consultation.  Please also this submission to the Parliamentary Select Committee on library closures that addresses, amongst other things, the Act in terms of distribution of libraries.A judicial review can be launched against the council if it is felt with sufficient reason that the council is failing in these duties.  Legal fees can be around £20k for the protester and can also be expensive for the council.  A two day-judicial review can cost £30k.   Leigh Day & Co are the most involved legal firm in this matter and were considering Suffolk council to court due to its inadequate consultationa and impact assessment.
The worry about what constitutes a “comprehensive and efficient” is a continuing one.  It may be “tightened up” following an amendment put forward by Alison MacGovern, MP for the Wirral.An example letter to a councilconcerning the 1964 Act is available.
Legal argument two – Literary and Scientific Institutions Act 1854 
This may prevent the selling off of libraries which date from the Nineteenth Century
- see Financial Times articlebut please note LGA advice is it only applies to land originally owned by the Duchy of Cornwall, although this is untested in law. Further investigation has shown that this also applies to the Duchy of Lancaster.  NB. land throughout the UK was owned by these two duchies (the article mentions a successful case brought in Kent).
An in-depth legal view of the issues can be found the article Can they sell the libraries?

 

Legal argument three – Equality and Human Rights

 

“The main reason that the Charteris Report found the plan to close almost half the libraries in Wirral to be unlawful was that no assessments of any local needs had been done, in particular a DEIA – Disability Equality Impact Assessment. This includes, for example, how disabled people even get to a library, let alone use it. The former Tessa Jowell Library Standards are not officially supported any longer, but they did include one which is relevant, that being the distance a person has to travel to a library. This is often measured in terms of distance circles, rather than roads, but in the case of Meols in Wirral even the circles used showed major disadvantage to disabled. I therefore started with this, investigated what other measures and statistics were relevant and then tried to get hold of the Council’s DEIA. There wasn’t one. At that point I started the EHRC procedure to get the closures declared illegal. It takes time, as both sides have a minimum number of days grace at each step, but it is all on thie EHRC website.” (This information kindly supplied by Jim O’Neil).
NB please not the Government is considering repealing the Equalities Act – your chance to comment on their decision can be found here.
Sue Charteris has recently updated her guide as to how councils should act with due attention to the Equalities Act:  a copy of her presentation is here.

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.

See also The Human Rights and Equality Impact Assessments of Public Spending Cuts – A Resource Database – Warwick University. “The Centre for Human Rights in Practice has developed this database to provide useful resources for organisations, groups and individuals concerned with the human rights and/or equality impact of public spending cuts in the UK. The database contains resources to support organisations, groups and individuals who wish to carry out Equality and/or Human Rights Impact Assessments of the public spending cuts or to use human rights or equality legislation to challenge public spending cuts. It includes examples of impact assessments that have already been carried out, toolkits and guides to carrying out impact assessments and sources of information that might be useful in carrying out impact assessments. It also includes a comprehensive list of legal challenges to public spending cuts on human rights and equality grounds and guides to using human rights and equality legislation to challenge public spending cuts.”

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 children1964 Public Libraries and Museums Act.

Moreover, the recent High Court judgement (found sound by the Court of Appeal) is that computers and online provision are included within the definition of what is “comprehensive and efficient:

In reality, a service which includes the provision of books and other materials by technology and goes beyond the loan of books or other physical items, or the provision of reading facilities on the printed page, falls within the scope of s7, which is not confined to the loan or use of physical items.”

This would appear to go against the 2013 Secretary of State decision that provision of People’s Network machines falls outside of the scope of the Act.

  • #1 written by Cllr Anne Reynolds
    about 1 year ago

    I sit on the scrutinising committee and by consolidating our votes with others we were able to reject the Public Consultation on Library Closures. However, they are muttering about delegating it so it will go ahead anyway!

    I had been hoping to gain some delay to give me time to scrutinise the entire (lengthy) document. But now I may not have this luxury.

    Can anyone give me any pointers e.g. the document states that anyone living
    within a 30 minute bus/car ride of a library is being given an adequate provision.

    So wrong on so many fronts – in our opinion – but opposing opinion is not the same as
    hard facts.

    Thank you.

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