Legal battle over libraries hots up

Legal battle over libraries hots up

The defence of the public library service has entered a new phase with the judicial review hearing in the High Court into Brent council’s contentious proposal to close six of its 12 libraries.

The case was the first to be heard but more will swiftly follow, as campaigners frustrated by the Secretary of State for Culture, Media & Sport’s unwillingness to order a public inquiry into closures turn to the law for urgent action before their libraries are closed for good.

Isle of Wight campaigners had an application for judicial review, a preliminary to the review itself, rejected by the High Court last week (26th July). Gloucestershire and Somerset library campaigners will take their cases to judicial review in September. In Dorset, where last week the council decided by a nail-biting margin of just one vote that nine libraries must close if volunteers do not come forward to run them, campaigners are also considering legal action.

Responding to the urgency, the judge in the Brent judicial review, Mr Justice Ouseley, has said he may deliver his decision in August, with the full reasoning set to follow later in the autumn. Brent council has agreed not to make any immediate moves to close its six threatened libraries—Barham Park, Cricklewood, Neasden, Kensal Rise, Preston and Tokyngton—ahead of that decision.

The situation in each library authority is different, and the legal arguments are likely to vary from case to case. The bare bones of the argument made over Brent libraries saw Helen Mountfield QC, representing three Brent residents, argue that the council failed to comply with its legal obligations under the 1964 Public Libraries & Museums Act when planning its library closures, because it did not properly identify the range of needs it had to meet before coming up with its proposal. It had also “closed its mind” to alternative proposals for delivering its library service in partnership with third parties, she said.

However, Elizabeth Laing QC, representing the council, said the closure was made “with great care and expressed attention to the 1964 Act” and other relevant legislation. “If it is to be suggested that it involves unlawful pre-determination, that would make it extremely difficult for any local authority to make decisions in an orderly way,” she said. Alternative proposals by groups to run the service were unsuccessful because they were “unrealistic”, Laing told the court.

A number of points raised during the Brent review will be of broader interest and could have further implications for the library sector:

Does there need to be an actual library building in order to provide a library service, or can a council still fulfil its obligations after closing the physical libraries?
Mountfield cited the 1962 Bourdillon Report which preceded the 1964 Public Libraries & Museums Act as evidence that physical libraries were necessary. The report referred to libraries as the “centre of cultural life”, with many providing activities and events such as lectures and exhibitions. Laing said there was no reference to library buildings in section seven of the 1964 Act. “There are references to library services and libraries facilities but those are not library premises,” she said.

Can the need for a council to make financial savings be taken into account when considering how it provides a “comprehensive and efficient” library service?
Laing said resources were “plainly a relevant consideration” when the council was fulfilling its duties under the 1964 Act. Citing legal precedent, she told the court: “Resources are relevant both to the assessment of need and the way in which such needs are met.”

What level of consultation must a council undertake before making its decision?
In the Brent judicial review, Mountfield said the council did not reach a fully informed assessment of need before it developed its library proposal. “That duty of analysis must be performed as a preliminary to a lawful decision,” she said. Laing said the decision-making process followed a standard local authority model and drew on “extensive evidence”. Doing an equality impact assessment of every possible option before formulating a preferred proposal would be an “impractical” approach that was “flabby, complicated and time-consuming”, she told the court.

Is judicial review by the High Court a full substitute for action from the secretary of state?
Laing said any question about whether the library service was comprehensive and efficient was a question for the secretary of state rather than the court. “It is clear from the act that the secretary of state has overall supervision and has power to order an inquiry,” she said.

Does the High Court take the Wirral Report into account?
Mountfield said the 2009 Wirral Report, which followed the public inquiry ordered by the secretary of state into proposed library closures in Wirral, was an “important document” which was “not a legal precedent, but does inform the approach taken by the secretary of state.” The judge, Mr Justice Ouseley, noted that the Wirral Report was “not binding” on him.