Judicial review analysis: call for clarity
A JUDGE has ruled that Northamptonshire County Council’s decision to decommission 21 libraries is unlawful but the judgement’s impact on the wider public library sector remains open to interpretation.
Mrs Justice Yip found that Northamptonshire County Council’s decision-making processes were unlawful but stopped short of clarifying the authority’s statutory obligations for a comprehensive and efficient library service.
It means the value of this judgement to other public library services seeking to defend themselves from similar cuts has yet to emerge.
Nick Poole, Chief Executive of CILIP has called for the Secretary of State for Culture, Jeremy Wright, to clarify the meaning of “comprehensive and efficient” in the 1964 Public Libraries and Museums Act.
However, both he and the solicitor representing Northamptonshire’s successful library campaigners, Caroline Barrett, say that the judgement is significant to all public libraries facing cuts.
The judge said that the council’s decision-making processes around its library provision broke down under increasing financial pressure.
At a meeting on 13 February 2018 the council’s Cabinet chose option 1, the least severe of three options presented to it following a review of its library services and a consultation.
Then the council’s precarious financial situation worsened. On 22 February 2018 the council issued a Section 114 Report saying that its expenditure would exceed its resources in the 2017/18 financial year. On 20 February the council received an advisory notice from its auditors, KPMG, saying the proposed budget for 2018/19 was unlawful because it depended on receipts of £40.9 million, which KPMG believed was “not on any view achieveable”.
At cabinet meeting on 27 February the Director of Finance recommended the cabinet change from Option 1 to the more severe Option 2 for its library service provision.
In her judgement the Mrs Justice Yip said: “It is not clear that the Cabinet fully understood that they were taking the decision to close libraries. They were told in the Finance Director's report… that they had "no choice" but to consider proposals which had previously been rejected but were now being put before them… once they were being asked to make a decision that would lead to closures, there was a clear need for the Cabinet to address the statutory test. They did not do that. Indeed, the minutes of the meeting on 13 March 2018 suggest that they had wholly failed to understand that this was a decision for them.”
The judge said “this was serious error infecting the decisions of the Cabinet on 27 February 2018 and 13 March 2018” and, in her concluding paragraphs, that “My provisional view is that the Cabinet decisions of 27 February 2018 and 13 March 2018 should be quashed…” However she did not say what the remedy for this should be but has allowed parties to make submissions to the court. The submissions will be made by 28 August.
The judge said the cabinet failed to apply a statutory test – to make sure that it’s new decision would result in a “comprehensive and efficient library service” as required by Section 7 of the Public Libraries and Museums Act 1964.
The uncertainty for the sector is whether the judgement goes adds anything new to the definition or application of “a comprehensive and efficient library service” for local authorities.
One of the comments in the closing paragraphs of her judgement suggests that the judgement does not go beyond finding fault with the council’s procedure. Mrs Justice Yip said: “I make it clear that I am not deciding any issue as to the merits of any proposed library closures. This remains a matter for the Authority. I do recognise, as indeed the claimants indicated they did, that the defendant may still decide to take the same libraries out of the statutory service, provided that decision is reached lawfully.”
However, Caroline Barrett, a solicitor in the Public Law & Human Rights Department at Irwin Mitchell, acting for the one of the claimants, did not think this devalued the judgement’s positive implications for public libraries.
While she agreed that the decision was based mainly on procedural failings she said: “This judgement is a clear warning to local authorities contemplating similar decisions. Decisions have to be made in a lawful manner and cannot be based solely on financial considerations.”
She said: “Yes, the decisions were found to be unlawful largely due to procedural processes, but the judge also stated that she is not convinced the council would have taken the same decision if the process had been properly followed.”
Caroline said: “In judicial review proceedings, if you can’t show that the decision would have been materially different, even if the proper process had been followed, then the courts have to reject the case.” She pointed to paragraph 120 in the judgement where the judge said: “I am asked by the defendant to refuse permission… on the ground that it is highly likely that the outcome would not have been substantially different absent any legal flaws identified. I do not feel able to reach that conclusion.”
Caroline also points to the judge’s comment that: “The flaws in the defendant’s decision making which I have identified are such that I consider that the whole question of library provision needs to be revisited by the defendant, paying attention to its legal obligations and all material considerations.”
Caroline said: “As such I think this judgement is supportive of what local campaigners have been saying, that the council needs to properly re-evaluate its plans for the county’s libraries.”
If the council and campaigners have different interpretations of the judgement this may become clear through their submissions to court on 28 August. The sector will want to know if the council’s submission includes changes to its plans that are a result of the judgement.
This may not be easy to see because, as Mrs Justice Yip pointed out in the judgement, the council has already changed its plans. It provided an update of its position after the original two day hearing which said that while it had “no intention to reverse the decision of 13th March to close libraries” there was a “possibility – and the Council stresses the word possibility” that some or all of the libraries not in the list for retention may be operated as community libraries, which is to say that they could go forward with some measure of Council support for them (rather as being independent libraries)."
While this may be the preferred option for local campaigners, it is unclear whether the position was softened as a result of the council’s interpretation of the judgement.
Nick Poole, Chief Executive of CILIP said: “This ruling sends a clear message to Local Authorities everywhere that, notwithstanding the undoubted financial pressures they face, the provision of public libraries remains a statutory duty and due process must be followed when considering the future delivery of services, regardless of the severity of the situation an Authority may find itself in.
"There is currently insufficient guidance under the 1964 Public Libraries and Museums Act as to what constitutes a ‘comprehensive and efficient’ library service that every local authority is required to provide by statute. We call on the Secretary of State for Digital, Culture, Media and Sport - who has statutory duties to oversee and improve public libraries in England – to provide satisfactory guidance for Councils on their duties under the Act. This lack of clarity causes unnecessary confusion for the public, staff, and local and national government alike.
With increasing numbers of local authorities warning that they face effective bankruptcy it is essential that Northamptonshire County Council receive the emergency support they need, and that a fair funding settlement for all local authorities is reached as a matter of urgency.
Every community has the right to benefit from a quality local library service. We will continue to work with national and local government, and sector partners to ensure that the necessary funding and support are available to guarantee this.”
In a statement issued after the judgement was published, Northamptonshire County Council leader Cllr Matthew Golby said: “We are considering today’s judgement very carefully.
“We are pleased that the Judge has recognised that the council’s public consultation and equality impact assessments were indeed lawful, and that she acknowledges the severity of the council’s financial challenge. As we announced earlier this month, we had already made a decision to pause the proposed changes to the local library service for further consideration and are continuing to work closely with community groups, partners and interested parties within the wider context of the council’s budget recovery programme.The Judge has noted that the county council is continuing these discussions with the community groups. In light of this, she has instructed that the legal parties use their best endeavours to agree all outstanding issues.
“The county council is committed to finding a way forward that is satisfactory and achievable for all parties.”
In her judgement Mrs Justice Yip said: “Although the claimants suggest that many of the problems are of the defendant’s own making, the simple truth is that action must be taken to regain control of a very precarious financial situation.” But she added: “However, while the need to make further savings was a legitimate, indeed necessary, driver for further cuts, it did not relieve the defendant of the need to act lawfully.
Read the full judgement here
Cropped image CC BY 2.0 Hazel Nicholson