SIMON DRAPER V LINCOLNSHIRE CC
A HIGH COURT judgement involving library closures could have significant implications in a forthcoming judicial review of Lambeth’s plans to turn three of the borough’s libraries into gyms.
The judgement handed down in Simon Draper versus Lincolnshire county council (LCC) includes several points which could be raised in the judicial review by Public Interest Lawyers (London WC2 and Birmingham) on behalf of a user of the Carnegie library at Herne Hill.
PLEASE NOTE: COMMENTS HIGHLIGHTED IN BOLD OR IN ITALICS IN THE FOLLOWING HAVE BEEN PUT IN THAT FORM BY NEWS FROM CRYSTAL PALACE, AND DO NOT APPEAR IN THAT FORM IN THE ORIGINAL JUDGEMENT. ALL SUB-HEADINGS IN QUOTES HAVE ALSO BEEN ADDED BY THIS WEBSITE – Ed.
Neutral Citation Number:  EWHC 2388 (Admin) Case No: CO/0403/2014 IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 17 July 2014 Before : Mr Justice Collins – – – – – – – – – – – – – – – – – – – – – Between : Simon Draper Claimant – and – Lincolnshire County Council Defendant – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – Mr David Lawson (instructed by Public Interest Lawyers) for the Claimant Miss Helen Mountfield, Q.C. (instructed by Lincolnshire County Council Solicitors) for the Defendant Hearing dates: 8 & 9 July 2014 – – – – – – – – – – – – – – – – – – – – – Judgment
Mr Justice Collins : 1. The claimant is one of a significant number of users of libraries in Lincolnshire who have objected to the decision to cut back the provision of library services in the county. The public was made aware of the proposals in July 2013 when a consultation was commenced. While it was recognised that some cuts were inevitable having regard to overall financial pressures on local authorities, there has been objection to the scale of the cuts to library services. It is submitted that the proposals which were adopted by the defendant in a decision of 3 December 2013 do not meet the statutory requirements set out in section 7 of the Public Libraries and Museums Act 1964. Further, there are challenges to the process whereby the decision was reached in that the consultation was flawed and there were failures to comply with the Public Sector Equality Duty and to consider in a lawful manner an expression of interest by a charitable organisation to take over the provision of library services and avoid the cuts which were proposed.
2. Section 7 of the 1964 Act provides:- “(1) it shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof … Judgment Approved by the court for handing down (subject to editorial corrections) Draper v Lincolnshire CC (2) in fulfilling its duty … a library authority shall in particular have regard to the desirability – (a) 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; and (b) of encouraging both adults and children to make full use of the library service, and of providing advice as to its use and of making available such bibliographical and other information as may be required by persons using it; …”
3. Section 10 of the Act confers what are described as default powers on the Secretary of State enabling him, if he considers that a complaint that a library authority has failed to carry out a duty imposed by the Act justifies it, to investigate the complaint through a local inquiry. If he is then satisfied that there has been a breach of duty, he may make an order directing the authority to take specified measures to remove the default. A failure to comply can be enforced by an order of mandamus (now presumably a mandatory order). This is clearly a cumbersome and expensive procedure and it would not be at all surprising if the Secretary of State was most reluctant to engage in it. Judicial review is an obvious alternative and in the circumstances I do not think that the section 10 route can be regarded as a practical alternative. The defendant has not argued in this case that it should have been used.
4. It is apparent that library services were even in 1964 not limited to books or other literary material. We are now in the computer age and computer facilities are provided. They are used for the purposes of research and access to what is available and so are to a great extent an obvious „other material‟ which would fall within s.7(2)(a). But they are also made available to those seeking work or benefits since the systems now in place require in a number of respects internet access. Since such people are unlikely to possess their own facilities because they are likely to be too poor, a library provides them with such access and, incidentally, encourages them to use the other facilities available in accordance with s.7(2)(b). Thus it seems to me that all the computer services now provided by the defendant’s libraries can properly be regarded as part of a library service within the meaning of s.7(1) of the 1964 Act. However, I do not think that an authority is bound to provide this particular service but, if it does it must continue to do so as part of its service.
5. The defendant has for some time recognised the need to review its library provision since it considered that it was not efficient. In 2007 it commenced this exercise by carrying out what is described as a Fundamental Library Review. It recommended a number of improvements but did not suggest a reduction in the number of static libraries which were available. Essentially it provided for changes to opening hours, improvements to the ambience of libraries together with the introduction of self-service technology and a review of the shape and size of the library network. A report in 2009 again did not indicate that there would be a reduction in the static libraries of which there were then 48.
6. In 2010 local government funding cuts necessitated identification of savings in the defendant’s budgets. Thus it was that a review of the shape and size of the library network became of more immediate importance. Mr Platt, the Head of Libraries and Heritage, who has been responsible for co-ordinating the response of libraries to the review and who has produced statements on behalf of the defendant in these proceedings, has as part of the shape and size been impressed with the possibility of community involvement in running some libraries which catered for smaller population numbers. Such community involvement has resulted in the designation of such libraries as “community hubs‟, namely centres at which, apart from what can be regarded as ordinary library use, people can attend and have opportunities to meet together and have other facilities available. Volunteers would be involved in the running of these hubs and it was recognised that they would need training. .D
7. Before going further into the proposals which led to the consultation exercise and the decision of 3 December 2013, I should consider what is required to provide a comprehensive and efficient service within the meaning of section 7 of the 1964 Act. I can, I think, do no better than cite the following observations of Ouseley, J in Bailey v London Borough of Brent  EWHC 2572 (Admin):-
“A comprehensive service cannot mean that every resident lives close to a library. This has never been the case. Comprehensive has therefore been taken to mean delivering a service that is accessible to all residents using reasonable means, including digital technologies. An efficient service must make the best use of the assets available in order to meet its core objectives and vision, recognising the constraints on council resources. Decisions about the Service must be embedded within a clear strategic framework which draws upon evidence about needs and aspirations across the diverse communities of the borough.”
8. The last sentence was so phrased because that case involved a London borough, but in this case substitution of a county can be made since the same approach is clearly appropriate. An example of access by digital technology could involve the identification of a book followed by delivery through a mobile library. But there are no doubt other ways in which such access could be achieved. The key is a reasonable ability to access the service by all residents of the county. This means that distances and time taken to reach a library must be reasonable and any particular problems, whether physical disabilities, or created by age or family considerations, must be capable of being met. Furthermore, budgetary constraints can properly be taken into account in deciding the nature of the service provided that it meets the requirements of s.7 of the 1964 Act.
9. Because of the reduction of available funding for the defendant, it was decided that the cost of the library service must be reduced by some £2 million. That decision, which cannot be challenged and so must be accepted as a material consideration in what library services should be provided has clearly been a very important factor in the decision reached. However, in fairness to the defendant, it must be recognised that the view had been taken as long ago as 2007 that the existing arrangements were not efficient and in particular did not give proper value for money and changes would in any event have been made. Nevertheless, the proposals which were put to consultation and which were implemented in the decision of 3 December 2013 with minor amendments put in place following the consultation exercise were largely driven by the need to achieve the savings which had been imposed.
10. The existing service has four components. The first is now 44 static libraries. Twelve are district libraries open between 40 and 55 hours a week, eleven are neighbourhood libraries open between 25 and 39 hours a week and 21 community libraries open between 20 and 24 hours a week. All provide services to be expected from a library although their size will inevitably dictate how extensive the individual services can be. The second is a mobile service which provides for rural communities and those who are housebound or who live in nursing or residential homes. There is also a service for schools who wish to sign up for it. The third component covers the various online facilities. The fourth is described as targeted services for those unable to access the other services such as the blind or partially sighted, some who are housebound and unable to use the mobile service and a special service to encourage children in particular but including adults to engage with books.
“MOST OF WHAT WAS DECIDED … DID NOT DIFFER IN ANY MATERIAL PARTICULAR FROM THE PROPOSAL WHICH WENT TO CONSULTATION.”
11. An exercise was carried out in 2012 to obtain information about the numbers of households who were active borrowers and so users of the library services. This showed that of the total of 323,242 users 93% were within 30 minutes of a static library by public transport. 98% were within 15 minutes by car. The active borrowers (which meant no more than anyone who used a library on one occasion) were representative of the county‟s population as a whole. While there was virtually complete satisfaction with the service given by staff, there was a decline in borrowing against an increase in complaints about the availability of computer services and the quality and choice of books.
12. In the lengthy and detailed report to the council for the meeting on 3 December 2013, this is said about the existing services at paragraph 2.47:- .
“The overall conclusion that can be drawn from an analysis of the existing service is that it is comprehensive, but given the overlapping catchment areas and the consequent over-provision it can be seen to be significantly inefficient. Exploration of co-location with other public services has met with some success, but it not a sustainable model for a county-wide service. At a time of public sector financial constraint this level of overprovision is a luxury that can be ill afforded and it is incumbent on the Council to address ways in which it can make the service more efficient and thereby more affordable.” The point is properly made that the service must not only be comprehensive but must be efficient.
13. In a report to the Executive of 2 July 2013 it was recommended and in due course decided that consultation should be carried out with the public (i) on proposals to implement a new model of statutory library provision in the County and (ii) on proposals to offer certain communities a range of community library provision. There was also to be consultation with staff and Trade Unions on redundancies which would result if the proposals were implemented. By „statutory provision‟ referred to in (i) was meant such provision as fell within s.7 of the 1964 Act. The provision referred to in (ii) was to be outside the statutory provision.
14. Under (i), there were to be three components. The first was to be constituted by continuation of the library services‟ website and what was described as its “virtual catalogue” giving access to information and the possibility of downloading e-Audio and eBooks. This part of the service will continue to operate within a consortium of adjoining counties.
The second component would involve the reduction of static libraries to 15 in all. Ten of these were to be what are called Tier 1 in the ten most populous areas of the County to be open for some 50 hours a week. The other five would be described as Tier 2 within the next most populous areas with opening of 25 hours a week (in one case which would continue to be operated in conjunction with the District Authority, 46 hours). It was considered that accessibility to these libraries was assessed by taking a 30 minute travel time by public transport.
15. The third component involved what was described as targeted provision. This was aimed at the 24% of households falling outside the 30 minute travel time, namely some 83,531 households with 33,123 active borrowers. It would be especially important for the relatively small number of such households who did not have access to a car (some 508). In addition, consideration had to be given to the 1,616 sick, disabled or non-internet users living outside the 30 minute travel time. Delivery of books, DVDs, CDs large print or audio books would be arranged on a monthly basis.
16. As will become apparent, most of what was decided on 3 December 2013 did not differ in any material particular from the proposal which went to consultation.
17. The seminal case on consultation, R v Brent LBC ex p. Gunning  84 LGR 168, establishes that proposals must be at a formative stage. It is clear that it is proper for an authority to have a preferred option and to consult on the basis that that is what is proposed by the authority. But for consultation to be meaningful the authority must be prepared to think again if those consulted are unhappy with the proposal and suggest a different solution. In R(Partingdale) v London Borough of Barnet  EWHC 947 Admin Mr Rabinder Singh, Q.C. (now Singh J) referred to the material case law and summarised the position thus in paragraphs 46 and 47:- “46 … [I]t is hardly to be countenanced that a reasonable public authority would consult on something which was not at least sufficiently advanced to be called a proposal. 47 However that is exactly what it must be: a proposal, and not something which has already been decided. That is the point of crucial importance: that consultation must take place at a stage when a policy is still at a formative stage. To accept the contrary submission would be to accept that consultation is a waste of everyone’s time and perhaps even a facade.
But it seems to me that a proposal cannot be at a formative stage of (if? – Ed.) the decision maker does not have an open mind on the issue of principle involved.”
18. Miss Mountfield submitted that absent bad faith, proposals would always be at a formative stage until adopted by an authority, unless some central element or elements of the matter for decision were to be so fixed that they could not be undone. If it was so fixed, it could not properly be said that the proposal was still at a formative stage. There must not be a closed mind to change of a central element of a proposal. It will be necessary to look at the facts of any particular case to ascertain whether any limits on what changes could be achieved through consultation mean that the proposal cannot properly be regarded as still at a formative stage.
19. Those to be consulted were issued with a consultation document together with a survey with a number of boxes to be filled out. The summary at the outset of the consultation document states that the council „would like to seek views regarding the redesign of the library service, in light of the agreed £2 million cost savings and the need to respond to changing trends in Lincolnshire‟. This would, it was said, ensure that an informed decision could be made about the different options for running the service by 3 December 2013.
20. In addition to the statutory services comprised in the three components referred to in paragraphs 10 and 11 above, the defendant also proposed that there should be what were described as Tier 3 and Tier 4 services. Tier 3 were aimed at communities with at least 550 households and would involve either a fortnightly visit from a mobile library or a community-run facility operated by volunteers with advice from a staff member, open for at least six hours a week, and offering a range of other services. These were to be the so-called “community hubs‟. Tier 4 would offer a mobile service to 66 communities of between 100 and 549 households.
“….THE CONSULTATION EXERCISE WAS FLAWED…..”
21. Tiers 3 and 4 were not part of the statutory service. Thus there were two separate elements to the consultation exercise. The first related to the decision to reduce the static libraries from the existing 44 to 15 together with the universal and targeted service. It was recognised that Tiers 3 and 4 should not be regarded as part of the statutory service because Tier 3 community hubs might not be able to be established if there was no community support for particular ones. Similarly, there might not be support for particular Tier 4 arrangements. Thus what the consultation over Tiers 3 and 4 was aimed at was whether the proposed Tier 3 and 4 arrangements appealed to those consulted.
22. The consultation document most importantly contained the following:-
“What can consultation influence?
Feedback can influence some elements of the proposals because decisions about them have not yet been made:
The impact changes to the library service will have
Whether people agree with the criteria used to define Tier 1 libraries
The priority given to the criteria used to define Tier 2 libraries (i.e., do people think it is more important to look at travel time or something else, such as population size
Whether the ideas for Tier 3 and 4 libraries are correct and whether people are interested in running a Tier 3 library
What can‟ consultation influence?
Some decisions had to be made before consultation and cannot be influenced:
The amount of savings that have to be made, in order to contribute to the council‟ £125 million budget cut
The facts about library usage data and findings from the Lincolnshire Research Observatory
Universal and targeted services have to be provided and are therefore not part of the consultation process
The number and definition of Tier 1 libraries, given the budget constraints
The number of Tier 2 libraries that can be provided, given budget constraints
The amount of money available for Tier 3 libraries, given budget constraints
The definition of a Tier 4 library as the number of vehicles available is limited”
23. The budget constraints leading to the need to save £2 million clearly could not be altered. They had led to the proposals. The decision to reduce the statutory service to 15 libraries was not alterable. The criteria could be, and an exercise was carried out following the receipt of returns from consultees to reconsider the criteria upon which Tier 1 and Tier 2 had been adopted in any individual case. That exercise produced no change.
24. In addition to the documents to which I have referred, there were meetings attended by Mr Platt and on its website the council in a Frequently Asked Questions sheet indicated that it was open to suggestions including alternative ways of achieving the savings. Similar information was given at meetings. The survey to be filled in by consultees contained boxes to be filled in under each of the Tiers. Those for Tiers 1 and 2 concentrated on the criteria, since it might be that there could be a change in the designation of a library to be Tier 1 or Tier 2. Under Tier 3 there were questions going to whether a community hub or a mobile should be delivered and whether the individual was interested in being a volunteer. It had a box headed “Are there any other options you would like to put forward?‟ It was suggested that this showed that a general option covering how the savings could be achieved and extending beyond the Tier 3 proposal was available. That is not a possible construction of the documentation.
25. The point is made that there were two submissions, one from a business enterprise, the other a charitable organisation which provided a means of making the savings needed without reducing the statutory service. These were considered but for various reasons rejected. Accordingly, it is said that, whatever may have been conveyed by the documentation, the council showed that it had not closed its mind to possible alternative proposals which did not involve the reduction to 15 static libraries.
26. What consultees are told in the documentation produced is important. If it seemed that an objection to the reduction to 15 could not prevail, it may well have deterred a consultee from thinking of possible alternatives. Miss Mountfield suggested that the third bullet point under what consultation could influence which referred to whether „the ideas for Tier 3 and 4 libraries were correct‟ indicated that the consultation could affect the whole proposal by suggesting alternatives. That is not a reading which I can accept since the ideas in relation to Tiers 3 and 4 were the proposed way in which they should be set up not whether they should form any part of the statutory service.
27. In the circumstances, I think the consultation exercise was flawed, despite the efforts of the council to seek advice and to try to ensure that it could not be impugned. A central element in relation to the statutory service, namely to reduce it to 15 libraries with the targeting for those outside the 30 minutes travel area, could not be changed. It may be that the 30 minutes could be altered, but that would be difficult to achieve since any reduction in the travel time would take more households and users out of the range. In Judgment Approved by the court for handing down (subject to editorial corrections) Draper v Lincolnshire CC reality, if there was the proposed reduction, the travel time would itself be virtually impossible to change.
28. Miss Mountfield submitted that the fact that the Council was open to alternative options was demonstrated by the fact that the question about other options under Tier 3 was coupled with the final question in the survey which asked, following a question about the effect of the changes on the consultee, or his or her community, why he or she felt that way. I do not think that this combination supports the submission nor was the issue whether something other than the proposed model for the statutory service should be provided put forward for consultation. However, those who answered the survey were unanimously it seems opposed to the proposals and there were three suggestions of alternatives which would preserve the existing statutory service.
29. The council made use of the services of Sheffield Hallam University (SHU) in conducting the consultation exercise. SHU collated all responses each week and submitted a summary of the contents to the council. It was made clear that the overwhelming response was against the proposals and the majority valued the existing service and there were „thousands of communications which highlighted the importance of the library, both to participants as individuals and the perceived benefits to the wider community‟. Feedback on the proposed Tier structure was not straightforward to interpret as many participants would not answer the questions since they fundamentally disagreed with the proposed reductions.
30. The council produced an information pack in which organisations wishing to submit an Expression of Interest in operating their own community library should complete the Expression of Interest form. If this achieved a required minimum score a detailed outline business case should be submitted by 30 March 2014. The form required the applicant to identify the category of the organisation, namely voluntary body, community body, charitable organisation, Parish Council or other. The introduction for the form made clear that it was for „Community and Voluntary Sector Organisations wishing to deliver library services in Lincolnshire‟.
31. Alternative proposals were received and were considered. Thus whether or not the consultation exercise was flawed in that the provision of 15 libraries could not according to the documentation produced to the consultees be changed, it is said that suggestions for achieving the necessary savings and retaining the existing libraries were considered. There were three. Mrs Palmer suggested reduced opening hours and staffing levels for Tier 1 and 2 coupled with charges of 50p per 30 minute for internet use. This was rejected because of a combination of adverse effect on the Tier 1 and 2 service and a financial barrier to internet use. That rejection was not in the least surprising. The second was from a company Bibliotheca Ltd who supplied what was called self service technology which could involve access to an unstaffed library by use of a card and PIN. This technology had never been used in the UK and would have involved substantial installation and support costs. It would also involve a considerable reduction of staff and would have a seriously adverse impact on the disabled. It was rejected, again not surprisingly.
32. The third applicant was a charitable organisation, Greenwich Leisure Ltd (GLL). It currently manages libraries in the London Boroughs of Greenwich and Wandsworth. GLL had only become aware of the Lincolnshire proposals in late September 2013, but submitted an Expression of Interest on the council‟s form appropriate for such expressions on 30 September 2013, namely the conclusion of the consultation period. It proposed taking over the provision of the county‟s library services and stated that it could do so retaining what existed and achieving a saving of £1.8 million. It could do this by a reduction in operating costs, an increase in income and a reduction of £925,000 in management support costs, the Materials budget, mobile library service and transport costs. The proposals were inevitably not detailed in the time available and, if they were to be pursued, further consideration by the council when further information was available would be needed. The claimant’s contention is that further information should have been sought before rejecting GLL’s application since it appeared to be a decidedly possible means of avoiding the cuts which were opposed by the vast majority of library users.
33. The report for the 3 December 2013 meeting rejected GLL‟s proposals, stating, having given them serious consideration, as follows:-
“ … [W]hilst they showed how most of the savings could be made on paper, they only provided limited detail on how the management operation would work in practice. The level of reductions to the mobile library service were not felt to address concerns raised during the staff and public consultations and pursuit of this option would require a Europe-wide procurement process to be undertaken, and this would take at least six months, and longer to implement with no guarantee that the savings sought by the council would be achieved and a comprehensive and efficient library service delivered.”
34. Expressions of Interest derive from Section 81 of the Localism Act 2011. This requires a local authority to consider an expression of interest submitted by a „relevant body‟ in „providing or assisting in providing a relevant service on behalf of the authority‟ (s.81(4)). A relevant body is defined in s.81(6) to mean:- “(a) a voluntary or community body, (b) a body of persons or a trust which is established for charitable purposes only, (c) a parish council (d) in relation to a relevant authority, two or more employees of that authority, or (e) such other person or body as may be specified by the Secretary of State by regulations.” GLL is a relevant body.
35. There are regulations which specify what information must be included in an expression of interest. I do not need to specify these since GLL in its application set out all required information.
36. Section 88(2) of the 2011 Act requires a relevant authority, in this case the council, to have regard to guidance issued by the Secretary of State. Section 82(2) enables such an authority to specify periods during which expressions of interest or expressions of interest in respect of particular relevant services may be submitted to the authority. Section 82(4) provides:- “The relevant authority may refuse to consider an expression of interest submitted outside a period specified under Subsection(2).” Section 83 deals with how expressions of interest should be considered. Section 82(1) provides:- “The relevant authority must- (a) accept the expression of interest, or (b) reject the expression of interest. This is subject to section 84(1) (modification of expression of interest).” Section 82(11) provides that a relevant authority can reject an expression of interest „only on one or more grounds specified by the Secretary of State by regulations‟. If it accepts, the authority „must carry out a procurement exercise relating to the provision on behalf of the authority of the relevant service to which the expression of interest relates‟.
37. The combination of s.82(1) and (2) is singularly unhelpful. It must be obvious that there is no point in entering into a procurement exercise unless the expression of interest is one which the authority believes is workable and that they in any case may require more Judgment Approved by the court for handing down (subject to editorial corrections) Draper v Lincolnshire CC detailed information. The Guidance issued by the Secretary of State deals with this in paragraph 4.1. Having said that an authority may refuse to consider expressions of interest submitted outside a specified period (s.82(4)), the Guidance continues:- “Relevant authorities may request further information from relevant bodies but they cannot make inclusion of such information a requirement in order for the expression of interest to be considered. They should make it clear in any such request that provision of the further information is optional.”
38. No doubt a relevant body will appreciate that a failure to provide further information may lead to a rejection. Grounds for rejection are contained in paragraph 4 and the Schedule to the Community Right to Challenge etc (England) Regulations 2012 (2012 No 1647). So far as material in the context of this case, they include (paragraph 2) that the information given in the opinion of the relevant authority is in a material particular inadequate or inaccurate.
39. If an expression of interest is accepted, the Public Contracts Regulations 2006 (2006 No 5) will apply to the procurement exercise. The proposals from GLL would constitute what is identified in paragraph 2(2) of and Schedule 3 to the regulations as a Part B services contract, since it concerns the provision of recreational and cultural services. The 2006 Regulations implement the European Parliament and Council Directive (EC) 2004/18 on public procurement, the purpose of which is to promote the internal market of the EU. Those which fall within Part B are not required by the Directive to be the subject of prior advertising or a tender process. This is because generally Part B contracts are not, in the light of their specific nature, likely to be of cross border interest. However, the Court of Justice has held that a contracting authority must nonetheless apply the principles of nondiscrimination and transparency and so must undertake a „degree of advertising sufficient to enable the services wanted to be opened up to competition‟: see Telaustria Verlage Gmbt v Telekom Austria  ECR 1-10745 at paragraph 62. This will only apply if there is shown to be the requisite degree of cross-border interest in the provision of the services. Such interest will clearly not exist in relation to the individual Tier 3 libraries, but the size of the whole makes it difficult to justify a similar approach in the GLL proposals, particularly as there has already been an expression of interest from Biblioteca Ltd which is a foreign, though not an EU based, company.
40. That said, the exercise required for a Part B contract is less demanding than that for a Part A. Mr Lawson challenges the assertion that the exercise would take at least 6 months, which was one of the grounds for rejection. There is force in this since any advertising can specify a period which is reasonable and need not be extensive.
41. The report for the 3 December 2013 meeting stated in paragraph 4.3.82:- “The GLL proposals were given serious consideration. However, whilst they showed how most of the savings could be made on paper, they only provided limited detail on how the management operation would work in practice. The level of reductions to the mobile library service were not felt to address concerns raised during the staff and public consultations and pursuit of this option would require a Europe-wide procurement process to be undertaken, and this would take at least six months, and longer to implement with no guarantee that the savings sought by the council would be achieved and a comprehensive and efficient library service delivered.”
42. Miss Mountfield submits that the proposals from GLL were not described or treated as an Expression of Interest within s.81 of the Localism Act 2011. In my view, they plainly were. They were described as expressions of interest, a phrase given a particular import by reason of s.81. They were contained in a form which was provided for those wishing to submit expressions of interest and contained the information required by the relevant provisions of the 2011 Act.
43. Miss Mountfield further submits that they fell to be rejected because submitted outside the period specified by the council for receipt of expressions of interest under s.81, namely April to the end of June. It certainly is the case that the council did not deal with the Judgment Approved by the court for handing down (subject to editorial corrections) Draper v Lincolnshire CC proposals from GLL on the basis that they were submitted in accordance with s.81 of the 2011 Act and so did not reject them as being outside the specified period. That is not surprising since expressions of interest from those interested in Tier 3 management were encouraged and the form made clear that they must conform to the 2011 Act requirements. If the submission is that, despite the shortcomings in the documentation, the consultation exercise was intended to and did permit alternative schemes, it would have been perverse to rule out an application, encouraged in relation to Tier 3, on the ground that it was outside the specified period.
44. It is to be noted that in e-mails disclosed by the council for meetings to consider the library service changes, it is said that the whole service outline proposals from Bibliotecha and GLL were “very different to the model we consulted on, both from outside Lincolnshire.‟
45. Procurement would, it was said, lead to unacceptable delay. It is somewhat ironic that this claim has produced a delay of over 6 months and Mr Lawson has made the point that in any event the new arrangements were not likely to be in place until 2015. In a panel report of 29 October 2013, this is said of GLL‟s bid:- “This is clearly a bid to outsource the entire library service to a private contractor (albeit of charitable company status). This does not seem to be within the scope of the current initiative. No detailed financial information provided of what appears to be a substantial organisation. The proposal is to take control of the whole of the current LCC Library Service including the Mobile Library Service) – I am not sure this was the intention of the current consultation.”
46. The panel rejected it as being potentially outside the scope of the current consultation. This strongly suggests that in reality the consultation was not intended to extend to proposals for other means of achieving the necessary savings. But, assuming in favour of the defendant‟s case, they did, the expression of interest should have been properly considered. This is in accordance with the Guidance which required a request for further information to see whether what had had to be put together over a very short time could meet what was required.
47. I do not think the defendant can on the one hand defend the consultation exercise on the basis that the reduction of the statutory service was not fixed at only 15 static libraries to be provided but general proposals could be entertained and on the other hand reject the expression of interest from GLL since it did not fall within the scope of the consultation.
48. Mr Lawson relies in addition on an alleged breach of the public sector equality duty. Section 149 of the Equality Act 2010 requires a public authority in exercising its functions to have due regard to the need to eliminate discrimination and advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not. I can deal with this ground shortly since there can be no doubt from the report for the 3 December 2013 decision that the concerns raised by the disabled, by the elderly and by women who were disproportionately affected were considered in some detail. Measures to deal with their problems such as the Call Connect bus service were regarded as sufficient.
49. The claimant‟s wife is disabled and problems created by shortcomings in the Call Connect service, operator congestion in fewer libraries and the difficulties in travelling for up to 30 minutes each way (frequently because of traffic conditions or irregularity in advertised services) are raised in a number of statements of objectors. The obligation created by s.149 is to devise a mechanism to avoid unlawful discrimination. Provided that proper consideration is had to this and what is proposed cannot be said to be irrational in terms of avoidance of unlawful discrimination, there is compliance with s.149. Thus in R(Baker) v SSCLG  PTSR 809 Dyson LJ observed at paragraph 31:- “… it is important to emphasise that the section 71(1) [now s.149] duty is not a duty to achieve a result namely to eliminate unlawful … discrimination or to promote equality of opportunity …It is a duty to have Judgment Approved by the court for handing down (subject to editorial corrections) Draper v Lincolnshire CC due regard to the need to achieve those goals. What is due regard? In my view, it is the regard that is appropriate in all the circumstances .”
50. There can in my view be no doubt that the defendant did fulfil its duty under s.149. It identified the possible areas of discrimination and identified measures which it believed would ensure that there was no unlawful discrimination. That exercise was not irrational. This ground I therefore reject.
“The council must, I fear, reconsider…….”
51. Mr Lawson in addition submitted that the decision was irrational. This submission was largely based on the use of the 30 minutes travel time. It derived from statistics obtained by the Department of Transport which showed that access to various different services was on average for those who lived in remote country areas accepted at no more than 30 minutes. This was not guidance. Unfortunately, it was presented to the committee on 3 December 2013 as if it was, it being said at the meeting in answer to a question from a councillor at the meeting:- “The 30 minute drive time was used as a criteria (sic) as this was set out in the DOT guidelines as an appropriate time within which services should be accessible.”
52. Mr Lawson submits that the erroneous belief that the 30 minute travel time derived from such guidance may have persuaded some at the meeting to accept it. Thus the decision may have been reached by having regard to material error of fact. Mr Lawson accepted that the council could properly have fixed on 30 minutes not by using the DOT figures as guidance but taking them into account. I am not persuaded that the error in the description given to the statistics leads to irrationality. They have in fact been described by the Department as guidance and I have no doubt that the council was entitled to have regard to them in deciding on a proper basis for deciding on accessibility. This ground too I reject.
53. The overwhelming objection to the decision does not in itself mean that it is unlawful. The decision to make the £2 million cuts was a political one which was not and cannot be challenged in the courts. It can of course when it comes to electing councillors. The need for cuts will inevitably produce hard decisions for many, but that does not make them unlawful.
54. I have carefully considered whether the shortcomings I have identified in the consultation exercise and the proposals from GLL require that the decision be quashed. If the consultation were the only ground, I might not have granted relief since the proposals were accepted and considered. But the manner in which GLL‟s proposals were dealt with coupled with the view that they did not fall within the consultation exercise persuade me that the decision must be quashed. The council must, I fear, reconsider. It may be that the most sensible way ahead is to obtain the necessary further details from GLL and perhaps consult further for a shorter period on whether any overall alternative proposal is forthcoming. That is a matter for the council.