R (on the application of Bailey and others) v Brent London Borough Council  All ER (D) 193 (Dec)
In this case, the defendant local authority started a public consultation relating to cutting library services. An equality impact assessment was passed, pursuant to the Equality Act 2010. It was reported that 28% of the population of the borough was Asian and 46% of the active borrowers from libraries were Asian. 45% of the population was of white ethnicity and this made up 29% of the active borrowers. The authority's executive decided to close six of the twelve public libraries in the borough, including two in premises given to the local authority for use as libraries by the interested party. The claimants sought judicial review of the decision but this was dismissed. The claimants appealed.
The claimants alleged: (i) breach of section 149 of the Equality Act 2010 in failing to have due regard to the risk of indirect discrimination against Asian residents of the local authority area; (ii) a further breach of section 149 in failing to have any regard for the requirements of that section until too late a stage in the decision-making process in that the six libraries had been named for closure in November 2010 before the equality impact assessment had been carried out; (iii) a breach of section 7 of the Public Libraries & Museums Act 1964 in failing to conduct an adequate investigation of needs; and (iv) procedural unfairness in having invited community groups to submit business plans for running libraries proposed to be closed but failing to tell them the criteria by which the plans would be assessed.
The appeal was dismissed. It was held that: (1) Having regard to the duty under section 149 of the Equality Act 2010 to have due regard to the need to eliminate discrimination, the local authority had not been in breach of duty in failing to give further consideration to the racial dimension, in so far as it affected the Asian community in relation to other communities. Factors were rightly and rationally considered when making the decisions as to which libraries should be closed and decisions were explained in the reports. A racial dimension had not rendered the decision unlawful. The section 149 duty to have due regard did not require further consideration and analysis of that dimension when the decision was taken. It was legitimate to take the pool of library users rather than a pool comprising the entire population of the borough in making an assessment. Adopting that pool, the figures accepted by the judge had not supported a claim that there was indirect discrimination. (2) The local authority had exercised its functions with due regard to the requirements under section 149. It was reasonable to put forward a reasoned proposal for closures in the circumstances, including the urgent need to economise. It had not been necessary for an equality impact assessment to be conducted before the formulation of the proposals on which the public were to be consulted. The local authority had kept section 149 properly in mind from an early stage and for that reason decided to carry out a full equality impact assessment for consideration together with the results of the consultation. Factors under section 149 were in mind at each stage. The local authority had not put the relevant requirements to one side until the ultimate decision was taken but had had regard to them as an integral part of the decision-making process. (3) The authority had the duty under section 7 of the Public Libraries and Museums Act 1964. Decisions as to closures were taken with that duty in mind and the proposals included improved ways in which the expectations of users might be met. Mitigation measures were proposed in that regard. Section 7 contemplated flexibility in meeting the needs of users and detailed consideration had been given to those needs. (4) In the circumstances, those contributing to the consultation process had been well aware of the factors or criteria which had been relevant. No error of law could be established on that ground.