All education sector bodies thinking about taking decisions that are subject to a period of public consultation should take heed of the High Court’s recent judgment against Lincolnshire County Council’s (“the Council’s”) decision to dramatically reduce its number of funded libraries.  In that decision, the Court demonstrated its willingness to intervene if it considers that the consultation process that was undertaken prior to the final decision being made was either flawed or failed to take into account relevant information.

Background

Following a review of its library services, the Council found that 82% of its local population were not active book borrowers and book stock issued in the county in the last 10 years had dropped from 5 million to under 3 million.  The Council therefore concluded that its library provision was not efficient.  As a result, the Council proposed that 10 of its current 45 libraries should remain open for 50 hours a week and 5 for 25 hours a week.  Local communities would then be given the opportunity to take over the remaining libraries or create their own, with professional support from the Council.

The Court noted that a decision to reduce the Council’s library budget by £2million had already been agreed by the Council months before. Because of that, the Court determined that whether or not to change the library service was not an option, it was clear the Council had to save £2million - the question was ‘how’.

Grounds of challenge

One local resident whose wife was disabled, together with the support of the Save Lincolnshire Libraries group challenged the proposed cuts on four specific grounds: (1) that the 13 week consultation was unlawful due to the fact that a pre-determined decision had already been made.  (2) It was also argued that the Council failed to ensure that groups with protected characteristics (as defined by the Equality Act 2010, for example those with a disability) were not disproportionately affected by the proposal.  (3) There was also concern that the Council had failed properly to consider a proposal from the not-for-profit Greenwich Leisure Limited (“GLL”) to run the library service by retaining existing provision whilst achieving savings of £1.8million; and (4) that if the cuts went ahead, the Council would not provide a comprehensive and efficient library service – something it has a statutory duty to do.

Flawed consultation   Mr Justice Collins in the High Court found no evidence that the Council had not complied with its statutory obligations under the Public Libraries and Museums Act 1964 or obligations imposed by the Equality Act.  However, the Court ruled that the Council’s consultation process was flawed, as it could not demonstrate that the Council were prepared to think again about the proposal put forward despite unanimous opposition from the general public.  Also, there was no consultation on whether a different model for library provision  should be put forward, which was a fundamental oversight.

The Council also erred by not taking fully into account GLL’s proposal, which was rejected because the Council considered it did not fall within “the scope” of the consultation, as it was a very different model from that consulted upon.  The Council were concerned that this would involve a procurement exercise which would lead to a delay of over 6 months (which it considered unacceptable).  GLL’s proposal was considered by the Court to be relevant, as GLL was already running library services for two London boroughs, Greenwich and Woolwich.  

This judgment reinforces the principle that the Court will not hesitate to intervene if it considers that a public consultation process is flawed, or that relevant information has not been considered properly, prior to a final decision being made.  It is worth highlighting, that if the Council corrects the flaws of its earlier consultation process and demonstrates that it has taken GLL’s and any other alternative proposal put forward into account, it would be entitled to make the same decision as before.  A salutary lesson to be learnt from this case is that when conducting a public consultation an education sector body should ensure that all information put forward by consultees, including whether an alternative proposal to the one being consulted upon (which if accepted could, for example, necessitate a procurement exercise) should be put forward, is conscientiously considered by the decision maker before a final decision is made.