Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
Mrs Justice Whipple DBE
Between :
The Queen On the application of Brenda Page | Claimant |
- and - | |
Darlington Borough Council | Defendant |
Nicholas Bowen QC and David Lemer (instructed by Watkins and Gunn Solicitors) for the Claimant
Richard Clayton QC (instructed by Darlington Borough Council) for the Defendant
Hearing dates: 18th &19th June 2018
Judgment Approved
Mrs Justice Whipple:
Introduction
The Crown Street Library opened in Darlington in 1885. It was built as a library, and was gifted to the people of Darlington by the Pease family, a wealthy local Quaker family with links to the town. The original library building was extended in 1900 and 1930, by building on land also gifted by the Pease family. It is a grade II listed building which is significant for planning purposes because of its preserved interior and its continued use as a functioning library.
On 23 March 2017, Darlington Borough Council, Defendant to this claim, decided to close Crown Street library.
The decision to close Crown Street library is challenged by Brenda Page, who is a representative of the wider community of Darlington. She argues that the Defendant’s closure decision is vitiated by a failure to conduct a proper consultation process and is in breach of the Claimant’s legitimate expectation. The Defendant resists this application, arguing that the two consultations which took place before the decision was made were properly conducted, and denying that the Claimant has any legitimate expectation at all.
There is before me an application by the Claimant to further amend her grounds. I shall deal with that application in the course of this judgment.
Evidence
The Claimant filed a witness statement (dated 19 June 2017). She was supported by Sheila Harris (witness statement dated 19 June 2017), Yvonne Richardson (witness statement 20 June 2017), John Imperato (witness statement 19 September 2017) and Gemma McDonald (witness statements 27 February 2018 and 2 May 2018). The Defendant filed witness statements from Luke Swinhoe (dated 4 October 2017) and Paul Wildsmith (dated 20 April 2018 and 17 May 2018). I was taken to parts of the witness evidence during the hearing. I have (re)read it all in the course of writing this judgment.
The trial bundle comprised four lever arch files containing relevant documents and correspondence.
Background
In 2011, the Defendant commissioned a report on the options for Darlington Library Service. At that stage, the Defendant provided library services in three ways: at Crown Street, at Cockerton and by means of a mobile library. The purpose of the report was to present findings from a review of library services and to present options for the future provision of the services. Closure of Crown Street was amongst the options considered in that report.
That report was considered by the Defendant and led to the Darlington Library Plan 2012-15. This listed 7 options to save money; none of them included closing Crown Street.
On 11 February 2016, the Defendant launched a public consultation relating to a number of its services. It was facing a substantial cut in funding from government and needed to identify savings; the only way it could break even in the current year was to use reserves. It drew up a “medium term financial plan” (“MTFP”) to address the funding gap over the next 4 years. The wide ranging proposals contained within that plan were the subject of the consultation. The consultation and the changes proposed within it were widely publicised in the local press. So far as the proposals related to libraries, they included the closure of Cockerton, the ending of the mobile library, and the closure of Crown Street with a plan to relocate library services to the Dolphin Centre. The Dolphin Centre is a municipal complex, much of which was built in the 1980s. It stands in the market place in Darlington. It houses an Olympic size swimming pool as well as a diving pool and other sports facilities.
The Defendant held two public meetings to discuss the MTFP proposals on 16 March 2016. Two further meetings were held on the 23 March 2016 specifically to discuss the library proposals.. After that, the “Darlington Libraries Steering Group” was formed by local residents including the Claimant, who resisted some or all of the proposed library closures. The Steering Group was supported by an organisation called “Darlington for Culture” which had been set up some years earlier.
Darlington for Culture organised a meeting which took place on 7 April 2016 to discuss the library proposals. This was attended by Ada Burns, the Defendant’s Chief Executive. There was some discussion at that meeting about the possibility of saving Crown Street, possibly by allowing it to be run by volunteers from the community.
The following day, 8 April 2016, Ada Burns sent a letter to John Dean, the chair of Darlington for Culture who was also a member of the Steering Group. This is an important document. It states, so far as is relevant:
“I was glad to attend the meeting last night although had expected that it was arranged to do more substantive work on alternative models. Nevertheless following on I thought it would be helpful to confirm a few points and offer you some help these are set out below :-
• Consultation on the MTFP [Medium Term Financial Plan] finishes at the end of May so just to confirm that no final decisions will be made until Full Council on 29 June 2016.
• I imagine you may have this in hand but obviously prior to the end of May it would be good to see a written response to the consultation which may include such things as :-
…
◦ Alternative proposals for the Library service that would deliver similar savings to those being proposed (see below)
…
In terms of any alternative proposal you will have heard my note of caution last night about timescale, ie the longer the Council waits to achieve its revenue savings, the bigger the gap grows and the more cuts that will need to be identified. So it’s not an unwillingness to engage that is driving the timescale, but the very real pressure of the revenue budget.
I’d strongly suggest therefore and I know Paul Wildsmith has also expressed the same view; that the best prospect for an alternative model to be given serious consideration by Council is for it have substance and detail. Such a proposal may not be fully worked up but must give Council significant assurance that it has a chance of delivery. Should this be the case and obviously depending on feedback in respect of all the other budget proposals, Council may be in a position to allow a further short period of time to finalise the proposal.
To help you do this before the end of May, Paul Wildsmith and his team are more than happy to work with you over the next seven weeks to help you develop a proposal. I feel there would be a greater chance of producing a sustainable option if this happened, and in the immediate future if details of the information you might require were forwarded to us then we can get cracking preparing this.
In the meantime if you need any more information or have any more questions, please contact Paul.”
The Steering Group worked up a Business Case to preserve Crown Street. This was dated 24 May 2016 and was submitted to the Defendant on 25 May 2016. It considered, with comment and amendment, two of the Defendant’s options:
Option 1, which was to close Cockerton and the mobile library service, close Crown Street and relocate the library to the Dolphin Centre. The Defendant had suggested that savings of around £335,000 pa could be achieved by this plan, but the Business Case suggested that the savings were lower (at around £205,000pa) once various costs were taken into account, including the loss of opportunity and other costs at the Dolphin Centre.
Option 2, which was to close Cocketon and the mobile library but to retain Crown Street as the main library, refurbished to include a café. Once various costs and potential income streams had been taken into account, the Steering Group thought that this option would result in savings which were about £102,000 less than the savings under option 1 and might, once full costings were established, result in savings which were only modestly less than those projected for option 1.
The Steering Group also suggested a new option, option 3. That was the “community alternative option” which involved retention of the existing libraries at Cockerton and Crown Street, both re-designed as “community hubs”. Significant income was projected from a range of new services to be offered at these libraries including a café, room hire, children’s parties and themed events, pop up shops, and so on. The income was projected to be £150,000 by year 3, sustained at that level thereafter. This option involved the libraries being run by a charitable incorporated organisation (or CIO) with trustees from the community, largely reliant on volunteers for day to day management. Substantial savings against current annual expenditure were projected, ie £239,000 in year 1 rising to £299,000 by year 3. There were greater savings than either option 1 or 2 would generate.
Even after the Business Case was submitted to the Defendant, members of the Steering Group continued to engage with the Defendant about library services. In one email dated 28 May 2016, Gemma McDonald, a member of the Steering Group, wrote to Ian Thompson, an officer employed by the Defendant, with various further questions about and suggestions for use of the Dolphin Centre. She asked whether the Defendant had considered the income from a squash court which would be lost if the library was moved there, and separately raised again an earlier suggestion about using the space for a bowling alley instead of moving the library there, she suggested that the space at the Dolphin Centre might be better used for “noisy” activities for example a soft play area or trampolines for children, and finally she asked whether a small spa containing a steam room, jacuzzi and treatment rooms could be installed at the back of the building because that might prove popular.
Ian Thompson replied as follows on 31 May 2016:
“Gemma
At the moment neither Mike nor me have any time to commit to providing more information as we are tied up with a number of other projects and tight timescales. Depending on the final decision members make at the end of June with regard to the budget if they want to progress your alternative proposal then we will work closely with you. Sorry we cant be more helpful at the moment
cheers”
The Defendant’s consultation closed on 31 May 2016. The Defendant engaged independent consultants, PWC, to consider the viability of the Steering Group’s Business Case. A meeting took place between members of the Steering Group and PWC on 9 June 2016. PWC then reported to the Defendant on 10 June 2016. PWC concluded:
“Summary of findings and conclusions
Our detailed findings against each of the key assumptions are included below. In particular we identified three key areas where we felt there was currently insufficient evidence to support the assumed income levels proposed. There are:
• A number of the propositions rely on the use of the same assets and facilities presenting a clear risk of duplication in the assumptions;
• A number of assumptions and ideas are still very embryonic and therefore there is insufficient evidence and research to support the proposals; and
• There are a number of areas, in particular in relation to staffing and incidental expenditure associated with the proposals, where likely additional costs had not been fully considered.
In light of the above we did not feel there was sufficient evidence to support the proposed income levels set out with the business plan.”
The Defendant’s Cabinet met on 22 June 2016. The Cabinet noted the report which had been prepared to reflect the consultation responses. The Cabinet had before them, amongst other documents, a summary report on the library proposals prepared by the responsible cabinet member, Councillor Nick Wallis and the responsible director, Paul Wildsmith. The Cabinet also had the PWC report. The Cabinet resolved to relocate the library to the Dolphin Centre, to close Cockerton Library, to cease the mobile library, and to declare Crown Street as surplus to requirements and therefore free for disposal. This was to reject the Steering Group’s proposals (specifically, option 3), and also to reject option 2 which would have enabled Crown Street to remain open. It was, in essence, to adopt option 1.
At a meeting on 29 June 2016, the full Council endorsed the proposal and decided to move the central library service to the Dolphin Centre, with the closure of Cockerton library, the mobile service, and Crown Street.
The Claimant sent a pre-action protocol letter before action to the Defendant on 12 August 2016, challenging the consultation. In response, on 6 September 2016 the Defendant agreed not to implement the plan and agreed instead to carry out a more focussed consultation.
That second consultation was launched on 3 October 2016. It closed on 11 November 2016. That consultation sought “views how a relocated central library might look and operate”. It appended plans of how the new library, located at the Dolphin Centre, might look. On 5 December 2016, a meeting took place between members of the Steering Group and representatives from the Council. On 17 January 2017, the Defendant’s Cabinet met and resolved to proceed with the closure of Crown Street.
There was a procedural defect with the manner in which the Cabinet had taken its decision (which it is not necessary for me to rehearse because it has no relevance to the issues raised in this judicial review). The Cabinet therefore met again on 7 March 2017 to re-take the decision. The Cabinet resolved to relocate the library from Crown Street to the Dolphin Centre with the closure of Crown Street. In addition, it resolved to discontinue the mobile library. However, it decided to retain Cockerton Library as a community run library with funding allocated to support it.
On 23 March 2017, the Council met and supported the decisions made in Cabinet on 7 March 2017. The reasons for that decision were recorded as: (a) to enable the Council to achieve savings; (b) to meet the statutory obligation to provide library services, and (c) to enable the provision of an efficiently run and modern service which is responsive to the changing nature of library use.
On 22 June 2017, the Claimant issued the claim form. Permission was granted by King J following an oral hearing on 28 November 2017. He also granted the Claimant permission to file amended grounds.
Grounds of Challenge
There was some debate about the scope of the arguments for which permission had already been given (and in consequence, the extent to which further permission to amend was now required). The Amended Grounds are dated 8 December 2017 and they set out the grounds for which permission has already been granted.
Amended Grounds
Ground 1 alleges issues of “Fairness/Lack of Consultation” in the initial process from February to May 2016, this being the period of the first consultation. This is a challenge to the first consultation by reference to the Gunning principles (to which I shall shortly come). Within this ground, the Claimant advances a complaint (for which King J expressly gave permission) that the Defendant’s letter dated 8 April 2016 had created a legitimate expectation, which the Defendant had breached by its failure to provide the Steering Group with support and information to enable the Business Case to be developed (see [63] and [64] of the Amended Grounds).
Ground 2 relates to the second consultation. It is a challenge based on lack of fairness, in failing to include options 2 or 3 in the second consultation and in failing to take account of the views expressed by members of the Steering Committee on 5 December 2016. This too is put as a breach of the Gunning principles.
Thus, the Amended Grounds advanced arguments based on alleged deficiencies in the two consultations by reference to Gunning, and a distinct claim for breach of legitimate expectation.
Claimant’s skeleton
The Claimant’s skeleton strayed more broadly, making allegations of unfairness and alleging further instances of breach of the Gunning principles. But a skeleton argument is not a statement of case, and I cannot determine allegations advanced in a skeleton which are not pleaded. Mr Clayton QC (for the Defendant) had objected in advance of the hearing to the wider case advanced by way of skeleton. That resulted in Mr Bowen QC and Mr Lemer (for the Claimant) producing draft Reamended Grounds on 14 June 2017, one working day before the two-day substantive hearing of this claim was due to commence. The application to amend was issued on the morning of the second day of the hearing, on my prompt.
Application to amend the Grounds
The draft Re-Amended Grounds sought to expand Ground 2 by introducing the following two further allegations:
That the Steering Group should have been provided by the Council with a further opportunity to amend the Business Case and/or should have been informed that the Defendant would be prepared to reconsider an amended proposal. A reference was made to paragraphs 120-121 of the witness statement of Paul Wildsmith, for the Defendant. (This is paragraph 66b) of the Reamended Grounds.)
That the Council failed to take into account that the alternative proposal and/or suggestion that the relevant costs savings could be achieved through the operation of the Dolphin Centre by a charitable leisure management company. (This is paragraph 66A.b) of the Reamended Grounds.)
Mr Clayton resists any application to amend at this late stage. He points to the fact that the amendment is very late; that there is no good reason for this amendment being made so late, and there has been a very long delay given that the matters now challenged occurred over a year ago; that the Court has already been generous to the Claimant in permitting the grounds to be amended in December 2017; that the amendments lack merit in any event and would not have been granted permission if introduced earlier (and I should not now grant permission if I am persuaded to allow the amendment); and that the Defendant will be prejudiced if these allegations are admitted at this stage because the Defendant has had insufficient time to marshall its case in rebuttal.
I acknowledge that I have a discretion as to whether to permit the amendment, but having considered the application and arguments in support of it, I decline to exercise that discretion in the Claimant’s favour for any or all of the following reasons:
I am not satisfied that any good reason has been advanced for the amendments being made so late in the day. To the extent that the amendments respond to witness evidence (for example, to assertions made in the witness statement of Mr Wildsmith), that evidence has been in the Claimant’s and the Claimant’s legal team’s possession for some while now (his witness statement is dated 20 April 2018) and it would have been reasonable to expect an earlier application.
The Defendant would, at least potentially, be prejudiced by these amendments. Although the first (paragraph 66b)) is quite close in its content to other arguments which already form part of this case, still it is a new aspect to the Claimant’s case, and as a matter of ordinary procedural fairness, the Defendant is entitled to consider its response and adduce any further evidence it wishes to; it has not had that opportunity and should not be put “on the spot” to answer the allegation. The second (paragraph 66Ab)) raises a wholly new issue and it would plainly prejudice the Defendant to have to address the point without having a full opportunity to consider it and to adduce further evidence if so advised. The fact that the Defendant has, even in the short time available, managed to adduce some evidence setting out some rebuttal of the point is neither here nor there, because that is not a fully considered case in answer, but rather the product of what the Defendant could manage in the time available.
Further, the Claimant has already been given opportunities to clarify its case. King J gave the Claimant permission to amend the grounds. Even with the amended pleading, it has been difficult for the Defendant, and for me, to understand precisely how the Claimant’s case is put – much time and energy has been spent unnecessarily in that endeavour. King J also ordered the Claimant to provide a response to the Defendant’s request for further information, but in her response the Claimant failed to provide the particulars sought (asserting that the claim was sufficiently pleaded already) and referring to various paragraphs of the witness evidence. This was very unhelpful. I consider the request to have been properly made (as did King J, who ordered a response to it) and the response provided to have been wholly inadequate. The Claimant should not be further indulged.
There is no apparent merit in either of the amendments proposed.
The first proposed amendment (para 66 b)) relates to an alleged failure to permit the Steering Group an opportunity to amend its proposals during the course of the second consultation. As Mr Wildsmith says, the Steering Group was at liberty, at any time, to make further representations to the Defendant or to seek to amend its Business Case for consideration by the Defendant, and did not as a matter of law need to be told that it could do either thing.
The second proposed amendment (para 66A b)) relates to a yet further option which involved the Dolphin Centre being run by a charitable leisure management company. This proposal was different from the Community alternative option involving a CIO, option 3 in the Business Case. Ms McDonald put this further proposal to the councillors in an email dated 28 December 2016. It involved allowing a third party charitable leisure management company to run Crown Street. Ms McDonald had identified a company called “Tees Active”, which she said successfully ran leisure centres across the Tees Valley, as a possible target to undertake such a role at the Dolphin Centre. The Steering Group did not investigate it; it was simply put by Ms McDonald to councillors on the basis that the Council might want to investigate further. In fact, although some initial interest was shown by one councillor, no further investigation was put in hand. I fail to see how it can be said that thereby the Council breached its public law obligations (the Claimant’s case in relation to this further option is not expanded or explained, anywhere).
I refuse permission to amend. If I had granted permission to amend, I would in any event have refused permission for judicial review on these new grounds, given that I see no merit in either.
In consequence, this case will be determined on the basis of the Amended Grounds which were served in December 2017.
Legal Principles
Fair Consultation
The mainstay of the Claimant’s challenge to both consultations consists of alleged breach of the Gunning principles, a reference to R v Brent London Borough Council, ex p Gunning (1985) 84 LGR 168, where the Court recorded submissions advanced by Counsel about the requirements for a fair consultation. The relevant passage was cited with approval by the Supreme Court in R (Moseley) v Haringey LBC [2014] UKSC 56 at [25]. That passage has been cited in many other cases too. These are the Gunning principles: (1) consultation must be at a time when proposals are still at a formative stage; (2) the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response; (3) adequate time must be given for consideration and response; and (4) the product of consultation must be conscientiously taken into account in finalising any statutory proposals.
Gunning (1) was explained further by Wilkie J in Sardar v Watford Borough Council [2006] EWHC 1590 (Admin) at [29] as follows:
"The description “a formative stage” may be apt to describe a number of different situations. A council may only have reached the stage of identifying a number of options when it decided to consult. On the other hand it may wish to consult. In other circumstances it may have formed a provisional view as to the course to be adopted or may “be minded” to take a particular course subject to the outcome of consultations. In each of these cases what the Council is doing is consulting in advance of the decision being consulted about being made. It is, no doubt, right that, if the Council has a preferred option, or has formed a provisional view, those being consulted should be informed of this so as better to focus their responses. The fact that a Council may have come to a provisional view or have a preferred option does not prevent a consultation exercise being conducted in good faith at a stage when the policy is still formative in the sense that no final decision has yet been made. In my judgment, however, it is a difference in kind for it to have made a decision in principle to adopt a policy and, thereafter, to be concerned only with the timing of its implementation and other matters of detail. Whilst a consultation on the timing and manner of implementation may be a proper one on these issues it cannot, in my judgment, be said that such a consultation insofar as it touches upon the question of principle, is conducted at a point at which policy on that issue is at a formative stage.”
Legitimate Expectation / Conspicuous Unfairness
So far as the legitimate expectation is concerned, the Claimant argued that there was a close overlap between the obligation to consult and the claim based on legitimate expectation because both arose from the “underlying principle of fairness”. Reliance was placed on R (Bibi) v Newham LBC [2002] 1 WLR 237 at [19] and R (Nadarajah) v SSHD [2005] EWCA Civ 1363 at [68]-[69]. However, I did not understand Mr Bowen to shrink from Mr Clayton’s formulation of a statement which is capable of giving rise to a legitimate expectation, taken from R v IRC ex p MFK Underwriting [1990] 1 WLR 1545 at p 1570 per Bingham LJ, as being a statement that is “clear, unambiguous and devoid of relevant qualification”. Mr Bowen was content for this to be the yardstick by which his case that the Defendant had made a promise to the Claimant – which gave rise to a legitimate expectation – was to be measured.
But if the MFK threshold was not met on the facts, Mr Bowen put his case in a different and alternative way. He argued that this was a case where the Defendant had abused its powers by acting in a manner which was conspicuously unfair. He relied on Rowland v Environment Agency [2003] EWCA Civ 1885 where Peter Gibson LJ said at [68]:
It is not always a condition for a legitimate expectation to arise that there should be a clear, unambiguous and unqualified representation by the public authority (R v Inland Revenue Comrs, Ex p Unilever plc [1996] STC 681, 693-695, per Simon Brown LJ): the test is whether the public authority has acted so unfairly that its conduct amounts to an abuse of power.”
As Mr Clayton pointed out, however, the line of authority of which Rowland forms part has recently been reviewed by the Supreme Court in R (Gallaher) v Competition and Markets Authority [2018] UKSC 25. Lord Carnwath gave the leading judgment in which he referred to Unilever (the case cited by Peter Gibson LJ in the extract from Rowland above) as well as other cases in the same line of authority. He concluded as follows:
I have quoted at some length from these judgments to show how misleading it can be to take out of context a single expression, such as “conspicuous unfairness”, and attempt to elevate it into a free-standing principle of law. The decision in Unilever was unremarkable on its unusual facts, but the reasoning reflects the case law as it then stood. Surprisingly, it does not seem to have been strongly argued (as it surely would be today) that a sufficient representation could be implied from the Revenue’s consistent practice over 20 years (see eg de Smith para 12-021). It seems clear in any event from the context that Simon Brown LJ was not proposing “conspicuous unfairness” as a definitive test of illegality, any more than his contrast with conduct characterised as “a bit rich” They were simply expressions used to emphasise the extreme nature of the Revenue’s conduct, as related to Lord Diplock’s test. In modern terms, and with respect to Lord Diplock, “irrationality” as a ground of review can surely hold its own without the underpinning of such elusive and subjective concepts as a judicial “outrage” (whether by reference to logical or moral standards)
In summary, procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand – or, in Lord Dyson’s words at para53, “whether there has been unfairness on the part of the authority having regard to all the circumstances” – is not a distinct legal criterion. Nor is it made so by the addition of terms such as “conspicuous” or “abuse of power”. Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged.”
Mr Bowen accepted that Gallaher altered the legal framework for his arguments.
The position thus reached, which I understood to be common ground, was this: for the Claimant to succeed in this part of her case, she had to show as a starting point, either that she (as a representative of the steering group) received a promise from the Defendant which met the standard in MFK, ie, it was “clear, unambiguous and devoid of relevant qualification”; or that the Defendant had acted in a manner which was so unfair as to be irrational in light of Gallaher.
Two points follow: (i) there is no middle ground where general allegations of unfairness, falling short of breach of legitimate expectation or irrationality, could found a claim in public law; and (ii) nowhere did the Claimant plead that the Defendant had acted irrationally.
Ground 1
It is, at this point, necessary to have regard to the way the Claimant explained her complaints in the skeleton filed on her behalf. That skeleton did not even mention the two grounds. Instead, it set out a series of submissions in a sequence which was wholly unrelated to the pleaded case. This was rather confusing. The comparison of the skeleton with the Amended Grounds took up time at the hearing and afterwards.
I shall address the arguments in roughly the order in which they appeared in the skeleton, which is also the order taken at the hearing.
Legitimate Expectation
First, the Claimant argued that the Defendant’s letter of 8 April 2016 amounted to a legitimate expectation that (i) the Steering Group’s proposal did not need to be fully worked up; and (ii) that Mr Wildsmith and his team would work with the Steering Group over the next 7 weeks to help develop a proposal. It was asserted that the Defendant was in breach of both limbs of its promise, by its conduct thereafter.
I have set out above the full text of the 8 April 2016 letter. On its plain wording, the Defendant was not making a clear and unambiguous promise to do anything. The Defendant represented that it would consider any alternative proposal which had “substance and detail” but stated that the proposal must give the Defendant “significant assurance that it has a chance of delivery”. It was in this context that the Defendant said that the proposal “did not need to be fully worked up”. The Defendant then represented that it would “work with” the Steering Group to “help to develop a proposal”. This was an offer of help, but not of any particular type of help to be delivered in any specific way.
In my judgment, this letter does not give rise to any legitimate expectation on the part of the Steering Group. The representations made in the letter are not “clear and unequivocal”. To the contrary, they are rather unclear, and rather equivocal.
The case on legitimate expectation fails (I shall deal with the alternative iteration of the legitimate expectation argument – based on Rowland and Gallaher - below).
Secondly, the Claimant argues that insufficient time was given for the Steering Group to develop alternative proposals, given that the library-specific consultation events took place on 16 and 17 March 2016, only 7 weeks before the consultation closed, and meanwhile the Defendant was demanding to see counter-proposals which were sufficiently detailed to enable them to be assured that they had a chance of delivery (see the letter of 8 April 2016).
The first consultation was open for 16 weeks. It was a complex consultation, because the Defendant was inviting views on a large number of proposals. The library proposals were only one aspect. It was clear, by the middle of March at least, that the Defendant was considering closing the Crown Street library. At that point, there were still 7 weeks left. The Steering Group used that time to come up with its Business Case.
I am not persuaded that there was any breach of the Gunning principles here (Gunning (3) is relied on in particular). The time permitted, considered overall, was not so short as to render the consultation unfair. I was not shown any authority to suggest that 7 weeks (on the Claimant’s case) or 16 weeks (on the Defendant’s case) was insufficient. In any event, the period allowed for consultation has to be considered in context: the Defendant had to make some quick decisions if revenue savings were to be maximised and judged in the round, the time permitted was not unreasonable.
Mr Bowen argued that the Defendant should have given the Steering Group sufficient time for it to work up its proposals. I cannot accept that the Defendant was required to allow the Steering Group such time as it needed to work up the proposal, at its own pace: that would be an open-ended commitment for which I was shown no precedent and which, if required, would create obvious problems of delay.
The time permitted by the first consultation was sufficient; there is no breach of Gunning (3) or any of the Gunning principles in this respect.
Closed Mind
The Claimant argues that the Defendant breached Gunning (1) and (4) by the adoption of a firm plan before the consultation closed. This is said to be evidenced by the Defendant’s requirement in its letter of 8 April 2016 that the Claimant had to provide “significant assurance” that any counter-proposal had a chance of delivery, and by the Defendant’s failure to give the Steering Group a further opportunity to produce evidence following the meeting with PWC, which was itself convened at very short notice without advance warning of the focus of PWC’s concerns about revenue.
At the hearing, Mr Bowen concentrated on the proposition that the Defendant had not been open to the Steering Group’s suggestions. This was, so he argued, particularly evidenced by the exchange of emails between Gemma McDonald and Mr Wildsmith of the Defendant on 28 May 2016 and 31 May 2016 (set out above). This, he said, illustrated the Defendant’s obstructive attitude throughout the consultation period and beyond.
I am unable to accept that this exchange evidences, in and of itself, a closed mind on the Defendant’s part. As Mr Clayton submitted, Ms McDonald had emailed with an array of new suggestions on the eve of closure of the first consultation, which itself was a vast exercise involving many different issues and proposals and not limited to the library issue alone. Mr Thompson’s response, that he did not have time to provide more information to assist in the development of these various suggestions, was hardly surprising in those circumstances. Read in context, his response does not indicate unwillingness to consider alternatives.
But the Claimant’s point is a broader one. Ms McDonald complains that the Defendant, by Mr Wildsmith in particular, appeared to have formed an early view that Crown Street needed to close; she suggests that this view was unshakeable, no matter what options or information were put before the Defendant in the course of the consultation. She suggests that Mr Wildsmith’s evidence does not “paint the full picture” because the Council had firmly made up its mind and was not willing to consider alternatives (see paragraph 33 of her second statement dated 2 May 2018).
Mr Wildsmith answers this allegation. In his first statement dated 20 April 2018, he states in terms that he and the Council were willing to listen, throughout both consultations (see paragraph 106). The Steering Group’s business case was considered but not recommended to the Council in light of the PWC report: “Had I felt the business plan was likely to deliver the level of savings needed then very serious consideration would have been given to allow more time for the proposal to be further developed”. He also states that if important information had been received even after the Business Plan was submitted, during or after the second consultation, it would have been considered and submitted to Council members (para 120). He confirms that the Council did alter its plan after the consultation to accommodate some of the responses (para 128). He emphasises many of the same points in his second witness statement dated 17 May 2018, in which he refutes the suggestion that at any time his mind was closed (see paragraph 8).
Mr Wildsmith’s evidence was not challenged. There is nothing in the contemporaneous evidence before me which causes me to doubt it. There is simply no basis upon which I can find that he had closed his mind, as the Claimant invites me to do.
Further and in any event, the decision to relocate the library to the Dolphin Centre was taken by the full Council. It was not taken by Mr Wildsmith, or council officials, alone. The Council was aware of the consultation responses and the level of opposition to the proposals, and it was open to the Council to reject the proposal to relocate to the Dolphin Centre. It did not do that.
The Claimant’s argument that the Defendant approached the consultation (generally) and the Steering Group’s Business Case (specifically) with a closed mind must be rejected: it is simply not made out on the evidence. There is no breach of Gunning (1) or (4).
Ground 1 fails.
Ground 2
By Ground 2, the Claimant contends that the second consultation between 3 October and 11 November 2016 was defective. The Amended Grounds suggest, first, that the second consultation failed to cure the defects in the first consultation, but since I have found the first consultation to have been adequate, that point falls away. Secondly, it is suggested that in order for the second consultation to be valid, it necessarily had to include one, or other, or both of the two options in the Business Case (options 2 and 3) which would have resulted in Crown Street remaining open as a library. Third, it is said that the second consultation misrepresented the savings which would accrue by moving the library to the Dolphin Centre. Fourth, it was said that the Defendant failed to take into account information disclosed at a meeting on 5 December 2016 with the Steering Group. These are said variously to breach Gunning (1), (2) and (4).
These points were not addressed distinctly in the Claimant’s skeleton or in oral argument. But Mr Bowen told me that he was not abandoning any part of his written case. So, by way of answer to the way Ground 2 was pleaded in the Amended Grounds, and briefly:
It was permissible for the Defendant to consult on the single option of moving the library to the Dolphin Centre. It was not necessary to consult on alternatives (see eg R (Morris) v Rhondda Cynon Taf BC [2015] EWHC 1403 at [75] and see Sardar, cited above).
The point about the savings figure is addressed by Mr Wildsmith in his evidence. The saving from moving the library to the Dolphin Centre and closing Crown Street would have been roughly £300,000 pa. It was not incorrect or misleading to use that figure in the consultation documents. It is also right to say that if Crown Street had remained open, with changes to its operation, it appears to have been common ground that savings of up to £200,000 pa could be achieved. The Steering Group pointed out that the net saving (comparing options 2 and/or 3, the reformed Crown Street operation, with option 1, the relocation of library services to the Dolphin Centre) was in the region of only £100,000 pa or possibly less. I do not accept that the Defendant misrepresented the figures, or that if there was any inaccuracy in the figures relied on, it was in any way material to the consultation. Mr Bowen accepted that this was not his strongest point, and I agree. On any view, money could be saved by moving the library to the Dolphin Centre, and it was reasonable to evaluate the savings, at least in the first instance, by reference to the current cost of library provision.
The meeting on 5 December 2016 was minuted. The meeting ended with the Steering Group requesting the Defendant to indicate a direction of travel for a model which would facilitate the library remaining at Crown Street and seeking the Defendant’s cooperation in approaching the HLF and/or DCMS to look for funding support for those options. The Defendant said it needed to review and discuss the outcome of the second consultation and was willing to engage in further discussions. The Amended Grounds assert simply that the Defendant failed to take into account various matters raised at that meeting, but there is no further explanation of the Claimant’s case in relation to this meeting and I do not know what unlawfulness is alleged.
Ground 2 fails.
Other points not pleaded
At the hearing, Mr Bowen’s main focus was on these allegations: (i) the refusal to provide a greater amount of help to the Steering Group to develop the third option, which would allow Crown Street to remain open; (ii) the short time frame permitted to the Steering Group before the meeting with PWC; (iii) the failure to permit the Steering Group to make further representations to PWC before their report was finalised; (iv) the failure to permit the Steering Group to make further representations to the Defendant after the Defendant had received the PWC report and/or in the course of the second consultation. There were related points made, but I understood these elements to lie at the heart of the Claimant’s case at the hearing.
At certain points, Mr Bowen characterised these as breaches of the Gunning principles. In the context of the first consultation, I have already rejected them. But some of these points travel beyond the timeframe of the first consultation to the second consultation, in which case the answer is the same for reasons already given: there is no breach of the Gunning principles.
At other points, Mr Bowen focussed on these matters as instances of unfair treatment by the Defendant. He faces procedural and legal hurdles in advancing his arguments in this way: he had no permission for such a case (the references to “unfairness” in the Amended Grounds were all in the context of Gunning and not “free-standing”, see, for example, para 64); and in any event, he conceded that post-Gallaher such arguments were doomed to failure because unfairness, even conspicuous unfairness, was not a proper ground of challenge in public law; although he suggested that they could all be recharacterised as instances of irrational behaviour, there was no pleading to that effect. For all those reasons, the Claimant could not possibly succeed on these points.
But in any event, so far as the Claimant’s complaints are concerned, and having spent some time now on this case, I am not persuaded that anything has gone wrong here which could be seen as a public law error, however it is put. The consultations were fair; the Steering Group’s proposals were rejected for reasons which were at least reasonable; there was no duty to provide help and encouragement to the Steering Group, or more time to deal with PWC’s objections to the Business Case, or a further opportunity to respond; the Defendant was well aware of the strong opposition to the closure of Crown Street library, but it had a large budget deficit to fill. I would not criticise the way in which the Defendant went about making its decision even acknowledging that the decision was very disappointing for the Claimant and other members of the Steering Group.
Delay
In light of my decision on grounds 1 and 2, it is not necessary for me to address the issue of delay in any detail. If I had been with the Claimant on either of her grounds, I would not have dismissed this judicial review on grounds of delay. The Claim Form was issued on 22 June 2017, which was one day shy of the three month period following the decision on 23 March 2017. It was reasonable for the Steering Group to take time to marshall its challenge, which only became necessary once the final decision was taken.
Relief
I was addressed by Mr Clayton and Mr Lemer on relief, if I was with the Claimant in principle. Given my conclusions on each of the grounds, it is not necessary for me to rehearse those arguments or come to any view on whether I would have exercised my discretion to grant relief in this case.
Conclusion
I dismiss this claim for judicial review.