Tilley, R (on the application of) v The Vale of Glamorgan Council

This is a claim for judicial review of a decision of the Defendant, the Vale of Glamorgan Council, taken by its cabinet on 8 February 2016. By that decision, the Defendant resolved (1) to agree to establish five community libraries, including one at Rhoose, by 31 May 2016, (2) to delegate authority to the Head of Legal Services, in consultation with the Director of Learning and Skills and the Leader of the Council, to enter into the necessary legal agreements for the running of each library, and lease agreements and asset transfers where applicable and (3) in the event that a legal agreement could not be reached in relation to a particular library, to require that a further report be presented to the cabinet, together with an updated equality impact assessment, on the future of the library.

There were initially four grounds of challenge. In essence, these are as follows. First it is said that it was irrational to determine that the proposed community library at Rhoose would be viable without determining the minimum number of volunteers needed, and available, to staff the library. Secondly, it is alleged that the Defendant failed to consider the viability assessment prepared by Council officers of the revised business case for Rhoose Library. Thirdly, it is alleged that the Defendant failed to comply with its duty under section 7 of the Public Libraries and Museums Act 1964 (“the 1964 Act”) to provide a comprehensive and efficient library service for all persons desiring to make use of it. Fourthly, the Claimant contends that the Defendant failed to comply with its duty under section 149 of the Equality Act 2010 (“the 2010 Act”) to have due regard to certain matters. In addition, permission was given at the hearing to amend the claim form to enable the Claimant to contend that the Defendant was required by virtue of section 28 of the Children Act 2004 (“the 2004 Act”) to have regard to the best interests of the children affected by the decision and failed to do so.

This is the second claim for judicial review concerning the organisation of libraries in the Vale of Glamorgan. The first claim was considered by Elisabeth Laing J. in R (Tilley) v Vale of Glamorgan Council [2015] EWHC 3194. The full background is set out in detail in that judgment. In essence, the Defendant carried out a review of the provision of library services in its area with a view to effecting savings of approximately £500,000. That review recommended that certain libraries currently operated by the Council be operated instead by the local community. By August 2014 (although not initially), the libraries it was proposed be managed by the community included the library at Rhoose.

On 9 March 2015, the Defendant resolved to invite expressions of interest to run a community library and, if none was received for a particular library, granted delegated authority to close that library. In the event, expressions of interest were received for all the five libraries concerned, including Rhoose, and none of the libraries was closed. Elisabeth Laing J dismissed a claim for judicial review of the resolution of 9 March 2015. I was told that permission to appeal had been granted and an appeal is to be heard on 21 February 2017. I understand that the grounds of appeal include a claim that the Defendant failed to comply with its duty under section 149 of the 2010 Act in deciding on the course of action that it took in March 2015. Nothing said in this judgment is intended in any way to comment on any of the matters that are relevant to that appeal.

Further resolutions of the 9 March 2015 are relevant to subsequent events. Resolution (6) provided that if an expression of interest was received, authority was delegated to the Director of Learning and Skills, in consultation with others, to request that those expressing interest “be requested to submit a business case for the running of the library”. Resolutions (7) and (8) provided for the provision of assistance in the preparation of a business case and discussions between officials and those expressing interest. Resolution 9 provided:

“(9)

THAT subject to the outcome of Recommendation 6,7 and 8 above, a further report on the evaluation of any submitted business cases be reported to Cabinet in the autumn of 2015”.

Resolution 10 also delegated authority for the development and implementation of a phased restructuring of the library service to support the implementation of the recommendations.

The group expressing interest in running the library at Rhoose were requested to and did submit a business case. On 22 July 2015, a letter was sent by the relevant Council officer indicating that a business case:

“ will be assessed according to the extent that they –

Demonstrate the case for providing a community library

Optimise value for money

Are commercially viable

Are financially affordable

Are deliverable”.

Council officers also prepared what appears to be an internal document to assist in the consideration of the business cases. That indicated that the review would consider five distinct areas broadly reflecting those referred to in the letter of 22 July 2015 and set out above. Another internal document, described as an assessment tool, was also prepared. That indicated that a number of questions would be considered under each of the five areas. They included whether the group had committed to opening the library regularly for hours that were broadly in line with the library’s current hours. They also included consideration of whether there was evidence of volunteers to support the operation of the library. There is a handwritten note which appears to record the views of an unnamed officer or officers on the business case for a community library at Rhoose. There are five areas where further action is required, namely, confirmation of the terms of the lease for the library building, the strategy for information technology, the proposals for fees and charges, the accounts process and income generation plans. There is also a document for Rhoose in the form of a grid setting out 13 potential areas of risk, indicating whether the risk level was high, medium or low, and indicating the action to be taken. There are five areas where further action is said to be required. These broadly reflect the areas referred to in the handwritten document and refer also to the need for more work on income and costs issues with a view to ensuring that the project would be sustainable after 4 years. Those areas were further elaborated upon in an e-mail requesting a further draft of the business case.

A revised business case was submitted for Rhoose library in August 2015. That provided the name and the status of the group applying to run a community library for Rhoose. It described the proposals. It explained how a transition team had been formed to oversee the establishment of a community library in Rhoose. The transition team involved members with specialist skills in business planning, volunteering, marketing, financial management and legal issues. It proposed that an executive committee would take over the management of the library in due course. Section 4.2 of the revised business case dealt with the recruitment, training and management of volunteers. That section was materially identical to the section in the initial business case. No issue had been identified by Council officers in relation to volunteers on consideration of the initial business case and no further clarification on this issue had been sought. Section 4.2 of the revised business case said, in part, the following:

“1.

Recruitment: Volunteers will be recruited by a variety of means including advertising and through the services of GVS. The Library will implement a formal procedure for applications to become a volunteer – volunteers will be asked to complete an application form giving their details and indicating their preferred type of role and hours of activity. All volunteers will have a DBS check before beginning their active involvement and will receive an introduction review and an induction pack explaining the purpose of Rhoose Community Library group and operating mechanisms. Volunteers are currently being recruited, via Facebook, a survey and application form available in the library. The initial response is promising.”

The revised business case then dealt with the question of start-up costs and resources. It explained that the community library would look to the Council to provide start-up funding for the first three years and provided projections of the level of start-up funding anticipated. It dealt with financial projections and explained that the intention was to become self-financing by year four and, to achieve this, would look to a range of income-generating methods including local funding-raising events, grant applications and sponsorship from local companies. It gave details of the current negotiations on these matters. It provided financial projections for these matters. The revised business case dealt with other matters including its requirement that the freehold of the current library premises be transferred to the charitable company established to run the library.

The revised business case was considered by Council officers in August 2015. The only document prepared at that time is a further version of the grid format document. That has two further columns added. In relation to the initial five areas where further action was required, there was an additional column for details of the action taken and an additional column recording the level of risk. All five areas of previous concern had a record of the action taken and were now listed as low risk. It appears that no other document was prepared at or about the time of the meeting in August 2015 recording the views or the assessment made by officers. The reply dated 27 April 2016 by the Defendant to the pre-claim letter sent by the solicitors for the Claimant lists, and provides copies of, the documents created during the process of assessment of the revised business case. It refers to the second of the grid format documents but does not refer to any other document being prepared by officers during the August 2015 assessment of the revised business case.

A report was prepared for the Cabinet meeting on 8 February 2016. That report, and its appendixes should be read in full. The purpose of the report is said to be:

“1.

To enable Cabinet to reach a decision about the future of the libraries at Dinas Powys, Sully, Wenvoe, St Athan and Rhoose by –

The report recommended that the cabinet should consider whether to establish community libraries at each of the five existing libraries and, if it decided to establish a community library at one or more of those libraries, it should delegate authority to the head of legal services, in consultation with the director of learning and skills and the leader to the Council, to enter into the necessary legal agreements with the matter coming back to cabinet, with a further report and an updated equality impact assessment if a legal agreement could not be reached with one or more of the groups.

The report set out the reasons for the recommendations. It described in detail the background to the emergence of the proposals to establish community libraries. Under the heading “Relevant Issues and Options”, the report said this:

“16.

The business cases were assessed on 3 August by a group comprising the Cabinet Member for Adult Services and officers representing a range of services including libraries, finance, legal and estates. All five community groups were asked to revisit their business cases and address gaps or to clarify certain issues. Additional support was commissioned for one group where its business case was under developed and further advice was provided to the other groups as necessary. Five revised business cases were re-submitted by 24 August 2015, these can be viewed via the following links …... and a hard copy is available in the members’ room. Further assessment of the revised business cases was carried out on 26^th August 2015, and it was agreed that the gaps and issues previously identified had been addressed. The group considers all 5 of the revised business cases to run community libraries to be viable.

“17 Each group has requested start-up funding to ensure the viability of the library over the next 3-5 years and some stipulate that funding is also provided to address building condition issues in the building condition surveys carried out by the Council in 2015. The costs of addressing the building conditions at St Athan are significant. This together with the unsuitability of the building gave rise to a recommendation in the Library Strategy that the library at St Athan be moved to an alternative building. The St Athan community group wishes to continue running the library in the current building but asked that asbestos be removed from the building before it is transferred; this work was completed last year. The library at Wenvoe is owned by the Community Council which is responsible for any building related costs”.

The report then set out a table showing the start-up funding required from the Council for each of the five proposed community libraries for three years (2016/2017, 2017/2018 and 2018/2019). The figures for Rhoose were £5,000, £2,500 and £1,250 for those years respectively, giving a total start-up funding for Rhoose of £8,750. The building funding requirement showed a figure of £1,820 for year 1.

The issues and options sections of the report continued as follows:

“18.

The establishment of community libraries at Dinas Powys, Sully, St Athan and Rhoose will require the transfer of the building (asset) to the relevant community group from the Council. With regard to Sully library which is currently leased by the Council, the lease will need to be transferred… The Council owns the library buildings at Dinas Powys, Rhoose and St Athan on a freehold basis: there are options to transfer these assets on either a long term lease or a freehold basis. The nature of the community asset transfer for Dinas Powys, Rhoose and St Athan would be subject to negotiations with the relevant groups/organisations and will be developed in line with the Council’s Community Asset Transfer Protocol …..

“19.

The analysis (Appendix B) of the Council’s ability to meet its section 7 duty to provide a comprehensive and efficient library service concludes that the duty can be met by providing the service from the four town libraries. Thus the 5 proposed community libraries are not required for the Council to fulfil its obligation to deliver the statutory service. Nevertheless, it is considered that if the community libraries are delivered on the terms of the agreements presently envisaged, those libraries will also fall within the scope of the statutory service. As such, the 5 proposed libraries would enhance this service, provided that service delivery standards are good. Given the level of support the Council will be providing, it is anticipated that the performance of the community libraries can be maintained and improved in some instances. The libraries will be required to provide relevant data on performance for inclusion in the Council’s annual returns to the Welsh Government on performance against the Welsh Public Library Standards.

“20.

The level of support to be provided by the Council, the service to be delivered by the community libraries and other details would be set out in the legal agreement which should be put in place prior to transfer. Such an agreement would cover a wide range of areas including” [and a list of matters are then set out].

The report then considers the resource implications in detail noting, amongst other things, that the reshaping of the library service was estimated to deliver savings of £525,000 over 2015/2016 and 2016/2017 (and a detailed breakdown is provided in an appendix to the report). This section also deals again with the amount of start-up funding to be provided by the Council to the community groups and the estimated cost of addressing building conditions at three of the proposed libraries including Rhoose. The report has sections on other matters including the duty to provide a comprehensive and efficient library service. That refers to the assessment in appendix B to the report which concludes that the Council:

“will continue to provide a comprehensive and efficient library service under the provisions of the Public Libraries and Museums Act 1964 and in accordance with the Welsh Public Library Standards. These provisions can be met through the 4 town libraries alone with the 5 proposed community libraries contributing to an enhanced service”.

Paragraphs 48 to 59 of the report deal with equal opportunities issues. They set out the duties of the Council under section 149 of the Equality Act 2010 (“the 2010 Act”). They explain how the decision-maker should approach the question of establishing community libraries in a way which would ensure compliance with the duty imposed by section 149 of the 2010 Act. They refer to the equality impact assessment on the proposal to introduce community libraries which was attached as Appendix Ei of the report and the summary of possible adverse impacts and how those might be mitigated at Appendix Eii. The report explains the steps taken to investigate whether establishing community libraries would result in gaps in service provision or some other adverse impact on those possessing the characteristics protected by section 149 of the 2010 Act. Paragraph 56 of the report noted that officers would be working with community groups to ensure current standards of service delivery were maintained and that the obligation under section 149 of the 2010 Act would continue to be addressed during the process of determining the terms of the legal agreement for the provision of each community library. At paragraphs 58 and 59, the report says this:

“58.

Given that the services would be maintained and even enhanced by the community libraries it is not expected that the establishment of community libraries will ultimately adversely affect the persons in any of the protected groups. It is possible that the particular model of community library could have a positive impact on certain protected groups, dependent on the type and success of supplementary services introduced. For example, the St Athan group is looking to develop additional services and activities for elements of the community not currently provided for, such as a networking group for people who work from home, informal interest groups to bring forces families which are based at Athan together with the local community and a teenager hangout and activities resource. These interest groups have the potential to positively affect people from all of the protected groups. A number of other examples are set out in the Equality Impact Assessment (EIA) in Appendix Ei.

“59.

Although the Council would work in partnership with community groups to ensure the on-going sustainability of each library it should be recognised that due to a variety of reasons it is possible that a library could fail in the future resulting in its closure. Should any of the 5 proposed libraries proposed as community libraries close in the future, that would be capable of having an adverse impact on certain protected groups. The potential for adverse impacts as a result of establishing community libraries on groups with protected characteristics and proposed mitigating actions to address them should they arise are set out in the summary of the Equality Impact Assessment in Appendix Eii. It is summarised in the following table…..”

The report then identifies groups, namely older people, children and young people, adults of working age, the disabled, and females, identifies the potential adverse impact for each group, and then sets out actions that could mitigate that impact.

There are a number of appendices to the report. Appendix B to the report deals with the provision of a comprehensive and efficient library service. It provides a detailed review of the duty under the 1964 Act, and how it was to be met. It analyses the performance of the Council’s library services by reference, amongst things, to the standards set by the Welsh Government in the discharge of its duties under the 1964 Act to superintend and promote the improvement of the public library service provided by local authorities and to secure the proper discharge by those authorities of their functions. The appendix concludes that the Council could meet the Welsh Government standard whereby 75% of the resident population is within 2.5 miles or 10 minutes by public transport of a public library (described in the report as a library service point). The appendix concluded that the Council would, in fact, meet that standard if only the 4 main town libraries were open (that is, Barry, Penarth, Cowbridge and Llantwit Major). The appendix provided details on, amongst other things, the number of visits to libraries, library membership and the number of active borrowers at all nine libraries (the four town libraries and the five libraries that might become community libraries under the proposal) and an analysis of financial, staffing, maintenance and other matters.

Appendix D to the report comprised a library needs assessment. That document was said to have three aims, namely (1) to provide key demographic information, including economic, social deprivation and other factors to identify potential needs (2) to provide an overview of libraries and how, and by whom, they were used (3) to provide information on library user needs across all age ranges and of those who may be more vulnerable or have specific needs that may impact differently on people covered by the public sector equality duty imposed by section 149 of the 2010 Act. The assessment then seeks to analyse each of the nine libraries catchment areas by population according to age (both in terms of older people and children), those who might be classed as suffering deprivation, those who might be classed as economically inactive, race, gender, religion and belief, the disabled and those with other specific characteristics. The appendix considers the transport position in the Council’s area noting that there was a limited bus network and no evening or weekend bus service in the area. It noted that responses to the consultation indicated that some users would experience “difficulty in reaching a library outside their community due to mobility, hearing or sight related issues”. There was a detailed demographic analysis of each of the nine libraries including Rhoose. The analysis for Rhoose noted that, on the information available, there were a total number of users of 2,072 (of whom 716 were active borrowers). It considered the composition of users by age group, gender, the number of Welsh language speakers and learners and those with a disability, noting that there were two users with a learning disability, two with a movement disability, five with a walking disability, three with a hearing impairment and six with a visual impairment

Appendix E1 to the report comprised an equality impact assessment. It summarised the duty of the Council under section 149 of the 2010 Act. It then reviewed matters, having regard amongst other things to the information included in other appendices to the report. It also considered the position if the five libraries that might become community libraries were in fact to close and noted that this would impact on the ability of certain sections of the community to visit libraries in other areas, in particular, children, parents and carers of young children, people with disabilities and older people. The appendix considered the position in relation to Rhoose (and three other libraries) where the local primary school was situated next to or in close proximity to the library and made use of the library through class visits and after school use. The appendix noted that the community groups were committed to maintaining access for school visits and the provision of on-line facilities for research and homework and would be supported by the peripatetic librarians in maintaining particular activities for young children. If a proposed community library were to close in the future, the appendix set out certain mitigating actions that could be taken, including the provision of regular book deposits for children to borrow books from school and the provision of library resources to support school projects and homework. The appendix also dealt in detail with the possible impact of establishing a community library (or future closure of a library) on other groups including (but not limited to) older people and the disabled. Possible adverse impacts were identified and possible mitigating action set out. The potential impact on particular groups, and the mitigating actions, cross-referred to the sections in the equality impact assessment, were then summarised in a table contained at appendix Eii.

The cabinet met to consider the issue on 8 February 2016. The minutes of the meeting records the information provided to members. The report was presented to the members. Members were asked to, and did, confirm that they had considered and digested the report, the appendices (including the equality impact assessment, the needs assessment and the analysis of how the Council intended to meet its duty under the 1964 Act). The members were told that the business cases which had been assessed as viable by officers were available by reference to a hyperlink included in the report and in hard copy in the members’ room. Members were asked to consider these and confirm that they were content with the information provided in the business cases. The meeting specifically considered, amongst other things, the duty under the 1964 Act to provide a comprehensive and efficient library service. The meeting was also specifically reminded to consider the Council’s public sector equality duty under section 149 of the 2010 Act when reaching a decision on the proposals outlined in the report. Members’ attention was specifically drawn to relevant sections of the report explaining what members needed to have regard to, the detailed assessment in Appendix D to the report and the equality impact assessment appended to the report. Members confirmed that they had had regard to these matters. Members then asked various questions. These included questions on the mechanism by which the officers had assessed the business cases to be viable and were told they were assessed by reference to agreed criteria and were rated as high, medium or low risk, and where risks were identified in particular business cases, the community group were asked to address those risks and submit a revised business case. Various other matters were raised. One of the issues raised was what would happen if a community library could not be sustained in the future. The minutes note that, amongst other things, the members were told that the proposals sought to avoid the closure of libraries and the report was based on that premise. It noted that the Council were providing one-off set up funding as well as continuing support in the form of professional librarians who would be based at the library for 50% of the opening hours and professional support from the town libraries and book stock but that the Council would not be able to provide additional funding in the future. At the end of the meeting, the leader also explained that the Council would work in partnership with community groups to ensure the continued sustainability of each library but it should be recognised that it was possible for a library to fail in the future resulting in its closure. Members were told that should any of the five libraries proposed as community libraries close in the future that would be capable of having an adverse impact on certain groups and specific reference was again made to the summary of equality impact assessment at appendix Eii to the report.

The cabinet resolved as follows:

“(1)

That having regard to the content of the report, the appendices to the report and the content of the Business Cases submitted by the community groups, the establishment of community libraries at Dinas Powy, Sully, Wenvoe, St Athan and Rhoose by no later than 31 May 2016 be agreed;

(2)

That following resolution 1 above, delegated authority be granted to the Head of Legal Services in consultation with the Director of Learning and Skills and the Leader of the Council, (a) to enter into legal agreements for the running of each library; (b) to enter into lease agreements and (c) to agree the transfer of assets where applicable;

(3)

That subject to the establishment of legal agreements for running each library, the transfer of up to £97,310 be approved to the community groups to cover set up costs and building maintenance and development, from the Library Fund at such date each group/organisation was constituted and a legal agreement was in place;

(4)

That in the event a legal agreement could not be reached with one or more of the community groups a further report about the future of the library in question be presented to Cabinet together with an updated Equality Impact Assessment addressing the future of the library in question which should include the option of closure;

(5)

That a copy of the report be sent to all elected Members, Clerks of Town and Community Councils, Members of the Voluntary Sector Liaison Committee, Community Liaison Committee and the Local Service Board for their information and in order to provide an update on the establishment of community libraries;

(6)

That a progress report be presented to Cabinet once the community libraries had been in operation for a year.”

A legal agreement relating to the establishment of a community library for Rhoose had not been finalised at the date of the hearing of this claim for judicial review. A draft service specification has been prepared which provides for the library to be open for not less than 10 hours and not more than 30 hours.

A claim for judicial review was issued on the 6 May 2016. That sought to challenge what is described in the claim form as “the decision for Rhoose Library to become a community led library”. The date of the decision is given as the cabinet decision of 8 February 2016. Permission was granted on 3 June 2016 and the Defendant was ordered not to enter into any legal agreement for the establishment of a community library at Rhoose pending the outcome of the application for judicial review unless any such agreement made sufficient agreement for the possibility that the Claimant’s claim was successful. The hearing of the claim took place on the 28 and 29 July 2016. Permission was granted to the Claimant at the hearing to amend paragraph 55(h) of the claim form so that the allegation of a failure to consider the best interests of the child referred to section 28 of the Children’s Act 2004, read with Article 3 of the United Convention on the Rights of the Child (the “UN Convention”) and not, as originally claimed, section 1(1) of the Rights of Children and Young Persons (Wales) Measure 2011 which deals with obligations of the Welsh Ministers not local authorities such as the Defendant.

Against that background the grounds of challenge as amended raise the following five issues, namely in approving the proposals for a community library:

The Claimant’s first ground of challenge concerns the approach adopted to the question of whether there would be sufficient volunteers available to enable a community library to open for broadly the same number of hours each week as the Council-run library currently opens. The principal criticism made is that the Defendant irrationally concluded that the business case for establishing a community library at Rhoose was viable without considering the number of volunteers required compared with the number of volunteers proposed. That criticism is phrased in different ways. The Claimant submitted that the position was one where there was a lack of support for a community library in Rhoose but the library was to be staffed for 50% of the opening hours by a Council-employed peripatetic librarian with the remaining opening hours been provided by volunteers. Thus, the Claimant contends, the Defendant should have been aware of the critical importance of the availability of sufficient volunteers for a community library to be viable. Yet, it is submitted, the Defendant did not set any minimum number of volunteers necessary for a community library to be viable, the revised business case did not identify the number of volunteers required or available, and the Defendant itself made no assessment of the number of volunteers needed to enable the scheme for a community library to be viable. Thus, it was submitted, the Defendant acted irrationally in agreeing to establish a community library at Rhoose without consideration of the number of volunteers it considered necessary to run a community library or the number of volunteers available.

The proposal that the cabinet was considering at its meeting on 8 February 2016 was whether to establish a community library at Rhoose and, if it decided to establish such a library, to delegate authority to the appropriate officer, in consultation with others, to enter into a legal agreement relating to the running of the library. Further, if a legal agreement could not be reached, the matter would then be subject of a further report to, and further consideration by, the cabinet. Any further consideration would include the option of closure of the library. In the context of that proposal, the cabinet asked for information on the viability of the business case submitted by the relevant community group proposing to run the library.

In the present case, the revised business case submitted in August 2015 stated that volunteers would be recruited to operate a community library at Rhoose. Section 2.3 of the revised business case noted that it was “clear from the consultation responses to the Vale of Glamorgan Library Strategy Review that people living in and around Rhoose are very passionate about their local library services and wish to keep the local branch open”. The revised business case dealt with management of the library and explained how a transition team of volunteers with specific skills in particular areas had been established. In relation to volunteers, the revised business case noted that volunteers would be recruited by a variety of means, and gave examples. It noted that volunteers were currently being recruited via a number of means and the “initial response is promising”. The text of this section of the revised business case is set out at paragraph 10 above. The Defendant’s officers, in the report to cabinet, had not drawn attention to any perceived problem or difficulty in relation to volunteers.

In the circumstances, it was not irrational for the cabinet to consider that they were satisfied that the proposal for a community library at Rhoose, operating for broadly the same number of hours as the present Council-run library, was viable and a community library could be run by volunteers and a peripatetic librarian working for 50% of the library’s opening hours. It was not irrational, therefore, to resolve to establish a community library at Rhoose and to delegate the making of a legally binding agreement relating to the operation of the library to an appropriate officer. If it transpired that there were difficulties in reaching a legally binding commitment, for example, if suitable opening-hours could not be agreed because the community group were not, in fact, able to be sure that they had recruited the number of volunteers needed, the matter would then come back to the cabinet for further consideration. That is not an irrational approach. There was no legal duty on the Defendant to identify the minimum number of volunteers required before agreeing to establish a community library or to require evidence that that number had been recruited or were available. It was not irrational for the Defendant to proceed on the basis that the community group proposing to run the community library considered that they would be able to recruit sufficient volunteers, had taken steps to recruit volunteers and considered that the initial response was promising. It was not irrational, in those circumstances, for the cabinet to decide to establish a community library and to authorise officers to enter into a legally binding agreement. There were other ways in which the process of establishing a community library could be undertaken and other local authorities might have chosen to undertake the exercise in a different way. The fact that other authorities might have carried out the process differently does not, however, make the approach of the Defendant irrational. In the circumstances, the approach it adopted was rational and one it was entitled to take if it chose to do so.

Mr Williams Q.C., on behalf of the Claimant, made a number of points which, he submitted, reinforced his submission that the approach to the question of volunteers were irrational. All the points made by Mr Williams have been considered. His principal additional points were these. It is said that those putting forward the business case had what are described as serious misgivings about the viability of their business case and had informed the Defendant of this. First, and in any event, the cabinet was entitled to rely on the information actually included in the revised business case. Secondly, the evidence relied upon by Mr Williams does not, in fact, support the contention that the Defendant was told that those submitting the business plan had serious misgivings about their ability to recruit sufficient volunteers. The evidence relied upon is said to be contained in a witness statement prepared by Mr Adam Riley. That statement refers, amongst other things to an e-mail sent on 24 June 2015, that is, before the original or revised business case was submitted. The extract of the e-mail set out in the witness statement indicates, in general terms, that further information was needed to enable the group to evaluate whether a community library was a viable proposition. Mr Riley says that this e-mail indicates that the group had doubts as to the viability of the plan. The extract from the e-mail does not make reference to any specific concerns about the issue of volunteers. In any event, the group did subsequently submit a business case and, following discussions with officers, a revised business case. The Defendant was entitled to proceed on the basis of the information included in the revised business case of August 2015.

Next, the Claimant asserts that the only suggestion as to the appropriate number of volunteers was made by Mr Borsden, the operational manager for, amongst other things, library and information services for the Defendant. He said that 60 volunteers were needed. Mr Williams submitted that there was no evidence that 60 volunteers would be found and, therefore, it was irrational to conclude that the business case was viable. It is clear from the evidence of Ms Ham filed on behalf of the Defendant that the reference to 60 volunteers was made at a meeting in May 2015. In the course of that meeting, Mr Borsden referred, by way of example, to another community library at Little Chalfont in Buckinghamshire which had been established in 2006 and which, by 2010, had approximately 60 volunteers running the library without any assistance from Council-employed librarians. There is no basis on the evidence to conclude that Mr Borsden was seeking to identify the likely number of volunteers needed for a community library at Rhoose and it is not, therefore, possible to treat any failure to establish whether there would be 60 volunteers as evidence of any irrationality. Next, the Claimant’s skeleton argument asserts that members of the group were told at a meeting on 23 May 2016 that the peripatetic librarian did not work on Mondays or Saturdays. The skeleton argument points out that the library was currently closed on Tuesdays and Thursdays. Thus, it is said, the Defendant will not be able to provide support for 50% of the opening hours and, it is said, this undermines the assessment of viability. The question of whether or not a librarian would be able to work on Mondays or Saturdays is disputed and the court does not have the factual material necessary to resolve such a dispute, even it were appropriate for it to seek to do so. However, the position is that the Defendant proceeded, at its meeting on 8 February 2016, on the basis that it would provide a librarian for 50% of the opening hours of the library. That remains the position as is clear from paragraph 23 of the second witness statement of Ms Ham. The precise way in which that will operate, and the days upon which the community library will open, will be matters for detailed decision or agreement. The points relied upon by the Claimant do not establish any irrationality in the way that the Defendant approached the question of volunteers in its decision of 8 February 2016. Submissions were also made as to whether or not as at May 2016, or at the time of the hearing, sufficient volunteers had been or were likely to be recruited. The issue in relation to this ground is whether the Defendant acted irrationally on 8 February 2016 in deciding to establish a community library at Rhoose and to delegate authority to make a legally binding agreement relating to the running of the library (with the matter returning to cabinet if such an agreement could not be reached). The precise factual position as to how many volunteers have been recruited at various dates after that meeting does not assist in the resolution of the question of whether the cabinet acted rationally, on the basis of the material available in February 2016, in deciding to establish a community library.

Finally, in this regard, the Claimant contends that the officers assessed the viability of the business case on the basis that the library would be open for a minimum number of 12 hours a week and that was erroneous. That contention is based on a comment made by Ms Ham in her first witness statement which she admits, in her second witness statement, was made in error. Ms Ham makes it clear that the officers in fact assessed the business case on the basis that the community library would be open for broadly the same number of hours (that is 27 hours a week) as the present Council-run library. It is clear that the revised business case proposed that the community library would operate for the same number of opening hours as were currently available (see section 4.5 of the revised business case). It was that business case that the officers assessed and considered to be viable. More importantly, it was that revised business case that the cabinet considered at its meeting on 8 February 2016 and it was on that basis that the cabinet decided to agree to establish a community library at Rhoose. The Claimant also referred to the draft service specification for the proposed community library. That was, it seems, drawn up after the decision of 8 February 2016. It states that opening hours would be established by the community library and agreed in a transfer agreement and any changes would be subject to discussion and agreement with the Defendant. It notes that the library must be open for a minimum of 10 hours and no more than 30 hours. It is clear that the Cabinet proceeded on the basis that the community group proposed that the library be open for the same number of hours as the Council-led library. There is no basis for concluding that the draft service specification indicated that the cabinet (or the officers when they considered the revised business case) proceeded on the basis that the library would be open for 10 hours a week only. There is no evidential basis for contending that consideration of the viability of the business case was made on an erroneous basis. For all those reasons, this ground of challenge is not made out. The Defendant did not act irrationally in the way it approached the question of whether there would be sufficient volunteers to staff the library.

The second ground of challenge is that the cabinet did not, or could not, assess the viability of the revised business case for the establishment of a community library at Rhoose. The Claimant submits that the cabinet were simply told that the officers had assessed the revised business case (for Rhoose and the other four proposed community libraries) and had concluded that they were viable. The Claimant contends that the cabinet were not supplied with any copy of an assessment and were not given any detail or analysis of the viability of the revised business case. The Claimant relied upon the decision of the Court of Appeal in R (Hunt) v North Somerset Council [2014] L.G.R.1, especially at paragraphs 82 to 85 (an appeal went to the Supreme Court but not on this issue) and the decision of Elisabeth Laing J. in the first judicial review in this case, R (Tilley) v Vale of Glamorgan [2015] EWHC 3194 (Admin.), especially at paragraphs 54 to 55. In those circumstances, the Claimant submits that the Defendant did not, or could not, assess the viability of the proposal to establish a community library for Rhoose and acted unlawfully in deciding to establish such a library.

First, in my judgment, the Cabinet did approach the decision on whether to establish a community library on the basis that the viability of the revised business case was a material consideration which they wished to take into account when reaching its decision. That follows from the resolution of 9 March 2015 when the Cabinet resolved that expressions of interest be invited from those wishing to establish a community library and, if such expressions were received, the individuals involved should submit a business case for the running of the library and, importantly, that “a further report on the evaluation of any submitted business case be reported to the Cabinet”. It is implicit, in my judgment, that the Cabinet did consider that the viability of a business case was a consideration which they wished to consider and take into account when deciding whether to establish a community library. That conclusion is reinforced by the fact that the report submitted to the Cabinet for its meeting on 8 February 2016 was to enable the Cabinet to reach a decision on the future of five libraries, including Rhoose, and, in part, to provide “information on the viability of business cases submitted by community groups”. Furthermore, the minutes of the meeting of 8 February 2016 confirm that the attention of the members was drawn to the business cases and members were asked to raise any points of concern or questions or issues arising having considered those business cases. Questions were put at the meeting on the issue of viability. All that evidence demonstrates, in my judgment, that the Cabinet did regard the viability of the business case for each library to be material to their decision so that they would need to form a view on that issue before deciding whether or not to establish a particular community library.

Secondly, the Court therefore needs to identify the relevant principles, and their application to the facts of this case, to determine whether the Defendant could, and did, consider the question of the viability of the revised business case. The report to the cabinet, supplemented if appropriate by further information provided at the meeting, would need to provide adequate information to enable the members to reach a conclusion on the issue of viability. Furthermore, in the circumstances of this case, if there were significant concerns on the part of the officers as to viability, those particular concerns would need to be drawn to the attention of the members of the cabinet. That approach appears from, amongst other decisions, that of Richards J. as he then was in R (Georgiou) v Enfield London Borough Council [2004] LGR 497. There, a planning committee of a local authority was considering planning permission and listed building consent in respect of a listed building in need of repair. One of the Council’s planning officers who considered the applications had significant concerns about certain highways issues and, in particular, considered that the proposed access did not comply with relevant planning policies. The report to the planning committee, however, did not refer to those concerns and gave the impression that highways issues were not a problem. Richards J. held that the report needed to provide adequate information to the members, and to draw attention to significant concerns on the part of the officers. As the report did not do that, it was materially deficient and misleading and resulted in the committee proceeding on a mistaken factual basis and failing to have regard to a material consideration. A similar approach was adopted in the different, but analogous, context of how much information a minister needed to be provided with in order to reach a decision in R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154. As Sedley L.J., with whom Keene L.J. and Bennet J. agreed, said at paragraph 62 of the judgment:

“….. a minister who reserves a decision to himself – and equally a civil servant who is authorised to take a decision must know or be told enough to ensure that nothing that is necessary, because legally relevant, for him to know is left out of account. That is not the same as a requirement that he must know everything that is relevant. Here, for example, much that was highly relevant was appropriately sifted by the Commission in formulating its advice and then distilled within the department in order to make a submission to the minister which would tell him what it was relevant (not simply expedient or politic) for him to know. What it was relevant for the minister to know was enough to enable him to make an informed judgment.”

That approach accords with the approach of Elisabeth Laing J. in the first judicial review in this case. The judge there was dealing with a consideration, the need to have due regard to the need to eliminate discrimination and advance equality of opportunity and foster good relations, that the law (section 149 of the 2010 Act) required the decision-maker to take into account. The judge held that the report in issue there did not contain any analysis of the proposal by reference to the needs referred to in section 149 of the 2010 Act and it was misleading as it did not draw attention to the conclusions of the equality impact assessments in respect of specific areas which indicated that the proposals would have an adverse impact. The judge considered that not much was needed but members were given no assistance by the report or at the meeting about why they should look at the equality impact assessments or what they would find there. On the facts, therefore, the judge considered that the report did not perform its function of enabling members to reach an informed and lawful decision: see paragraphs 52 to 54 of the judgment in R (Tilley) v Vale of Glamorgan [2015] EWHC 3194 (Admin.). Furthermore, it may be permissible to infer that councillors will have read a document where they have been given a copy of the document or if they have been expressly referred to it and advised that they need to have regard to it. It may not be possible, however, to infer that they have read an ancillary document if they are not advised to do so. Thus, it could not be inferred that councillors would have read an equality impact assessment for the purposes of discharging their duty under section 149 of the 2010 Act when its contents were summarised in an appendix but they were not provided with a copy and not expressly or impliedly told to consider the contents of the document itself: see R (Hunt) v North Somerset Council [2014] LGR 1 at paragraphs 82 to 84.

Both of those decisions dealt with considerations that a decision-maker was required by law to take into account. In the present case, the court is concerned with a consideration, the viability of the business case for a community library, which the decision-maker chose to take into account. In my judgment, similar principles apply where a consideration is material because it is one which the law requires the decision-maker to take into account and where a consideration is one that may legitimately be taken into account and the decision-maker does in fact choose to take it into account.

Thirdly, the question is whether, in the particular factual circumstances of this case, the Cabinet was adequately informed of relevant information relating to the question of the viability of the revised business case for Rhoose. In that regard, the cabinet had a copy of the revised business case for Rhoose (and were advised that they needed to consider that document). They also had the report. Paragraphs 11 to 15 of the report dealt with the background, the request for expressions of interest and the assistance that the Council was prepared to provide if it decided to proceed with support (that included, transfer of existing books and replenishment, a peripatetic librarian for 50% of opening hours, additional advice and guidance, transfer of the building or the grant of a long lease, assistance with building costs, and one off start-up costs). The report then contained three paragraphs – paragraphs 16 to 18 set out above – dealing with relevant issues and options. Those paragraphs confirmed that officers had assessed the business cases, had requested revised business cases and had confirmed that the business cases had addressed gaps and issues identified and the officers were satisfied that all the business cases submitted (which included the revised business case for Rhoose) were viable.

The report then dealt with the amount of start-up funding requested to ensure the viability of each library over the next 3 to 5 years and the need for funding to address building issues. The amounts needed for each of the five libraries were identified in the report itself. Paragraph 18 of the report then dealt with the current library premises for each proposed community library and, in the case of Rhoose, noted the Defendant owned the building and options were to transfer the building or grant a long lease to the community group intending to run the library. The members were not referred to any other document. In any event, it seems there was no written record of the assessment carried out by the officers of the revised business case. The only other document relevant to the assessment of the revised business case was the final, completed document in grid form referring to the action taken and the assessment of risk (there was also the document in grid form, and the handwritten note, which indicated the views of the officers on the initial business case). The members were told at the meeting a little about the process of the assessment, namely that it had taken the form of assessing risks against agreed criteria and rating the risks as high, medium or low, but no details of the actual assessment in any individual case was provided. There was some discussion on the limits of the amount of funding available to address building issues and limits on the amount of support generally.

The issue in this case is whether, given the information in the revised business case, the report, and the limited information provided orally at the meeting, the members were adequately informed so as to be able to make an informed judgment on whether the revised business case for Rhoose was viable. In my judgment, members were provided with sufficient information to enable them to reach that decision. That view is reinforced, in particular, by the fact that the next step in the process would be to seek to enter into a legally binding agreement on the running of the library with the matter returning to the cabinet if such an agreement could not be reached. So far as the question of volunteers is concerned, the cabinet did have sufficient information. They had the information provided in the revised business case. This was not an issue where the officers had had any concerns and had always assessed the issue as low risk. There was nothing withheld from the cabinet. They had all the relevant information on this issue. For the reasons given above in relation to the first ground of challenge, it was open to the cabinet to proceed on the basis set out in the revised business case. On other issues, the report did deal with the question of the start-up funding and building funding needed to make the proposals viable and dealt with the question of the premises, all of which had been identified as potential issues. The officers were satisfied that all the issues had been addressed. They had no significant concerns outstanding. The report did not, therefore, withhold any information from the members. In all the circumstances of this case, the information provided was sufficient to enable the members to consider the viability of the revised business case and no significant concerns were omitted.

I recognise that, ideally, more information could have been provided. The report itself (or an appendix to it) could have dealt in more detail with the criteria used to assess the business cases, the assessment made on each of the relevant issues and the reasons why the officers were satisfied that the revised business cases did address the relevant criteria. Ultimately, however, the question is whether the information actually submitted enabled the cabinet to reach an informed conclusion on whether to establish the proposed community libraries and whether any information about significant concerns had been omitted from the report in a way that rendered the report misleading. In my judgment, on the facts of this case, the information provided was sufficient to enable the cabinet to conclude that the revised business cases were viable and to agree to establish the community libraries and to delegate authority to enter into legally binding agreements on the running of the library (with the matter returning to the cabinet if such agreements could not be reached). No information was withheld from the cabinet. This ground of challenge, therefore, fails.

The Claimant’s third ground of challenge is that the decision of the Defendant failed properly to consider whether its proposals would result in a failure to provide a comprehensive and efficient library service as required by section 7 of the 1964 Act. Mr Williams, for the Claimant, submits that any evaluation of whether the duty will be complied with must be done on the basis that the library at Rhoose will close because, he submitted, either a legally binding agreement will not be reached, or the community library will fail. In those circumstances, Mr Williams submits that there is no prospect that the Defendant would undertake the running of the library in the circumstances of this case. He recognises that the Defendant has carried out an assessment of needs, both on the basis that the five community libraries continue to operate and on the basis that the five proposed community libraries would close and considered that, even if they closed, it would still be providing a comprehensive and efficient library. Mr Williams submits that that assessment was “too superficial and too high level”. In particular, he submitted that the service, if the community library at Rhoose closed, would not comply with the Library Standards issued by the Welsh Government. Mr Williams submitted that the requirement on the Defendant under those standards was to consider whether the residents of each catchment area where a community library was proposed would continue to receive a comprehensive and efficient library service. That meant, he submitted, that 75% of the residents of Rhoose be within 2.5 miles or 10 minutes by public transport of a public library. He submitted that the assessment carried out by the Defendant did not address that issue.

Section 7 of the 1964 Act provides that;

“7.— General duty of library authorities.

(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,

Provided that although a library authority shall have power to make facilities for the borrowing of books and other materials available to any persons it shall not by virtue of this subsection be under a duty to make such facilities available to persons other than those whose residence or place of work is within the library area of the authority or who are undergoing full-time education within that area.

“(2)

In fulfilling its duty under the preceding subsection, 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; and

(c)

of securing, in relation to any matter concerning the functions both of the library authority as such and any other authority whose functions are exercisable within the library area, that there is full co-operation between the persons engaged in carrying out those functions.”

Library authorities and their areas are defined in section 4 of the 1964 Act in the following way :

“4.— Library authorities and areas.

…..

“(2)

The functions of a library authority as such shall be exercisable within an area (in this Act referred to as a “library area”) consisting of the administrative area of the authority, or in the case of a joint board established under section 5 below, consisting of the areas which, if the authorities constituting the board were library authorities, would form their library areas, and may also be exercised elsewhere than within its library area if the authority thinks fit.

“(3)

In Wales, county councils and county borough councils shall, subject to section 5 below, be library authorities for the purposes of this Act.”

The Defendant council is a library authority for its administrative area, namely the Vale of Glamorgan.

The scope of the duty under section 7 of the 1964 Act has been considered by the courts on a number of occasions. For present purposes, it is sufficient to refer to the decision of Collins J. in R (Draper) v Lincolnshire County Council [2014] EWHC 2388 (Admin.), [2015] PTSR 769. Collins J. recognised that a comprehensive and efficient service did not mean that every resident had to live close to a library but rather that it meant providing a service that is accessible to all using reasonable means including digital technologies. As Collins J. expressed it at paragraph 8 of his judgment:

“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 section 7 of the 1964 Act.”

Section 1 of the 1964 Act imposes a duty of superintending and promoting the improvement of the public library service provided by a local authority, and securing the proper discharge by local authorities of their functions in relation to libraries as library authorities under the 1964 Act. The exercise of that function has been transferred to the Welsh Ministers in respect of library authorities in Wales.

The Welsh Ministers fulfil that function by publishing Welsh Public Library Standards. The relevant standard for present purposes is the standard referred to as Welsh Public Library Standards Quality Indicator 5 location points (“the relevant standard”). That provides that:

“Authorities shall ensure that they meet the following criteria for the location of service points and mobile library stops according to their population density”.

There is then a grid showing “population density” “% of households” and “Distance from library”. In a case where population density is between 1.1 and 19.9 persons per hectare, then 75% of households should be within 2.5 miles (or 10 minutes travelling time by public transport) of a static service point (that is, a library) or within ¼ mile of a mobile library stop.

The Defendant carried out a detailed assessment of library needs and this is included at appendix D to the report. It provides detailed demographic information to enable the potential needs for library service to be identified and to assist in determining the appropriate level of provision. Appendix B to the report included an assessment of the current and future performance of the Defendant in relation to the provision of library services in the Vale of Glamorgan. In relation to the relevant standard, the assessment noted that the density of the population in the Vale was 3.8 persons per hectare. 94% of the resident population of the area comprised within the administrative area of the Defendant would be within 2.5 miles of a library if community libraries were included amongst the libraries available. The proportion within 2.5 miles would be 81% if the proposed community libraries were excluded and consideration was given only to the four town libraries. In the light of the information included in the appendices, the body of the report noted that the Defendant would be able to provide a comprehensive and efficient library service by providing a library service from the four town libraries. Thus, the 5 proposed community libraries were not necessary to deliver a comprehensive and efficient library service but would enhance the library service available within the Vale.

Against that background, the first point to consider is the nature of the decision taken by the Defendant and the library service that will be in place if the resolution of 8 February 2016 is implemented. The Claimant contends that the decision will necessarily result in the closure of the Rhoose public library either, it seems, because it will not be possible to reach a legally binding agreement with the Defendant on the operation of the library or that, if such an agreement is reached, a community library will in fact fail and will cease to operate. In those circumstances, the Claimant takes the view that it is inevitable that the Defendant will close the library, not least because the Defendant has made it clear that there is no additional funding available to assist in the running of the library and staff arrangements have already been restructured and the Defendant will not itself operate a library at Rhoose.

First, in my judgment, the actual decision taken on 8 February 2016 is that five community libraries be established. If they were, they would continue to contribute to the library service available within the Vale of Glamorgan. There would continue to be a library at Rhoose. Assuming that a community library at Rhoose were established, there is no basis for contending that the Defendant would be failing in its duty to provide a comprehensive and efficient library service. The intention is that the community library at Rhoose would operate broadly for the same hours at present. If it were not possible to reach a legal agreement, then the matter would come back to the cabinet for further consideration, including consideration of the possible closure of the proposed community library. The actual decision of 8 February 2016 will not, therefore, itself result in a state of affairs whereby the Defendant was failing to provide a comprehensive library service. Either there will be a community library or the Defendant will need to consider matters, including possible closure, at a subsequent date. If a community library were established, but if it ceased to operate at some stage in the future, the issue of whether the Defendant had any duty to provide a library in place of that closed library would need to be assessed on the basis of the circumstances and the facts as at that future date.

Secondly, and in any event, the Defendant has considered the position even if the community libraries were left out of account and the library service was provided from the four town libraries alone. The only basis upon which it is said that such a situation would involve a breach of section 7 of the 1964 Act is that the relevant standard issued by the Welsh Government required the residents of Rhoose to be within 2.5 miles of a library or 10 minutes by public transport and that has not been assessed by the Defendant. As indicated above, Mr Williams for the Claimant submitted that the relevant standard required the Defendant to consider whether the residents of each catchment area where a community library was proposed would continue to receive a comprehensive and efficient library service. That meant, he submitted, that residents of Rhoose be within 2.5 miles or 10 minutes by public transport of a public library. By contrast, Mr Swift Q.C. for the Defendant contends that the relevant standard is met if 75% of households within the administrative area of the Defendant, that is, within the county of the Vale of Glamorgan, are within 2.5 miles of a library and not by reference to one particular town or settlement within the county. Here, on the facts, the standard would be met, even without the establishment of the community libraries, as 75% of the population of the administrative area of the Defendant is within 2.5 miles of a library.

In my judgment, the relevant standard is to be assessed by reference to the administrative area of the Defendant Council. First, that is the natural reading of the words. The relevant standard refers to a population density for an authority. In this case, that must mean the population density for the local authority for the Vale of Glamorgan. It provides that at least 75% of households must be within 2.5 miles (or 10 minutes by public transport) from a library (or ¼ mile from a mobile library stop). The standard is referring in my judgment to 75% of households within the authority’s administrative area. The relevant standard is not intended to focus on particular settlements or communities within the authority’s administrative area.

Secondly, that interpretation is reinforced by a consideration of the statutory context within which library services are provided. The 1964 Act imposes duties upon library authorities. Section 4 of the 1964 Act defines library authorities in Wales as the county councils and county borough councils. They are to exercise their functions as a library authority for their administrative area. The duty of the Welsh Ministers under section 1 of the 1964 Act is expressed to be a duty in relation to the functions of library authorities and it is in the context of meeting their duties under section 1 of the 1964 Act that the Welsh Ministers have issued the Welsh Public Library Standards. In my judgment, the standards need to be read in the context of the 1964 Act. Just as the provisions of the 1964 Act operate by reference to a local authority and its local authority area, so the reference in the relevant standard is to be read as a reference to the population density of the local authority’s area. It is accepted that, as a matter of fact, 75% of households within the administrative area of the Defendant Council are within 2.5 miles of a library.

For completeness, I note that Mr Williams contends that if that interpretation were correct, it would mean that a local authority with a higher density of population might well require fewer libraries than an authority with a lower density of population and also that such an interpretation would not take account of the variation of population within some local authority areas. This is ultimately a matter of the construction of the relevant standard. For the reasons given, the relevant standard is intended to operate by reference to the population density of the administrative area of the Defendant not a particular town or settlement within it. Furthermore, the relevant standard is only dealing with the location of services. There is nothing inherently surprising or illogical about relating the location of libraries to population density. Nor does the fact that the relevant standard may not be sensitive to differences in population densities in some authorities within Wales alter the meaning of the relevant standard.

In the circumstances, therefore, the Defendant did carry out an assessment of the needs for library services within its area. There is no basis for the contention that the Defendant’s assessment was superficial or conducted at too high a level. In particular, the Defendant was entitled to assess needs and service provision by reference to the needs of the population of its administrative area as a whole. It was not under a duty, as asserted by the Claimant, to consider whether the residents of each of the catchment areas where a community library was proposed would continue to receive comprehensive and efficient library service. There is no basis for concluding that the service that it will provide would fail to meet the requirements of a comprehensive and efficient library service for its area. This ground of challenge fails.

The Claimant contends that the Defendant failed to have due regard to the duty imposed on it by section 149 of the 2010 Act. The claim form, and the skeleton argument, makes a number of detailed points about matters that the Defendant allegedly failed to take into account and which, the Claimant submits, evidence a failure on the Defendant’s part to comply with its obligations.

Section 149 of the 2010 Act provides, so far as material, that;

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to—

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

……

“(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

“(4)

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who

are not disabled include, in particular, steps to take account of disabled persons' disabilities.

“(5)

Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

tackle prejudice, and

(b)

promote understanding.

“(6)

Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

“(7)

The relevant protected characteristics are—

age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation……”

The principles governing that duty have been the subject of consideration on numerous occasions by the courts. The principles are not in dispute in the present case and are usefully summarised by Wilkie J. in R (Williams) v Surrey County Council [2012] Eq.L.R. 656 in the following way:

“i)

Due regard requires more than simply giving consideration to the issue and councillors should be aware of the special duties a council owes to the disabled before they take a decision R(Chavda) v LB Harrow [2007] EWHC 3064 (Admin) .

ii)

“Due regard” is the regard that is appropriate, in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority. The public authority must also pay regard to any countervailing factors. The weight to be given to the countervailing factors is a matter for the public authority concerned rather than the Court, unless the assessment by the public authority is unreasonable or irrational. (Dyson LJ (as he then was) in R(Baker) v SS Communities and Local Government [2008] LGR 239 and R(Brown) v SS Work and Pensions [2008] EWHC 3158 (Admin)).

iii)

No duty is imposed to take certain steps or to achieve certain results. The duty is only to have due regard to the need to take the relevant steps. The Court will only interfere if the local authority has acted out with the scope of any reasonable public authority in the circumstances. The public authority will need to take steps to gather all the relevant information (Brown).

iv)

The law does not impose a statutory duty on public authorities requiring them to carry out a formal disability equality impact assessment (EIA) when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking an EIA along with other means of gathering information (Brown).

v)

The due regard duty must be fulfilled before and at the time that a particular policy, which will or might affect disabled people, is being considered by the public authority. It involves a conscious approach and state of mind. It must be exercised in substance, with rigour and with an open mind. It is not a question of ticking boxes (Brown).

vi)

The duty imposed on the public authority is non delegable. It remains on the public authority charged with it (Brown).

vii)

The duty is a continuing one (Brown).

viii)

It is good practice for those exercising public functions in public authorities to keep an adequate record, showing they had actually considered their disability equality duties. If records are not kept it may make it more difficult evidentially for a public authority to persuade a Court that it has fulfilled the duty imposed (Brown).

ix)

Some of these principles have been drawn together as follows. There is no statutory duty to carry out a formal EIA. The duty is to have due regard, not to achieve certain results. Due regard does not exclude having regard to countervailing factors but is “the regard that is appropriate in all the circumstances”. The test of whether a decision maker has had due regard is a test of substance and not of mere form or box ticking. The duty must be performed with rigour and with an open mind and is non delegable. Members are heavily reliant on officers for advice in taking these decisions. That makes it doubly important for officers not simply to tell members what they want to hear but to be rigorous in both enquiring and reporting to them R (Domb and others) v LB Hammersmith and Fulham [2009] EWCA 941 Civ).

x)

The clear purpose of (section 149) is to require public bodies to give advance consideration to the issue of (race) discrimination before making any policy decisions that may be effected by such an issue. This is a salutary requirement which must be seen as an integral part of the mechanisms for ensuring the fulfilment and aims of anti discrimination legislation. It is not possible to take the view that non compliance is not a very important matter. [Section 149] has a significant role to play R (Elias) v SS for Defence [2006] EWCA Civ. 1293.

xi)

Due regard must be an essential preliminary to any important policy decision, not a rearguard action following a concluded decision R (Bapio Action Ltd.) v SSHD [2007] EWCA Civ. 1139. .

xii)

Consideration of the duties must be an integral part of the proposed policy not justification for its adoption R(Kaur and Others) v London Borough of Ealing [2008] EWHC 2062 (Admin)

xiii)

The Section 149 duty must be kept in mind by decision makers throughout the decision making process. It should be embedded in the process but can have no fixed content bearing in mind the range of potential factors and situations. What observance of that duty requires of decision makers is fact sensitive and varies considerably from situation to situation and from time to time and from stage to stage R (Bailey) v LB Brent [2011] EWCA Civ 1586 para 83.

xiv)

The importance of complying with Section 149 is not to be understated, nevertheless, in a case where the council was fully appraised of its duty and had the benefit of a most careful report and EIA an air of unreality may descend. Councils cannot be expected to speculate, or to investigate, or to explore, such matters ad infinitum, nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under Section 149 which a QC might deploy in Court. The outcome of such cases is ultimately of course fact specific (Bailey para 102 Davis LJ).”

The decision of the Court of Appeal in R (Bailey) v Brent London Borough Council [2012] LGR 530 offers helpful guidance on how to determine whether a public body has complied with its duty under section 149 of the 2010 Act. As Pill L.J. observed at paragraph 83 of the judgment:

“There must be an analysis of the material ‘with the specific statutory considerations in mind’. The thought processes of decision-makers need to include having regard for the duties in 2010 Act. The s. 149 duty must be kept in mind by decision-makers throughout the decision-making process. It should be embedded in the process but can have no fixed content…What observance of the duty requires of decision-makers is fact sensitive; it inevitably varies considerably from situation to situation, from time to time and from stage to stage.”

Furthermore, as Davis L.J. observed, the question is whether the public body did have due regard to the matters referred to in section 149 of the 2010 Act. That was a matter of substance not form. In that case, the public body was expressly reminded in the relevant report, in detail, of its duty under section 149 of the 2010 Act. There was a detailed equality impact assessment annexed to the report and the minutes record that the attention of members was drawn to the report: see paragraphs 92 to 92 of the judgment. As Davis L.J. observed at paragraph 102 of the judgment:

“The importance of complying with s. 149 is not to be understated. Nevertheless, in a case where the council was fully apprised of its duty under s. 149 and had the benefit of a most careful Report and EIA, I consider that an air of unreality has descended over this particular line of attack. Councils cannot be expected to speculate on or to investigate or to explore such matters ad infinitum; nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court. The outcome of cases such as this is ultimately, of course, fact specific (see Harris). All the same, in situations where hard choices have to be made it does seem to me that to accede to the approach urged by Miss Rose in this case would, with respect, be to make effective decision making on the part of Local Authorities and other public bodies unduly and unreasonably onerous.”

In the present case, the report to cabinet expressly stated that the Defendant had to comply with the public sector duty imposed by section 149 of the 2010 Act when coming to its decision on the proposal to establish community libraries. The report set out the substance of that duty. At paragraph 52, the report reminded members that, in order to discharge the duty, they had to “analyse all the relevant material with the specific statutory considerations in mind”. It explained that that included considering whether the decision was capable of having an adverse impact on persons who had any of the relevant protected characteristics and, if so, to consider what steps could be taken to mitigate the decision. The report drew attention to the equality impact assessment at Appendix Ei to the report, and the summary at Appendix Eii. The assessment set out the available information on the users of each of the five proposed libraries by age, gender, and disability (including the type of disability). The assessment considered the potential impact for relevant groups of the establishment of each of the five proposed community libraries and also, in the alternative, if the existing libraries were closed. The report highlighted potential difficulties for older persons, young persons and disabled persons in accessing public transport to travel to other libraries if libraries, including Rhoose, were to have a reduced service as a community library or if the library were to close (see paragraphs 55 to 59 of the report). It set out possible mitigating actions that could be taken. By way of example only, the report noted that should one of the community libraries fail in future that closure could have an adverse impact on children who could lose access to the library service and that could affect their literacy skills. Possible mitigating actions were identified should a library close. By way of further example, the report considered the difficulties that disabled persons would have if the library were to reduce its opening hours or if it were to close and again set out possible mitigating actions. Appendix Eii set out in a comprehensible and accessible form, the groups affected, the potential impact and the possible mitigating actions, with cross-references to the equality impact assessment. The minutes of the meeting record that members were reminded of their obligation to comply with the duty imposed by section 149 of the 2010 Act and the content of that duty. The members were asked to confirm that they had had an opportunity to read the report, the appendices including the equality impact assessment and the needs assessment.

In my judgment, it is clear in the circumstances that the cabinet did have regard to its duty under section 149 of the 2010 Act. The members were provided with full and detailed information on the potential impacts on groups with protected characteristics both of establishing each of the five proposed community libraries to replace existing Council-run libraries and of closure of a particular library. They were told that they had to analyse the relevant material with the specific statutory considerations in mind. On any fair and reasonable reading of the material, it is clear that the cabinet did discharge its duty under section 149 of the 2010 Act.

The Claimant’s skeleton argument seeks to make a number of detailed criticisms of the way in which the Defendant set about its duty. The criticisms largely proceed on the premise that the library at Rhoose is in fact going to close. In fact, that is not the proposal that the Defendant was considering nor the decision that it reached. It decided to establish a community library at Rhoose and delegated authority to establish a legally binding agreement relating to the running of the library. If such an agreement were not reached, the matter would come back to the Defendant together with an updated equality impact assessment. The premise upon which the Claimant criticises the way in which the Defendant carried out its duty is, therefore, erroneous. For that reason alone, the detailed criticisms made of the Defendant’s decision do not demonstrate that there has been a failure to have due regard to the matters referred to in section 149 of the 2010 Act.

In any event, the Defendant did consider in the report and in the appendices including the equality impact assessment potential adverse effects and potential mitigating measures if a community library were established but were to fail in the future resulting in its closure. Again, on any fair reading of the material, the Defendant did conscientiously have due regard to the matters in section 149 of the 2010 Act. They were aware of the potential adverse impacts on protected groups that closure of a library could have and considered mitigating measures.

Dealing with the specific criticisms made, none have substance. Detailed criticisms are set out at paragraph 70 of the Claimant’s skeleton argument. It is said that the Defendant failed to assess whether those who travelled by foot to the Rhoose library would have any difficulty in attending Barry library (instead of Rhoose library), whether those with mobility and eyesight issues would have any difficulty attending Barry library, failed to identify the nature of the public transport difficulties or to consider whether the cost of public transport would be prohibitively expensive for the young, the old, and the disabled. In my judgment, it is clear that the equality impact assessment expressly considered the potential effects of closure of a library on particular groups with particular characteristics, such as the disabled, the young or the old. It noted that older people with mobility problems and the disabled would have difficulty in accessing libraries in other areas and the problems of availability of public transport. It noted the impact on children if a community were to close. There was no obligation on the Defendant to explore the matters referred to in any greater detail than it did. The Claimant contends that the Defendant failed to identify the effect of the loss of employed librarians for 50% of the opening hours on the disabled. There was some suggestion in argument, but no evidence, that a librarian might have particular skills or training and having such a librarian for only 50% of the opening hours might have a potentially adverse effect on particular disabled people. The duty under section 149 of the 2010 Act is important but its scope needs to be kept within reasonable and realistic grounds. The duty does not require that every potential ramification needs to be investigated and minute forensic examination of any issue that could potentially arise is not required. The Defendant was not required to investigate the position as to whether or not a particular librarian might have particular skills or training or experience that would be helpful to particular groups. The Claimant also contends that the Defendant failed to assess the impact upon children’s education. The equality impact assessment did do that. There is also an allegation relating to an alleged failure to have regard to the best interests of children potentially affected by the decision. That is considered below.

The Claimant makes a number of other criticisms. Paragraphs 71 to 75 of the skeleton set out a series of detailed arguments challenging points made in the evidence filed on behalf of the Defendant or of points made in the equality impact assessment. In truth, these are disagreements with the views of others or disagreements on the importance of particular matters. The arguments do not evidence any failure on the part of the Defendant to have due regard to the matters referred to in section 149 of the 2010 Act. At paragraph 76 of the skeleton argument, it is said that the Defendant did not develop a specific equality impact assessment for Rhoose as opposed to a generic county-wide analysis. The report, and appendices, provided the information necessary for the Defendant to take the decision in relation to each of the five libraries. They analysed the position in relation to each of the particular libraries, drawing attention to particular issues or particular responses made in relation to particular libraries. The report and equality impact assessment did, therefore, provide the relevant detail and drew attention to particular issues for particular libraries. There is nothing in the way in which the report and equality assessment was prepared which indicates any failure to have regard in substance to the duty under section 149 of the 2010 Act. Paragraph 77 of the Claimant’s skeleton argument sets out further criticisms of the equality impact assessment asserting that it failed to consider alternatives to community libraries or closure, that it was an attempt to justify a decision taken and was an assessment intended to inform policy decisions. It criticises the mitigation identified and expresses the view that there was no advocacy on behalf of those with disabilities or children. In my judgment, the aim underlying an equality impact assessment is to assist the decision-maker in discharging the duty imposed by section 149 of the 2010 Act and to ensure that the decision-maker has the relevant information and can analyse that information with the specific statutory considerations in mind, as Pill L.J. observed at paragraph 83 of his judgment in Bailey. On any fair, reasonable reading of the report and the equality impact assessment, they performed that function. The criticisms made by the Claimant are not justified.

For completeness, I note that paragraph 67 of the skeleton argument refers to criticisms said to be made by Elisabeth Laing J. of an earlier equality impact assessment. I make no comment on the question of the adequacy of the earlier impact assessment. I note simply that the report in the present case did meet the requirements identified by Elisabeth Laing J. in paragraphs 54 and 55 of her judgment. The report did summarise the effect of section 149. It did identify particular potential adverse effects for particular groups within the body of the report. A more detailed analysis was provided in the equal impact assessment and in the summary of the potential effects and mitigating measures. There is a complaint that the equality impact assessment was generic, which has been considered above. There is an unparticularised assertion that the equality impact assessment did not include information obtained in a consultation exercise. The point was not elaborated upon and is not well-founded. The needs assessment at appendix D described the sources of information used for demographic data, including the 2011 census, the Defendant’s needs assessment of 2011 and library usage data for the year April 2014 to March 2015 and involved an assessment of how the library was being used as at the time of the report. The equality impact assessment referred to the needs assessment and responses to consultation responses received between October 2013 and 31 December 2015.

The reality is that this report is a full, detailed and thorough report. It summarises the duty under section 149, explains how members should set about discharging their duty and provides the information necessary to enable the members to do so. The appendices, including the needs assessment, the equality impact assessment and the summary of the potential impact and mitigating measures are detailed, clear and comprehensible. These documents were provided to members and they were asked to confirm that they had the opportunity to read them. There is no basis for inferring that there was any failure to have due regard to the matters set out in section 149 of the 2010 Act when they took the decision on 8 February 2016 to establish community libraries.

The Claimant contends that the Defendant was under a duty to have regard to the best interests of the child as a primary consideration and failed to do so. This was said to be an aspect of the failure to comply with the public sector duty in section 149 of the 2010 Act. In truth, it raises different, and separate, issues and is better dealt with separately. In the grounds and skeleton argument, the claim is put on the basis that the Defendant was required to have regard to the bests interests of the child as a primary consideration by reason of section 1(1) of the Rights of Children and Young Persons (Wales) Measure 2011 (“the Measure”) and article 3 of the United Nations Convention on the Rights of the Child (“the UN Convention”). In fact, section 1 of the Measure imposes a duty on Welsh Ministers – not local authorities such as the Defendant – to have due regard to the requirements of the UN Convention. As such, the Measure is not the source of any obligation on the Defendant to have regard to article 3 of the UN Convention. Mr Williams recognised that in a note provided shortly before the hearing and, at the hearing, he sought permission to amend the grounds so that they referred to section 28 of the 2004 Act read with article 3 of the UN Convention.

The Claimant’s arguments on this issue were not fully developed at the hearing. In essence, the Claimant appeared to be contending that section 28 of the 2004 Act should be interpreted as if it intended to incorporate, or give effect to, article 3 of the UN Convention. The Claimant was principally concerned that if the Rhoose library were closed that would not be in the best interests of the children who attended the primary school next to the library and so would involve a breach of, or a failure to have regard to, article 3 of the UN Convention.

Section 28(2) of the 2004 Act provides that:

“(2)

Each person and body to whom this section applies must make arrangements for ensuring that–

(a)

their functions are discharged having regard to the need to safeguard and promote the welfare of children; and

(b)

any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.”

Section 28(1) of the 2004 Act provides that the section applies to, amongst others, local authorities in Wales.

Article 3(1) of the Convention provides that:

“1.

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

The starting point is that the obligation on which the Claimant relies is included in an international treaty, namely the UN Convention. The provisions of an international treaty are not themselves enforceable in the domestic courts unless the treaty has been incorporated into domestic law: see, e.g. J.H. Rayner (Mincing Lane) Ltd. v Department of Trade [1990] 2 A.C. 418 (and see also R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, per Lord Reed at para. 82, Lord Carnwath at para. 115 and Lord Hughes at paras. 137-139). Statute may make express provision for particular bodies to have regard to particular international treaties. The Measure, for example, expressly provided that the Welsh Ministers were to have due regard to the provisions of the UN Convention in the exercise of their functions. More generally, the Human Rights Act 1998 (“the 1998 Act”) provides that public authorities must act compatibly with Convention rights, that is rights derived from the European Convention on Human Rights incorporated into domestic law by the 1998 Act. The European Court of Human Rights may have regard to the other international treaties when interpreting provisions of the European Convention on Human Rights and the domestic courts must have regard to the decisions of the European Court when determining a question involving Convention rights, that is a right derived from the European Convention and given effect to by the 1998 Act: see section 2 of the 1998 Act. That is the mechanism by which international treaties may be relevant to decisions involving Convention rights.

The first question, therefore, is whether section 28 of the 2004 Act is intended to give effect to Article 3 of the UN Convention. The Supreme Court has considered the position in relation to section 11 of the 2004 Act which is in materially identical terms to section 28 but applies to local authorities in England rather than Wales. In Nzolameso v Westminster City Council (Secretary of State for Communities and Local Government intervening) [2015] PTSR 549, Baroness Hale, with whom the other members of the Court agreed, said this:

“28 However, section 11 does not in terms require that the children's welfare should be the paramount or even a primary consideration. As the Joint Committee on Human Rights pointed out (19th Report of Session 2003-2004, Children Bill , HL Paper 161; HC 537, paras 69-77), it does not in terms reproduce the wording of article 3.1 of the United Nations Convention on the Rights of the Child (1989) (Cm 1976) (“UNCRC”):

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

“29 Where Convention rights under the Human Rights Act 1998 are engaged, it is well established that they have to be interpreted and applied consistently with international human right standards, including the UNCRC: see ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 116, H (H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2013] 1 AC 838, Stevens v Secretary of Communities and Local Government [2013] JPL 1383, approved in Collins v Secretary of State for Communities and Local Government [2013] PTSR 1594. It is not suggested in this case that any of the Convention rights are engaged: compare Yumsak (para 19 above), where it was conceded that placing the mother and her children in Birmingham interfered with their rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms . We have not heard argument on the interesting question of whether, even where no Convention right is involved, section 11 should nevertheless be construed consistently with the international obligations of the United Kingdom under article 3 of the UNCRC. That must be a question for another day.”

In my judgment, section 28 of the 2004 Act was not intended to incorporate, or give effect to, Article 3 of the UN Convention, in the law of England and Wales. I reach that conclusion principally for the following reasons. The language used in section 28 of the 2004 Act is different from the language used in Article 3 of the UN Convention and reflects a different concept. The obligation under section 28 of the 2004 Act is an obligation to make arrangements to ensure that the relevant body’s functions are discharged having regard to the need to safeguard and promote the welfare of children. By contrast, Article 3 of the UN Conventions uses different language and is concerned with a different concept, namely ensuring that the best interests of the child is a primary consideration in the decision-making of relevant bodies. The language used in section 28 is not apt to be read as providing that the best interests of the child are to be a primary consideration in the exercise of any local authority function. It is true that the two obligations may well often, perhaps frequently, overlap. The arrangements made to promote or safeguard welfare may well lead in particular cases to decisions which result in the best interests of the child being taken into account as a primary consideration. The two obligations are, however, conceptually and linguistically separate. The language of section 28 of the 2004 Act does not lead to the conclusion that Parliament intended that section to be the vehicle by which the public authorities to which the section applied were to be required to ensure that the best interests of the child were to be a primary consideration when exercising any of their functions.

Mr Williams submitted that it would be illogical for the Welsh Ministers to be required to have regard to the UN Convention but for Welsh local authorities not to be subject to a similar obligation. This is a question, however, of statutory construction. The question is what did the Westminster Parliament intend when, in 2004, it imposed the obligation contained in section 28 of the 2004 Act on local authorities? The interpretation of that legislation is not assisted by consideration of a different legislative measure adopted 11 years later by a different legislative body (the National Assembly for Wales) which imposed a duty, expressed in different language, on a different public body. Mr Williams did not refer to, or rely upon, any other principle of statutory interpretation or any other legitimate aid to statutory construction.

The second question is whether, even assuming that that conclusion is wrong, and even assuming that section 28 of the 2004 Act were to be read as requiring the Defendant to treat the best interests of the child as a primary consideration, was there a breach of that obligation for which a remedy was required in the present case? The decision under challenge is in fact a decision to establish community libraries and, in particular, a community library at Rhoose. The intention is that the library would be open for broadly the same number of hours and, in particular, children at the nearby primary school would be able to make the same use of the library as at present. Mr Williams did not argue that that decision involved a failure to have regard to the best interests of the child. Rather he focussed on what he submits would inevitably happen, namely that the community library would, in due course, fail and be closed and that would not be in the best interests of the children at the primary school nearby. The decision in the present case, however, is a decision to establish a community library (and if the relevant agreement cannot be reached on running the library, the matter would need to come back to the cabinet for further consideration). The decision under challenge is not a decision to close the library. The decision, although not expressed in terms of regarding the best interests of the children as a primary consideration, did consider the position of the children. The report considered that if community libraries were established, then the service provided to groups (such as children) would be maintained (or even enhanced) as appears from paragraph 58 of the report. In such circumstances, Mr Williams was wise not to contend that such a decision involved a breach of section 28 of the 2004 Act read together with Article 3 of the UN Convention. In substance, the decision did ensure that the interests of the children were taken into account and would be respected. In any event, even if it were said that the decision-making structure did not expressly analyse the position in terms of treating the best interests of the child as a primary consideration (assuming, contrary to the interpretation of section 28 of the 2004 that I consider to be correct, that that was required), the decision in the present case would inevitably have been the same. The Defendant wished to make savings and proposed doing so by a particular method, namely the establishment of a community library, which would preserve the level of services for children. As a matter of common law, therefore, the court would refuse a remedy as a matter of discretion as the decision would inevitably be the same even if the decision-making process had been structured differently. As a matter of statute, it is highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred and thus the court must refuse to grant a remedy: see section 31(2A) of the Senior Courts Act 1981.

In short, therefore, section 28 of the 2004 Act does not incorporate the requirements of Article 3 of the UN Convention but, even if it did, the decision taken in this case either does not involve any breach or, if there is any breach, the decision reached in this case would have been the same and no remedy would have been granted. The Claimant’s real case is that the decision is in substance a decision which will result in the closure of the library and such a decision would involve a breach of Article 3 of the UN Convention. As that is not, in fact, an accurate description of the decision in question (which is a decision to establish a community library not close a library), and as I consider that section 28 of the 2004 Act is not intended to incorporate Article 3 of the UN Convention, it is not necessary to consider what the position would be if at some stage the Defendant did decide to close a library.

For completeness, I note that there is an assertion in paragraph 70 of the Claimant’s skeleton argument that the Defendant acted in breach of section 12 of the Children and Families (Wales) Measure 2010 which requires local authorities to make such arrangements as it considers suitable to promote and facilitate participation by children in decisions of the authority which might affect them. First, that is not part of the grounds as pleaded in the claim form. Secondly, the assertion is unparticularised and no evidence was adduced by the Claimant to address the position as to what arrangements, if any, were in place and why the arrangements were said to be legally insufficient. Thirdly, no submissions were made on this by Mr Williams at the hearing and no application to amend the grounds to include a claim of this nature was made. In the circumstances, I do not regard this allegation as forming part of the Claimant’s grounds of claim, and the Claimant has no permission (and has not sought permission) to amend the grounds to include such a challenge. Even if it were part of the Claimant’s case, there is no evidence adduced that there has been such a failure and the Claimant would not, in the circumstances, have established any such ground of challenge. In any event, the decision would have been the same, and a remedy refused as a matter of discretion applying common law principles or it is highly that the outcome for the Claimant would not be substantially different if the conduct complained of had not occurred (that is, if arrangements were made to involve children in the decision-making process) and a remedy would have been refused by virtue of section 31(2A) of the Senior Courts Act 1981.

The Defendant’s decision of 8 February 2016 to establish five community libraries, including a community library at Rhoose, is lawful. The Defendant did not act irrationally in its approach to the determination of whether there would be sufficient volunteers to enable the community library at Rhoose to operate. It had sufficient information to enable it to consider the viability of the revised business case for establishing a community library at Rhoose. There is nothing to indicate that its decision would result in a failure to provide a comprehensive and efficient library service. It complied with its obligations under section 149 of the 2010 Act and had due regard to the matters set out in that section. Section 28 of the 2004 Act was not intended to incorporate Article 3 of the UN Convention but, even if it did, the decision in the present case would either not involve any breach of Article 3 or would not call for the grant of any remedy in the present case. For those reasons, this claim is dismissed.