'Air of unreality' in equality arguments over library closures

An appeal judge has attacked the 'air of unreality' in equality arguments put forward by campaigners against the closure of six of the 12 public libraries in Brent, London.

Lord Justice Davis made the comment as the Court of Appeal rejected claims that Brent Council had breached section 149 of the Equality Act 2010 by failing to take into account the risk of indirect discrimination against the borough's Asian residents, who use the libraries more regularly than their black and white neighbours.

Dismissing the campaigners' appeal, Lord Justice Davis said it was plain that a significant proportion of Brent library users, being Asian, stood to be affected by the closure.

'It was also the case that, of library users in Brent, Asians used libraries out of proportion to their actual numbers in the Brent population.'

Davis LJ said the importance of complying with section 149 should not be understated, but, in a case where the council was 'fully apprised' of its duty under the section and had the benefit of a 'most careful' report and equality impact assessment (EIA), he considered that an 'air of unreality has descended over this line of attack'.

He went on: '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 section 149 which a QC might deploy in court.'

Delivering the leading judgment in R (on the application of Margaret Bailey and others) v London Borough of Brent [2011] EWCA Civ 1586, Lord Justice Pill said the council estimated that shutting the libraries would save £800,000 a year.

Pill LJ said that council statistics showed that 28 per cent of the borough's population was Asian, but 46 per cent of active borrowers. However, he said the council had referred to evidence that the percentage of Asian users in the libraries earmarked for closure was very close to the percentage of Asian borrowers across the borough.

'Given the scale of the spending reductions the council was required to make, and the information available following earlier studies, a decision that the library service should bear a share of the reduction was not, in my judgment, unlawful.

'Having regard to the duty under section 149 of the 2010 Act to have due regard to the need to eliminate discrimination, I do not consider that the council was in breach of duty in failing to give further consideration to the racial dimension, in so far as it affected the Asian community in relation to other communities.

'What observance of that 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. In my judgment, there was no breach of the duty in this case.'

Pill LJ dismissed the appeal. Richards LJ agreed, for the reasons given by lord justices Davis and Pill.

John Halford, partner at Bindmans, acted for the campaigners. He said they were considering an appeal to the Supreme Court.

Halford said the Court of Appeal ruling was 'very difficult to reconcile with what parliament intended when it enacted the equality duty that obliges Brent, and all other local authorities, to properly grapple with the impact withdrawal of local services of this kind has on communities'.