STILL GETTING NOWHERE?
The truth is that there are very few avenues to take your case if the council will not listen. These are the main ones. Your ingenuity may supply some others.
THE DCMS
It is a little difficult to recommend complaining to the DCMS (Department for Digital, Culture, Media & Sport). It can be a lot of work, and will almost certainly fail. Councils know this.
All the same, going through the process might concentrate the council’s mind. And it is good publicity to say the government is investigating the council.
If you decide to lodge a complaint, this takes the form of a request to the Secretary of State under s.10 of the Public Libraries & Museums Act 1964 (1964 Act) to investigate and, if appropriate, intervene (i.e. if the planned service would not comply with the council’s statutory duty – see below).
We know that a certain amount of advising (and arm-twisting) does go on behind the scenes – so you might be lucky. Finally, your story goes into the records and might contribute towards better practice in future.
However, the most common experience is this: you make a complaint, with lots of evidence; the DCMS agrees to take it on and contacts the council; months go by while all the changes you objected to take place; the DCMS then writes say it is ‘minded to’ reject your complaint and invites you to send further evidence; you send further evidence; your complaint is finally rejected.
How it works
You cannot start the process during consultation, or until the council has made its decision. The process is centred on the 1964 Act. It says
(i) (under s.7) all library authorities in England have a statutory duty to provide ‘a comprehensive and efficient library service for all persons desiring to make use thereof’ [but only those who live, work or study in the borough] and:
(ii) the DCMS Secretary of State has a statutory duty to superintend, and promote the improvement of, public library services, and has powers to investigate or even take over, services that are failing. These powers have barely been used.
Main problem: there is no legal definition of ‘comprehensive and efficient’.
Much more information here:
(Annex D refers to the report of the inquiry in the Wirral case. This report is essential reading, especially if reorganization of a library service will adversely affect the service in deprived areas.)
Previous cases:
(NB – look at the Lancashire case, where the DCMS indicated it was minded to intervene.)
The 1964 Act:
https://www.legislation.gov.uk/ukpga/1964/75/crossheading/the-public-library-service
Wales
In Wales, the Deputy Minister for Culture, Sport & Tourism has similar legal powers. You can write to him or her direct.
The situation is clearer here, in that Wales has national standards for libraries. Councils have to report annually, and the reports are published – rather late.
https://gov.wales/libraries-archives
https://gov.wales/measuring-public-library-service-our-standards
https://gov.wales/contacting-welsh-government-ministers
https://gov.wales/public-library-service-annual-reports-2017-2018
LOCAL GOVERNMENT OMBUDSMAN
Once a council’s own complaints machinery has been tried – but not before – you can contact the Local Government Ombudsman for England or Wales.
They are independent, impartial – and cost nothing. But results take time, and may not do you much good in the short term. However, if your case is taken up it sends a message to the council. If multiple successful complaints put it in the Ombudsmen’s annual charts of poor performers, it sends a message to everyone.
The Ombudsmen’s scope is relatively limited. They cannot question a council decision (e.g. as to whether a reorganized service will comply with the 1964 Act) simply because someone does not agree with it. Their job is to investigate alleged maladministration – the way in which a council has dealt with a situation, e.g. whether the procedures used were fair or reasonable.
They only investigate cases where an individual (or in some cases a group of individuals) has suffered personal injustice, hardship or financial loss because of action (or lack of action) by the council. The complaint must be brought by the person/s in question.
They can also investigate complaints that a member of a local government body, such as a councillor, has broken their code of conduct, e.g. if they have brought the council into disrepute or used their position to gain advantage for themselves.
Even where the ombudsman agrees that a complaint is justified, in most cases they can’t order the council to do anything to compensate you directly. A successful complaint is bad publicity for the council, and may oblige it to make improvements for the future.
Local Government and Social Care Ombudsman (England)
Public Services Ombudsman for Wales
LAST RESORT – JUDICIAL REVIEW
If you are unhappy with a decision by any public body, you may be able to take ‘judicial review’ proceedings in the High Court. You must apply as soon as possible after the decision – certainly within three months though you should aim for six weeks.
This is risky and could be expensive. You’ll need legal advice. If at all possible, find someone to lead your case who qualifies for legal aid (this is available for judicial reviews). This is not easy, as the requirements are stringent.
As with the Ombudsmen, it is not enough that you disagree with the decision. You have to show that the council has been acting outside the limits of its legal powers or in disregard of the legal principles governing the exercise of their decision-making powers, e.g. by pre-determining an issue upon which it has gone out to consultation, failing to take account of relevant considerations or acting irrationally. The court will not investigate whether the council is providing a service which complies with the 1964 Act, because that Act provides a procedure (a complaint to the DCMS under s.10) to determine that issue.
Your lawyers will send the council a pre-action letter, which the council has to answer. Based on this, the High Court will decide if you have an arguable case that it is prepared to hear. If it decides this point in your favour, the case will go to a full hearing.
Successful cases have been brought on issues such as poor consultation, failure to ensure access to the service, failure to assess need and protect vulnerable groups. Some important cases have been won by library campaigners. Some have helped to define what a public library service should offer, in the absence of a definition of ‘comprehensive and efficient’ (although a jumble of legal precedents is a poor way to do this).
But for the individual campaign, the main benefit is to buy time. A council cannot carry out a plan while it is being tested via judicial review. The delay might make the council’s plan unviable. It could make the council think again, and change tack instead of risking a big legal bill. It is also, of course, good publicity for you.
Ultimately, however, a determined council can still carry out its original plan. It just has to get the administrative details right next time.
You may also be able to get some advice / information from The Public Law Project
