photo by Martin Francis from his Wembley Matters blog
Just back from court 63 where Lord Justices Pill, Richards and Davis have spent the last two days hearing the appeal against Mr Justice Ouseley's decision in favour of Brent Council on 13th October.
After a slightly surreal start with the usher announcing a case involving the "London Borough of Trent", conjuring up unlikely images of Ann John as Maid Marion, he corrected himself, and the hearing began. We have a new barrister - Dinah Rose - and she was very impressive. She opened the case yesterday with the complicated indirect discrimination point - but she explained it so well that I think all 50 or so supporters - (the court was packed and folding chairs had to be brought it!) may now be able to explain it to someone else.
Well, here goes... the point is that armed with the knowledge (from the last census in 2001) that 28% of the population of Brent is Asian, and that 46% of active borrowers were Asian (from Brent's own figures), the Council should have been alerted to the possibility that closing Barham Park, Tokyngton and Preston Road, three of the four libraries in the most densely Asian wards (leaving only Ealing Road library open- already the second busiest library in Brent, with 261,000 visits in 2009/10 according to Brent's figures) might have amounted to indirect discrimination against Asians. Having identified that risk, Brent should have considered it in its Equalities Impact Assessment.
Ms Rose recognised the very real economic difficulties faced by local authorities and the fact that hard choices have to be made by them but subject to their statutory duties - in this case Brent's duties under section 149 of the Equalities Act 2010 and under the Public Libraries and Museums Act 1964. She stressed that the merits of the decision were not being examined (that's going on elsewhere - across the borough wherever there's an activist, library user or defender of places to study and read), purely the process by which it was reached.
The fact that only 21% of the questionnaire responses were from Asians should also have alerted Brent ("the red flag should have gone up" as Ms Rose put it) to the fact that they were under-represented in the consultation.
Brent should therefore have realised that any proposal to close libraries was likely to affect the Asian population disproportionately and they should have considered why this was (ie the cultural, social and economic reasons). Brent conceded that it wasn't considered at all, but argued that giving no regard to it could nevertheless amount to "due regard" under the legislation. Ms Rose's argument is that having wrongly concluded that there was no risk of discrimination against Asians the council (wrong again) didn't go on to properly consider it and therefore failed to fulfill their obligations under the legislation.
A witness statement by Sue Harper (Director of Environment and Neighbourhood Services) showed that Brent had concluded that the only disadvantage would relate to mobility (ie difficulties in travelling to other libraries) and that only the elderly, young or disabled would be adversely affected. They failed to consider whether a racial group could be disadvantaged.
In fact the Asian community have been disproportionately affected because a new witness statement showed that Ealing Road library is now overcrowded, with children (mostly Asian) sitting on the floor to do their homework and great pressure on the computers.
Incidentally children have been sitting on the stairs at Willesden Green library doing homework! So much for the transformation of the libraries by digital and outreach services (well, I know, we never believed that anyway).
Ms Rose handed up demographic maps (a graphic representation is always a good idea) taken from Brent's website showing the density of the Borough's Asian population with the locations of the 12 original and 6 remaining libraries superimposed. Miss Laing, on behalf of Brent, did not accept that this detailed ward information was before the Executive when they reached their decision to which Ms Rose riposted "well it should have been: we got it from the council's website". With a good barrister you really can hear the punctuation- that colon was as clear as anything - but back to the issues.
Ms Rose went on to assert that the judgment contains errors of law relating to indirect discrimination as Mr Justice Ouseley found that Brent did a proper Equality Impact Assessment (which she says they did not)
One of their lordships seemed surprised that councils were required to carry out this exercise every time they wanted, for example, to close a swimming pool. As Ms Rose explained "these practices have been carried out by local authorities since the legislation came in. They may be novel to your lordship but they're not novel to local authorities: Brent have a form to help them make these decisions"
Dinah Rose also argued that Brent paid no regard to the impact of its policy until the 11th hour of 11th of April 2011- by which time it was far too late because it had already decided to close 6 libraries and had already set the budget.
A third point was that Brent was in breach of its duty under the Public Museums and Libraries Act, and the fourth point that it had engaged in procedural unfairness by not revealing the "seven secret criteria". The judge below said they were obvious. Dinah Rose said they were not.
An interesting factual point which Ms Rose highlighted is that Brent did not simply close the six libraries with the lowest usage figures - Kilburn Library (which has lower usage figures than Neasden - now closed) was reprieved because of the special characteristics of some of the users. This means that Brent feared that there might be indirect discrimination against certain groups who use Kilburn if it was closed, but they failed to carry out the same exercise in relation to the Asian population's usage of Barham Park, Preston Road and Tokyngton.
I'm afraid I missed the afternoon and following morning during which Ms Rose concluded her application and Miss Laing replied, asserted in essence that Brent used the correct procedure and that the judgment below should be upheld. But I was back for Ms Rose's response on Friday afternoon. She dealt with Miss Laing's assertion that the amount of regard which a council had to have under the Equalities legislation was a question of degree by pointing out that "it was a major policy decision which on any view would have very significant effects on the lives and opportunities of those who live in Brent".
Ms Rose described one part of Miss Laing's argument on indirect discrimination as "completely nuts", a phrase which is unlikely to find its way into the judgment (however appropriate it might be), but which cheered us up at the back of the court.
The final point was about the "seven secret criteria". Ms Rose dealt with the daft suggestion on behalf of Brent that engaging fully with the groups who had put forward proposals would amount to re-opening the whole consultation by pointing out there were only ten of them!
Tara Brady has written an excellent piece about the first day and the indirect discrimination point on the Kilburn Times website which is well worth reading.
So has Martin Francis, with great photos (see below), on his excellent Wembley Matters blog.
photo by Martin Francis from his Wembley Matters blog
Our solicitor, John Halford of Bindmans, again helpfully stayed behind to answer any questions after the hearing. He thought it could be about a month before the Judgment is delivered. It's impossible to predict how it might go, but Dinah Rose put the case very strongly and persuasively for us, and all three Lord Justices were taking a keen interest and asking plenty of questions to test the strength of both sides' arguments. John felt that no further steps should be taken by Brent in the meantime- no more stock should be removed from libraries or from where it's being stored.
So, fingers crossed, and keep supporting the various events - the next is the fabulous sounding Disco Dance Fundraiser next Saturday 19th November in the Preson Mall Community Centre -more details
Which has given me a good idea to end with - Dance the Night Away by the Mavericks. Just imagine that the "she" who "has gone away and can't do a thing to me" is someone senior in Brent council and you'll enjoy it even more than you usually do.