DRAFT RESPONSE IN RESPECT OF DRAFT REPORT

Dear Ms Charteris DCMS Local Inquiry into the Public Library Service provided by Wirral Metropolitan Borough Council I refer to your letter of 27 July 2009 which enclosed your draft Report following the Public Inquiry into Wirral’s Library Service. I note that you state that this correspondence does not, in your judgement, represent an opportunity for us to make further representations. However, the Council considers this matter to be of such significance to the future of the Authority (and indeed others across the Country), that it would be quite wrong for us not to seek to address some fundamental issues.

You will recall that we have already submitted correspondence concerning the process that has been followed in respect of the Inquiry (see letters dated 30 April and 19 May 2009). Our concerns remain as to the Terms of Reference of the Inquiry and the lack of any proper Statement of Case to which the Council could respond.

The Public Libraries and Museums Act 1964 (‘the1964 Act’), as you have yourself acknowledged, places a very general requirement upon us that is inherently contradictory (comprehensive versus efficient). There are, as yet, no Regulations in place, or current Guidance from DCMS, to assist in interpreting the meaning of the 1964 Act. Nor is there any case law to clarify matters.

The draft report has apparently been written on the basis that there is a specific and extensive legal duty on the Council to undertake assessments of needs. This is simply not the case: no such duty is imposed on a library authority under the 1964 Act. Neither is there any such obligation in any Regulations that requires us to undertake a needs assessment before closing a library; nor is it recommended in any Guidance.

The Inquiry has gathered a considerable body of evidence on the hopes, wishes and aspirations of local people. These are obviously a very important consideration for any Local Authority. However, in your report you have equated the (entirely understandable) wishes of some users of those libraries scheduled for closure to save ‘their’ library as meaning that the Council’s must therefore be in breach of its duty to provide ‘a comprehensive and efficient library service for all persons desiring to make use thereof’. That is a legally flawed analysis (see below). Similarly, your reference to the Local Government and Public Involvement in Health Act 2007 (the obligation to involve/consult) means that you have had regard to an irrelevant matter: the duty was not in force when the decision to re-configure the library service was taken (15 January 2009). (However, I do accept that you are entitled to refer to these matters when considering whether the Council’s approach should be commended to the Secretary of State as best practice. But, I repeat, they are not legally relevant in determining whether the Council has breached its duty under the 1964 Act).

In the absence of guidance, statutory or otherwise, Wirral Council based its judgment as to our compliance with the 1964 Act by comparing the post Strategic Asset Review (SAR) 13 library offer with the Council’s statistically most similar ‘family’ of authorities, as identified by the Audit Commission. This demonstrated that in terms of both comprehensiveness and efficiency, our re-provision would place us ‘mid-table’ when compared with others similar library authorities. On the basis that the Secretary of State has never suggested that even the worst performing library authority in the Council’s family is in breach of the 1964 Act, it seemed reasonable to assume that this Council would continue to comply with its duty under the 1964 Act by providing 13 libraries and enhanced outreach provision.

We believe this should also be a significant consideration for the Secretary of State when reaching a judgement in this matter. If Wirral’s plans for the provision of thirteen libraries across the Borough would place us in breach, then, to be fair and consistent, he should reasonably conclude that he should intervene in the library service for all the Local Authorities who currently provide fewer libraries per thousand people than Wirral’s proposal.

The Council’s vision for its library service involves using fewer but better quality buildings complemented by enhanced outreach provision. As indicated, such an approach would place Wirral in ‘mid-table’ in terms of service performance when compared with its family of similar authorities. As such, given the financial constrains and pressures from other statutory services that the Council must manage, it is our contention that Wirral’s plans were reasonable; albeit, clearly not popular with the users of those libraries that would close. Thirteen libraries will be more efficient than 24 and deliver better value for money for all local residents.

During the formal Inquiry (and at the various informal meetings you held) you heard many people express their opinion that they did not want ‘fewer but better’: what they wanted was to retain ‘their’ library and its well-liked librarians. Their preference was for ‘greater local availability’ of the library service. This too is a reasonable service delivery preference, provided it is funded by spending less on other services (or increasing the Council Tax): it will provide a more comprehensive service, but at higher cost.

The key point to understand is that, logically and legally, either option (‘fewer but better’ or ‘greater local availability’) is capable of delivering a reasonably ‘comprehensive and efficient library service for all persons desiring to make use thereof’. Both options have advantages (greater efficiency versus a more comprehensive service) and both have the corresponding disadvantages (a less comprehensive service versus a costlier service). Which option is superior is a matter of opinion: a matter of personal preference upon which reasonable people may perfectly legitimately hold opposing views. In Wirral the two options have (with a few exceptions) been championed respectively by the Administration and the Opposition. This has prompted some vibrant and stimulating debates at Council and other public meetings. This is a sign of a healthy democracy at work and, ultimately, the decision on which option is better should be determined by the electorate in Wirral.

The proper purpose of an Inquiry under section 10 of the 1964 Act is to consider whether the Council has failed (past tense) to meet its statutory duty under section 7 of the 1964 Act. In the absence of any Regulations, Guidance or case law, the Council was left to make its decision on the Wirral library service in a vacuum. In these circumstances it is not reasonable (and thus not lawful) retrospectively to decide that no library may be closed unless a comprehensive needs assessment has been conducted. That might in some people’s view represent best practice, but if it is to be a legal requirement it should at the very least have been encapsulated in DCMS Guidance. (This unfairness has been compounded by the persistent refusal of DCMS to provide a proper Statement of Case to inform the Council of the Secretary of State’s position and views in this matter). Whilst the Council appreciates that you are required by your Terms of Reference to consider whether a needs assessment was conducted, mere failure to undertake such an analysis does not, legally, automatically place the authority in breach of its 1964 Act duty.

It is a basic principle of administrative law that a local authority in performing a statutory duty must act reasonably. Thus, to be in breach of the 1964 Act the Council must have acted unreasonably: in a manner that is perverse, one which no reasonable authority would have followed. There is a range of ways of complying with the 1964 Act: different authorities have different levels of provision and varying mixes of buildings, mobile libraries and outreach provision. Probably very few have ever designed their library service following the sort of detailed needs analysis advocated in your draft Report. Many library services, like Wirral’s, will have been inherited from a number of predecessor authorities.

As I have pointed out, there is no obligation in the 1964 Act, or any Regulations, Guidance, or case law requiring a library authority to undertake a needs assessment. Whilst your views on the desirability of undertaking a needs analysis may, in the fullness of time, come to be incorporated in DCMS Guidance, it is, with all due respect, at present merely one person’s opinion as to how best a council should meet the requirements of a 45 year old piece of legislation. Equally, however, in the absence of any such Regulations, Guidance or case law, it is not unreasonable for the Council to compare its proposal to have 13 libraries (and enhanced outreach provision) with the service provision at the Audit Commission’s ‘family’ of statistically most similar authorities. Having done so, the Council has reasonably concluded that by being ‘mid-table’ (in terms of analysis against the former Library Standards - which were current at 15 January 2009, when the key Cabinet decision was taken) it would meet its 1964 Act duty.

With 13 libraries, Wirral would provide library opening hours per 1000 population that is virtually identical to the statistical average for all library authorities in England. It is not unreasonable to consider that this is ‘a comprehensive and efficient library service for all persons desiring to make use thereof’. Conversely, if it is not a 1964 Act compliant service, then there are many poorer performing library authorities in England that have never been subjected to a Section 10 Inquiry. That would be a manifestly unfair, indeed arbitrary, outcome.

As I have said, the proper purpose of an Inquiry under section 10 of the 1964 Act is to consider whether the Council has failed (past tense) to meet its statutory duty under section 7 of the 1964 Act. However, in Paragraph 9.3 of the draft Report, you conclude that the Council’s decision to reform its library service in the manner proposed places it already in breach of its statutory duties. The decision to implement a change in how the library service will be provided in the future cannot legally (or logically) amount to a failure to carry out our duties under the 1964 Act. By way of a simple analogy, I may ‘decide’ to commit a murder: however, until my intended victim is dead, no murder has actually occurred. The Council can only be in breach of the 1964 Act when the library service it provides ceases to be ‘a comprehensive and efficient library service for all persons desiring to make use thereof’. Deciding to change a library service cannot place a library authority in breach until the decision is implemented and, as you are aware, the Council has suspended its planned library closures pending the Secretary of State’s decision. Therefore the Wirral library service remains today as it was before the SAR was commenced: 24 libraries and outreach provision.

With the greatest respect, I believe you need to reconsider this particular conclusion most carefully, given the Council’s decision to suspend all planned closures. In saying this, Wirral accepts that (subject to reasonable consideration of all relevant evidence), the Secretary of State does have the power to decide that ‘If Council X were to do Y it would be in breach of the 1964 Act’. Equally, I must point out that if having 24 libraries places this Council in breach of its duties under the 1964 Act, then most library authorities in England (if subject to the same level of scrutiny as Wirral) will similarly be in breach. But, if you accept that Wirral’s current library service is Section 7 compliant, it cannot logically cease to be so until service changes are actually implemented.

In addition to the points made above, of particular concern to us is the volume of ‘hearsay’ statements you have included in your report (as detailed in the appendix to this letter). The Public Libraries (Inquiries Procedure) Rules 1992 specify that the purpose of pre-inquiry meetings is to determine the matters to be discussed and the procedure to be followed at the Inquiry, with at least 14 clear days written notice of any such meeting being given to the library authority (Rule 6).

The hearsay statements included are damaging to the Council’s reputation, and we have not had the opportunity to challenge such statements in the formal Inquiry itself. The opinions of small and vocal local groups have been taken unquestionably as evidence, even when no factual basis has been provided, whereas the researched factual information provided by the Council appears to have been largely dismissed.

Specific comments on the various sections of the draft report are detailed in the enclosed Appendix for your attention. However, I would like to conclude with placing on record our concerns regarding the significant impact your report could potentially have on Local Authority finances and freedoms across the Country.

Particularly at a time of enormous financial pressures, Local Government is best placed to balance the full range of local needs and priorities against available resources. This proposed central Government intervention in our freedom to make these judgements represents a serious challenge to the freedoms and rights of local government and will be a significant concern to Local Authorities across the Country.

In addition, we do not consider that is a matter for national Government to decide between alternative models of local provision (‘fewer but better’ versus ‘greater local availability’). You may personally prefer the local model, but that decision should more properly rest with Wirral’s democratically elected Members who will, in turn, be judged by local people at the ballot box.

I look forward to receiving your response to both the detailed comments we have made and the significant implications the report will have for the rest of Local Government.

Yours sincerely Bill Norman Director of Law, HR and Asset Management