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Posts Tagged ‘Judicial Review’

Last year, SLAM challenged Surrey County Council’s volunteer-run library policy in the High Court in London – a policy that removes library staff and the library management system without saving any money.

SLAM would like to thank everyone that donated generously to our legal costs. SLAM promised to return donations if the challenge was successful and costs were awarded.

SLAM was successful in its legal challenge. Surrey County Council’s library plans were found to be not only ‘unlawful‘ but ‘considerably short of what was required by the law.’ Further, the judge found that SCC’s decision was ‘so unreasonable that no other reasonable authority would have made it.’ Lest we forget that SCC said it was ‘pleased’ with this judgment!

Due to the verdict being so emphatic, SCC was ordered to pay the full costs in the case. SCC has dragged its feet for months and months but it has at last paid what it owes. SLAM is now in a position, therefore, to pay back money to all that donated.

If you  paid by cheque, by bank transfer or by debit/credit card you will have received your money by cheque along with a letter of thanks. If you have not, please get in touch.

If you paid by Paypal, your donation will have been paid back via Paypal, minus Paypal’s small administration fee. Again, if you have not received the payment, please get in touch.

Since the High Court case, SCC has struggled to implement its CPL policy and has wasted hundreds of thousands of pounds in its attempt. Our campaign and the legal case has achieved a number of concessions:

  • A reduction from 19 libraries originally intended for CPL status to 10 (only 6 launched so far)
  • Formation of a 5 person team at County Hall to support each CPL for 20% of its opening hours
  • Improved training for volunteers
  • SCC on notice should they decided to extend the CPL policy to other libraries

SCC is trying to implement the CPL policy but, thanks to your support, it is a much improved model which will give the libraries a better chance of survival.

We would like to thank you for your contribution to the campaign and for supporting Surrey’s libraries and library staff.

Kindest regards,

SLAM

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We sent an open letter earlier this week to Peter Milton, Head of Cultural Services at SCC, pointing out the myriad ways in which SCC’s current equalities survey is fundamentally flawed.

The outcome of the Judicial Review gave SCC an opportunity to take a step back, review its policy and make some adjustments that would make the policy more agreeable to Surrey residents. But instead of taking that opportunity, SCC has got hung up on trying to overcome a perceived “technicality”, only consulting with the minimum number of people to satisfy the “technicality”, and only on questions that it feels the High Court judgment demands.

The result is the overly complicated, fussy and poorly administered equalities consultation and monitoring we now see.

The consultation documents have been to sent to some library users many times over whilst many other library users have received no documents at all. The questions themselves are complicated to answer and demand too much knowledge of regulation, training and equalities law for a library user to reasonably answer.

As one resident put it to us, SCC has tried to be “too clever by half”.

SCC could have avoided all this confusion and complication, and it still can. We recommend that the Council sends out a simple referendum to all residents in the affected communities with this simple question:

Given that there is no financial saving in replacing paid, professional staff with volunteers, would you rather your local library was run by

A. Experienced, paid, professionals (with volunteers providing additional services where appropriate)

or

B. volunteers only

We have evidence that leads us to believe that most people will vote for option A. But if we are wrong and the majority of people vote for option B, then we will accept defeat gracefully and wrap up this campaign. You will hear from us no more.

Come on Surrey County Council, let’s see localism in action.

LET THE PEOPLE DECIDE!

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Mr Justice Wilkie passed his final Order in the Judicial Review on 1st May, quashing SCC’s decision to proceed with setting up Community Partnered Libraries in ten communities across Surrey. The final Order is here (Final JR Order).

In response, SCC has announced its intention to retake the decision at a cabinet meeting on the 19th June 2012. Ahead of that date, and to inform the cabinet, SCC also announced that it will be consulting with library users over its CPL proposals.

SCC’s decision to consult with library users is welcome news. We have campaigned for such a consultation for a long time. A proper consultation with library users is entirely appropriate given the serious nature of what is being proposed: the removal of all paid staff and making volunteers take over the management and delivery of a vital public service. Even the Council admits this is a “radical” proposal.

The Council has already begun its consultation. The first batch of consultation documents landed on some library users’ doormats last week. We attach here the documents – these sent to parents of children in the affected areas, but all consultation documents are very similar (Cover letterConsultation documentEqualities/Diversity form).

So we should be pleased, yes? No. Consultation is good, of course, but only if done properly, comprehensively and in an open-minded way.

We looked up HM Government’s “Code of Practice on Consultation”. It has seven consultation criteria. It is worth checking SCC’s attempt at consultation against these criteria to see how the Council matches up. Criteria quoted verbatim below:

Criteria 1 – When to consult

Formal consultation should take place at a stage when there is scope to influence the policy outcome

How does SCC match up?

It is clear from the consultation documents that SCC has already made up its mind and that these documents are being sent out solely to shore up its previous unlawful and quashed decision.

Indeed, Cabinet Minister in charge of libraries, Helyn Clack, was recently interviewed by David Farbrother of the Surrey Mirror newspaper (Helyn Clack interview with Surrey Mirror), and gave this response:

DF: Can you envisage being persuaded by further consultation?

HC: Probably not

Criteria 2 – Duration of consultation exercises

Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible

How does SCC match up?

The first batch of consultation letters started to arrive last week and users have been asked to return forms by 6th June. Many library users have still not received their documents. Let’s be generous and say the consultation began on 1st May. That’s a 5 weeks consultation period. Woefully short of what would be considered good practice.

Even if SCC dismiss the Government’s code of practice, it is still fanciful to suppose that it can properly consult, consider and analyse the results, and then present them to the Cabinet by 19th June.

Criteria 3 – Clarity of scope and content

Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposal.

How does SCC match up?

Helyn Clack has already said she will “probably not” be influenced by the consultation. So why bother consulting at all? The answer can only be that SCC are simply trying to tick the right boxes.

Nowhere in the consultation documents does it explain the costs of the proposals. It is understandable that SCC does not want to reveal these costs, of course, because they are considerable and have by far outstripped any hoped for financial benefit.

Criteria 4 – Accessibility of consultation exercises

Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach.

How does SCC match up?

We believe that, of the documents sent out so far, most (yes, most) have been sent to the wrong recipients or to the wrong address. We are collecting envelopes as evidence and are finding more examples than not that have been sent to non-existent people.

We also have an example of a letter that was sent to a real person but at the wrong address. It just so happens that the person that received the letter knew the person that it was supposed to be sent to so could send it on. We have no idea how many other letters were sent to the wrong address in this way, but it is likely to be many.

Criteria 5 – The burden of consultation

Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees’ buy-in to the process is to be obtained

How does SCC match up?

The questions in the consultation document imply that the survey-taker has not only a full understanding of the Equalities Act 2010 and the Council’s specific obligations under its Public Sector Equalities Duty, but also that the survey-taker is experienced and highly knowledgable in assessing training needs and devising training programmes.

We are sure that the occasional Surrey resident will have this knowledge and these skills but to expect all residents to respond in a meaningful way to these questions is unrealistic and over-burdensome.

Criteria 6 – Responsiveness of consultation exercise

Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation

How does SCC match up?

As stated earlier, we fail to understand how SCC can receive the replies, analyse and consider them properly in order to present a coherent report to the Cabinet by 19th June.

Criteria 7 – Capacity to consult

Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience

How does SCC match up?

If officials did seek guidance on how to run an effective consultation, we would be very interested to know where they looked. We found the Government’s “Code of Practice on Consultation” by doing a simple online search. We think that, as an absolute minimum, SCC officials could have done the same.

Conclusion

There is a final sentence underneath the criteria in the “Code of Practice on Consultation”. It reads, “These criteria should be reproduced in consultation documents”.  The criteria are not reproduced in SCC’s consultation documents.

SCC was taken to the High Court by Surrey library users and residents, and was found to have acted not only “unlawfully” but “significantly short” of what is required by the law. It would be reasonable to think that, given another go, SCC would make every effort to get it right this time around.

Not content with the hash it made of its first attempt at passing its CPL plans, it seems, if anything, to be doing an even worse job on its second attempt. It is perfectly obvious to any reasonable person that the Cabinet will not have sufficient information in front of it to make a decision on June 19th. If it attempts to make that decision in spite of the serious shortcomings of the current consultation attempt, it will be seriously misguided.

More and more Surrey residents are now saying enough is enough. The Council has already spent too much money on this library policy and it continues to burn money on it – far more money than it ever hoped to save. Common sense must now prevail.

Kenny Rogers sang in his song, The Gambler, “you’ve got to know when to hold ’em, and know when to fold ’em.” For Surrey County Council, it’s time to fold.

In our next blog – how people are  emphasising the benefits of paid staff in their consultation returns

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Surrey County Council has today announced that it “will take a decision on its libraries plans again, following a judicial review.”

We welcome this announcement – finally, some common sense. Mr Justice Wilkie ruled earlier this month that SCC’s plans were “unlawful” and that the plans fell “substantially short” of what was required by law. Despite SCC’s initial defiant reaction that it was “pleased” with the Judgment and that it intended to “carry on regardless” it has now recognised that its initial reaction was wrong and must now act within the law, with respect to the Judge’s detailed ruling and that it must reconsider its decision.

David Hodge said at today’s cabinet meeting that SCC’s lawyers were agreeing a High Court Order with the Claimant’s lawyers, although he did not say what that Order would contain, leaving the contents of the Order open to speculation.

One New Haw resident said today upon hearing the news:

“It sounds like the County Council has capitulated. Clearly they didn’t rate their chances at the next hearing and so they’ve thrown in the towel early.”

Whilst not necessarily and wholly concurring with that view we would say that SCC has come to the right decision in not committing more good taxpayers money after bad – Lord knows the Council has wasted enough money on its library policy already!

We wait to see what the Court Order says.

Council leader, Hodge, has said he will attempt to take the decision again at the Cabinet meeting on 19th June. We will be looking for evidence at this meeting that the Council has evaluated the benefits of paid staff to library users so that it can then understand the impact of losing them. Once it has understood this impact it can only then decide whether training of volunteers can mitigate the loss of paid staff, whether something other than training is required, or indeed whether the gap is too big to be filled by a rota of volunteers.

The only way to analyse the benefits of paid staff to library users is to ask the library users themselves, by way of a full and open-minded user consultation.  We would expect to see evidence and results of such a consultation presented to the Cabinet meeting on the 19th June.

Our view, as explained in this open letter, is that it would be extremely difficult to replace the benefits of paid staff with only volunteers but, if David Hodge is as insistent on the policy as he seems, then we expect to see “substantial” evidence at the Cabinet meeting to justify it.

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Things happening apace at the moment. Hot on the heels of our open letter to Surrey County Council, Ed Vaizey, Minister for Culture (including libraries), weighs into the debate in an interview with BBC Radio Surrey this morning.

BBC Radio Surrey was interviewing SLAM Chair, Mike Alsop, about SLAM’s open letter to the Council when the presenter, Mark Carter, suddenly introduced Ed Vaizey to the interview, to the surprise of SLAM’s Chair.

Ed Vaizey said that he would expect there to be a “discussion” when an authority attempts to reconfigure its library service, in direct contrast to SCC’s non-consultative approach.

He went on to say that he “fully supports” SLAM’s right to campaign against SCC and to change their mind over the library plans.

The most telling part of the interview, though, was this:

Mark Carter: “You are quite happy with the direction Surrey County Council is taking?”

Ed Vaizey: “Hold on. I don’t want to get too pedantic because I don’t think your listeners are interested in, sort of, me dancing on the head of a pin…”

Mark Carter: “But from what you’ve heard and what you’ve read, you are happy with the direction Surrey County Council is taking?”

Ed Vaizey: “If the local population and the local campaigners think that the County Council has taken a decision in the wrong way they are entitled to Judicially Review it, which is what SLAM has done to Surrey County Council. They won that Judicial Review and the County has been asked to look at the way it made its decision again… I can’t say whether I am happy with Surrey’s plans because I have to wait until I’ve seen the final shape of them before I make a decision about whether it’s appropriate or not to have an enquiry into whether or not they are providing a comprehensive library service.”

There are three very important points raised here by Ed Vaizey.

Firstly, he accepts that the claimants (supported by SLAM) won the Judicial Review. SCC has, absurdly, yet to accept this and has said it is “pleased” with the judgment and that the judge did not criticise its plans.

Secondly, Ed Vaizey says that the judge has asked the Council to look at the way it made its decision again. This is clearly the Minister’s expectation, too. Yet SCC has said that it intends to press on with its plans regardless of the High Court ruling and without reviewing its decision.

Thirdly, the Minster for Culture says that he “can’t say whether he is happy with Surrey’s plans because he hasn’t seen the final shape of them,” before deciding whether to hold an enquiry. It is very clear that Ed Vaizey expects the Council’s plans to change, which chimes with the Judge’s ruling that the plans fell “substantially short” of what is required by the law. The Minister also makes it clear that he is holding the threat of an enquiry over SCC’s head.

It can not be clearer that SCC needs to mend its ways and to fundamentally change its plans to run 10 libraries with volunteers only. Our letter sent this morning spells out how this process of change may be started.

The ball is firmly in the Council’s court. Will it defy Surrey residents, the High Court and, now, the Minister for Culture (risking a full-scale enquiry) or will it see the error of its ways?

We say the easiest way for SCC to get out of the tremendous mess it has made for itself is to drop its library plans and have a fundamental rethink. But if it really does “insist on this policy” then it has an awful lot of hard work and expense ahead of it.

Over to Surrey County Council.

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Despite Surrey County Council’s rushed and confused statements on the day of the Judgment, it is very clear that the Judgment is categorically in the Claimants’ favour. Para 130 of the Judgment states:

“Accordingly in my judgment the Claimants have succeeded in establishing that the decision of the 27th September 2011 was unlawful.”

And in para 129:

“I have reached that conclusion both by deciding what was required for “due regard” and on Wednesbury grounds.”

The Wednesbury grounds state that the decision was “so unreasonable that no reasonable authority would have taken it.” It does not get more definitive than that. That SCC have stated that they “are pleased” with the Judgment reflects poorly on them.

On the Council’s Public Sector Equality Duty 

The Judge states in para 108:

“In  my judgment the Claimants have succeeded in demonstrating that the Defendant, on the 27th September 2011, failed to comply with its duty under Section 149 to have due regard to the statutory equality duties identified in subsections 1(a)(b)(c).

SCC has dismissed this breach of its Public Sector Equality Duty as a “technicality” and has boldly asserted, in public and in internal memos, that they will carry on implementing the plan – they have stated in fact, with ideological zeal and seemingly with a will to ignore the Judgment, that “SCC is intent on this policy”.

We say that SCC’s responses so far have been ill-advised. To put their failings down to a “technicality” and to “carry on regardless” is an insult to the legal process and to the Judge that has put together this detailed and thoroughly considered judgment. We call on SCC to show some dignity, gravity and respect for the law in further responses and in their future actions.

Indeed, para 115 recognises that the policy represents a “a complex and radical change”. Serious thought and consideration should be given to this complicated library restructuring project, not more “bland assertions” and defiance by SCC.

On Equalities training, monitoring and appraisal

The judgment, in its detail, raises very significant difficulties to overcome if SCC really are “intent” on pressing ahead with the policy. Para 116 states:

“embedding equality issues in the culture of the Defendant involve[s] particular emphasis being placed on significant compulsory training of all members of management and staff, by having equality issues as individual appraisal targets for staff and by having training for managers and tailored training”

Further, the Judge recognises that

“The duty imposed on the public authority is non delegable. It remains on the public authority charged with it”

And further still, at para 123:

“a significant amount of material to report to the cabinet which would have put flesh on the bare bones of the asserted recognition, in February 2011, that a change of this magnitude, at the cutting edge of implementation of this important policy, would require significant training of the volunteers, particularly in respect of Equality issues

The above three excerpts imply that SCC must, itself, train volunteers to a “significant” level in equalities issues and how to overcome them, and also to set volunteers “individual appraisal targets” (i.e. performance appraisals). This is easy to do if you only have 2 or 3 staff members per library, but to do it for 60-100 volunteers per library, or 600-1000 over all 10 libraries? Nothing is impossible, of course, but this will be a very difficult task and, of course, a very costly one for Surrey taxpayers. It would be much simpler and cheaper to maintain a small number of staff in each library, supported by volunteers.

And to sum up on the requirement for training, para 127 has this to say:

“In my judgment, the reliance by the Defendant on the same bland assertions that training would be required and monitored, as had been contained in the February report, fell substantially short of enabling the cabinet members to give due regard to this obvious equality issue at the stage the process had reached in September. “

On consultation

Para 118 states that

“The November 2010 EIA explicitly warned that residents … had not yet been consulted and that such consultation would be important to inform the proposals”

and that 

“no final decision would be taken by cabinet until that consultation had been completed and the results analyzed.”

The fact that SCC did not consult residents or library users at all over this policy has now been raised by the Mr Justice Wilkie. Before any further action is taken by SCC we would expect to see this consultation of library users and residents to take place.

In conclusion

Mr Justice Wilkie’s judgment presents vast difficulties for SCC which can not be ignored, must be given weighty consideration, and can not be overcome by “bland assertions” that training will be provided or that “we can press ahead anyway”.

The costs of implementing the volunteer-run library policy had already outstripped the meagre amount of savings claimed (claimed savings were just 1/10,000th of the Council’s net budget) before SCC started fighting this expensive legal case.

The effort and cost of the significant amount of ongoing training required, and monitoring of that training, will be considerable.

We say it would be far simpler and cheaper to keep a few paid staff in place in each library, return the Library Management System to each library, and keep the 10 libraries within the managed network. And if volunteers can add additional value and services, then all well and good.

SCC should not press on with its ill-thought and ill-judged policy, and should now find the dignity to abandon it.

We will shortly be writing to Surrey County Council, setting out SLAM’s position.

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Sorry for the late notice but we have just heard that the judgement from the Judicial Review is to be handed down in writing tomorrow.

We are not sure exactly what time it will be handed down yet but we would hope to know by tomorrow afternoon at the latest.

More then…

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