Buck, R (On the Application Of) v Doncaster Metropolitan Borough Council [2012] EWHC 2293 (Admin)

[2012] EWHC 2293 (Admin)Case No CO/4782/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN LEEDS
Venue Leeds Combined Court,, 1 Oxford Row, Leeds, LS1 3BGDate 01/08/2012
Before
MR JUSTICE HICKINBOTTOM
Between
THE QUEENClaimantDONCASTER METROPOLITANDefendantBOROUGH COUNCILDefendant
David Wolfe QC (instructed by Public Interest Lawyers Ltd) for ClaimantNigel Giffin QC and Edward Capewell (instructed by Legal and Democratic Services, Doncaster MBC) for DefendantHearing Hearing date: 24 July 2012
Judgment

Introduction

[1]The Claimant, Carol Buck, lives in Doncaster, next to Scawthorpe local library, which she uses a great deal. The Council’s executive of a directly-elected Mayor, Peter Davies, and his Cabinet wish to change library services in the town, in particular to replace employed staff with volunteers or self-service facilities, and thereby save public money. Those changes will affect Scawthorpe Library. The full Council wish to retain the level of library services.[2]In form, therefore, this is a claim by Miss Buck for a declaration that the Mayor and Cabinet have acted unlawfully in refusing to implement a budget amendment, determined by the full Council with a two-thirds majority on 5 March 2012, that included an additional sum of nearly £400,000 in the authority’s revenue expenditure budget for 2012-13, which represented sufficient funding for the level of library services favoured by the full Council to be restored. In substance, it raises the important wider issue of the division of powers between a directly-elected mayor and a local authority’s full Council. That issue is of considerable importance to all authorities which have a directly-elected mayor, and may be of particular importance in practice where, as in Doncaster, the mayor is not from the same political party as the majority of the full Council.[3]In this judgment, for convenience, unless otherwise indicated, references to “the Mayor” are to the executive of Doncaster Metropolitan Borough Council (“Doncaster MBC”) which formally comprises the Mayor and his Cabinet.

Factual Background

[4]Miss Buck has always lived in Doncaster. She was born with cerebral palsy, which has severely affected her functional abilities, including her mobility. She is a wheel-chair user, and, although her physical condition has gradually deteriorated over time, fortunately her mental functioning is good. She lives in supported accommodation, next to Scawthorpe Library, which she uses almost every day to borrow books and DVDs. Attendance at the library also provides her with a good opportunity to meet other people. The staff there are kind and helpful, for example suggesting books and DVDs that they think she might enjoy, and ordering items for her. The library plays a large part in her life.[5]The library is run by the local authority, Doncaster MBC. The authority is a library authority for the purposes of the Public Libraries and Museums Act 1964, and consequently, by section 7 of that Act, has a duty “to provide a comprehensive and efficient library service for all persons desiring to make use thereof…” in its area.[6]In 2009, Doncaster had 26 libraries, including Scawthorpe, but only 12% of the borough’s residents used the facilities on a regular basis and only 16% used them even once per year, low proportions that were continuing to decline. The annual cost of the facilities per head of population was £19.70, higher than the national average.[7]A review was ordered in early 2010, which highlighted a number of failings: for example, in many, the state of the buildings and the general environment were poor. In September and October 2010, a public consultation process was undertaken with a view to implementing improvements. A mayoral strategy document resulted, “A Fresh Start for Libraries: Doncaster Libraries and Information Strategy 2011-15”. That strategy aimed at reducing expenditure to £12.30 per annum per head of population, by 2014-15. The document proposed fewer, better served libraries.[8]On the basis of that strategy, on 4 February 2011, the Mayor decided to withdraw funding from 14 of the 26 libraries, but the provision of library facilities in Doncaster remained controversial. In March 2011, it was announced that funding would continue for 12 months to enable consideration to be given to alternative means of providing a service at those libraries otherwise due to be closed. Further public consultation took place during 2011, as did discussions between the Mayor on the one hand, and the full Council including the Overview and Scrutiny Committee on the other, with particular consideration being given by the Mayor to a possible future model that envisaged libraries being run in partnership with the community and volunteers.[9]On 16 October 2011, the Mayor and his Cabinet met and decided to go ahead with the new service delivery model presaged in the consultation process, including community-managed libraries. Following a further call in by the Council’s Overview and Scrutiny Committee, the final decision of the Mayor and Cabinet to the same effect was made on 23 November 2011. That decision was to keep twelve libraries as they had been, fully staffed, but to change the provision in the rest. Of those fourteen, in three cases there was to be community-led provision (volunteers) in existing buildings and in another five cases similar provision in different buildings. In four cases (including Scawthorpe) there were to be self-service facilities collated with other public services. Two libraries (Carcroft and Denaby) were to close. However, mobile library facilities were to be enhanced, and the remaining libraries were to be refurbished to a degree. One consequence of these changes was a considerable overall saving for the authority. Over 26 full time equivalent job posts were to go.[10]That decision, made in November 2011, has been implemented to a large extent. Carcroft and Denaby Libraries have closed, and, as I understand it, the employed staff in the other 12 libraries due to change have been replaced by volunteers and self-service facilities. On the other hand, mobile facilities have increased, and refurbishment work has started on the 12 libraries which continue to be fully serviced, including decoration, changes to the use of space and installation of new technology (Peter Davies 2 July 2012 statement, paragraph 11).[11]I understand that there is a separate claim in which different issues are raised, including whether the decision to change the mode of delivery of library facilities breached the public sector equality duty under section 149 of the Equality Act 2010; which claim is stayed pending the outcome of these proceedings. However, for the purposes of this claim, Mr Wolfe QC for the Claimant made two concessions about that 23 November 2011 decision of the Mayor. First, he conceded that the Mayor had the power to make that decision, and then proceed to implement it – as he did by, for example, closing Carcroft and Denaby Libraries. Second, he conceded that the services to be provided as a result of the decision satisfied the authority’s obligation under section 7 of the 1964 Act to provide library services.[12]In December 2011, the Mayor presented his draft 2012-3 budget to the Overview and Scrutiny Committee, before it was presented to the full Council in February 2012. The Authority was required to make savings of £29.6m, compared with its 2011-12 spend. The draft revenue expenditure budget, in a sum of just under £500m, was prepared on a “top down” basis, i.e. it started from the 2011-12 budget and identified proposed savings.[13]It proposed a reduction in the Customer Services & ICT budget of £533,000, mostly attributed to the changes to the library services that were the subject of the 23 November 2011 decision, described in the draft budget, under the heading “Savings Proposals”, as follows (paragraph 14(b)):
“Libraries (further £0.4m 2012-13, £1.1m in total) – changes to how library services are provided will deliver substantial savings for the Council; this includes providing £0.1m for running costs of libraries for community groups.”
Further details were given in Appendix B. There, the 26.4 FTE post-reductions were indicated, with savings of £392,000; and the following action identified:
“Consultation with affected locations to identify community alternatives, consultation and reorganisation of library staff and closure of 14 libraries.”
There is a further item in Appendix B which refers to additional expenditure of £110,000 for “funding for running costs of libraries for voluntary groups (estimate)”. The budget proposal therefore reflected the 23 November 2011 decision of the Mayor, as to the way in which library services would be provided in the area in 2012-13.[14]In paragraph 9 of the draft budget, the full Council were asked to approve a number of recommendations, including the level of Council Tax (no change), the revenue budget as a whole and “the detailed budget proposals as set out in Appendix B: containing saving proposals of £27.7m and budget pressures/growth of £8.8m in 2012-13”. Those proposals included the “Savings proposals” for libraries to which I have just referred.[15]At the full Council meeting on 23 February 2012, six amendments to the budget were proposed by the majority Labour group on the Council, including an amendment to the budget for libraries that would be sufficient to maintain the same library services that there had been in the past. The full Council voted not to approve the Mayor’s budget, but it voted 44 to nine to approve a budget with those amendments. The Mayor asked for the statutory period of 5 days to consider the amendments, and a second full Council meeting was fixed for 5 March.[16]In the event, the Mayor accepted five of the amendments, but not the libraries amendment. On 5 March, by 43 votes to six, the full Council approved the Mayor’s budget but with an amendment as follows, under the heading “Libraries”:
“Create a contingency budget to provide support for 14 Community Libraries (including reopening Carcroft and Denaby). This will include funding for up to 14 FTE Library Assistants for Community Libraries and Self Service units at 9 of the sites that don’t have one. The total cost for 2012-13 is £382,250 with £306,250 required from 2013-14 onwards. The fund will be available to ensure that no library is allowed to fail and to ensure delivery of the Library Services within communities. It can be accessed via AD - ICT & Customer Services who will liaise with local ward members and Neighbourhood Managers to agree priorities in Community Libraries. (£382k increase expenditure 2012-13, £306k on-going)”
(emphasis in the original).[17]Mr Wolfe submitted that that amendment was clearly intended to ensure, so far as possible, that the changes to the library service proposed by the Mayor did not go ahead.[18]However, the Mayor decided that the money allocated by that amendment to the revenue budget would not in fact be spent. By the time of the meeting, Carcroft and Denaby Libraries had already closed. The Mayor determined that they would not be reopened, and the transfer to community-led provision elsewhere would proceed. That was indicated to the full Council at the 5 March meeting itself; and confirmed in a letter to the Claimant’s solicitors dated 7 March 2012, which said:
“The current position is that the Council’s Executive has decided that the money from the budget amendment will not be spent as per the amendment.”
[19]The issue in this claim is whether it is lawful for the Mayor and Cabinet to act in that way, to thwart the intention of the full Council. On Miss Buck’s behalf, it is contended that the Mayor cannot follow that course, but rather he must obey the wishes of the full Council; and reopen the two libraries that have been closed, reinstate the library services he has changed, including of course those services at Scawthorpe, and maintain those services.

The Legal Framework

[20]Doncaster MBC is a local authority and a body corporate constituted under section 2(3) of the Local Government Act 1972. For ease of reference, as others have done in these proceedings, in this judgment I refer to the body corporate as “the authority”, and I use the term “the full Council” to denote a meeting at which all elected members of the local authority are entitled to attend and vote. The full Council in Doncaster has 64 members.[21]Prior to the Local Government Act 2000 (“the 2000 Act”), the power to make all decisions on behalf of a local authority vested in the full Council; although it could, and of course did, delegate much decision-making to committees or officers, and committees subdelegated to officers or subcommittees. In practice, most important decisions were taken by committees, the constitution of which usually reflected the political balance of the full Council.[22]That picture of local government governance was radically altered by the 2000 Act, as supplemented by guidance issued under that Act on 26 October 2000 by the Secretary of State, “New Council Constitutions: Guidance to English Authorities” (“the 2000 guidance”). The new statutory provisions replaced “crude universal capping” with the principle of “best value”; and were designed to provide “efficient, transparent and accountable decision making”, through “new constitutions which [would] deliver identifiable, accountable, corporate leadership for a local authority and the community it serves” by removing most decision-making from the full Council altogether, and putting it into the hands of a small executive (paragraphs 1.8 and 1.10 of the 2000 guidance). Those principles are underscored by section 37 of the 2000 Act, the Local Government Act (Constitutions) (England) Direction 2000 and paragraph 4.65 of the 2000 guidance which require to be made publicly available the scheme of delegation of functions which are the responsibility of the executive, including delegations to individual portfolio holders.[23]Section 11(1) of the Act allows a number of models, the most popular being the “leader and cabinet” model, under which the councillors elect a leader, and the executive comprises that leader and a small number of other councillors appointed by him or by the full Council. However, that was not the model adopted in Doncaster. Following a referendum, the authority there adopted the “mayor and cabinet” model under which there is a directly-elected mayor who, with councillors selected by him, forms the executive. In the case of Doncaster, in addition to the Mayor, the executive Cabinet must comprise between two and nine councillors.[24]However the executive is made up, it is responsible (and, subject to a few exceptions to which I shall come, exclusively responsible) for all “executive functions”, which comprise the vast majority of an authority’s business. Indeed, a function being executive is the default position: by virtue of a variety of provisions, all of an authority’s functions are executive, except where specific provision provides that they are non-executive (see section 9D(2) of the 2000 Act, regulation 2(2) of Local Authorities (Functions and Responsibilities) (England) Regulations 2000 (SI 2000 No 2853, “the 2000 Regulations”) and paragraph 1.16 of the 2000 guidance).[25]Non-executive functions remain the preserve of the full Council, exercisable as in the past by the full Council itself, or by a committee, subcommittee or officer as a delegee. Whilst those non-executive functions include a substantial number of functions not relevant to this claim (e.g. those to do with licensing), they also include two important functions (approving the budget and adopting various plans and strategies) central to this judicial review.[26]Approving the budget is effectively made a non-executive function by the Local Government Finance Act 1992. By section 1, each “billing authority” (which includes a District Council such as Doncaster MBC) has a duty to levy and collect council tax. Section 67(1) and (2) requires that certain functions of a billing authority must be discharged by the full Council. By virtue of section 31A(1), one such function is making particular calculations, including, by section 31A(2), the calculation of the aggregate of a number of items including: “(a) the expenditure which the authority estimates it will incur in the year in performing its functions and will charge to the revenue account… for the year in accordance with proper practices, [and] (b) such allowance as the authority estimates will be appropriate for contingencies in relation to amounts to be charged or credited to a revenue account for the year in accordance with proper practices…”.[27]Under regulation 4(9)-(11) of the 2000 Regulations, the executive must prepare and submit to the full Council estimates of the amounts to be aggregated for the purposes of those calculations, and to undertake any reconsideration of those estimates that the full Council require; but, as a consequence of section 67, the function of making or approving the required calculations – and, in that sense, approving the budget – remains one for the full Council itself. That function is non-delegable.[28]The approval of certain plans and strategies is also reserved to the full Council, by the 2000 Regulations which generally define the line between executive and non-executive functions. Regulation 4 and schedule 3 provide that adoption of specific listed plans and strategies must be by the full Council, including “the Annual Library Plan” which furnishes such information as the Secretary of State requires for the purposes of performing his duty to superintend the public library service under section 1 of the Public Libraries and Museums Act 1964. The Annual Library Plan (or, as it is called in Doncaster’s constitution, “the Library Position Statement”) has no relevance to this claim.[29]Where a plan or strategy does not fall within the scope of schedule 3, under regulation 5 and schedule 4(1) the adoption of it shall still be a non-executive function where “the [full Council] determines that a decision whether the plan or strategy should be adopted or approved should be taken by them” – in other words, the full Council may determine that it should itself be responsible for adopting or approving a particular plan or strategy that does not appear on the list. If it does not positively determine to do so, then the approval or adoption of those plans and strategies is a matter for the executive, under the default provision. The intent of the scheme is that the full Council do not seek to reserve for themselves the approval of plans and strategies other than those that form the “policy framework” (see, e.g., paragraphs 2.7, 2.9 and 2.18 of the 2000 guidance). Where there is a directly-elected mayor, he has a direct political mandate; and a – indeed, in many ways, the – substantial policy-making role in the authority, which includes preparing the draft policy framework and, within the framework that is eventually approved by the full Council, developing lower level policies, plans and strategies to implement that framework.[30]The respective powers of the executive and the full Council are thus divided and demarcated. The line between their respective decision-making bailiwicks may at times be difficult to identify; but firm line there is.[31]The 2000 Regulations also seek to ensure that, in performing the gamut of functions within its scope, the executive does not infringe the boundary of those functions reserved to the full Council. Regulation 5 and schedule 4, to which I have referred, go on to identify circumstances in which functions that would otherwise be those of the executive are taken away from the executive and put into the hands of the full Council.[32]Paragraph 2 of schedule 4 provides that those circumstances include the following: “The determination of any matter in the discharge of a function which(a) is the responsibility of the executive; and(b) is concerned with the authority’s budget, or their borrowing or capital expenditure…” shall not be the responsibility of the executive if “[the executive] is minded to determine the matter contrary to, or not wholly in accordance with (i) the authority’s budget; …”.[33]Similarly, paragraph 3 provides that such circumstances also include the following:
“The determination of any matter in the discharge of a function (a) which is the responsibility of the executive; and (b) in relation to which a plan or strategy (whether statutory or non-statutory) has been adopted or approved by the authority …” shall not be the responsibility of the executive if “[the executive] is minded to determine the matter in terms contrary to the plan or, as the case may be, the strategy adopted or approved by the authority.”
[34]Those provisions seek to ensure that the executive do not undermine the proper functions of the full Council to adopt and approve the budget, and the relevant plans and strategies, by taking what would otherwise be executive decisions properly within its scope but which have that effect.[35]Of course, similarly, the full Council cannot seek to stray into the province of executive decision-making by going outside the limited scope of the powers expressly allocated to them. That is inherent in the scheme: there is no need for express provision as there is the other way, because the default position is that functions are executive and the scheme needs only expressly to set out when functions that would otherwise be executive revert to the full Council, and not vice versa.[36]It is immediately apparent that conflicts might arise between an executive such as a Mayor and Cabinet on the one hand, and the full Council on the other. Where such conflicts arise in setting the budget and policy framework, there is a resolution procedure set out in a section from paragraph 2.34 onwards, headed, “Conflict resolution in setting the budget and policy framework”. In relation to those two areas (setting the budget and policy framework), there are provisions for reflection by both parties (paragraph 2.34), but the full Council may ultimately carry the day by a two-thirds majority (paragraph 2.36).[37]However, the 2000 guidance emphasises the limited scope for such a procedure, given that the foundation of the entire governance scheme is that the directly-elected Mayor is responsible for all executive functions, as a result of his electoral mandate. Paragraph 2.37 of the 2000 guidance therefore says:
“Such conflict resolution mechanism would apply only to approval or adoption of the budget and policy framework. It could not be employed in respect of functions which are the sole responsibility of the executive where the legislation requires that, under normal circumstances, only the executive can take the decisions (or delegate them). In this case, overview and scrutiny committees have specific powers to challenge the executive and to require the decision maker reconsiders any decision which has been made but not implemented.”
[38]Therefore, the scope of the conflict resolution procedure is restricted to conflicts between executive and full Council in relation to the budget or policy framework. Otherwise, the executive may be required to reconsider by the Overview and Scrutiny Committee, but it has the final word. It was under that latter procedure, in October and November 2011, that the Mayor was required to reconsider his executive proposal with regard to library services, and, having done so, decided on 23 November 2011 to proceed with their proposal.[39]That division of functions between the Mayor and Executive Cabinet on the one hand, and the full Council on the other, is reflected in the Constitution of Doncaster MBC prepared under section 37 of the 2000 Act.[40]The Mayor and Cabinet are expressly responsible for “most of the day to day decisions” (Part 1, Paragraph 4), subject to (e.g.) publicity for “key” decisions and overview and scrutiny by the eponymous committee which has the right to “call-in” decisions and ask the Mayor and Cabinet to reconsider them. However, in line with the Act, neither the full Council nor the Overview and Scrutiny Committee can direct the Mayor as to how executive functions ought to be exercised except in the following limited circumstances.[41]Article 3.01(d) and (e) provides that only the full Council can exercise the function of approving or adopting the Budget and the Policy Framework, or of “making decisions about any executive function which is covered by the Budget or Policy Framework where the decision is wholly or partly contrary to the Budget or Policy Framework…”.[42]“Budget” is defined in paragraph 1 of the Budget and Policy Framework Procedure Rules, set out in Part 1 of Doncaster’s Constitution, as follows: “(i) The identification and allocation of financial resources for the following financial year(s) by the Full Council including:• Revenue Budgets;• Capital Budgets;• The Council Tax Base;• The Council Tax Level;• Borrowing Requirements;• Prudential Indicators;• The Medium-Term Financial Strategy; and• The Level of Uncommitted Reserves. (ii) Any resolution of Full Council identified as a budgetary decision causing the total expenditure financed from Council Tax, grants and corporately held reserves to increase above that stated in the approved budget.” “Policy framework” is defined by reference to the statutory provisions, i.e. in terms of schedule 4 to the 2000 Regulations.• Revenue Budgets;• Capital Budgets;• The Council Tax Base;• The Council Tax Level;• Borrowing Requirements;• Prudential Indicators;• The Medium-Term Financial Strategy; and• The Level of Uncommitted Reserves.[43]Responsibilities which lie with the full Council are set out in paragraph 3.3 of part 3 of the Constitution. They include, of course, adopting the plans and strategies listed in schedule 3 of the 2000 Regulations, which must be exercised by them as a result of the provisions in the Regulations to which I have referred. The only plan or strategy that is noted as having otherwise been reserved, because the full Council has determined that the decision to adopt it will be theirs, is the “Corporate Plan”. That is defined in part 1 of the Constitution as providing “a high level summary of the Council’s current priorities”; and paragraph 1b of part 1 indicates that:
“[The full] Council has agreed a Corporate Plan which summarises the Council’s key priorities to be achieved through operating this Constitution.”
The Corporate Plan, so defined, certainly chimes with the concept of a policy framework. Doncaster’s Corporate Plan is not in evidence before me, but it seems to be common ground that it does not specifically refer to library provision, nor does it otherwise contain anything of assistance to the Claimant’s case.

Grounds of Challenge: The Claimant’s Submissions

[44]The decision challenged in this claim is that of the Mayor and Cabinet that they would not spend the further money allocated by the full Council in the budget to preserve and (where necessary) restore the library services in Doncaster as they stood before the decision of 23 November 2011, but rather they would proceed with the implementation of that decision.[45]Mr Wolfe submitted that the budget amendment made on 5 March 2012 by the full Council, by more than a two-third majority, required the Mayor to reopen the two libraries that had been closed and retain (or, where necessary, re-employ) employed staff to the level identified in that amendment, effectively to pre-November 2011 levels. In short, its effect was to overrule the 23 November 2011 decision of the Mayor to restructure library services and provide library facilities by a different service model.[46]In support of that submission Mr Wolfe relied heavily upon the wording of section 31A(2)(a) of the Local Government Finance Act 1992, to which I have already referred, which provides that the full Council must calculate “the aggregate of… the expenditure which the [full Council] estimates it will incur in the year in performing its functions…” (emphasis added). He submitted that, to make any estimate as to the expenditure that it will incur in performing certain functions necessarily involves the full Cabinet: “… deciding what the authority will do in performing its functions as a precursor to estimating the cost of doing so…. [It] necessarily involves a decision as to what the Council will do in performing those functions – it is not simply about what the Council might or could do (i.e. if the Mayor is minded to proceed in that way when it comes to it.” (Grounds of Claim, paragraphs 34 and 52).[47]Consequently, Mr Wolfe submitted, the budget process gives the full Council a once-a-year decision-making opportunity to review any aspect of an authority’s services, and set its own specific and detailed requirements for such services, which it is able to enforce against the executive by amending the draft budget proposed by the executive, by the required two-thirds majority, to include provision for that agenda. Otherwise the only role the full Council would play in the budgetary exercise would be to check the executive’s figures; and its governance role cannot be so restricted.[48]And in this case, he submitted, the draft budget was put to the full Council by the Mayor and Cabinet on that basis. In paragraph 9 of the draft budget, the full Council was expressly asked to approve various recommendations, including “the detailed budget proposals as set out in Appendix B: containing saving proposals of £27.7m… in 2012-13” which themselves included the detailed saving proposals for library services. These proposals were therefore set out for the approval of the full Council as part of the budgetary process, and the full Council only approved them with the amendment for retention of the services as they had been. That was, he submitted, the proper decision-making procedure for the budget, required by the statutory provisions, in action.[49]Even if it would otherwise be in their legal competence, the later decision of the Mayor not to spend the money as required by the budget as amended was therefore a decision “contrary to, or not wholly in accordance with…the authority’s budget”. It was consequently a decision which only the full Council could take (paragraph 2 of schedule 4 to the 2000 Regulations), and a decision beyond the power of the Mayor.[50]Alternatively, if the decision of the full Council set out in the budget amendment cannot properly be categorised as part of the budget, he submitted that the amendment at the meeting on 5 March (or, alternatively, the financial strategy in the budget seen as a total package) was a plan or strategy that the full Council decided should be reserved to itself. Therefore, again, even if it would otherwise be in their legal competence, the later decision of the Mayor not to spend the money as that plan or strategy required was a decision that “[the executive was] minded to determine… in terms contrary to the plan or, as the case may be, the strategy adopted or approved by the [full Council”. As such, again, it was a decision which only the full Council could take (paragraph 3 of schedule 4 to the 2000 Regulations), and ultra vires so far as the Mayor is concerned.[51]Finally, relying on Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, Mr Wolfe submitted that the decision of the Mayor is also unlawful because it has been taken for an improper purpose, namely to defeat the effect of the amendment to the budget passed by full Council.

Grounds of Challenge: Discussion

[52]Forcefully as those submissions were made, I cannot accept them for the following reasons.[53]Mr Wolfe’s submissions relied heavily upon the wording of section 31A(2)(a), to which I shall return shortly. Of course, it is trite law that Parliamentary intention can generally only be derived from the words that Parliament has used (see, e.g., Inland Revenue Commissioners v Hinchy [1969] AC 748 at page 767, and Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at page 613G, both per Lord Reid). However, if the construction of the provisions is as Mr Wolfe contends, the result would be concerning, given the intention of the provisions as expressed (for example) in the 2000 guidance.[54]Mr Wolfe readily accepted, for the purposes of this claim, that the 23 November 2011 decision of the Mayor to change the mode of providing library facilities, made under section 7 of the Public Libraries and Museums Act 1964 in exercise of the authority’s obligation under that Act “to provide a comprehensive and efficient library service for all persons desiring to make use thereof…”, was an executive decision, made through the proper statutory process for such decisions, including consideration by the Overview and Scrutiny Committee which asked the Mayor to reconsider which he duly did, before confirming the course he proposed to follow. Mr Wolfe does not suggest that the Mayor acted unlawfully in making that decision, and thereafter implementing it – by, for example, closing Carcroft and Denaby Libraries, replacing employed staff with volunteers or (in the case of Scawthorpe) by a self-service facility, and proceeding to refurbish the remaining 12 fully serviced libraries. Nor could that suggestion properly be made.[55]However, given that, it would be a remarkable invasion of the executive function of the Mayor if, as part of the budgetary process, the full Cabinet could interfere and reverse such an executive decision by amending the budget to give, not only an allocation of funds for the library service, but a direction that the funds must be spent and spent precisely in accordance with the direction that they have made. In the words of Mr Giffin QC for the Defendant, it would “drive a coach and horses through the fundamental distinction between executive and non-executive functions that underlies the [2000 Act]” (skeleton argument, paragraph 1). It would certainly undermine the intention of the statute to provide “efficient, transparent and accountable decision making”, through “new constitutions which [would] deliver identifiable, accountable, corporate leadership for a local authority and the community it serves” (paragraphs 1.8 and 1.10 of the 2000 guidance). And it would grossly undermine the fundamental precepts of the new statutory scheme that most decision-making should be made by a small executive, not the full Council; and that the leadership of an authority where there is a directly-elected mayor with a direct mandate lies with that mayor (paragraph 2.25 of the 2000 guidance).[56]Mr Wolfe relied upon the changes to library services – which led to the saving on the previous year’s budget – being set out in Appendix B of the draft budget, which is headed, “2012-13 Revenue Budget Proposals”. Appendix B comprises a schedule of nearly 180 items and, although some are described as “budget pressures” as opposed to “saving proposals”, many are clearly an umbrella for a course of action based upon a number of executive decisions. The various elements in respect of the library savings of £392,000 are within a single item, and the expenditure of £110,000 on voluntary library staff another. There are approximately 178 other items, including the short term engagement of an Assistant Coroner, the introduction of car parking charges for staff, reducing the expenditure on promotions and publicity by £3,000 and estimated savings on the reduction of staff absence. But what is included in Appendix B by way of items of savings is only the result of the top down approach to the budget: the full Council would be entitled to consider any item of actual expenditure (as opposed to potential saving), and so there is no matter involving expenditure that could not be the subject of a “budget amendment” that might require expenditure to be made in a particular sum and in a particular manner. We are therefore concerned with every corner of the authority’s activity, no matter how small, how remote or how operational in nature.[57]If, by an appropriately worded budget amendment, the full Council could override executive decisions of the Mayor, and replace those decisions with their own, the ultimate executive decision-making power would not lie with the Mayor, but with the full Council. In terms of the intention of the new governance scheme, as expressed in the 2000 guidance and elsewhere, such a construction would be disastrous.[58]Of course, sometimes, statutory provisions do not implement the actual intention of Parliament; but I do not consider that the draftsman has got this as wrong as Mr Wolfe suggests. With respect to him, I consider that his submission is based upon a misinterpretation of section 37A(2)(a) and a fundamental misunderstanding of the role of the full Council in the budget process.[59]Mr Giffin submitted that the role of the full Council in the budget process is limited to the allocation of resources to meet the authority’s potential expenditure for a future period (usually the next financial year), which enables it to set an appropriate level of council tax which is another statutory obligation of the full Council. He readily accepted that the budget required the allocation of resources, not simply as an aggregate sum, but to appropriate heads of potential expenditure. Although the assessment of the authority’s potential expenditure (and, I add, reserves, borrowing, income and other elements of the calculation of the council tax requirement) could only be based upon assumptions – as to how the Council will operate in the next year – this budgetary function, given to the full Council by section 37A(2)(a), gave the full Council no other decision-making powers. In particular, it gave the full Council no powers to interfere with the executive function of the Mayor and Cabinet, except where the Mayor proposed to exercise their function in a way that was “contrary to, or not wholly in accordance with… the authority’s budget”, i.e. in a way in which the budget, or a component part, would be exceeded.[60]I essentially agree with that submission. In particular, I cannot agree with Mr Wolfe that section 37A(2) gives the full Council the wide-ranging decision-making powers for which he contends. Where these decision-making powers lie are at the heart of this claim.[61]In my judgment, when read in context, it is quite clear that section 37A(2)(a) does not give the full Council the powers suggested by Mr Wolfe. Section 37A(2) is in Part 1 of the 1992 Act, which concerns, “Council Tax”; and in Chapter 3 of that part, which concerns, “Setting of Council Tax: The Requisite Calculations”. Section 31A itself is headed, “Calculation of Council Tax Requirement by Authorities in England”. That section gives a local authority, and reserved to its full Council, the obligation to “calculate” various figures for the purposes of the eventual calculation of its level of council tax. Although Mr Wolfe submitted that these provisions could not simply require the full Council to ensure that the draft budget prepared by the executive is mathematically correct – and, for reasons to which I shall come shortly, I consider their role goes far beyond that – it is not irrelevant that section 37A only imposes on the full Council an obligation to make calculations. It is not written in terms of giving it wide ranging decision-making powers. Given the careful regime that is set up by the 2000 Act and the 2000 Regulations as to how executive and non-executive functions should be divided, it would be astonishing if such a scheme were to be completely upset by provisions relating to the calculation of council tax. In fact, as Mr Giffin put it, a power to prescribe that certain expenditure must be spent by the executive in certain ways cannot sensibly be carved out of an obligation to estimate revenue expenditure that will be incurred by a local authority in the following year.[62]Mr Wolfe’s attempt to carve out such a power reflects a misunderstanding as to the nature of a budget, and, in this context, the purpose of calculating the revenue expenditure budget.[63]The essential purpose of section 31A is to ensure that an authority’s books balance, by setting council tax at an appropriate level. The “council tax requirement” is defined in section 31A(4) as the difference between an authority’s total outgoings (described in section 31A(2), and including expenditure on performing its functions: section 31A(2)(a)) and its total incomings (described in section 31A(3). In making its various calculations, it is vital that its calculation of council tax requirement, from which the level of council tax is derived, is not exceeded. If it is, then the authority will be in deficit.[64]The full Council’s obligations here are written in terms of “calculating” various figures, and its primary obligation is to ensure that the draft budget does “add up”. However, that means that the Mayor in his draft must not only set out the assumptions upon which the budget is made, but also show that those assumptions are in line with the plans and strategies for which the full Council are responsible, including, in Doncaster’s case, the Corporate Plan; and that those assumptions are realistically reflected in the figures that are derived from them. The full Council also play the role of being guardian of the public purse – vitally important since the demise of council tax capping in April 2000, as part of the same changes that introduced new local government governance. It is open to the full Council to amend the budget, wholly or in some of its constituent parts, downwards, thereby depriving the Mayor of the available funds to do what it might otherwise wish to do in the way in which it might wish to do it. If the budget is cut, that will not of course force the Mayor to perform an executive function only in the way the full Council may wish; he may decide to perform it in a different way, with the reduced funds allocated to him. Similarly, the full Council might amend the budget upwards, making additional funds available to the Mayor to spend in exercising his functions; but, equally, that does not force the Mayor to perform the executive function only in the way the full Council may wish.[65]The full Council may therefore allocate more or less funds to the Mayor. However, in approving the budget, what the full Council cannot do is to require the Mayor to expend money in a particular way or, unless the executive propose to act in a way contrary to plans and strategies reserved to the full Council, to expend money on a particular function. Indeed, in Doncaster’s case, that is underscored by the fact that the Mayor and Cabinet have an unlimited power of virement, i.e. a power to transfer money from one budget head to another (Paragraph B17 of the Financial Procedure Rules, which are included in the Constitution). The budgetary process is therefore geared to ensuring that there is no “budget deficit”, by ensuring, amongst other things, that the revenue expenditure estimate will not be exceeded. It certainly does not allow the full Council to micro-manage the authority’s functions, and interfere with the executive functions of the Mayor and Cabinet.[66]Where a budget figure for expenditure has been fixed, for a particular head of budget, then that allows the Mayor to spend up to that amount on that head, and, subject to virement, no more than that amount on that head. Fixing a budget for any head cannot require the Mayor to spend that money on that head at all, or in a particular way: it simply allocates funds for the executive to spend. That is the very nature of a budget; and particularly a budget in this context, in which Parliament has assigned executive decision making to the executive, in Doncaster’s case the Mayor and Cabinet. But, in Doncaster’s case, that nature is confirmed in paragraph 9 of Doncaster’s Constitution, to which I have already referred (quoted in paragraph 42 above). That defines budget specifically in terms of the identification and allocation of financial resources for the next financial year, and any resolution of the full Council that causes total expenditure to be increased (not decreased).[67]In this case, it is beyond doubt – and conceded by Mr Wolfe – that the 23 November 2011 decision on the mode of delivery of library services in Doncaster was properly a decision of the Mayor and the Cabinet. In making that decision, they were exercising an executive function. If and in so far as the full Council purported by their budget amendment to direct the Mayor and Cabinet to spend money allocated in the budget in a specific way, that amounted to an interference with their executive functions – and would be an unlawful interference by the full Council in the proper role of the Mayor and Cabinet.[68]However, to what extent did the budget amendment in fact give the Mayor such a direction?[69]The amendment was in terms of creating a particular “contingency fund”, which suggests, if anything, it is in the province of section 31A(2)(b) rather than (a); and certainly does not suggest a direction that the executive must spend the money allocated at all, yet alone in any specific way. Similarly, it refers to the “fund being available to ensure that no library is allowed to fail”. Again, that is not written in terms of a direction as to how the allocated money is to be spent. It is written in terms of a sum being allocated in the budget which is available to the Mayor to spend on library facilities, without going over the budget, i.e. in appropriate terms for a budget decision as I have described and as defined in the Constitution. For his part, the Mayor has accepted it as such. He has indicated that, although he has no current intention on drawing upon that money at the moment, he may wish to do so in this year if a library gets into real difficulty and required a sum of money to prevent it from failing (2 July 2012 statement, paragraph 10). He is, therefore, treating it as a budget allocation, and indeed as a true contingency fund.[70]Mr Wolfe submitted that, at least, the amendment purported to require the Mayor to reopen Carcroft and Denaby Libraries, closed since the 23 November 2011 decision. That is one construction of the amendment – but not the only one, in my view – but even if that were correct, and the amendment requires the reopening of two libraries closed months ago as a result of a lawful decision of the Mayor, as part of a restructuring of library facilities into a different service model, that would be clear interference at a particularly micro-management level into the executive function of the Mayor.[71]For those reasons, I do not consider that the decision of the Mayor and Cabinet not to spend the additional money allocated to library services by the amendment to the budget was a decision “contrary to, or not wholly in accordance with…the authority’s budget”.[72]Nor am I impressed by the submission that, even if it was not properly part of the budget process, the 5 March 2012 amendment was a plan or strategy that the full Council had properly reserved to itself and made.(i) The amendment to the budget is not written as a plan or strategy, or in terms that are at anything like a high strategic level. The closure of two libraries and replacement of employed staff with volunteers and self-service facilities is essentially operational in nature. Mr Wolfe criticised the Council for not defining “high level” in this context; but I consider such criticism is not well-founded. The phrase is used in the definition of Corporate Plan in the Doncaster Constitution (see paragraph 43 above); and, even if there are “hard cases” that are close to the “high level” line, this is not one of them. This falls well below the line. Whereas the full Council is entitled to set a policy framework, it cannot disguise interference in operational or quintessentially executive functions by the assertion that something is strategic: nor can a whole series of disparate operational, executive decisions amount to a framework strategy, as Mr Wolfe suggested.(ii) Nor did it comply with the formalities of the Constitution that apply to plans and strategies. It was certainly not regarded by either the Mayor and Cabinet on the one hand or the full Council on the other as a plan or strategy separate from the budget itself. It was not formulated or put forward by the Mayor as a plan or strategy. The relevant plan or strategy for library services was that of the Mayor as approved by the Cabinet in February 2011 (see paragraphs 7 and 8 above), which was not called in as being contrary to any plan or strategy reserved to the full Council and was not arguably contrary to any such plan or strategy. Mr Wolfe does not suggest otherwise.(iii) The full Council never approached the budget amendment as a plan or strategy, nor did they accept it as such. They just voted on it as a budget amendment. The full Council have not resolved to retain any part of the library services function as a plan or strategy under the Constitution. That resolution cannot be inferred by the amendment to the budget that they approved. Such a determination needs to be formally considered and explicitly approved: consideration needs to be given to, amongst other things, whether the strategy or plan is at a sufficiently high level to be capable of falling within the policy framework. Whilst R (Domb) v Hammersmith & Fulham LBC [2008] EWHC 3277 (Admin), to which I was referred, is different on its facts – it concerned the issue of whether a party manifesto was such a plan or strategy, whereas here the full Council did at least vote on the budget – as in that case, there is nothing in the circumstances of this case that warrant such an inference. The inference that the Council would have voted to retain the policy with regard to libraries as a plan or strategy within the policy framework cannot be assumed from the vote which in fact took place in respect of the amendment to the budget. That is particularly so, given the terms of the amendment, namely the provision of a contingency fund.[73]For those reasons, I do not consider the decision of the Mayor and Cabinet not to spend the money allocated in the budget exercise to be a decision “contrary to [a] plan or… [a] strategy adopted or approved by the [full Council]”.[74]Consequently, in my judgment, that decision of the Mayor fell within neither paragraph 2 nor paragraph 3 of schedule 4 to the 2000 Regulations, as a decision which could only be taken by the full Council. It was a decision properly taken by the Mayor and Cabinet.[75]Nor does Padfield assist the Claimant. The principle from that case requires discretionary powers to be exercised for the purpose for which they are conferred. If, as I have found, the true construction of the regulatory scheme is that the decision as to how to provide library services is an executive decision for the Mayor, and not a decision for the full Council, it cannot have been improper for the Mayor to come to his own decision, as charged by the statute, rather than complying with the direction of the full Council, who had no proper part to play in that specific decision at all. Indeed, as Mr Giffin submitted, for the Mayor and the Cabinet to have merely followed the direction of the full Council, treating it as binding on them (as the Claimant contends it was) would itself have been unlawful, as it would have improperly fettered the decision-making discretion of the executive in relation to those facilities.[76]For the sake of completion, although there is no plea that the decision of the Mayor to proceed to implement the 23 November 2011 decision was irrational, in a Wednesbury sense, the Mayor has in his statement of 2 July 2012 set out why he thought it right not to spend the monies which had been allocated, namely that to do so would (amongst other things) potentially jeopardise the recruitment of volunteers. Of course, that was not a decision in the direction of travel of either the full Council or the Claimant, nor is it a decision the merits of which are relevant to the issues before me now; but it was a rational decision, in pursuit of a proper purpose.

Conclusion

[77]I appreciate how disappointed Miss Buck is at losing some of the facilities that she has hitherto enjoyed at Scawthorpe Library, notably the staff employed there. I appreciate how that will, adversely, affect her life. The library has, as I have indicated, played a large part in her life.[78]However, I can only interfere if the Mayor and his Executive Cabinet have acted unlawfully in the actions that they have taken. For the reasons I have given, I am quite satisfied that they have not. In my judgment, they have exercised their functions properly and lawfully.[79]For those reasons, I dismiss the application.

Cited in 1 later judgment