Draper v Lincolnshire County Council [2015] EWHC 2964 (Admin)

Case No CO/2058/2015[2015] EWHC 2964 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/10/2015
Before
MRS JUSTICE MCGOWAN
Between
SIMON DRAPERClaimantLINCOLNSHIRE COUNTY COUNCILDefendant
Fionnuala McCredie QC and David Lawson (instructed by Public Interest Lawyers) for ClaimantNigel Giffin QC (instructed by Lincolnshire County Council) for DefendantHearing Hearing dates: 21/07/2015
JudgmentMrs Justice McGowan:INTRODUCTION
[1]The Claimant lives in Lincolnshire and uses the library facilities provided by the Defendant. In recent years the Defendant has sought to meet increasing budgetary constraints by re-designing the library service it provides under a statutory duty. This is the second challenge the Claimant has brought to the proposed changes and the process by which those changes have been brought into effect. The first challenge was heard by Collins J, R (Draper) v Lincolnshire County Council [2014] EWHC 2388 (Admin). It succeeded, in part, and a second consultation process was commenced. This challenge deals with that process and was heard at a rolled up hearing held on July 21 and 22 2015. The uncertainty of the situation, in particular for the Defendant’s staff, to whom redundancy notices had already been issued, meant that the decision was given soon after the hearing and the judgment has followed after the vacation. The challenge failed.[2]The Defendant has a statutory duty under s.7 Public Libraries and Museums Act 1964 as follows, “7. (1)It shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof, . . . Provided that although a library authority shall have power to make facilities for the borrowing of books and other materials available to any persons it shall not by virtue of this subsection be under a duty to make such facilities available to persons other than those whose residence or place of work is within the library area of the authority or who are undergoing full-time education within that area. (2) In fulfilling its duty under the preceding subsection, a library authority shall in particular have regard to the desirability—(a) of securing, by the keeping of adequate stocks, by arrangements with other library authorities, and by any other appropriate means, that facilities are available for the borrowing of, or reference to, books and other printed matter, and pictures, gramophone records, films and other materials, sufficient in number, range and quality to meet the general requirements and any special requirements both of adults and children; and(b) of encouraging both adults and children to make full use of the library service, and of providing advice as to its use and of making available such bibliographical and other information as may be required by persons using it; and(c) of securing, in relation to any matter concerning the functions both of the library authority as such and any other authority whose functions are exercisable within the library area, that there is full co-operation between the persons engaged in carrying out those functions.” (2) In fulfilling its duty under the preceding subsection, a library authority shall in particular have regard to the desirability— (a) of securing, by the keeping of adequate stocks, by arrangements with other library authorities, and by any other appropriate means, that facilities are available for the borrowing of, or reference to, books and other printed matter, and pictures, gramophone records, films and other materials, sufficient in number, range and quality to meet the general requirements and any special requirements both of adults and children; and (b) of encouraging both adults and children to make full use of the library service, and of providing advice as to its use and of making available such bibliographical and other information as may be required by persons using it; and (c) of securing, in relation to any matter concerning the functions both of the library authority as such and any other authority whose functions are exercisable within the library area, that there is full co-operation between the persons engaged in carrying out those functions.”[3]It is necessary to consider what is required to provide a comprehensive and efficient service within the meaning of section 7 of the 1964 Act. The term is well defined in the following observations of Ouseley, J in Bailey v London Borough of Brent [2011] EWHC 2572 (Admin):- "A comprehensive service cannot mean that every resident lives close to a library. This has never been the case. Comprehensive has therefore been taken to mean delivering a service that is accessible to all residents using reasonable means, including digital technologies. An efficient service must make the best use of the assets available in order to meet its core objectives and vision, recognising the constraints on Council resources. Decisions about the Service must be embedded within a clear strategic framework which draws upon evidence about needs and aspirations across the diverse communities of the borough."

HISTORY OF EARLIER CHALLENGE

[4]The background to the original challenge is clearly set out in the judgment of Collins J, “5. The Defendant has for some time recognised the need to review its library provision since it considered that it was not efficient. In 2007 it commenced this exercise by carrying out what is described as a Fundamental Library Review. It recommended a number of improvements but did not suggest a reduction in the number of static libraries which were available. Essentially it provided for changes to opening hours, improvements to the ambience of libraries together with the introduction of self-service technology and a review of the shape and size of the library network. A report in 2009 again did not indicate that there would be a reduction in the static libraries of which there were then 48. 6. In 2010 local government funding cuts necessitated identification of savings in the Defendant's budgets. Thus it was that a review of the shape and size of the library network became of more immediate importance. Mr Platt, the Head of Libraries and Heritage, who has been responsible for co-ordinating the response of libraries to the review and who has produced statements on behalf of the Defendant in these proceedings, has as part of the shape and size been impressed with the possibility of community involvement in running some libraries which catered for smaller population numbers. Such community involvement has resulted in the designation of such libraries as 'community hubs', namely centres at which, apart from what can be regarded as ordinary library use, people can attend and have opportunities to meet together and have other facilities available. Volunteers would be involved in the running of these hubs and it was recognised that they would need training. … 9. Because of the reduction of available funding for the Defendant, it was decided that the cost of the library service must be reduced by some £2 million. That decision, which cannot be challenged and so must be accepted as a material consideration in what library services should be provided, has clearly been a very important factor in the decision reached. However, in fairness to the Defendant, it must be recognised that the view had been taken as long ago as 2007 that the existing arrangements were not efficient and in particular did not give proper value for money and changes would in any event have been made. Nevertheless, the proposals which were put to consultation and which were implemented in the decision of 3 December 2013 with minor amendments put in place following the consultation exercise were largely driven by the need to achieve the savings which had been imposed. 10. The existing service has four components. The first is now 44 static libraries. Twelve are district libraries open between 40 and 55 hours a week, eleven are neighbourhood libraries open between 25 and 39 hours a week and 21 community libraries open between 20 and 24 hours a week. All provide services to be expected from a library although their size will inevitably dictate how extensive the individual services can be. The second is a mobile service which provides for rural communities and those who are housebound or who live in nursing or residential homes. There is also a service for schools who wish to sign up for it. The third component covers the various online facilities. The fourth is described as targeted services for those unable to access the other services such as the blind or partially sighted, some who are housebound and unable to use the mobile service and a special service to encourage children in particular but including adults to engage with books. An exercise was carried out in 2012 to obtain information about the numbers of households who were active borrowers and so users of the library services. This showed that of the total of 323,242 users 93% were within 30 minutes of a static library by public transport. 98% were within 15 minutes by car. The active borrowers (which meant no more than anyone who used a library on one occasion) were representative of the county's population as a whole. While there was virtually complete satisfaction with the service given by staff, there was a decline in borrowing against an increase in complaints about the availability of computer services and the quality and choice of books. 12. In the lengthy and detailed report to the Council for the meeting on 3 December 2013, this is said about the existing services at paragraph 2.47:- "The overall conclusion that can be drawn from an analysis of the existing service is that it is comprehensive, but given the overlapping catchment areas and the consequent over-provision it can be seen to be significantly inefficient. Exploration of co-location with other public services has met with some success, but it not a sustainable model for a county-wide service. At a time of public sector financial constraint this level of over-provision is a luxury that can be ill afforded and it is incumbent on the Council to address ways in which it can make the service more efficient and thereby more affordable." The point is properly made that the service must not only be comprehensive but must be efficient. 13. In a report to the Executive of 2 July 2013 it was recommended and in due course decided that consultation should be carried out with the public(i) on proposals to implement a new model of statutory library provision in the County and(ii) on proposals to offer certain communities a range of community library provision. There was also to be consultation with staff and Trade Unions on redundancies which would result if the proposals were implemented. By 'statutory provision' referred to in (i) was meant such provision as fell within s.7 of the 1964 Act. The provision referred to in (ii) was to be outside the statutory provision. 14. Under (i), there were to be three components. The first was to be constituted by continuation of the library services' website and what was described as its "virtual catalogue" giving access to information and the possibility of downloading e-Audio and e-Books. This part of the service will continue to operate within a consortium of adjoining counties. The second component would involve the reduction of static libraries to 15 in all. Ten of these were to be what are called Tier 1 in the ten most populous areas of the County to be open for some 50 hours a week. The other five would be described as Tier 2 within the next most populous areas with opening of 25 hours a week (in one case which would continue to be operated in conjunction with the District Authority, 46 hours). It was considered that accessibility to these libraries was assessed by taking a 30 minute travel time by public transport. 15. The third component involved what was described as targeted provision. This was aimed at the 24% of households falling outside the 30 minute travel time, namely some 83,531 households with 33,123 active borrowers. It would be especially important for the relatively small number of such households who did not have access to a car (some 508). In addition, consideration had to be given to the 1,616 sick, disabled or non-internet users living outside the 30 minute travel time. Delivery of books, DVDs, CDs large print or audio books would be arranged on a monthly basis. 16 As will become apparent, most of what was decided on 3 December 2013 did not differ in any material particular from the proposal which went to consultation.” "The overall conclusion that can be drawn from an analysis of the existing service is that it is comprehensive, but given the overlapping catchment areas and the consequent over-provision it can be seen to be significantly inefficient. Exploration of co-location with other public services has met with some success, but it not a sustainable model for a county-wide service. At a time of public sector financial constraint this level of over-provision is a luxury that can be ill afforded and it is incumbent on the Council to address ways in which it can make the service more efficient and thereby more affordable."[5]The fundamental decision to re-design services in an attempt to make the savings of £2 million was not challenged. The challenge to the substance of the Council’s proposals did not succeed on grounds of irrationality, for breach of the statutory duty under the Public Libraries and Museums Act 1964 or for breach of the public sector equality duty. It was the consultation exercise and the method of considering alternative proposals for the provision of services that was under scrutiny. The Council failed in not being seen to be open to proposals which sought to make the required savings without reducing the number of static libraries provided. One such set of proposals came from Greenwich Leisure Ltd (GLL) and the Council failed in not treating those proposals as a statutory expression of interest under the Localism Act 2011. Collins J summarised his findings as follows, “54. I have carefully considered whether the shortcomings I have identified in the consultation exercise and the proposals from GLL require that the decision be quashed. If the consultation were the only ground, I might not have granted relief since the proposals were accepted and considered. But the manner in which GLL's proposals were dealt with coupled with the view that they did not fall within the consultation exercise persuade me that the decision must be quashed. The Council must, I fear, reconsider. It may be that the most sensible way ahead is to obtain the necessary further details from GLL and perhaps consult further for a shorter period on whether any overall alternative proposal is forthcoming. That is a matter for the Council.”

CURRENT CHALLENGE

[6]Following the decision of Collins J the Defendant conducted a further consultation process which began with the publication of a new document on 1 October 2014 setting out the terms of the further consultation which was to last one month. It was a relatively short document and its terms are the subject of ground one of this challenge. The relevant parts are set out, “BACKGROUND Last December, in light of declining usage and the Council’s reduced budget, the Executive agreed to create a new-look library service which could be delivered within a front line service budget of £4,351,772. (For more information please see the report in downloads section at bottom of page on LCC Connects).” Before making that decision the Council engaged in extensive consultation resulting in some 8,000 responses through the questionnaire, thousands of comments were also received via letters and e-mails, public meetings and petitions. These responses were analysed independently by Sheffield Hallam University and the results were then reported to the Executive who carefully considered the findings before any decision was made. The Executive report recognised that the response to the consultation was predominantly negative and that those who responded were generally opposed to the changes to the library service. Criticisms of the consultation process itself were also reported. During the time of the consultation, three alternative proposals for library provision in Lincolnshire were received. These ideas were considered by the Executive and their merits were weighed against the original proposal. The proposals were not recommended and reasons for this were given in the Executive report. On the basis of all this information, the Executive reached their decision. That decision reflected changes to the Executive’s proposed model to incorporate the feedback received in consultation. On 6 May 2014 the changes to the static and mobile libraries opening times, routes and staffing structures were introduced. This included transition opening times at 30 Tier 3 libraries designated as Community Hubs. PURPOSE OF THIS DOCUMENT In July 2014 the Executive’s decision was quashed by the High Court following a Judicial Review. Part of the High Court’s reasoning was that the original consultation had not given people enough opportunity to tell us if they had any alternative proposals as to how to deliver a comprehensive and efficient front line library service within a budget of £4,351,772. The court did not order the Council to carry out the consultation again, but they did say that the most sensible way ahead may be to consult further for a shorter period of time inorder to provide that opportunity for any potential alternative proposal to be brought forward. This is therefore an expansion or addition to the original consultation and not a re-consultation. The Council has the responses from the original consultation exercise and they will be considered again when the Executive makes a fresh decision. The information the Executive uses will be strengthened by the feedback we will get from this complementary consultation. The consultation is aimed at providing the opportunity for respondents to suggest alternative means of providing library services in Lincolnshire which are comprehensive and efficient, and therefore consistent with the Council’s legal duties, and affordable within the Council’s budget. Response to this further consultation will be analysed and reported (together with the results of the first consultation) to a meeting of the Executive expected to be in February 2015 when the executive will determine the shape of future library services. (Details of how to complete the survey) SUPPLEMENTARY DOCUMENTS To assist respondents the Appendices below set out information which will be helpful in identifying alternative proposals. Appendix A contains a description of the library services provided by the Council before the executive’s decision in December 2013 together with the high level budget for that service Appendix B contains a description of the library service that the executive decided to implement in it s decision of December 2013 together with the high level budget for that service. The Council knows that the proposal set out in Appendix B is affordable within the available budget and complied with the Council’s statutory duty. The model described in Appendix B remains the Council’s preferred option. However we accept that there may be other ways to deliver a comprehensive and efficient library service.” PURPOSE OF THIS DOCUMENT

SUPPLEMENTARY DOCUMENTS

[7]The consultation period closed at the end of October without challenge. On 14 October 2014 Northamptonshire County Council submitted a proposal to deliver library services in Lincolnshire, along the same lines as their own service. An individual resident of Lincolnshire also put forward a proposal. On 31 October GLL submitted a further expression of interest, to be read alongside its earlier submission. In summary GLL contended that it could run the old service for the new price.[8]On 3 December 2014 the Defendant accepted the expression of interest from GLL as satisfying the requirements of s.81 Localism Act 2011 which creates a duty to consider such qualifying expressions of interest; “81. Duty to consider expression of interest (1) A relevant authority must consider an expression of interest in accordance with this Chapter if— (a) it is submitted to the authority by a relevant body, and …” This is subject to section 82 (timing of expressions of interest)…, “(4) In this Chapter “expression of interest”, in relation to a relevant authority, means an expression of interest in providing or assisting in providing a relevant service on behalf of the authority. (5) In this Chapter “relevant service”, in relation to a relevant authority, means a service provided by or on behalf of that authority in the exercise of any of its functions in relation to England, other than a service of a kind specified in regulations made by the Secretary of State. (6) In this Chapter “relevant body” means— (a) a voluntary or community body, (b) a body of persons or a trust which is established for charitable purposes only, (c) a parish Council, (d) in relation to a relevant authority, two or more employees of that authority, or (e) such other person or body as may be specified by the Secretary of State by regulations.” “The Defendant concluded that none of the permitted statutory grounds for rejecting an expression of interest applied.”[9]It is agreed that GLL is a “relevant body” within the terms of s.81 Localism Act. It is an organisation which, at the time of the exercise, oversaw the management of over 100 public leisure centres and 24 libraries. It is a large organisation with a staff of 700 and an annual turnover in excess of £124m. Its original expression of interest is a detailed document of about 340 pages. In the covering letter of 30 September 2013 it writes, “GLL is a charitable social enterprise which specialises in leisure management and has, more recently expanded to manage library services. GLL’s Libraries Division currently manages library services in the London Boroughs of Greenwich and Wandsworth and is actively seeking to expand this portfolio. GLL is therefore expressing an interest in managing Lincolnshire’s Libraries in entirety (sic), including Tiers 1, 2, 3 and 4, as well as central support functions.”[10]The GLL proposal was accepted as an expression of interest, but the proposals from the individual contender and from Northamptonshire County Council (who had effectively proposed a merged service witn its own county provision, the details of which do not need to be repeated) were not accepted as expressions of interest, because they did not meet the statutory requirements.[11]Having accepted that expression of interest as valid the Defendant was then required to commence a procurement exercise. After considering what form that exercise should take the Defendant took the decision of 3 February 2015 which is the decision at the heart of this challenge.

GROUNDS OF CURRENT CHALLENGE

[12]The Claimant’s grounds are lengthy but can be summarised without injustice as follows; i) That the second consultation was also flawed, in that it failed adequately to deal with any alternative proposals, ii) That the procurement exercise, following the acceptance of the expression of interest from GLL, was flawed in that it failed to meet the requirements of s.83(2) Localism Act 2011, iii) That in taking the decision the Defendant failed to meet the “best value” duty imposed by s.3Local Government Act 1999 and/or the decision making process was irrational in the Wednesbury sense.

Delay and Prejudice

[13]The decision under review was taken on 3 February 2015; the claim for review was filed on 1 May 2015, at the end of the three month period. CPRr.54.5(1) requires that all claims are filed promptly, and, not or, in any event, not later than 3 months after the grounds to make the claim first arose.[14]The Defendant argues that the claim was not brought promptly and that in relation to the first ground it was not brought within three months of the grounds giving rise to the claim. In addition the Defendant argues that in the absence of timely challenge the course set out in its decision was put into action and its implementation began before the claim was filed at the beginning of May. Arrangements were made in respect of employees and in particular the redundancy consultation was nearly complete by the time proceedings were commenced and redundancy notices had already been served by the time of the hearing. It follows, it is argued, that prejudice would occur if the claim was allowed.[15]The Claimant argues that the claim was within time and in any event that any prejudice said to result is a consequence of the Defendant’s accelerated implementation of its decision. He points out that he is not a sophisticated litigator, that he had to find public funding to bring the claim and that it should be heard because it is a matter of significant importance. It falls within the limits of the court’s discretion as it is “strongly deserving of a remedy”.

Ground One

[16]In concluding his judgment in the first Draper challenge Collins J found the first consultation was flawed and suggested that it might be remedied by reconsideration following a further short consultation on whether an alternative proposal might be put forward:
“The Council must, I fear, reconsider. It may be that the most sensible way ahead is to obtain the necessary further details from GLL and perhaps consult further for a shorter period on whether any overall alternative proposal is forthcoming. That is a matter for the Council.”
[17]On 1 October 2014 the Defendant issued a further consultation with a closing date for responses of 31 October 2014. (“The October Consultation”.) It is a short document which is set out, supra, the parts in contention are set out in detail below, i) Background. “Last December, in light of declining usage and the Council’s reduced budget, the Executive agreed to create a new-look library service which could be delivered within a front line service budget of £4,351.772. (For more information please see the report in downloads section at bottom of page…)” It went on later in the section to say, “During the time of the consultation, three alternative proposals for library provision in Lincolnshire were received. These ideas were considered by the Executive and their merits were weighed against the original proposal. The proposals were not recommended and the reasons for this were given in the original report.” ii) Purpose of This Document. It went on to describe the success of the first Judicial Review on the basis of the reasoning, “that the original consultation had not given people enough opportunity to tell us if they had any alternative proposals as to how to deliver a comprehensive and efficient…” It continued, “The Court did not order the Council to carry out the consultation again, but they did say the most sensible way ahead may be to consult further for a shorter period of time in order to provide that opportunity for any potential proposal to be brought forward. This is therefore an expansion or addition to the original consultation and not a re-consultation. The Council has the responses from the original consultation exercise and they will be considered again when the executive makes a fresh decision…The consultation is aimed at providing the opportunity for respondents to suggest alternative means of providing library services…” iii) Survey. This was described as a brief questionnaire and details were given as to where it could be found online and in hard copy. The closing date was given as 31 October 2014 and the Defendant said the decision would be taken in or around February 2015. iv) Supplementary documents. These set out the existing structure and the scheme which the Defendant adopted after the first consultation, with the proviso, “The model described in appendix B remains the Council’s preferred option. However, we accept that there may be other ways to deliver a comprehensive and efficient library service.”[18]Council also set out that any proposal would have to comply with the duty imposed on the Defendant by the Public Libraries Act 1964 and meet the constraints of the reduced budget available for the provision of such a service. It provided financial information setting out how the available budget had been calculated.[19]Northamptonshire County Council submitted a proposal on 14 October, it aimed to be able to meet the requirements of a service within budget and demonstrated how it had achieved an increased income in its own county whilst reducing the library budget and improving opening hours.[20]GLL also submitted a proposal. It proposed a reduction in managerial staff, cheaper purchasing of books and further significant measures to reduce outgoings and increase income. This was, in due course, accepted as a valid expression of interest within the terms of the Localism Act in keeping with Council. It was defined as the combination of the documents submitted both in 2013 and October 2014.[21]Complaints are made about the nature of The October Consultation and are listed in 10 paragraphs in the grounds. They are more precisely defined in the Claimant’s skeleton argument as; i) Did the Consultation have to cover(1) specific alternative proposals; or(2) an alternative general approach, outsourcing? ii) Did the Consultation provide such information as was required about the proposal from GLL or the possibilities of outsourcing? It is said that Council was flawed in that it did not meet the requirement to deal with specific or general alternatives. Further that it did not provide the required level of information about the GLL proposal or any other prospect of outsourcing within the Consultation document. The Claimant contends that this Consultation was governed by s.3 Local Government Act 1999, which requires Consultation in general terms and is not simply an invitation to comment on the Defendant’s favoured scheme. Reliance is placed on well established principle as set out in (R (Nash) v. Barnet [2013] EWHC 1067 and Moseley v. Haringey LBC [2014] 1 WLR 3947.[22]The Defendant does not necessarily accept that s.3 does apply but argues that even if it did then the requirements were met by the terms of Council document. It further contends that the issues in Council are not “high level choices” in the same category as those considered in Nash.[23]The scale of “choices” and where on it a decision might fall is a complex and interesting one. It is not necessary in this case to determine that question. The issue at the heart of this ground is the construction of the October document itself. Does it provide enough information to meet the requirements of fairness?[24]The document makes it clear, i) That the Consultation should be read with the earlier documents, ii) That earlier specific responses would be considered again, iii) That the Court had identified failings in the first consultation and the October document was seeking to remedy those failings. iv) That the original report was available and formed part of the process, v) That the County Council were looking for alternative proposals, even though they still had a preferred option, available to be read by consultees.[25]The Claimant argues that the document is insufficient and consequently does not provide the reader with the necessary information. That contention is not borne out on an analysis of the document itself. It makes clear that the Council is looking for alternative suggestions and although it had a preferred option it would look at those alternatives provided they were within the budgetary limits. Significantly it provoked no response from the Claimant at the time it was issued. The Claimant has a strong interest in the provision of library services; he had brought the first challenge and must, therefore have been interested to see the results of his successful challenge when the October document was made public. He had been represented in the first set of proceedings by his current solicitors. It is right that he is not a sophisticated litigator but he was very much alive to the issues and must have anticipated the product of his first challenge when the document was published. Yet, the publication of the document, the value of which is described as fanciful, did not provoke any complaint, let alone threat of action, at the date of publication, or at the closing date for responses or at any point until almost three months after the decision based on the consultation was taken in February 2015.[26]Any such consultation document has to achieve an acceptable minimum standard; it is not a counsel of perfection. The October Consultation, with the links provided and in conjunction with the earlier material does achieve that standard. In any event the challenge on this ground was not brought in a timely manner and not even within three months of the publication of the document under challenge. If the Claimant was aggrieved at the nature of the consultation document it was not open to him to “wait and see” if he liked the result of the process, nonetheless. This ground was not brought within time and the Defendant proceeded in the absence of any challenge. If it had been arguable then it would have been necessary to consider an exercise of discretion but that does not arise. Permission to bring a claim for judicial review is refused on this ground.

Ground Two

[27]This ground turns on the construction of the term “relevant service” in s.83(2) Localism Act 2011. “If the relevant authority accepts the expression of interest it must carry out a procurement exercise relating to the provision on behalf of the authority of the relevant service to which the expression of interest relates”. The statute does not define the term “relevant service”, s. 81(5) simply describes it as a “service provided by or on behalf of that authority…”[28]The Claimant contends that if an expression of interest is accepted and the consequent procurement process commences then the relevant authority is bound to conduct the procurement exercise for the entirety of the service for which the contender has bid. In other words, the procurement obligation in s.83 (2) expressly refers to the service “subject to the expression of interest” and therefore the whole of the service. He asserts that the “relevant service” is “the service which the challenger organisation has sought to provide”. He further argues that the “relevant service” is both the nature and extent of the service already being provided at the time that the expression of interest is made.[29]The Defendant argues that when a relevant authority accepts an expression of interest it is only bound to conduct a procurement exercise for those services it is seeking to procure. The County Council is bound by the Localism Act to investigate other potential providers of a service that it is required, by statute, to provide to its residents. It is not bound to accept the bid, merely to investigate it properly and to accept it after investigation if it meets the criteria. The purpose of the statute is to oblige the County Council to enable relevant bodies to seek to play a part in the provision of services.[30]This is a very important part of the Claimant’s challenge. The scheme behind the Localism Act was to oblige authorities to canvass and consider the ability of a “relevant body” to provide a service as required. That the procurement exercise relates to the service subject to the expression of interest cannot be intended to mean that the procurement exercise that the authority is obliged to undertake extends to the widest limits of the bid, irrespective of what the authority wants. The “relevant service” is the service relevant to the authority because that is the service which they require. Services wider than what is required are not relevant. Permission is refused on this ground.[31]The Defendant contends that the Claimant did not have standing to bring a challenge on this ground in any event. It is argued, that as the Claimant is not a “relevant body” under s. 81, he is not entitled to bring a challenge on this ground. In light of the finding on this ground this does not need to be determined, although it does seem likely that his interest as a Council tax payer and regular user of the library services would bring him within the categories of persons who would have standing to bring such a challenge.

Ground Three

[32]The Defendant is under a duty to comply with s.3(1) Local Government Act 1999 to secure “best value”, “A best value authority must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness.” The Defendant is, obliged by that duty to follow the principle in Nash, (supra) and seek “an improvement”. That is a duty to seek to achieve a target. The obligation is to try, rather than an absolute duty to succeed in that attempt.[33]The Claimant argues that the decision, referred to by him in his skeleton argument as the “procurement decisions” are flawed because, i) there a was a failure to consult in accordance with s 3(2) LGA or as otherwise required, ii) the Defendant failed to take up the “credible indications” in the bid from GLL that it could get a better service or to go to public procurement and, iii) failed to consider all possible savings, including central support costs.[34]He argues that these criticisms and the interrelationship of all his grounds demonstrate that the Defendant has acted irrationally and perversely by determining what service it wanted before the procurement process and by choosing the model it did in preference to those put forward by other contenders.[35]The difficulty in the submissions that the Claimant makes is that they require the Court to place itself in the position of decision maker and to say that a particular issue, if decided in a different way might have brought about greater savings and/or an enhanced service. How the Defendant goes about seeking to try to achieve the “improvement” is a matter for the expert judgment of the Council. The report to the Executive is lengthy and detailed. It sets out the issues, canvasses options and by reference to the financial information and the details of the various proposals makes a recommendation. It draws on the expertise of the officers of the Council. The executive then considered the matter and reached a decision. It is not for this Court to audit that process. It cannot be argued that the decision to choose a particular option is Wednesbury unreasonable. This ground was identified by Hamblen J as hopeless on the paper application. Despite skilled oral argument it has not improved.[36]However difficult it may be to reduce the provision of library services without causing a reduction in service to some individual users, it is the task of the County Council to meet all its competing duties. There is nothing in this challenge which demonstrates that the Defendant has reached these decisions in a manner susceptible to successful Judicial Review.

Cited in 1 later judgment