R (Bailey) v Brent: law against the cuts (and politics)

by Carl Gardner on December 20, 2011

As a resident of Brent in north-west London, I’m not sure what I think about the Labour council’s planned library cuts. I’m not happy that any should be cut. I don’t want social care to be cut any more than it needs to be, either, or any of the other important things councils do. And I think libraries could be cheaper and better by going back to basics and focusing solely on books – rather than increasingly becoming all-purpose community, youth and IT centres, which is what Willesden Green library sometimes seems like. Anyway, I have some sympathy with the campaign against the cuts, without thinking libraries (any more than legal aid) should be prioritised above all other public services.

I’m writing about this because of the failure, yesterday, of the appeal in the judicial review taken by campaigners against Brent Council’s decision. Regardless of my views on libraries, I’m pleased the appeal has been dismissed.

The claim was made on a number of grounds, but the main one was that the council had breached its duty under section 149 of the Equality Act 2010, by failing to have due regard to the the need to eliminate race discrimination. Indirect discrimination arose, it was argued, because it seems 46% of borrowers from Brent libraries are Asian, although Asians make up only 28% of the population of the borough.

I think there’s something funny about this approach to indirect discrimination, to be honest: of course a statistically-proven disparate impact on different groups can amount to indirect discrimination – that I don’t doubt. But, as I read the judgment, like Lord Justice Davis (para. 97)

I became increasingly doubtful if this argument on behalf of the appellants could be right; and in fact I have arrived at the view that it is artificial and wrong.

I’m still trying to work out where I think the “funniness” is found. The council argued that the closures were not intrinsically liable to affect Asian people more than anyone else, and I suspect this may be the answer, or something like it, though none of the judges seems to have agreed. In any event, though, the real complaint about the closures has nothing whatever to do with race discrimination – which is what lends this case a distinctly straw-clutching unreality.

The real problem with this approach to law – politics continued by whatever legal means are necessary – is the debilitating effect it has on politics, and on democracy itself. Most people agree, if challenged, that local democracy is sick, and should be revived. We agree power is too centralised, and ought to be devolved. There’s absolutely no point in thinking that, though, if you’re happy with councils’ decisions being constantly at risk from purely tactical legal challenges, in a continual game of jenga. Ultimately that has a chilling effect on local policy-making.

We have to accept, in a democracy, that politicians will make decisions we don’t like. If we can’t, and instead turn increasingly to tactical legalism in effect as a replacement for politics, we’ll deserve a less political, more centralised and less democratic society.

{ 3 comments… read them below or add one }

1 James Medhurst December 20, 2011 at 22:10

This all comes down to the question of the appropriate pool for comparison. Is it Brent library users, in which case there is no disparate impact, or is it all Brent residents, in which case there may be? Although, I think that you would then have to take into account the impact of all the cuts as a whole, an artifical exercise.

The argument failed because the Court of Appeal correctly defined the pool in the first way. However, the principle is sound. If Brent Council had cut only libraries in predominately Asian areas, they would have had to justify that decision, and I think quite rightly so.

2 James Medhurst December 21, 2011 at 00:36

By the way, all the Lord Justices expressly rejected the submission that there has to be an intrinsic link to race (see paras 49 and 100).

3 Carl Gardner December 22, 2011 at 18:05

Yes, James – you’re quite right about the judges’ view of the “intrinsic link”. I’m not saying that argument is necessarily right: just that there’s something odd about the way the statistical argument was said to work in this case. I’m still thinking about it.

By the way, though I think your example about closures in predominantly Asian areas is different, and that the difference may be revealing. That policy would but up a practical barrier to library access for a higher proportion of Asians than people of other races; I don’t the current closure programme can be said to do that.

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