CROYDON’S SECRET MOVES TO QUIT LIBRARY AGREEMENT: THE LETTERS
The following letters are a precis:
Jon Rouse (Croydon) to Derrick Anderson (Lambeth)
“COUNCILLORS APPOINTED BY LAMBETH WILFULLY REFUSED EVEN TO ATTEND THE ANNUAL MEETING” –
Date: 21 October 2011
(The letter begins by recalling that the then (and since disgraced) Croydon council leader Cllr Mike Fisher wrote to Lambeth’s then council leader (now Croydon North MP) Cllr Steve Reed regarding the future of the UNJL.)
Rouse says: “In that letter, it was mentioned that in the event of our two authorities being unable to agree on how we would both like to move forward, Croydon might formally request the termination of the 1994 Upper Norwood Joint Library agreement.
“After careful consideration, I now write to inform you that in accordance with clause 8.3 of the agreement between the London boroughs of Lambeth and Croydon ‘Relating to the establishment and maintenance of a joint public library at Upper Norwood’, dated 5th August 1994 Croydon is terminating the agreement forthwith, as Lambeth has committed a fundamental breach of the agreement.
“Alternatively, I inform you that Croydon accepts the fundamental breach of the agreement by Lambeth, and the agreement is brought to an immediate end.
“As you are no doubt aware, councillors appointed by Lambeth to sit on the joint committee of the Upper Norwood Joint Library (“the UNJL”) refused to agree the appointment of a chair for that committee at its annual meeting in 2010, and so the proper business of the annual meeting could not be conducted.
“This year, the councillors appointed by Lambeth wilfully refused even to attend the annual meeting of the joint committee held on 15th September 2011.
“Councillors appointed by Croydon attended the annual meeting, but the absence of councillors from Lambeth meant that the meeting was inquorate, a chair could not be appointed, and the proper business of the annual meeting could not be conducted.
“As a result of these actions of Lambeth, acting through its councillors, it has not been possible for there to be proper governance and oversight of the UNJL in accordance with the agreed constitutional arrangements.
“This is an intolerable position to be in, particularly given our authorities’ responsibility for the proper oversight of public expenditure.
“To take one, particularly acute, example, as a result of the failures of the councillors from Lambeth, it has not been possible for the joint committee to sign off the accounts for 2009 or 2010, or consider any of the auditor’s recommendations.
“It is plain, therefore, as a result of the conduct of your councillors that it is no longer possible for our two authorities to continue to operate the UNJL jointly via the terms of the agreement, and that the agreement is now at an end.
“The agreement provides at clause 9 (of the agreement) that a number of matters follow automatically as a consequence of its termination:
(a) the joint committee is dissolved forthwith;
(b) the premises and the fixed assets are to be valued by a qualified person or persons;
(c) the fixed assets are disposed and the assets divided equally between the councils; or the whole of the fixed assets are transferred to the party wishing to continue to operate the fixed assets as a library on payment of 50 percent of the valuation.
“I will make arrangements to identify an appropriate person to value the premises and the fixed assets and will notify you of his/her identity shortly.
“The agreement is silent as to the steps that are to be taken with respect to the premises (other than valuation), and a variety of options are, in our view, available. “Croydon would wish to discuss those options with Lambeth, depending on whether or not your authority is interested in continuing to operate the fixed assets as a library.
“One option would be a leasing arrangement; another option would be for a sale of the Croydon’s interest in the premises. “Please note that Croydon would be content for Lambeth to continue to operate the Fixed Assets as a library.
“It is most unfortunate that this situation has arisen, and I trust that this will not affect the otherwise good relations between our two authorities.”
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Derrick Anderson (Lambeth) to Jon Rouse (Croydon)
“IT IS INCUMBENT UPON CROYDON TO IDENTIFY WHICH TERMS OF THE AGREEMENT HAVE BEEN BREACHED”
Date: 27th October 2011
The letter begins with Mr Anderson expressing on behalf of Lambeth his “very serious” concerns arising from the “wholly inappropriate and unilateral decision of Croydon council to terminate, purportedly, the joint library agreement.
“You refer to the letter from Cllr Fisher to Cllr Reed. “In that letter Cllr Fisher states:
ITALICS “I am aware that Upper Norwood library is highly valued locally and operates under a unique funding position – and as such this is a matter we need to handle with utmost care, to reassure residents that we value the service and very much wish it to be maintained…
“I would therefore also propose that we handle our communications on this jointly, to reassure taxpayers that we are focused on a solution that retains the service.”
“Your authority’s actions of last week contradict these statements and, when considered together with the statement that your authority might formally request the termination of the agreement, it is difficult to come to any other conclusion than that the administration of Croydon council made a policy decision some time ago to extract itself from an arrangement which has been in place for over 100 years and to apportion the blame for this on Lambeth council.
“This is borne out, inter alia, by the contents of your letter and of your authority’s press release, issued on the same day as your letter.
“You have cited clause 8.3 of the agreement in purporting to terminate the agreement and entire reliance for this action is stated to be based on a fundamental breach of the agreement by Lambeth council, which is wholly denied.
“For the avoidance of doubt, clause 8.3 states: ITALICS “The agreement may be terminated forthwith in the event of one party committing a fundamental breach of a term of this agreement.”
“It is therefore incumbent upon your authority to identify which term or terms of the agreement that you allege have been fundamentally breached by Lambeth council and on which you purport to rely in order to assert your right to terminate the agreement.
“You have failed to do so.”
Mr Anderson’s letter then covers the original decision by the library’s joint committee on 3rd February 2006 where it was agreed the joint committee would consist of four members from each borough.
At least two members from each borough would represent the Upper Norwood area – and at least one would be the cabinet member responsible for dealing with libraries in each borough.)
“Both authorities subsequently demonstrated compliance with this agreed amendment for the next four years.
“But following the local elections in May 2010* and without providing any formal notification to Lambeth council of its intentions, your authority unilaterally decided that it no longer wished to comply with the agreed amendment and failed to nominate any representatives from the Upper Norwood area.
“Lambeth council could reasonably have concluded from this action alone that your authority had committed a fundamental breach of a term of the agreement.
“Instead the opportunity was taken to raise this matter on 30th June 2010 at the first joint committee meeting to be held after the local elections. “Unfortunately this led to an impasse….” (For the full story please see: LIBRARY MEETING ENDS IN TOTAL CHAOS in our history section – Ed.)
“As the administration of the joint committee is a responsibility discharged by your authority, including the provision of legal and other constitutional advice, I am sure you will agree that it was incumbent upon Croydon council to clarify its position once and for all and to convene a further meeting of the joint committee as soon as reasonably practicable.
“Despite this. and having particular regard to the various functions that must be discharged by the joint committee as set out in your letter, no further meeting of the joint committee was convened for over a year.
“This inaction, in itself, constitutes a breach of the agreement on the part of your authoriuty and lends further weight to the inevitable conclusion that your authority decided some time ago that it did not want to continue with the long-established joint committee.
“Given that your authority has been fully aware for some time of the crucial need to address, to the satisfaction of both parties to the agreement, the membership issue highlighted above, I was extremely disappointed that, whilst no reference whatsoever to this is made in your letter, the press release issued on the same day contains the following statement:
“ITAL “Lambeth also continues to insist on Croydon putting local councillors onto the committee, despite the fact that the council is advised that this would be illegal under current government legislation concerning executive committee structures.”
Mr Anderson says that “any authority acting reasonably” having sought such legal advice would have communicated this to its partner authority.
“For the record Lambeth council does not accept that this is the position in law and therefore invites your authority to set out its legal position.”…
“Given that, as stated above, your authority was content to nominate two local ward councillors to the joint committee for the period between 2006 and 2010 it presumably satisfied itself that this was lawful.
“This therefore begs the question as to why your authority now states that this would be illegal, hence my request above.”
*Conservatives re-took control of Croydon council in these elections – Ed.
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Jon Rouse (Croydon) to Derrick Anderson (Lambeth)
“AS FAR AS CROYDON IS CONCERNED THE I994 AGREEMENT IS AT AN END AND WE HAVE NO DESIRE TO ENTER INTO ANOTHER”
Date: 9th November 2011
As far as Croydon is concerned, the 1994 Agreement is at an end, and we have no desire to enter into another. The options therefore are:
1: Lambeth buys Croydon’s share of the library premises and assets for market value and continues to run it as a public library. The staff would be transferred to Lambeth’s employ on a TUPE (Transfer of Undertakings Protection of Employment Regulations 2006) basis, and any that are in Croydon’s LGPS (Local Government Pension Scheme) would transfer to Lambeth’s. From the date of purchase, Lambeth would become solely responsibility for the funding of the library, and for any contingent liabilities under the SRB (Single Regeneration Budget) grant agreement.
2: As in Option 1, except that Croydon grants a lease of its share of the library premises to Lambeth at a peppercorn rent (with the appropriate consents) for a period of time to be agreed between the parties. Lambeth’s full responsibility for the funding of the library and the contingent liabilities associated with the SRB Grant would start on the commencement date of the lease. Again, the staff would be transferred to Lambeth’s employment.
3: Lambeth decides to close the UNJL, the sale of the SRB funded assets, with the consent of Bromley, the accountable body for the grant, and the sale of the library premises, with all the costs consequent upon the closure (e.g. utilities bills), the legal and administrative costs associated with the sale of assets, the costs associated with making the staff redundant and any repayment of grant monies required by Bromley, being shared equally between the two authorities. It is anticipated that these costs would be deducted from the proceeds of sale, with any remainder to be divided equally between the two councils.
In an appendix to the main letter Mr Rouse adds:
In your letter of 27 October 2011, you make a number of points, which we will address below.
It is notable, however, that you do not address the fundamental point raised in our letter of 21 October 2011 that members from Lambeth failed to allow the constitutionally required meetings of the Joint Committee to proceed.
This is particularly the case with respect to the annual meeting of 15 September 2011, which your councillors wilfully refused to attend, without even sending apologies in advance. No mention of this failure is found in your letter.
As explained in Croydon’s letter of 21 October 2011, the failure to allow the constitutionally required meetings of the joint committee to take place has resulted in the inability of the joint committee to perform a number of its functions.
This, we say, amounts to a fundamental breach of the terms of the agreement. It is implicit in the agreement, or is necessarily implied, that the joint committee meets to conduct its business: it does this, first and foremost, through the annual meeting.
Lambeth has, through the actions of its councillors, breached that term, with the consequences as set out in our letter of 21 October 2011:
The joint committee has been unable to perform a number of required functions: compliance with clause 5.3 (appointment of the chair) for 2010 and 2011 has not been possible; the joint committee has been unable to produce the pre-budget report as to the costs of providing the service, and of the building maintenance programme for 2010 and 2011 (Clause 3.2); policies and objectives of the UNJL for the years 2010 and 2011 have not been formulated by the joint committee (Clause 5.5); the joint committee has been unable to give proper direction to the staff of the UNJL (Clause 5.6), and ensure that staff perform appropriately and that the premises are appropriately managed (Clause 6.2).
It is correct that Croydon did nominate two councillors from the Upper Norwood ward to the joint committee until May 2010. After that date, however, Croydon formed the view that this was inappropriate and in contravention of the Local Authorities (Arrangements for the Discharge of Functions) (England) Regulations 2000, and that only executive members of Croydon should be appointed to the joint committee.
From the perspective of Croydon, and in accordance with legal advice obtained by Croydon, the joint committee for the UNJL does not have ‘functions in respect of part only of the area of’ Croydon (whatever may be the position with respect to Lambeth) so as to permit the Leader to appoint non-executive members to exercise Croydon’s executive functions with respect to libraries.
First, the UNJL is not even situated in any of the area of Croydon, so the executive functions with respect to the UNJL cannot be said to be limited physically to ‘part only of the area of’ Croydon.
Second, the facilities of the UNJL are available to all residents of the Croydon area and not merely those situated in ‘part only of the area of’ Croydon, and so the joint committee does not have functions with respect to a population of part only of the area of Croydon. In Croydon’s view, therefore, it would not be lawful for the leader of Croydon to put local councillors on the joint committee where they are not executive members.
The letter later adds: “The issue of funding was not, however, the reason for terminating the agreement in accordance with clause 8.3 thereof, as you seem to imply.
“Rather, as was made clear in Croydon’s letter of 21 October 2011, it was Lambeth’s failure to allow the constitutionally required meetings of the joint committee to proceed that prompted Croydon’s letter.”
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Derrick Anderson (Lambeth) to Jon Rouse) Croydon
“NONE OF THE OPTIONS PRESENTED IN YOUR LETTER ARE ACCEPTABLE TO LAMBETH COUNCIL”
2nd December 2011
“None of the options presented in your letter are acceptable to Lambeth council. “We remain firmly of the view that the agreement has not been terminated and therefore remains in place and that, accordingly, it is not the case that ‘the choice of option very much falls to’ Lambeth as you assert.
“Without prejudice to this authority’s position with regard to the purported termination of the agreement, we wish to propose that both authorities commit to exploring the asset transfer of the current UNJL building to communities, if this meets with the needs and aspirations of the community and users.
“Whilst a number of issues would need to be resolved in order to proceed, we would invite your authority to commit in principle to this approach.
“We propose that the Friends of Upper Norwood library and other interested parties are brought together to look at new delivery vehicles and management structures for a new service.
“As part of this exercise., issues relating to transfer of assets and staff to a new independent body would be explored.
“I very much hope that you will consider this proposal in the spirit that it is intended. Lambeth remains committed to providing a library service to the communities served by the UNJL. Given that some 42 per cent of the library’s users are Croydon residents (based on the figures for 2010 / 11) this authority trusts that Croydon council remains equally committed to the continuation of a library service, ideally one that is community-led as proposed above, at the UNJL..
In an appendix to his letter Mr Anderson says they do not intend to enter into prolonged correspondence in relation to issues in respect of which Lambeth has already made its position clear.
“It is denied that the non-attendance of Lambeth’s councillors at the meeting called for 15 September constitutes a fundamental breach, nor that such action constituites valid grounds for termination of the agreement.
“The sole reason for this non-attendance was the wilful failure of your authority to comply with the terms of the agreement, as amended and agreed by both authorities in 2006 with regard to membership of the Upper Norwood library joint committee, no explanation for which was forthcoming.
“In addition to this breach of the agreement on your authority’s part, a further fundamenntal breach was committed in respect of your failure to call a meeting of the UNLJC for over a year after that held on 30 June 2010.”
The letter later adds that “It is difficult to escape the conclusion that your authority has now chosen to interpret the relevant regulation (section 5 of the Public L:ibraries Act 1964 – Ed.)
in a much more restrictive manner than previously for purely political reasons.
“It remains the view of this authority that Croydon could have legitimately continued to nominate local ward councillors without being in breach of the regulation.”
“You will surely accept that it is inconceivable that the two authorities, with the benefit of professional advice from officers, would have been prepared to enter into the revised agreement in 1994 without being satisfied that section 5 was engaged.”
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Jon Rouse (Croydon) to Derrick Anderson (Lambeth)
“AS FAR AS CROYDON IS CONCERNED THE I994 AGREEMENT IS AT AN END AND WE HAVE NO DESIRE TO ENTER INTO ANOTHER”
Date: 9th November 2011
As far as Croydon is concerned, the 1994 Agreement is at an end, and we have no desire to enter into another. The options therefore are:
1: Lambeth buys Croydon’s share of the library premises and assets for market value and continues to run it as a public library. The staff would be transferred to Lambeth’s employ on a TUPE (Transfer of Undertakings Protection of Employment Regulations 2006) basis, and any that are in Croydon’s LGPS (Local Government Pension Scheme) would transfer to Lambeth’s. From the date of purchase, Lambeth would become solely responsibility for the funding of the library, and for any contingent liabilities under the SRB (Single Regeneration Budget) grant agreement.
2: As in Option 1, except that Croydon grants a lease of its share of the library premises to Lambeth at a peppercorn rent (with the appropriate consents) for a period of time to be agreed between the parties. Lambeth’s full responsibility for the funding of the library and the contingent liabilities associated with the SRB Grant would start on the commencement date of the lease. Again, the staff would be transferred to Lambeth’s employment.
3: Lambeth decides to close the UNJL, the sale of the SRB funded assets, with the consent of Bromley, the accountable body for the grant, and the sale of the library premises, with all the costs consequent upon the closure (e.g. utilities bills), the legal and administrative costs associated with the sale of assets, the costs associated with making the staff redundant and any repayment of grant monies required by Bromley, being shared equally between the two authorities. It is anticipated that these costs would be deducted from the proceeds of sale, with any remainder to be divided equally between the two councils.
In an appendix to the main letter Mr Rouse adds:
In your letter of 27 October 2011, you make a number of points, which we will address below.
It is notable, however, that you do not address the fundamental point raised in our letter of 21 October 2011 that members from Lambeth failed to allow the constitutionally required meetings of the Joint Committee to proceed.
This is particularly the case with respect to the annual meeting of 15 September 2011, which your councillors wilfully refused to attend, without even sending apologies in advance. No mention of this failure is found in your letter.
As explained in Croydon’s letter of 21 October 2011, the failure to allow the constitutionally required meetings of the joint committee to take place has resulted in the inability of the joint committee to perform a number of its functions.
This, we say, amounts to a fundamental breach of the terms of the agreement. It is implicit in the agreement, or is necessarily implied, that the joint committee meets to conduct its business: it does this, first and foremost, through the annual meeting.
Lambeth has, through the actions of its councillors, breached that term, with the consequences as set out in our letter of 21 October 2011:
The joint committee has been unable to perform a number of required functions: compliance with clause 5.3 (appointment of the chair) for 2010 and 2011 has not been possible; the joint committee has been unable to produce the pre-budget report as to the costs of providing the service, and of the building maintenance programme for 2010 and 2011 (Clause 3.2); policies and objectives of the UNJL for the years 2010 and 2011 have not been formulated by the joint committee (Clause 5.5); the joint committee has been unable to give proper direction to the staff of the UNJL (Clause 5.6), and ensure that staff perform appropriately and that the premises are appropriately managed (Clause 6.2).
It is correct that Croydon did nominate two councillors from the Upper Norwood ward to the joint committee until May 2010. After that date, however, Croydon formed the view that this was inappropriate and in contravention of the Local Authorities (Arrangements for the Discharge of Functions) (England) Regulations 2000, and that only executive members of Croydon should be appointed to the joint committee.
From the perspective of Croydon, and in accordance with legal advice obtained by Croydon, the joint committee for the UNJL does not have ‘functions in respect of part only of the area of’ Croydon (whatever may be the position with respect to Lambeth) so as to permit the Leader to appoint non-executive members to exercise Croydon’s executive functions with respect to libraries.
First, the UNJL is not even situated in any of the area of Croydon, so the executive functions with respect to the UNJL cannot be said to be limited physically to ‘part only of the area of’ Croydon.
Second, the facilities of the UNJL are available to all residents of the Croydon area and not merely those situated in ‘part only of the area of’ Croydon, and so the joint committee does not have functions with respect to a population of part only of the area of Croydon. In Croydon’s view, therefore, it would not be lawful for the leader of Croydon to put local councillors on the joint committee where they are not executive members.
The letter later adds: “The issue of funding was not, however, the reason for terminating the agreement in accordance with clause 8.3 thereof, as you seem to imply.
“Rather, as was made clear in Croydon’s letter of 21 October 2011, it was Lambeth’s failure to allow the constitutionally required meetings of the joint committee to proceed that prompted Croydon’s letter.”
