Dick the butcher, henchman to Shakespeare’s rebel Jack Cade, famously advised his boss to ‘kill all the lawyers’.
Unfortunately, in the continuing austerity climate, and with many in the corridors of municipal power seeing lawyers as naysaying, bureaucratic pedants, Dick’s advice may well be sympathetically received. So council lawyers, often considered a regrettable overhead to primary authority operations, are now spread ever more thinly (frequently over more than one authority) and can often have an uphill struggle to make their voices heard at the top table.
But as recent news reports showed, things can go pear-shaped for councils if insightful legal advice is not hardwired into corporate authority systems. The London Borough of Barnet found itself at the centre of the wrong type of publicity when it took decisions in the light of two ‘incorrect or misleading’ reports on political proportionality and members’ allowances.
As experienced local government lawyer Claer Lloyd-Jones subsequently indicated in her two investigation reports, the flawed reports led to the council being ‘mocked in the local press with headlines using words such as “disgrace” and “chaos”’. The causes, said Lloyd-Jones, included the fact that the council had no one in place who understood local government law in any depth since it employed no lawyers.
Furthermore, key governance staff were inexperienced in governance issues and there had been no clear protocol for clearing council reports through taking external legal or other specialist advice.
Although Barnet is now addressing these and other issues in the light of Lloyd-Jones’ reports (Barnet chief executive Andrew Travers has said that Lloyd-Jones’ recommendations should be accepted), the debacle illustrates the importance of authorities having suitably experienced lawyers on hand to inform and guide key corporate council operations. For at material times, Barnet’s monitoring officer (MO) (an accountant now departed from the authority) was not legally qualified.
Guardian of propriety
The MO – introduced by the Local Government and Housing Act 1989 – is a key guardian of local government corporate legal propriety.
As Conservative secretary of state Nicholas Ridley (pictured) pointed out in a Commons debate in 1989: ‘We will establish a post of monitoring officer, whom all councils will be required to designate – not unlike the accounting officers in government departments. That person will have a duty to report to the council on any proposal or decision that may be illegal, in breach of a code of practice, or likely to result in maladministration or injustice.
‘We gave a similar role to the finance officer in respect of council expenditure under the Local Government Finance Act 1988.’
But despite the fact that Labour’s Jack Cunningham (now Lord Cunningham) referred to this as a ‘bizarre proposal’ for ‘a kind of statutory sneak’, the MO role is now well-established – although unease does persist in certain political quarters that some MOs exercise unwarranted control over elected members.
The MO statutory provisions are in sections 5 and 5A of the 1989 act. These cover both authority and executive decisions and essentially reflect what Ridley pledged. However (per section 5(1) of the 1989 act), relevant authorities are required to ‘designate one of their officers’ (emphasis added) as MO and ‘to provide that officer with such staff, accommodation and other resources as are, in his opinion, sufficient to allow… [MO duties]… to be performed’.
Furthermore, MO duties are required to be performed by the MO ‘personally or, where he is unable to act owing to absence or illness, personally by such member of his staff as he has for the time being nominated as his deputy for the purposes of this section’. So the MO must be an officer of the relevant authority and has personal responsibility for the discharge of the corporate legal propriety functions in question. And the authority is under a duty to make sure that the MO role is adequately resourced.
Given the legal context of the MO role, it may be thought that MOs are required to have a legal qualification (as section 113 of the Local Government Finance Act 1988 provides in respect of chief finance officers’ qualifications). However, although most authorities do in practice appoint their most senior lawyer to the MO role, there is no legal requirement for this officer be legally qualified. This gap does perhaps need some legislative attention.
For if authorities do not have available high-level knowledge and experience of local government law as decisions are being formulated, the outcome, as Barnet discovered, can be damaging reputationally, operationally and financially.
The current local authority legal landscape is undergoing tectonic changes. Many authorities have shared services support where one legal practice services more than one council. Examples include Lincolnshire Legal Services (a partnership between Lincolnshire County Council, Boston Borough Council, East Lindsey District Council, North Kesteven District Council, South Holland District Council and West Lindsey District Council) and HB Public Law (the shared legal service for the London boroughs of Harrow and Barnet).
Some authorities (including HB Public Law) have successfully sought approval from the Solicitors Regulation Authority to create an alternative business structure. This is a firm where a non-lawyer (for example, a local authority) has an ownership-type interest in, or manages, the firm. The advantage to a local authority of an ABS is that it would legally be free (under both local authority law and professional regulatory requirements) to act for any client through the requisite corporate structure.
Disadvantages include exposure to commercial market forces, a spectrum of overhead costs, professional liability, practice management and marketing demands, and compliance with regulatory requirements, from all of which internal local authority legal practices are substantially sheltered.
However, an authority being serviced by an ABS does need to ensure that it has its own sufficient ‘intelligent client’ capacity, probably through a suitably qualified, experienced and resourced monitoring officer and core strategic legal team. For even though a local authority ABS may look and feel like the previous internal legal service, it will in fact be an external private legal provider in relation to the services it provides.
Barnet’s chief executive has therefore recommended that his authority retains its own MO and that ‘a limited scope of high-level corporate legal support should be provided outside the shared legal service in-house and/or through a panel of external suppliers’. Pending the appointment of a Barnet MO, Peter Large, head of legal and democratic services and MO at Westminster City Council, will be Barnet’s interim MO.
In the excitement and upheaval of radical shifts in local authority legal provision, it is vital that the core purpose and function of both local authority legal services and the MO are not overlooked. These are to ensure that the functions and activities of the authority are conducted properly, lawfully and in the public interest. And given the statutory constitutional base of local government, if decisions are not taken lawfully, they risk being judicially set aside.
The October 2013 report of Transparency International UK concluded that ‘the corruption risk for local government in the UK has increased, and… corruption in UK local government is likely to increase’.
In the circumstances, the role of local authority MO as guardian of council legal propriety is ever more critical.
Nicholas Dobson, Freeths