The environment in which local government lawyers are working is the most unpredictable for many years. Derek Bedlow asks Susan Tovey, President of the Association of Council Secretaries and Solicitors (ACSeS) about the challenges – and opportunities – that lie in wait for local authority lawyers and what ACSeS can do to help council legal teams through.
Which of the various challenges facing local authority lawyers which do you see as being the most pressing at the moment?
The most pressing challenge for local authority legal teams has to be the continued budget cuts and constraints, coupled with demand from clients that remains the same or, in very many cases, is increasing.
Trying to get the message across to your client services that this means they may not get the prompt service they have always had is a message that they don’t want to hear and I think it’s a real problem for all of us.
The other big one is the Localism Bill and the issues that will create. Within that, we have the changes to the ethical framework, and how that will pan out is very unclear. Then we have the general power of competence. Many client departments will say, “great, this means we can do this, that and the other” but the challenge for legal teams will be to ensure that client services go about using their new flexibilities in the right way, especially at a time when legal departments are struggling with reduced resources. At the same time we must not be seen as over cautious.
The government has said that one effect of the Localism Bill - and the general power of competence in particular - would be to reduce the need for legal advice. Is that actually how you and ACSeS perceive that it will work out in practice?
Having a general power of competence will be good news and it will make life a lot easier. I have my doubts, however, that it will reduce the need for legal advice, at least in its early days.
I don’t know how it’s going to pan out, but I can’t see chief executives and corporate directors wanting us all to go off and do this, that and the other, without being sure it actually is within the legal power. It doesn’t give the unfettered freedom that the hype seems to suggest.
There will still be those wanting to make sure that they’re not going to be the ones who are judicially reviewed for having been rather gung-ho or find themselves challenged in relation to a major procurement exercise where the procurement regime will be one of the boundaries to the power to be considered.
Among other things, the Localism Bill is also set to introduce community transfer of assets and big planning changes and abolish the present standards regime. These in themselves will give rise to the need for legal advice. Therefore, while the introduction of a general power is great news, I can’t see that it’s going to remove the need for lawyers and the demand for legal advice could well increase it while people are getting to grips with what it and all the other changes actually mean. But we just don’t know at this stage how it’s going to pan out.
ACSeS has done some work modelling the future shape of legal departments, which has produced quite a range of potential models for local authority legal services. Is that diversity of approach likely to be the final outcome for legal departments, or do you envisage that the economic stresses that councils find themselves under, will lead to the development of a more standardised model of legal practice at local authorities?
My own thought is that I would be surprised if we do end up with a standard model as such. You have always got the political dimension and the politicians at many councils might not want a standard model. I’d say I’d be surprised if we went down the regional model because politicians like things more local than that.
What I do think we are going to see is far more shared services, although it remains to be seen how this will develop. At one end, we’ve already got the larger scale ones like Lincolnshire and Norfolk as well as Essex, where you have the county and districts working together while remaining autonomous.
At the other end, you might just have a couple of districts working together with a shared head of service that might then, gradually, begin to work with other small clusters of councils.
The big problem with districts is, not so much being unable to do the work, but resilience. Most probably only have one specialist in each subject and you rely on lawyers remaining healthy or not moving on. Resilience is the real problem with districts which I think will drive many to look at shared services. This is likely to have the benefit in today’s economic climate of some reduction in cost because it will usually be at head of service level that the changes and savings will be made.
What can legal departments do to combat the salami-slicing approach to cost-cutting, when reducing internal head count is only likely to raise legal costs by increasing the proportion of work that is sent to private practice?
I think it’s very hard if the decision’s been taken that you will all cut X percentage, then you have to do it unless you can really put forward very strong arguments. It’s always difficult and I know colleagues that have struggled. If you’ve got good evidence and done the analysis that shows that reducing the legal team will cost more in the long run, then I think you’ll be alright. But it’s getting that evidence that's the key.
A number of members of ACSeS have panels and/or contracts for legal services, and those will give hourly rates. The difficulty there often is that the rates are generally confidential to the contract but what we can do is to say to members - look at what the private sector would charge and really make sure you have your own work costed out.
What role can ACSeS play in helping legal teams re-shape themselves for the future?
On shared services specifically, we took the decision at our last council meeting that the real benefit we could provide is to promote good practice and to use our website as a resource for sharing examples of best practice.
There is plenty going on around the country amongst our members, so we have created the facility for members to put the information and experience they have gathered online. This could be an agreement that they’ve got with another council, it may be their committee reports, it may be evidence that they used to say, yes it was a good thing, or maybe it wasn’t a good thing, but by sharing it on the website, it could save us all from reinventing the wheel each time. After all very few of us have problems that are unique to ourselves.
Moreover, if you can show that to have a shared service would save the money that councils are asking us to save by cuts, then that would be a good argument to put forward for why you shouldn’t actually cut. The same would apply to income generation too of course.
One thing I should say is that while we as lawyers – and most ACSeS members are lawyers – are grappling with the budget cuts and increased work, the challenge isn’t all doom and gloom. It is an exciting time to be in local government, with the Localism Bill and other changes that are happening, and I think that we shouldn't lose sight of that.
More generally, to what extent are budget cuts changing the role of ACSeS? In particular, how important is the corporate governance aspect of ACSeS’ role likely to remain relative to the helping members to meet challenges on the department side of things?
I believe corporate governance will remain an important part of our role. We’re going to see more and more shared and outsourced services, not just between councils but with other organisations such as the NHS as well as with the voluntary sector. These are going to create their own governance issues and it is vital that those are appreciated, because I don’t think they always are. The people who will have to deal with these will be the lawyers and that’s a role I think that ACSeS can play in highlighting these.
Similarly, some councils are going to end up transferring assets to community interest groups under the Localism Bill. The governance in these situations has got to be right, otherwise the whole thing could fall flat on its face and that I think that this is where ACSeS can help by highlighting it to its members, who, in turn, can highlight the governance issues at their own councils. Lawyers will also have a huge role in whatever replaces the standards regime, so I don’t think we can lose sight of the governance element of our role.
To what extent is ACSeS able to or interested in increasing the public side of its role on these issues, in a way that organisations such as SOLACE and CIPFA do?
Our A5 publication, launched and edited by Mirza Ahmed in his term as President, has brought us to the attention of a wider audience and this has been very helpful. We also make sure we respond to relevant consultations or make our views known in relation to legislation going through Parliament. However I am not sure we can do more than this with our present set up.
ACSeS is its members - we don’t have the separate commercial arms that Solace and CIPFA have. We do not have that body of people to do that work for us, so to an extent, what we can do is constrained by the nature of the organisation.
I believe that our role will have to continue to be that of a centre of excellence and that it is for members to go back to their own organisations and relay the information and best practice that we provide. Together with this will be continuing to make sure that our views on legislation and government reviews are heard where they matter.
We haven’t got the capacity to do significantly more than that unless we were to increase our staffing. We all of us have very demanding jobs and that’s really the issue for us. To develop a more public role would represent a significant step change and, at the moment, no decision has been taken to make that step change.
Finally, where does the recent development attempt by the Law Society to incorporate the Solicitors in Local Government Group (SLG) as a division of the Law Society leave the proposed union of ACSeS and the SLG?
It hasn’t affected talks between ourselves and the SLG and nothing, at this stage, that has come out of the Law Society is fatal to what we would like to do. I am a great believer in the maxim that 'where there is a will there is a way'. If we are serious in what we would like to happen then I am sure we will make it work.