The Legal Department of the Future and the Monitoring Officer
Paul Feild offers some comments on the findings of Local Government Lawyer’s Legal Department of the Feature report.
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Well done to Local Government Lawyer on its Legal Department of the Future survey.
While it appears, there is a shortage or scarcity of planning lawyers, with respect (and I have been a planning lawyer) I don’t think it is the most urgent need, local government is under relentless pressure for complex governance advice. The creation of more unitary authorities, the post-Grenfell housing safety regulation, the new ethics regime, and coming soon the inevitable changes from the new political parties all need advice.
Locums are not an ongoing solution other than a stop gap. They are just too expensive and can leave with little notice. It is no substitute for an established team.
My suggested solution is re-energising professionalism. I mean taking part. Over the years I’ve seen many articles written by Chief Executives and Public Finance / Room 151 carries informed finance articles by Finance Directors all the time[i]. Yet in local government legal circles a reasonable sift of content published on the Local Government Lawyer website or the Law Society Gazette seems to indicate most legal commentary is produced by barristers' chambers or public law teams in the private sector.
The long-term historically employed local government experts now seem to gravitate to the more rewarding interim market or set up consultancies.
So what is the explanation for lack of activity?
Not because I don’t think they could do so. My best guess answer is the average head of legal is too busy keeping their collective head above water to avoid drowning with the relentless call for legal services without even the bare necessary resources to go with it. Though this is potentially more work it is rewarding and good for you. I do think it is a crucial part of leadership to advance our profession as local government lawyers and that does mean taking in the conversation about our practice and being reflective practitioners including sharing our thoughts and learning.
The ‘Barnet Graph of Doom’[ii] is still with us. It predicted in 2012 that the increasing demand of children’s services and adult care would eventually lead to the collapse of local government finance[iii]. Ironically the extra funds from Covid 19 pushed that apocalyptic date backwards, but that income flow’s source is no longer available and there are very little, if any, reserves.
The other side of the Barnet Graph is the expansion of social care which creates extra work and demand on legal services. Back in 2014 when I was working on my doctorate, I caught up with an interviewee to go over the qualitative data. They were a highly experienced practitioner and a very long-term head of legal. We spoke about the various findings that had emerged and they commented that in their opinion it had all got very difficult for in-house legal practitioners trying to run a legal practice and balance having to deal with the politics of the Code of Conduct.
I think they were right, in that certainly from my perspective, governance is not another case to be charged to. It is an essential part of the local authority organisational culture and a cornerstone theme to public confidence in the electoral process and accountability. It’s not just casework.
The commercialisation of Legal Services in local government is all very well for production line law but it’s quite unsuitable for local government governance. Inevitably, in terms of local authority organisational design, there is a tendency to see legal functions as all being the same, so Legal Services gets placed in the structure schematic as a service and not being big enough (even with democratic services) to be free standing so gets itself put under a directorate[iv]. As we have seen in a recent 2022 Best Value intervention[v],if the finance governance goes astray how does the Monitoring Officer tackle matters particularly if the only source of data is moderated by a tier or more higher chief officer?
Why this matters is that in many authorities, the Head of Legal is seen as a Head of Service, a third tier role, and if they are assigned the role of Monitoring Officer then the Monitoring Officer is perceived as third tier too. Ok to have dotted lines to the Chief Executive, but that’s pretty much a compromised compromise unless the Monitoring Officer function is ring-fenced.
Furthermore, if the Government restores the power to suspend councillors or even disqualify them for breaches of the putative national code of conduct (and it will have to be national as you cannot have different codes where one code allows a type of behaviour and the other forbids it) then the role will inevitably get highly political. Imagine what suspension of a member would do in a no overall control authority.
Statutory governance functions need to be carried out by professional Chief Officers. It’s all very well to say when an Officer acts as a Monitoring Officer, they are a Chief Officer but when they are acting as a Head of Legal Service, they are either second or third tier[vi]. It strikes me that the Monitoring Officer is in a form of ‘governance superposition’ i.e. both first tier and third tier at the same time.
The importance of the Monitoring Officer role needs to be branded as such, hence the need to call it in name the ‘Chief Governance Officer’(CGO). This stops the corporate organisational designer placing the role under the S.151 Chief Finance Officer when the exercise of the finance role could be a potential cause of governance conflict and crisis.
I’ve seen many a Job Description for Head of Legal and yes it will describe the legal function but normally contains no more than a line saying ‘this post carries with it the role of the Monitoring Officer’. What they don’t do is spell out the Job Description for that role. If it did then, the role would be enhanced in the hierarchy.
Summary
The legal team of the future needs to be designed to take account of the Monitoring Officer role and not be just tacked on to the Head of Legal Services position on the ‘power-point’ organigram. Unfortunately, as many Heads of Legal roles are vacant or filled with interims, this can easily happen with little comment as to what the Monitoring Officer actually does.
The heads of legal need to take part in advancing the profession of local government practitioners.
Finally, governance work is decidedly not just casework business of a commercially minded legal service. It is of paramount importance as it goes to the root of public confidence in the democratic process. Governance should be carried out by a Chief Officer lead and so be recognised as such in the organisational structure, ideally by the creation of a legally qualified freestanding Chief Governance Officer.
Dr Paul Feild is a Principal Standards & Governance Solicitor. In 2015 he was awarded Doctor of Business Administration on the thesis which asked ‘How does Localism for Standards Work in Practice? The Practitioner’s View of Local Standards Post Localism Act 2011’. He has been a deputy Monitoring Officer in various public authorities since 2000 and researches and writes on finance and governance issues. He can be contacted
[i] For example, Newham’s Director of Finance, Conrad Hall, wrote a fine essay on ‘Who broke My Local Council’ last year.
[ii] A guide on tackling the savings challenge in 2024 – The Director’s Cut (localgovernmentlawyer.co.uk)
[iii] https://inlogov.com/2012/05/23/barnet-graph-doom/
[iv] If you are fortunate to be or have a Corporate Director for Democracy, Governance and Law. Don’t give it up without a ‘last stand’. Some say it is worth dying in a ditch over!
[v] Thurrock Council: Best Value Inspection report - GOV.UK (www.gov.uk)
[vi] As Schrodinger’s cat both dead and alive.
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