What makes the perfect CLO?

The role of chief legal officer has evolved hugely in recent years – and not always to the advantage of the incumbents. Nicholas Dobson looks at how they can meet the expectations of their councils in today's challenging environment.

The world is spinning ever faster. In mindset terms, whole geological eras have passed since the days when Council members would stand in respect when the Town Clerk as first officer entered the chamber. True, members may well now stand when the senior lawyer enters. But probably only now to afford better aim!

Much has been written (some by me) on the many and complex reasons for the decline in standing of the chief legal officer (CLO) in local government.  Amongst these are strands of: change in organisational focus from legal/compliance to outcome/strategic; the role of compulsory competitive tendering (CCT) in the 1990s to redefine law as a mere commodity product rather than as a key part of corporate governance and not least member hostility towards lawyers who began to be seen as preventers rather than facilitators; as negative police rather than positive supporters of policy objectives. Unfair? No doubt. But success is of course adapting to the world as it is rather than as we would like it to be.

Monitoring Officer

Part of the problem of course has been the regulatory role of the monitoring officer (MO). This is described in the current version of what is (increasingly outdatedly) called New council constitutions: guidance to English Authorities (the constitutions guidance)¹, as being one of the “key roles within the local authority” along with the head of paid service and the chief finance officer. However, those occupying it may well say that it doesn’t always feel that way!

Whilst there is currently no legal requirement for the MO to be legally qualified, the position is so closely aligned with legal compliance that most authorities choose to assign this to their most senior lawyer. This is entirely sensible since in its nature the role is best performed by those with seasoned legal instinct. A key role of the MO is of course the reporting duty in Part I of the Local Government and Housing Act 1989 which applies to ‘relevant authorities’. Per section 21 of the 1989 Act these authorities include county and district councils and London Boroughs. The reporting function requires the MO as a personal duty (in consultation with the head of paid service and chief financial officer) to report to the authority (with a copy to each member) on any actual or prospective breach of law or incident of established maladministration. The authority must then consider the report within 21 days and the action giving rise to the report is suspended until the day following such consideration.

MOs also have had extensive duties in line with the member conduct regime (under Part III of the Local Government Act 2000) – at least while it lasts in its current form. For the coalition government has of course pledged to scrap Standards for England and much of the statutory infrastructure. But the constitutions guidance still refers to the MO role as performing: “a key function in ensuring lawfulness and fairness in the operation of the local authority’s decision-making process, including investigation and reporting on issues that embrace all aspects of the local authority’s functions”. This is in the light of the MO’s statutory responsibility (as the guidance puts it) “for overseeing vires issues”. However, the MO’s role in the conduct regime (and the consequent indelible association with its unpopular regulatory elements) was probably the final nail in the MO’s brownie points coffin.

Chief Legal Officer

But is there any difference between MO and CLO? If the CLO is also the MO there may not be huge differences in practice since (assuming the CLO is a professionally qualified lawyer) part of the CLO’s professional duty to his or her authority will be to ensure that its decisions and actions are all properly and lawfully founded and reasonably conducted in line with public law principles and requirements. This is consistent with the statutory role of the MO.

However, even when the MO also happens to be CLO, not every action of the MO will be a function of the lawyer/client relationship. One aspect of this was illustrated in the 11 August 2010 decision of the First Tier Tribunal (Information Rights) in Surrey Heath Borough Council & Kevin McCullen v. Information Commissioner (EA/2010/0034) where a monitoring officer’s report was in the particular circumstances held not to attract legal professional privilege and was therefore not exempt from disclosure. Amongst other things, the Tribunal found no evidence (other than assertion) that the MO had been “acting in her professional capacity as a Solicitor”. The Tribunal also noted submissions that the MO does not have to be a lawyer and that the current incumbent of the post was not legally qualified.

It is true that (per Balabel v Air India [1988] 1 Ch 317) “…. legal advice is not confined to telling the client the law” but “must include advice as to what should prudently and sensibly be done in the relevant legal context”. However (per Lord Scott in Three Rivers District Council and others v. Governor and Company of the Bank of England (No 5) 2004] UKHL 48), “the judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law.” If it does not, then legal advice privilege will not apply.

So the role of the MO is a statutory one, fulfilling a suit of specific responsibilities in the 1989 and 2000 Acts and other measures. Many of these functions may be co-extensive with relevant professional duties of the CLO but (as Surrey Heath illustrates in the particular context of legal professional privilege) this is far from inevitable. However, if the statutory monitoring officer infrastructure happened to be removed, then the CLO would still have a professional duty as the Council’s retained lawyer to ensure so far as possible propriety and lawfulness of decision making and operations. Nevertheless, the manner of discharging these duties would be a matter for the reasonable professional discretion of the lawyer CLO in addition to the particular requirements of the particular post occupied.

Thoroughly Modern CLO

So what should authorities be expecting of their CLO in present circumstances? By way of a few thoughts, this might be someone who:

• Wins the confidence and respect of key members and officers by being seen as actively wanting to find ways of making things happen rather than reasons to stop them
• Is therefore always able to be part of the genesis of key decisions
• Is an advocate throughout the authority of high corporate governance standards and who puts in place comprehensive (but practical and accessible) processes to ensure these are hard-wired into the authority’s culture and arrangements
• Forms an effective corporate governance ‘triumvirate’ with the head of paid service and chief finance officer and also establishes effective lines of communication with the external auditor
• Reaches out beyond comfort zones of law and administration to add value to corporate objectives and outcomes and who is seen to make a real community difference
• Moves and shakes externally on behalf of the authority and helps to shape the local government law and policy landscape
• Ensures the quality of the outcomes for which the CLO is responsible
• Is an insightful and effective manager who develops his/her people and unleashes their spectrum of talents (as necessary outside their ‘designation box’) to add value and energy across the authority
• Has a strong sense of leadership of place
• Sees the need for new definitions of success and status in a rapidly changing public sector environment where increasingly public services will need to synergize on an area basis
• Is therefore not narrowly territorial or self-seeking and does what is necessary as opposed to what may be personally desirable
• Engages good people and has in place prudent succession planning
• Is flexible and lives the notion that only the dead lie still and stop growing
• Does not define himself/herself predominantly as a lawyer. Someone therefore who while being a top class lawyer is very much more: a player whose legal skills are often subliminal and only a small part of an extensive talent armoury, and
• Whilst making a positive difference is also pleasant to be with.

If the above is a mirror in which you see yourself, then well-deserved congratulations! But it might nevertheless be sensible to get a second opinion. For as Robert Burns memorably remarked when he spotted a louse on a lady’s bonnet at church: “O wad some Power the giftie gie us/To see oursels as ithers see us!” These days we call it 360° feedback. And a look in that particular mirror is not always entirely comfortable.

© Nicholas Dobson

Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law. He is also Communications Officer for the Association of Council Secretaries and Solicitors.

1.            Nevertheless, the Association of Council Secretaries and Solicitors (ACSeS) is undertaking an internal review of the Modular constitutions for English local authorities. However, this review does not extend to the above Guidance.