Desperate situations

A knee-jerk reaction to cull the legal department could backfire on local authorities, writes Nicholas Dobson.

Desperate situations, they say, require desperate remedies. So Dick the Butcher, one of rebel Jack Cade’s henchmen in Shakespeare’s Henry VI Part II, offered a radical solution to what he saw as the nation’s ills: “The first thing we do, let’s kill all the lawyers.” Cade readily agreed: “Nay, that I mean to do.” But (happily for lawyers – and many others) Cade’s rebellion was subsequently put down and Cade killed in a garden into which he had trespassed, looking for food.

But whilst local government now faces desperate times, happily, most authorities are unlikely to resolve to assassinate their lawyers. Nevertheless, leading members and decision-makers may well decide to prune or cull what may be perceived as some of the more pricey and unnecessary support service or ‘back office’ staff. However, if their thoughts do start to stray in this direction, they would do well to keep an eye on the red light on their strategic dashboards. For they might just be planning to sever the branch on which their authority sits. In other words to junk some vital parts of the council’s operating system and to disable or seriously weaken its intelligent client capacity.

Reinvention

For what is really needed going forward is a rigorous and comprehensive examination of just what the authority is for, now and in the foreseeable future. Not merely what it is used to doing. But what it now decides it needs to be doing if it is to meet present and likely future demands. And that’s a tough call. For it is something like a reinvention. And such things are often less than comfortable. Because they require all in the authority to depart from existing comfort zones and to re-imagine their place in a new scheme of things.

Of course many functions – mandatory and otherwise – will continue. But how they will conduct them will be up for a rethink. And the constant in the equation will inevitably be more from less. As part of this, working smarter – and with others – will be pivotal. For there is a huge collaborative agenda to be effected across the land including shared services and place-based budgeting. And whilst this is a lot easier to say than to do, many authorities are going to have no option if they are going to be able to carry on making the right things happen in their areas. Whilst collaborative synergy may be a no-brainer, all across the public sector are going to have to set their mindsets to flexible/strategic and abandon any traditional battles of territory and status if they wish to keep or become fighting fit for purpose.

Intelligent client

But it is of course difficult to work smarter if the smartest people have all been culled. This is not of course to say that these will always be found at the top of authorities and in the most senior posts. Far from it. There is dead as well as vital wood at all levels and it will be important for authorities to suss out talent from throughout their organisations. Equally, those with mature knowledge, wisdom and experience (and particularly those with an active and questioning approach) are often invaluable. Unfortunately these are frequently the low-hanging, riper fruit that authorities looking to save costs are most likely to want to remove.

If so, some pause for thought and strategic flexibility is likely to be needed. For in procurement (as central government defence and IT contracts might illustrate) as well as in making creative collaborative arrangements happen, public authorities are likely to be lambs to the contractual slaughter if they don’t have a strong intelligent client capacity.

Local government lawyers

Local government lawyers are a good example of back-office people who may be regarded as eminently cullable. If so it would be wise to think again. For a strong and effective in-house legal team is clearly the most cost-effective way for an authority to meet its core legal needs. And authorities are going to need a particularly strong intelligent legal client as new service patterns and structures are brought into being.

For even with prospective extensions to local authority legal powers, authorities as public bodies will remain subject to the extensive suite of public law obligations (which now of course includes compliance with Convention rights) as well as trustee obligations to the public purse and to all those whom authorities were set up to serve. And as the public estate becomes ever more complex and locally bespoke, ensuring proper and transparent accountability will be of enduring importance.

Local and other public sector bodies will clearly continue to use external specialist legal support when required from private sector colleagues and others. However, it will remain critical for authorities to retain their top quality lawyers in-house in what is a rapidly changing public realm. For local authority law is much more than mere commodity. It is the ‘software platform’ underpinning all authority activities. So if you want to make it happen so it works, best involve your legal talent at the outset.

© Nicholas Dobson

Dr. 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.

This article first appeared in the Municipal Journal.