Hail to the chiefs

A local authority chief executive will often have unspoken requirements of their heads of legal, Roger Taylor told delegates at the ACSeS conference last month. But the lawyers should equally expect high standards from their bosses.

The status of local government lawyers has undoubtedly fallen since the 1970s, when some 95% of chief executives hailed from the legal profession. Nowadays, fewer than 5% do.

For Roger Taylor, former chief executive of Birmingham and Manchester city councils and a qualified lawyer, this is not necessarily a cause for regret. Speaking at the recent Association of Council Secretaries and Solicitors (ACSeS) conference in Leeds, he claimed that “many of those lawyer chief executives were narrow, patrician and limited in their ideas about what local government was really there for.” Some of them were undoubtedly brilliant, but  “they weren’t brilliant because they were lawyers, they were just brilliant”.

Taylor, who is now legacy leader for the five London boroughs hosting the Olympics, told delegates it was time for local authority lawyers to stop looking inwards. Instead they should expect ­– demand, even – certain standards from the chief executives of the councils they work for.

After “half a lifetime of absolute amazement” about how little some chief executives understand about basic legal issues, he said it was disappointing that there is still no basic training for chief executives, no professional qualifications and no threshold requirements.

Legitimate expectations

It is now time lawyers started posing some real questions about their clients within local authorities and in particular the chief executives they work with. Lawyers could legitimately want their bosses to have:

• a basic understanding of the constitutional framework of local government;
• an understanding of the role and function the law plays in the life of a statutory organisation;
• an appreciation of ultra vires;
• “even a remote understanding” of the range, complexity and challenge of judicial review;
• the ability to be an intelligent client;
• a recognition that the law should be an integral part of policy development, and “not a latecoming Aunt Sally blamed for the council being unable to do something”; and
• a willingness on the part of chief executives not to be too proud to ask people to explain things to them. “There are huge dangers in chief executives not listening and not wanting to acknowledge the gaps in their own knowledge.”

These are the essential underpinnings of the way in which chief executives need to engage with their lawyers, Taylor said. But, frequently, there are situations where – because these underpinnings are missing – the relationship does not work and a range of bad things can happen.

“Amongst these is when the lawyer is stuck at second or third tier within some corporate services department run by somebody with an MBA and absolutely no other merits to their name,” he claimed. Where lawyers are so demeaned by their position, it is “hardly conceivable that the system of legal advice is going to work well”.

Trouble will also be stored up when local authority lawyers are ignored by other corporate directors, who endlessly try to develop policy to the very last minute “almost daring the lawyers to say that there is something wrong with it at the end”. The lawyers then come under enormous pressure to say yes because someone has been developing a policy for nine months and finally tells them about it.

Taylor said he hated the way lawyers are often caricatured by chief executives – “and you are used as a scapegoat more often than you would know, in places when you are not even there”.

A problem shared

But he stressed that the fact that chief executives are often found wanting when it comes to a basic understanding of the legal framework councils operate under is as much an issue for the lawyer as it is for them. “One of the greatest problems – which happens when chief executives are not legally literate, let alone come from a legal background – is that in a very real sense they are quite unable to act as a genuinely intelligent client,” Taylor argued. “This has had a very corrosive effect.”

Lawyers are paid and valued for their ability dispassionately to weigh in their advice the pros and cons of the situation and possible actions, he said. That necessarily includes pointing out risks – their magnitude, likelihood and the likely consequences.

For a chief executive caught between the lawyer doing their job and the ambitions of the council, taking decisions that involves risks they cannot really get their heads round is uncomfortable.

“Taking them without a real appreciation of what can happen when things go wrong is like walking in the dark,” Taylor warned. “Taking them and carrying the risk of blame is like walking in the dark on a tightrope. All of these are likely to drive chief executives into caution and safety, deciding to do things that are risk-free but not blame-free for the lawyers. This is bad for local government, bad for chief executives and really bad for lawyers.”

It is essential to get chief executives as a group to the position where they know what they want from their local authority lawyers. Taylor was unsparing in his criticism of chief executives who say they do not want to be told that they cannot do things, they want somebody to tell them how to do them. “This is so superficial, so trivial, so macho and so unhelpful to the discussion of what is absolutely the heart of the functions of organisations like ours,” he argued.

Reading between the lines

Despite his trenchant criticisms, Taylor told the ACSeS audience that there were in turn some unspoken requirements that chief executives have of their local authority lawyers – “the type of things that nobody ever really wants to talk about but which you might need to understand about your chief executives”. Such an understanding might help lawyers engage with chief executives in a more intelligent way.

One issue is that however powerful a chief executive may seem, at any point in time their success and good fortune is always on a knife-edge. It is always dependent on gaining and maintaining very high levels of political confidence and approval and if they are not able to secure that, “then their power slips out of their fingers like mercury”.

It can be a while before first-time chief executives realise that that is the absolutely fundamental risk that they run. If they cannot manage that, they cannot even maintain the confidence of their colleagues around them, Taylor said. There may be very few people in the local authority who are prepared to help and support them and watch over them in that very difficult challenge that they face.

“There are times when you need – as monitoring officers and chief legal officers – to stand back from ethical issues because they have got to the point where the person in charge needs to stand up to the plate and deal with it,” he pointed out. “And that actually is a really difficult for chief executives to do. They hate doing it because they see in that the risks that they run in terms of the management of their relationships with a few key politicians.”

Chief executives do need plenty of support in doing that and then – and only then – can they get through it. “They do occasionally have to demonstrate a very clear and moral ethical compass,” Taylor added. “And it’s the absolute foundation of their work. You (the lawyers and monitoring officers) are the people in a local authority who need to be most sensitive to the challenges which that raises for them.”

A successful chief executive is the absolute nexus of the relationship between the democratic process and the paid officials, which “means that if they are really doing their job well they can see both sides of the argument all of the time.”

One of the things that most of the paid service never quite understands either is that a really good chief executive never allows themselves to become partisan in the defence of their colleagues, Taylor suggested. “Which isn’t to say that there aren’t occasions when they shouldn’t be tigers in defending colleagues who have been subject to unjustified criticism,” he said. “But always remember – the success of the management of the authority depends not on the chief executive constantly demonstrating his loyalty to his colleagues but on actually keeping the show on the road.”

Chief executives also need to avoid at all costs being the story, of allowing themselves to be drawn into the public space – there will be damage both to them and the local authorities they work for if that happens.

The view from the chief executive’s office

So what, then, does a local authority chief executive expect of their head of legal?

In Taylor’s view, there are a number of factors that make for a successful relationship. One is that the chief executive ought to expect the chief legal officer to be on the executive board – they should be “playing an active part in corporate policy development, supporting service colleagues, constantly matching the pressures we are all under in local government to the overall governance of the council and integrating law into policy making from the start and not at the end”.

Heads of legal should focus on providing an effective and efficient legal service for the council funded entirely by internal clients who demand and are prepared to pay for high service levels. In this respect, Taylor attacked the contracting out of complex legal work “to the point where the role of the local authority lawyer has been reduced in the eyes of many of their colleagues simply to being a messenger between somebody being paid ludicrous day rates outside and the council inside. Where is the learning value in that for the council?”

Taylor also called on local authority lawyers to ensure that the governance arrangements they set up are understandable and transparent. “There’s a huge risk that the whole governance thing becomes a dark art that only the monitoring officer understands and everybody has to ask them for advice on what they can do, which is tantamount to asking permission,” he warned. “This gives a strong perception of manipulation, which everybody is entitle to hate and loathe.”

Heads of legal and monitoring officers should be honest – “chief executives can handle the truth” – and exemplary in their personal conduct. “We really don’t want monitoring officers whose time out of the office cannot be explained or whose relationships with their staff seem to stretch beyond the bounds of what’s appropriate in their position,” he advised.

Having a fascination with local government as a whole is another key attribute. “We want people who are as interested in housing policy, education, performance, joint service delivery as they are in worrying about the technicalities of the law,” Taylor said.

And, as important as anything, “please be understandable, please make yourselves comprehensible to ordinary people and please don’t patronise people who are trying to learn and understand what you are saying.”