A guide to writing legal implications

A local government legal practitioner can expect from time to time to be asked to contribute to a committee report and obviously this can be a challenge to get it right. Yet appropriate legal comments are key to sound governance, writes Paul Feild.

Why do we need legal implications

So, what are legal implications about?

A local authority is a creature of statute. Inevitably things that it does or chooses not to do will have legal consequences. My view is that rather than just a statement of the law the necessary legal implications in a report are what decision makers need to know regarding the legal aspects of the item and the legal consequences of decisions they may be asked to make.

So why do reports always contain legal implications?

Because the Council must make lawful decisions based on evidence or it will be open to challenge in the High Court for illegality, irrationality, or procedural impropriety.

Many of the decisions taken by a local authority require an understanding of the law and the report will need to be carefully constructed to ensure that there is a lawful decision. Thus, if the Council does not follow a lawful process in its decision making it is open to complaints to the Local Government and Social Care Ombudsman or judicial challenge and it may also get picked up by the local auditor.

In an ideal situation, the legal services will have been consulted during the gestation of the report and have advised as the report has developed. Being involved at an early stage will enable learning about the client’s objectives and the practitioner will get a better grasp of the issues and so be better able to assist in setting out the legal implications of what is being asked. Proactive is best. But this will not always happen.

Obviously, it is best for your legal service to set a structure to manage the request for legal implications such as a dedicated mailbox and a service standard turnround of for, let’s say example 8 working days, to consider reports and provide implications. There should be a possibility of review too, to ensure quality in advice. But in the real world that does not always happen!

Getting prepared to contribute

So, supposing you are asked to give advice on a report. What do you do?

The legal advisor must approach the request for advice systematically. It has become a convention in local government that reports have legal implications even though there is no statutory requirement.

The legal role is to advise the authors of the report and in due course decision makers what the legal implications are of the decision they are recommended to make.

It means the legalities of the report need to be understood, but at the same time communication of what it all means is crucial. Indeed, the lawyer’s skill in making the complex understandable to lay people is vital.

Legal implications must be anchored in reality and not a local government equivalent of Emperor Hirohito’s legendary 1945 understatement [1]. If a matter is serious with major consequences such as for example a Ministerial intervention under section 10 of the Local Government Act 1999 or an auditors Public Interest Report under schedule 7 of the Local Audit and Accountability Act 2014 it is up to the legal advisor to make that clear what it means. Such events should never happen so if it does stress the gravity.

So effective decision making requires that the decision maker is given all the relevant material and supported with professional advice.

A systematic approach

Writing implications, a daunting task perhaps? No, it can be made lighter by having a systematic approach.

So, what to do:

  1. Read the report. First read the report through end to end and the appendixes – does it even make sense, sometimes they don’t?
  2. Are all the appendixes there? Don’t write legal implications without seeing all of them.
  3. Further are key documents which should be there but missing? Such as for example letters about the authority from say an inspection or the Secretary of State? Indeed, certain reports under the Local Audit and Accountability Act 2014 are required to be presented to the Cabinet or full Council not edited highlights.
  4. Look at any previous decisions and earlier reports – it will certainly help to look at what was said in the past – but still check – law can move on.
  5. Ask yourself is there sufficient information to make a decision?
  6. Identify the legal aspects.
  7. Consider whether the Council has the power to make the decision.
  8. Are there issues about powers?
  9. Are there regulatory matters?
  10. If there is an options appraisal, does the report veer towards a particular choice backed up by the reasoning and evidence and if so are there any legal consequences of not choosing other options?
  11. Has there been any consultation – this process may be specifically set out in the legislation and is it any good, for example is the sample valid?
  12. Make sure equalities and human rights considerations are properly addressed, this is essential. For example there is the section 149 Equality Act 2010 Public Sector Equalities Duty (PSED) - is it considered? Has a PSED impact statement been done?
  13. Once you have done the above, go back to the front page – is there a recommendation or is it for information only?
  14. Coherent Recommendations are vital (see below).

Recommendations

Recommendations should always be decisive – no one should be able to say, "well it’s not clear what was decided". So, well-crafted recommendations are very important – everyone involved at officer level will have to work from them at a later date – do make sure they relate to the decision and don’t leave the matter in mid-air. Avoid an “agreement in principle” it implies a further report, you cannot do anything relying on it. Further the outcome of a decision should enable to get the job done.

Practicalities – the Law

As well as the report's reasons for the recommended decision, there will be the law. You may know the law well or it may be the first time. Indeed, the report could be about an area unfamiliar to you.

Never mind, it will be very rare that there is not some guidance somewhere you can find. With austerity councils have shrunk their activities and now as many activities are driven by central Government funding there is likely to be some HMG Guidance issued. Don’t bore the members with case law unless it is a landmark Supreme Court decision or a specific decision to your authority. Frankly it’s the law and principles relevant to the committee report that matter and their application, that’s all.

Furthermore, other authorities will also be confronting similar issues so look at their reports too. Do not just simply cut and paste as it carries the risk of mistakes being propagated, but looking at them can certainly set you in the right direction. I have seen one authority make a mistake and another authority copy it because the author did not check the sources [2].

Also apply common sense, when looking at other authorities, put it this way – if there are consequences or change – there will bound to be some legal issue such as consultation and what to do about stakeholders affected. If another borough’s legal implications say there are no legal issues, they may well be wrong!

If the matter still seems impenetrable, ask your colleagues, even in other boroughs. They won’t laugh at you and as professionals, should not break a confidence that you asked them. Some years ago, I interviewed a few Monitoring Officers, and they echoed the view that they felt at times very much alone. Well, there’s nothing stopping them calling another Monitoring Officer rather than suffering in silence [3].

Powers

When writing, think about your council’s constitution which will set out the terms of reference and scheme of delegation. Apart from specialist local authorities which are excluded such as joint waste disposal authorities there will be the S.1 Localism Act 2011 General Power of Competence, though subject to the use of companies if trading (see sections 2-4). Furthermore, there is the S.111 Local Government Act 1972 ‘reasonably incidental’ rule which facilitates actions require to facilitate the primary objective.

In terms of paying for it, look at the sources of funds, is it funded? Does it fit in with the authority’s medium-term financial strategy? There is a power to borrow. The Local Government Act 2003 empowers local authorities to borrow for any purpose relevant to their functions or for the prudent management of their financial affairs. Authorities have a duty to determine annually and keep under review how much money they can afford to borrow. Authorities must also have regard to the Prudential Code for Capital Finance in Local Authorities published by CIPFA (2021) which requires borrowing to be prudent, affordable and sustainable. What you cannot do is borrow money to invest in income producing products because CIPFA’s code says it is not prudent.

If the report relates to land, remember the section 123 Local Government 1972 ‘best consideration’ rule. As there is a legal requirement to have financial standing orders, you must look at your finance rules too. Furthermore, for disposals of land within the housing revenue account there are specific rules, including the need for Ministerial Consent [4].

State Aid and Subsidies

The final step in leaving the EU was an interim regime based on the UK-EU Trade and Cooperation Agreement it sought to establish a level playing field. To replace the EU State Aid regime in domestic law the Subsidy Control Act 2022 was introduced. It establishes the control principles requirements that public authorities are subject to when giving subsidies or making subsidy schemes. Additional principles apply to subsidies in relation to energy and the environment. The Act prohibits certain subsidies and requires that certain subsidies can only be granted where specified requirements are met. Certain defined subsidies from some or all of these requirements.

The picture which is emerging about the new subsidies regime is that HMG is taking a broad view of a grant being a subsidy, so research the matter well before committing to a view. The EU principle is that states cannot subsidise their industries to give them a competitive advantage. As local government is an emanation of the state the local authority must comply with this principle even though we have left the EU. This means that local authorities cannot subsidise commercial transactions such as for example low-cost finance or debt write off.

Subsidy law is relevant in the context of the funding being provided and the price at which the Council's land interest is disposed of to for example a Special Purpose Vehicle (company).  For the loan not to amount to subsidy, it must be made on 'market terms' in order to satisfy the "market economy investor principle" which means a proper valuation of the land must be carried out. 

Summary

From the above it is clear that you may need to at times have resort to specialist advice in providing legal implication advice. At this point I would warn that the cost of getting things wrong in a project will far exceed the cost of independent advice so do dig your heels in and get the client to fork out for it if it is necessary. Legal advice is a critical success factor and if it all goes terribly wrong (as recent Best Value Reports demonstrate) the legal service and its reputation may end up thrown under the bus as part of the all-too-common corporate blame game after a Best Value Inspection.

Does this mean I doubt the ability of the in-house practitioner? No. Getting it right requires experience. But if a matter is costing millions of pounds or is absolutely ladened with risk, there are some very good law firms who can advise and if you ask them nicely, may even give you some free advice. Trying to do everything in-house when it is beyond the capacity and capability of the team is a fool’s errand and courting disaster.

So, summarising irrespective as to what the report is about there are some basic pointers:

  • Vires – Is it the right Committee?
  • What legislation
  • Any case law – don’t quote unless essential a relevant Supreme Court decision otherwise it will scare and confuse
  • Human Rights Act (HRA) and Sch 1 see – Articles 6, 8
  • Equality Act Public Sector Equality Duty
  • Consultation – Beware!  There may be prescribed duties in the Act
  • Keep it succinct
  • Make sure the appendixes are seen
  • Make sure the recommendation actually makes sense
  • Finally spelling and grammar really do matter, members will pick up on it and it can sap your credibility [5].

Dr Paul Feild is the Principal Standards & Governance Solicitor working in Barking & Dagenham Legal Services. His 2015 Doctor of Business Administration thesis was ‘How does Localism for Standards Work in Practice? The Practitioner’s View of Local Standards Post Localism Act 2011’. He researches and writes on finance and governance issues and can be contactedThis email address is being protected from spambots. You need JavaScript enabled to view it..

[1] “…the war situation has developed not necessarily to Japan's advantage” Emperor Hirohito’s Address to the Japanese nation 15 August 1945

[2] As an academic I can sniff out a ‘plagiariser paster’ from a mile / kilometre with glaring errors of font and paragraph settings and so can others. So at least ‘select all’ and put it the whole in same font, character size and format!

[3] I don’t know why our profession has got this way, in the medical community getting a second opinion is commonplace. My view is use your peers and discard misguided beliefs in title prestige. I have much more time for someone who asks for help than someone who is ‘winging it’ and will inevitably crash and while they might deserve it, the community they serve does not.

[4] General Housing Consents 2013

[5] Look at Parkinson’s Law of Triviality and ‘Bikeshedding’ to see what I mean.