Manchester City Council

Cheshire East Council

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Austerity Now

In the turbulent, nail-biting anti-climax that followed the inconclusive 2010 General Election, the politicians - indeed the whole country – have often wished it was all over. It is now. At least for so long as the tortuously assembled Conservative-Liberal Democrat coalition that finally coalesced on the evening of 11 May 2010 holds together.

But as stark political realities once more move centre stage, the economic future is set to be decidedly bleak for all in the public sector given the disastrous state of the nation’s finances.  Churchill’s speech as new Prime Minister to the House of Commons on 13 May 1940 comes to mind then he said that he had ‘nothing to offer but blood, toil, tears, and sweat’. But while the Blitz and Dunkirk may now be distant memories, the reality rather than the expectation of creating more from less will very soon be arriving at your workspace. And if it’s not quite apocalypse now, it will certainly be austerity now – and to come.

But if charity is said to begin at home so must what might be regarded as its obverse: financial retrenchment – i.e. belt-tightening.  So a good place to start is your own operation. And it makes sense to take the initiative before the heavies start battering at your door. Here’s a few things you might look at for starters.

Legal Departments

What are we doing for whom and why?

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It seems to me the first thing is to review carefully just what work you are doing and for whom. You may have done this before but it’s certainly worth a critical revisit in the present context.  For custom and practice can often end up with lawyers and their colleagues performing tasks or parts of tasks that could quite as well be handled by client departments themselves. Once you know just what your operation is doing then an updated dialogue with key client contacts can take place.

This should be transparent about the resource that is actually available for them (which may be a lot less than they think!), the tasks currently being carried out and what actually needs critically to be done going forward and how that can best be resourced. This may well help client representatives scope their strategic priorities. For (assuming the legal operation is working at optimum efficiency) economic, effective and efficient in-house supply is the best value solution to core legal services.

Demand-led funding

Many authorities have already introduced this for their service departments. In simple terms such departments have no pre-allocated legal services budget but are funded in relation to demand for their services. This should in practice help balance the demand/supply equation since the problem with pre-set budgets is the need to reconcile often infinite demand against a fixed and diminishing resource base. And if there is no pre-set budget, there is no specific requirement for annual legal services budget reductions. However, ‘playing shops’ can only go so far. For ultimately council employees are council employees and consequently require a stable funding flow. So there needs to be clear corporate agreement on anticipated demand patterns when ‘front line’ service budgets are being set and legal services will clearly need critical input into these discussions.

Working smarter – how are we doing?

Human beings are complex beasts and it is always important not to kill the goose that lays the golden egg by stiflingly prescriptive procedural requirements. However, it is certainly worth asking and following through with a few testing questions. For instance is work distribution and production organised as effectively and efficiently as possible? Are the right horses running on the right courses? Are people trained up and motivated to make best use of the technology available? Are people allowing themselves to get diverted by the perhaps unimportant stridency of the moment and missing the bigger picture? Are some of your people coasting, time-serving or taking an unreasonable time to perform reasonable tasks? Are some throwing dubious sickies? Are some frankly not up to the job?

Once you’ve got your head around those, here are a few additional basic points that many of us can fall short on and which might help you and yours:

Work management is like driving. While you're concentrating on the road ahead (the current thing on your desk) you've got to keep a constant eye on the dashboard dials, the rear and side mirrors and the unexpected e.g. the child that dashes out from behind the parked vehicle. So while focusing on the job in hand, have a constant eye for shifting priorities on your other matters.  Also always do what needs to be done, and not what you feel like doing! Use a reminder system (whatever suits you or is to hand) to note all deadlines in good time before they hit. And of course take the necessary action on them!

Client communication is key. The client for these purposes is whoever you've promised to do something for! Never allow a deadline to approach (or even worse pass) without having got back to your client well in advance to renegotiate, reposition or even (shock, horror) to report that you've done what you said you would! Your workplace 'share price' relies on your reliability. Always aim to exceed expectations i.e. always better to under-promise and over-deliver rather than vice-versa.

Distinguish between importance and urgency. What's important isn't necessarily urgent and vice versa. As mentioned, take quick mental stock regularly throughout the day of all the things you're responsible for (known in the trade as 'keeping the plates spinning') and make sure you've done what's necessary – and crucially what you've said you'd do! Don't be thrown off course by e-mails. Subject them to proper prioritisation, whilst maintaining politesse – e.g. an acknowledgment and estimate can often be done fairly quickly but don't let a strident e-mail divert you from priority unless it needs to.

One bite at the cherry! Subject to instructions, it's time effective while you're on with a matter (and your metaphorical aircraft is flying) to do all the things that need to be done at this stage. Take off and landing are time and effort expensive!

Do unto others as you would have them do unto you. Put yourself in your client's position (client per point 3). How would you feel if you were your own client? Keep your conscience well fed and it won't trouble you!
If you've got a difficulty talk to your manager. Most of them are human and they've all been there. In fact many of them may well still be there!

Collaboration

In modern local government, collaboration is becoming the way of the world.  Apart from the seam that pervades the Local Democracy, Economic Development and Construction Act 2009 (with Leaders’ Boards, regional strategy, Economic Prosperity Boards and Combined Authorities) collaboration is of course at the core of the Total Place concept which emphasises area public service financial and other synergies and an increased focus on user outcomes. But closer to home, exploring synergies with other local and public authorities may well bear fruit.

Apart from rationalising service provision (e.g. advocacy at common court centres) knowledge (the core raw material of legal departments) can be shared virtually on-line by any number of participating bodies, systematised to meet the needs of participants. There are many different models of shared service provision available (including joint teams, joint managers, merger of legal teams and co-ordinated area provision (as with Lincolnshire). However, the key is to find a model that is going to work practically in the local organisational and political contexts and, critically also, win buy-in from all those on the ground who will be having to make it work. For the most brilliant piece of theoretical aeronautical engineering will be useless if fails to fly in practice.

Changing the Culture

Organisational cultures are strange things – invisible yet pervasive and almost tangible. A lab analysis would probably find many ingredients; not least off-the-shelf assumptions and attitudes way past sell-by date. These may have been created long ago by forceful ‘ancestors’ and passed down as ‘writ’ to succeeding ‘generations’ or simply prompted by the forceful demeanour of leading members and officers. But whilst some cultures are wholesome and productive others are clearly toxic, negative and defeatist.

We’ve all heard the well-known rallying cry to stasis: ‘You can try that but it won’t work here!’. Well it can – given a fair wind together with some firm will, resolution and resilience. But it must start with you – wherever you sit in the organisation. For a positive, can-do attitude and ‘make-it-happen’ approach is infectious and can spread like a benign virus. And if you’re a team leader there is an extra onus on you to follow the advice given in the 1944 hit song i.e. accentuate the positive, eliminate the negative and latch on to the affirmative. For those choosing to mess with Mr. In-Between may well end up victims of their own dire self-fulfilling prophecies.

Working for others

Using existing legal powers (e.g. the old but trusty Local Authorities (Goods and Services) Act 1970 but also where appropriate well-being and section 111 of the Local Government Act 1972) councils can conduct work for other authorities and bodies thereby bringing in much-needed revenue. Geoff Wild, Director of Law and Governance at Kent County Council and his colleagues are amongst the field leaders in this area, generating some £1.42m last year which has been ploughed back into Council frontline services.  Geoff’s team has also recently joined forces to collaborate with private law firm Geldards LLP in an offering branded as Law:Public, to provide legal advice to local and public authorities from a broad resource pool. Not for everybody, but some authorities, particularly smaller ones with limited and overstretched resources may find an offering like Kent’s to be a Godsend. If you are thinking of providing services to others though, make sure you get all your regulatory and indemnity ducks in a line first. For if it’s good to walk on the sunny side of the street, you’ll also need a serviceable umbrella if it rains.

Corporate picture

If you’ve got your retaliation in first and started a positive approach locally to the austerity process before the heavies come to beat your door down, then you’ll probably be well positioned to help with the corporate slimming exercise. For many of the same messages will apply.

What are we doing and what do we have to do

Local authority services are a mix between mandatory (those the authority have a statutory obligation to provide) and discretionary (those which the authority is empowered but not required to offer). Of the discretionary (which include (amongst others) various sports and leisure services and planning related advice) local policy will dictate which are deemed ‘necessary’ and which ‘desirable’ i.e. nice to have but unaffordable as things are.
Section 93 of the Local Government Act 2003 specifically empowers authorities to charge on a cost-recovery basis for discretionary services. However, as the Government has pointed out, the 'aim is to encourage authorities to provide those sorts of services they would otherwise decide not to provide (or improve) at all because they cannot justify or afford to provide them for free or to improve them.’ And the ‘. . .aim is not to provide a new source of income for authorities, but to allow them to cover their costs'.

Whilst section 93 will not provide surplus revenue it nevertheless gives authorities the possibility of continuing certain services they would otherwise have to abandon. But relevant authorities seeking to trade their functions commercially can of course now do so through a company under sections 95 to 98 of the Local Government Act 2003. This is subject to the local authority recovering its staff, accommodation, service and facilities costs as well as to the preparation and approval of a business case. Under the Local Government (Best Value Authorities) (Power to Trade) (England) Order 2009 (S.I. 2009 No. 2393) a business case is a comprehensive statement of: the objectives of the business, the investment and other resources required to achieve those objectives, any risks the business might face and how significant these risks are as well as its expected financial results and any other relevant outcomes the business is expected to achieve. Corporate trading under the 2003 Act will clearly not be for every authority but is nevertheless a useful facility for the entrepreneurial and can also provide some much-needed revenue during times of fiscal famine.

MOT the fine print

The authority ought to have a corporate inventory of its key contracts (i.e. those outpouring considerable sums of public money - and if it doesn’t have such an inventory there’s a job for legal). It will be well worth giving these contracts some detailed scrutiny to see whether the Authority is getting maximum value for money from them and indeed is properly regulating contractor performance and exacting appropriate contract penalties. Human nature being what it is, in the minds of internal clients, contracts often tend at the outset take second place to the apparent rosy glow of ‘partnership’ relationships (which are in reality as changeable as the weather) and contract documents can frequently be seen as legal gobbledegook put in place just to ‘keep the lawyers happy’. They are likely also to have been negotiated in an age of economic plenty when the eye was less focussed on the financial clock. A healthy and searching MOT of these arrangements may well pay dividends and earn the legal department some valuable brownie points.

Think the unthinkable team

The apocryphal story has it that when Frank Field was asked by former Prime Minister Tony Blair to ‘think the unthinkable’ and subsequently came back to present his ideas he was told: ‘But Frank, that’s unthinkable!’ However, that’s exactly what local and public authorities are going to have to do - i.e. boldly go where no predecessor has gone before. But senior officers and members are going to need have some pretty heavy duty iron implanted into their souls if they are to follow any such suggestions through. For it is hard to escape from (albeit unconsciously) self-serving suggestions and advice from senior officers as to what cannot possibly be done. It is likely therefore to be necessary for authorities to take some pretty robust external advice and then (with Lady Macbeth) be prepared to screw their courage to the sticking place if they are not to fail. For publicly funded authorities should clearly be user and not producer focused and that will inevitably require some tough decisions.

The road ahead

The election is now over and the first coalition government since World War 2 is now taking shape.  But as the spin doctors return to their normal surgeries and the newly elected MPs find their feet, those charged with governing must now face their labours of Hercules in putting the country’s finances once more onto a firm footing. But at local level, council lawyers can play a key role in helping their authorities lose weight whilst retaining robust health. As noted above, starting close to home is a good strategy and is likely to generate some good ideas to bring to the corporate table. For if, as the old proverb goes, hunger is the best sauce it may equally provide a rich source of sound creative ideas to provide considerably improved public value at significantly less cost.

Dr. Nicholas Dobson is a lawyer specialising in local and public law and is also Communications Officer for the Association of Council Secretaries and Solicitors.

© Nicholas Dobson

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