The past few years have been tough ones for local authority lawyers and the spending cuts are hardly likely to improve matters. However, there is plenty that local government lawyers can do to defend and enhance their situation, writes David Swallow.
When I was starting Articles I recall a grandee of the Law Society saying that a professional person (Solicitors no doubt in mind) was "someone who was paid so that he could work whereas a non-professional person worked so that he could get paid". At the time this struck me as an interesting little tangle of words which defied my experience of the world and placed a small fig leaf around the fact that the man in question was a senior partner in one of the magic circle firms. So I imagined that he was being paid quite a lot so that he could work.
However I did know that he was making a point about society and its need for institutions, values and buttresses for stability. This said, things lay dormant in my mind over the years but latterly the mantra has started to throw out a shoot or two.
My reflections on the past
It is a pretty bleak landscape that we face and we need to rethink and do so quite quickly. I am not just talking about the economy or the impending and truly drastic cuts in the public sector which have to be imposed in order to protect Banker's bonuses. The fact is that over the last 25 years or so there has been a truly devastating decline in the status, influence and even the existence in some places of the Local Government Legal Service.
When I started in local government, the legal service knew that it had not just a role in local government but that that role was pivotal. Since then every local authority reorganisation, whether national or local, has tended to lower it further and further down the status ladder. Also on a day-to-day basis when senior officers are considering change or projects, at what stage do they consult their in-house solicitors. Is it at the end of the process or somewhere near the beginning (or not at all).
And over the same period there has been another change. Again when I started my career, public and private sector solicitors barely spoke to each other. Now they are talking all the time. But in truth the private sector has raided the public sector and cherry picked its' requirements. The private sector is now the research and development department behind local government. It is also the essential ingredient for any team involved in projects or change within local government. The partnering ethic and numerous other factors have resulted in a public sector legal service which looks to the private sector as a matter of course for its training, for its research, for its vision and for its energy.
Part of this transformation is the failure of local government solicitors and, in particular, the huge membership to value their own professional existence or exert themselves in that direction. Of course it does not help that separate professional bodies exist in the form of ACSeS and SLG and it is to be hoped that this can change. What is needed is one body that can begin to pull the Local Government Legal Service out of the despond into which it fallen and it is to be fervently hoped that a bit of vision and realism will break out sooner rather than later. However that is a fairly obvious point and not really the main theme of this article.
With the exception of the topic of Governance, where there is a degree of parity at the top table, there is virtually no field of law where the private sector is not involved as an absolute necessity for anything remotely serious. It is emphatically not the theme of this article to bemoan the value or use of the private sector or the value of partnering and there are many situations in local government where the use of the private sector legal resource is essential.
But in the old days (may I ?), in my region of the country, there used to be an attendance rate at Local Government Group Branch meetings of as many as 75 solicitors and trainees from all levels, quarterly, on a Friday night and most stopped for a sit down dinner afterwards. Now, for many reasons, you can be lucky to get 10 ageing souls at lunchtime and the best you can hope for is middle of the range sandwich, to be eaten at pace, and listen to an external lawyer or barrister on a specialist subject spreading the word that they have a product and are available to sell it to you. The best therefore is what I would call "grab and go" training with precious little in the way of genuine social or professional intercourse amongst the Members.
The Local Government Legal Service need to re-find its self confidence in all the general areas of local government law if it is to have any chance of reversing the decline in its general reputation both inside and outside the local government circles. It needs to project itself and become again the real custodian of local government law and the application of that law to affect people's lives.
It also needs to re-find and re-believe in the true values of the practice of local government law in a non-profit making environment. The root distinction between the public and the private sector is that one is commercial and the other is not, and that distinction applies however much it is dressed up as eg strategic partnering. The difference is that the private sector must see everything as turning a profit. That is the fundamental of its existence. That is not wrong of itself and is of course a real driving power, amongst other things, for quality. The public sector may need to and even may want to live with that but recognise it is must.
The public sector lawyer's values derive from strong attachments to strong local democratic organisations; ethical dealing; the ethical process, and the pursuit, through that, of the Common Good. They are freed of the personal commercial imperative. They are genuinely people who are paid so that they can work (although they are not paid enough). They use their professional qualifications so that they can improve the collective local common good in a fair, just and equitable manner. They are there truly to help individuals and families achieve their own bit of the common good, in order to progress individual quality of life and the experience of individual application and use of rights and responsibilities and the acquisition of property, sufficient to sustain lives within the community. It is a pivotal role in the conduct of the state. And tangentally it is a recognition that commerce should be the servant of society and not its master.
Reasserting the public sector role
The role of the public sector lawyer is pivotal to the realisation of that train of thought and belief which is one reason why the public sector local government lawyer is so important, particularly at the application end of the supply chain. However, part of that possibility of re-asserting the importance and role of the public sector lawyer is a re-evaluation, a realisation, a re-appreciation and a re-establishment of the value of professional association.
If local government solicitors are to regain respect from others and their own self esteem, they will need to re-find themselves and regain their strength and resolve and one way forward is through professional association. Not that is, association where the first question is what can I get out of this but, rather, what can I put in. It is the giving which is so important. Forget "grab and go" and BOGOFF. It really is a time for "and so my fellow Americans ask not what your country can do for you - ask what you can do for your country" (John Kennedy).
It is a commitment to being active; to making a contribution; to becoming a specialist on a branch of law; to having the courage to assert knowledge and skill, combined, to become known and respected. It is the understanding that a singular feature of the reason for existence public sector lawyers is the application of value driven advice and legal practice. It is nothing short of reclaiming your collective name and birth right and without a name you can have no pride or self worth or even in some cases existence. I am talking of identity loss and identity theft.
A potential health warning
I am conscious as I write this that there should be a health warning on the article - a best before date. Things are moving so dramatically that the only way to keep up is to Blog. A stake in the ground is washed away almost as soon as it is banged in.
What will be the longer term of effect of the changes proposed on the services so fundamental to our country.
It is a time of huge change and no-one is better placed than the local government practitioner to speak about that and there never was a time when speaking out was more urgent or that there was such a good chance of being listened to. That speaking out could and should be done through association.
There are personal action plans to be made by all who care about the Local Government Legal Service – if you are a chief legal Officer, and whatever your views on ACSeS and SLG you have a clear interest and responsibility in this matter, you can decide to properly support professional association for those in your office – there are numerous ways in which you can do it but the support needs to be sustained, tangible, active and high profile, and at the least you can encourage attendance and at best you could also encourage office holding.
Time to believe
If you are an SLG member, take an active part in association and make a contribution – be a branch chair, be a secretary, join the local executive as a representative, be a SIG convener, go to Branch meetings and speak, join in and/or start email discussion, go to SIG meetings and prepare contributions; seek outlets for articles and raise your own external profile; make yourself a leader on public sector law; support and use the website. Above all start to believe – maybe then people will start to take notice. Maybe then you will ultimately be paid better!
David Swallow is a consultant.