Allied advance

The London Boroughs Legal Alliance has been up and running for more than 12 months. Philip Hoult asks Hugh Peart, Director of Legal and Governance Services at the London Borough of Harrow and one of the prime movers behind the initiative, about its development, what the future holds and how local authority legal teams can drive efficiencies.

It has been just over a year now since the London Boroughs Legal Alliance was launched. How has it progressed in that time? Are there areas that have worked well? And are there areas where the alliance’s potential is still to be exploited?

The genesis of the Alliance came from discussions with colleagues in neighbouring boroughs. There was a drive from some of us to become more integrated. Three councils – Hammersmith and Fulham, Harrow and Hounslow – said: “We want to do something different, and we want to set up a distinct identity which is committed to closer integration.”

We were looking for something different from simple links with our geographical neighbours or the ACSeS London branch. What we wanted was a group of people who were up for sharing and being as radical as they could be. The intention was to have a small initial membership but one that was committed.

That’s why we adopted the “London Boroughs” name – it’s not about West London or North West London or anything like that. It is no criticism of ACSeS but getting 33 lawyers to agree on even what day it is can be problematic. My experience of the London ACSeS meetings it that they are just too big to be able to say “right, we are going to do some stuff and it’s going to happen” and come back in a couple of months and it would be done.

So, the three Councils and some like minded colleagues got together. But our experience at an early stage was that we would say, for example, we want to share trainees. We would think it was a great idea and we would have some basic ideas of how it would work. However, we would come back in a month’s time and nothing had moved on because the crises which are our daily staple had engulfed us in the meantime.

This was part of the reason why we developed a relationship with Kennedy Cater, the procurement consultancy. They have some specific skills, but the main difference they made was that once they were part of the team if we said we wanted to share training, they would come back the next month with a proposal, a costing, a Law Society view and an employment lawyer’s view. That really made a difference actually to getting things done.

There are now ten of us on the steering group, and we think that that is about enough as a management team. Any more than that and people don’t turn up, it becomes very impersonal and the ties start loosening. More importantly, you have got to have some ownership of the project.

Along the way we asked Kennedy Cater to deliver the solicitors panel. We were really clear from the beginning that we didn’t just want a solicitor’s panel like anybody else’s.

In what sense is it different?

With most solicitors panels that I have had experience of, they will say, “Firm X can do this at Y rate, and they have got specialists in this area with that expertise”. You have then got a range of prices and expertise, which is great but it is like your Yellow Pages.

We wanted a lot more than that. We had some ideas on this front but we also said to the prospective tenderers “You come up with ideas about how you think you could support us”. So they came back with suggestions such as giving us access to their precedents bank.

We said to the firms that we would consider them in terms of all the normal stuff like quality and price but we also wanted to know how they could ‘add value’ to the relationship – a horrible expression but I can’t think of a better one.

The other thing that was different was that there is often a tendency for the usual suspects to get on a panel. We were very open at the beginning that we would consider any firm who put themselves forward, and we appointed firms of which I had never heard.

One of the interesting features of the panel was that although it was for London boroughs, most if not all of the suppliers were regionally based.

We were looking very critically at costs and expertise. If we have a development scheme and a firm in Bristol can do it for half the costs and we are confident in their expertise, why wouldn’t we go there?

The bit that of which I am particularly proud – and it is not just I who feels this way – in terms of the panel and the LBLA is the training and development ethos.

What we asked Kennedy Cater to do was to go around the ten legal departments and complete a training needs analysis, based on the individual needs of every lawyer.

We then asked them to come up with a training plan for the year and to ask our firms and barristers to deliver the training to us at nil cost.  We are now running multiple training sessions every month, with up to 30 attendees at each on subjects of direct relevance to our teams – and creditable towards CPD points. That equates to a six figure saving across the ten boroughs.

Also, if required, the training sessions can be quite small, which makes it easier for lawyers to get to know their counterparts in other practices, so they have people to turn to for help in future.

It can be a radical move to appoint a very different selection of firms to the panel. How do you persuade people to move from their more established relationships? Is it a question of persuasion or compulsion?

I suspect that depends on different authorities. What the LBLA has said, is “look, we have got these rates, they are pretty good and you should use them, given the financial pressures we face.  Obviously it is a non-exclusive contract and you can go elsewhere if you want”.

What I decided with the Corporate Management Team in Harrow was that all instructions from across the Council would come to me and I would decide who the best lawyer is. If a client says, “look I’ve worked with this firm for 20 years, I know them and it would be a lot easier if I used them again”, then I have a discussion with them about that. I might then get them to meet the person who is on the panel and try and reach a resolution. It might however be more cost effective for a firm who has worked on a project in the past to complete a specific task than to brief a new firm, even if the latter’s rates are lower.

Ultimately it is difficult to say to somebody that you are going to force them to use a particular person against their will. But my experience at Harrow is that the firms we found are excellent practitioners. Once you get over the fact that the member of staff has not heard of the firm – as I hadn’t in some cases – and they meet the person, it is problem solved. They just get on with it.

So for me, it is not a problem. I can’t speak for other boroughs but I understand that practice varies.

I haven’t had an instance where somebody’s said, “look, I’ve met this person, I’m sorry, it’s just not going to work”, or they are not up to it or don’t seem to understand the issues.

Another reason I am keen on using costs consultants is that all the billing goes through them. My experience without that link is that with the best will in the world, if you agree X with a barrister or a solicitor, at the end of the day the bill tends to be higher. We can speculate on the reasons for that but it is always more.

I’ll give you an example. Kennedy Cater might say: “In this development agreement you [the law firm] have needed to do some contaminated land assessment and you charged seven hours for that. We have checked around the other firms and the norm is an hour at that rate.”

In the usual course of things I am never going to know that information. If I phoned up the other firms, they would never tell me, but because Kennedy Cater do it for other people they have got that data bank of information.

My experience with panels and contracts generally is that people set them up and then think “job done”. Thereafter there is a risk that those instructing external firms or barristers and those firms or clerks ignore the agreed rates and charging structure, and the contract is quietly forgotten.

Our arrangement whereby Kennedy Cater monitor the cost and quality of the services provided by the panels means there is a real discipline, and the anticipated benefits and efficiencies agreed as part of the contract are achieved.

One of the notable developments in the current financial climate is that everybody is talking about contract review and negotiation as if it is something new, when it should be being done anyway. I imagine that for you and your lawyers, it is good to have other people challenging the bills. It takes that tension away from your relationship with the adviser.

That’s right, especially given the financial plight of local government. I have got hundreds of contracts in our strong room that have been in there since they were signed, so its not surprising that few people know what is in them. A bill comes in and it gets paid.

My experience is often that the procurement team is different from the delivery team, and the procurement team then moves on when the deal is done.

I am not saying contract management is easy, it isn’t, and there can be relentless pressure from a contractor to push the boundaries of what is written down. Having an intermediary means that contracts are managed properly.

One of the ideas behind the alliance was to see what capacity there was in other teams to handle pieces of work, without having to go out to the panel? How has that worked? Sometimes there are natural barriers because the areas in demand in one authority may well be the areas most in demand in the others and there is little, if no, spare capacity.

It is explicitly part of the LBLA ‘charter’, which effectively says that if a piece of work comes in, you look at it to see whether you can do it in the normal way. And if you can’t, you put it out to your LBLA colleagues.

Our new website (www.lbla.org.uk) is now live and this will make that a lot easier. It is not exactly eBay but a department can go on there and say it has an issue with e.g. its employment law capacity and needs some cases taken on. Those who have capacity can offer to do the work at a particular rate. That is what in part the hub will facilitate as each Alliance lawyer will have access to expertise at different authorities, panel solicitor firms and panel chambers.

Have the other objectives in the business case for the LBLA been achieved? For example, it was hoped that there would be a reduction in the use of locums. I suppose that is probably a challenge in the current climate with recruitment freezes. Is there a risk that the use of locums will increase again?

There are still some areas – in employment law in my experience – to which it is difficult to recruit.

It all feeds back to this hub we have created. Why do I take on a locum? Well I take on a locum because I have got a demand that I can’t meet. We may have a peak in social care cases and if I can get other people through the website to handle them, then I think it has the potential to reduce our reliance on locums.

Another benefit of the hub is that we can also ask people if they can recommend a good locum.

Does the LBLA conduct any benchmarking in a bid to deliver efficiencies?

We all have different ways of running budgets and we all have different overheads, which does make a difference. But the LBLA’s members are all close peers with a lot in common, which means that benchmarking between us really does enable “apples with apples” comparison and learnings which are directly relevant and actionable. So this is another strength which a group of this structure has – and consequently we are running an exercise benchmarking performance measures of specific interest to us over the next couple of months.

At Harrow we use a lean methodology. What you do is you take a process from beginning to end and just map out every stage. You look at who does what where, when and why. Then you look at what value each stage adds.

You look at whether a particular action is a lawyer’s job, an admin support job or say a social worker’s job. Does a particular letter really need to be signed by a lawyer, for example?  Does a letter need to be sent or would an e-mail suffice?

It can be frustrating when the processes in particular areas just balloon and take up more and more resource, so we find lean methodology a useful tool.

To give you an example, for housing possessions we had a system whereby the housing staff would say they wanted to take possession proceedings. They would have to download all the information – name, address, tenancy, arrears, whatever it was – and post it over to us. We would then type it all into our system but have to go back to them and say for example that they had not filled part of it in, or had not told us whether the tenant had any dependents or whether there was anybody else living in the property.

So it goes back again for them to provide that information. They may then be on leave so it takes weeks to come back to us. You can see how the processes can end up being costly. Getting involved in that level of administration is not what not what I want my lawyers doing.

We therefore looked at how to get our systems to talk to theirs and to require them to provide all the information. If they haven’t got it, nothing happens. It then goes straight onto our system, a lawyer checks it in terms of the legal basis and says “Fine, that’s ok to go to court”.

Where I’m coming from is that our lawyers should only be doing core legal work. That means in a housing possession case that they are looking at the evidence and saying, “Is there enough here to form a case, which I can put before a judge?” They don’t have to try and manage the bureaucratic exercise of getting information out of a client.

We have recently heard about the ambitious tri-borough proposals between Westminster, Hammersmith and Fulham, and Kensington and Chelsea – two of which are members of the LBLA – as well as the shared legal services at Richmond and Merton. How do you see this developing?

Helen White (the interim head of legal at Merton and Richmond) used to be a principal lawyer here, so I have got a lot of time for what she is doing. But I think it can be very difficult to deliver.

My worry is that it could distract both the management and staff. If I had seen it work, I might be more enthusiastic about it but I am not sure the model has been proved to work in London.

The drive within the LBLA wasn’t to get the bodies into the same room. Most people felt it would be very difficult ultimately to support two masters. We’ve certainly talked about it but it wasn’t seen as the end game.

What we have tried to do is say, “You can have most of the benefits but without the distractions or the impact on staff and morale”. So we can commission knowledge management systems, barristers, training and so on as a group of ten.

We are trying to get the benefits of being joined up whilst still maintaining an independent presence in each authority. Now that might be shown to be the right answer or it might be seen as not going far enough, but we are trying to make this model work at the moment.

We have now launched our website and we’re now working on a range of collective buying exercises, including knowledge management services, which will drive further savings and other services benefits for the members. Additionally we are mapping internal team capabilities and expertise, so that we might help each other before we turn to expensive external suppliers, and talking about trying to develop centres of excellence.

A classic opportunity for this is procurement, which is now incredibly complicated and where the penalties are significant. Typically you will have one or two people in each authority who advise on these issues. Would we be better off if we had a team of 10, who did the multi-million pound, decade-long contracts and were really expert in that side of things, so all bar the routine stuff went to them? It is a model that we are trying to explore and see how it might work.

Another example is employment law. Typically there will be one or one and a half employment lawyers in each authority. In our outline business case prepared for Capital Ambition, we said that we weren’t going to spend any money on barristers in employment law and that we expected our employment lawyers to do all their tribunals. So they do, and we save lots of money for the Council that way. That could be developed further.

So I think that there is an alternative model to putting the bodies in the same room that has the potential to achieve significant savings but without some of the distraction and heartache. Watch this space….

Where do you see local government lawyers heading in the next few years? Clearly there are going to be tremendous pressures, whether political or financial at a time of rising demand for legal advice.

When you try and cut below the froth of the news, we are still going to be a significant employer, a significant landowner and will continue to have core statutory functions in child protection, adult protection and the like, and have other service delivery responsibilities. There is a legal element to all of that. Additionally our caseload increases by 3-4%pa, and I don’t see any signs of that stopping.

So I don’t think the outlook is bleak in terms of the need for local authority lawyers. There will be a need for greater risk appetite and risk management given the stereotype of a local government lawyer as someone who is very cautious. I suspect that Eric Pickles’ concern about the predetermination rule is in part because a some local authority lawyers give very cautious advice.

Going forward – especially with the freedoms that are in the Localism Bill – it will require local authority lawyers to be more imaginative and to be more open to taking on things which are unproven. They will need to be risk aware rather than risk averse, which I think is exciting.

A lot has been written about the general power of competence. Is there is a risk that few people will really bother to look at the detail of how it will operate? Will councillors say they have heard that the general power allows them to do anything they like?

The key issue is, what might a council do with these new powers? I think that question is so wide it is quite daunting, given our history of working within tightly defined statutory provisions. If Councillors come up with ideas which are unproven however, the risk of challenge has not gone away, but it is significantly reduced.

It could be similar to when we pursued the LAML case (where Harrow took the procurement aspects of the case to the Supreme Court and secured a favourable result for councils, particularly in relation to implementing shared services). We knew we were in untested waters. I remember talking to the Cabinet right at the beginning and told them we would be challenged. I am not pleased to have been right, but I’m reassured that the Supreme Court agreed with our interpretation.

However dealing with vires issue doesn’t make a Council immune from challenge, as there are many other potential grounds where we could come unstuck.

Philip Hoult is editor of Local Government Lawyer.