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LAW & ADMINISTRATION: CAN ACSeS GIVE THE KISS OF LIFE TO THE LAWYER CLERK ROLE?

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Have solicitors in local government lost their grip? Are they no longer a power in the land? Is the day of the lawy...
Have solicitors in local government lost their grip? Are they no longer a power in the land? Is the day of the lawyer clerk over?

Their chief officer society, the Association of Council Secretaries and Solicitors, was formed last year by a merger of the county and district chief officer societies.

But the local government group of the Law Society provides a professional focus and the county secretaries maintain their separate meetings within the ACSeS constitution. So where does the association itself come in? Is it merely a vehicle for exchange of professional information or does it try to be a real source of influence? And can it address the decline in the influence of lawyers; is it even trying?

At one time the clerks of major councils were solicitors. Only councils too poor to afford a solicitor made do with a treasurer as clerk. The county and town clerks of the counties and county boroughs were also clerks of the peace. And until the office was abolished in 1971, county clerks often sat as clerks to the quarter sessions.

Originally clerks also worked in private practice. It was only gradually that the job became full-time and that move led to consistent complaints about the pre-eminence of lawyers.

In 1934 the Hadow Committee said too much importance was attached to the legal profession and clerks should be chosen for their administrative ability. But little attention was paid and lawyers kept their strangle-hold on the top job until the 1960s.

The end was signalled when Derrik Hender, a personnel professional, became chief executive of Coventry City Council. These days a minority of chief executives are lawyers. Holders of the top job come in all professional shapes and sizes. Even the Audit Commission, local government's official mentor, is headed by a social worker - Andrew Foster.

The decline of the lawyer is not confined to local government. Accountants have taken over. In the UK there are 10 times as many accountants as lawyers. The position in Germany is almost exactly reversed: chief officers usually have legal qualifications.

Have solicitors been elbowed out or have they opted out? Are they content to lurk among the law books and leave the grimy in-fighting with politicians to more robust characters? Should ACSeS try to reverse this attitude, or is its very existence a confession of defeat, an admission that the top legal job is an end in itself?

Uniquely, the retiring president of ACSeS, Felix Hetherington, is head of paid service as well as clerk to the Isle of Wight. But his service ends at the same time as his presidency. His departure at the end of the month is one more tombstone for the lawyer clerk.

The lawyers' crisis of identity began 20 years ago. Professor John Stewart tried to dignify their new role, calling them 'the geographers of policy space'. The grandiloquent title may have persuaded more of them to accept the lawyer's job as the ultimate posting. But it also signalled their job was to help councils, not to use the law to stop them.

Professionally, solicitors owe their primary duty to the courts. They are officially solicitors of the Supreme Court of Judicature. Some politicians are uneasy about officers owing a duty higher than that to the council. Designation of lawyers as monitoring officers did not help. Instead of a servant of the council, they can be seen as a watchdog. The changed role has led to a change in attitude.

Local government lawyers 30 years ago would have regarded themselves first as local government officers and only second as lawyers. They sought administrative experience and downplayed the legal parts of their job.

Now, lawyers in local government can see career options as readily in private practice as the public service. Last year's ACSeS president, Peter Keith-Lucas, went from the chief executive post of a shire district, Medina BC on the Isle of Wight, to director of legal and administrative services at Swansea. Later, despite his impeccable local government background, he joined solicitors Wragge & Co in Birmingham.

Expect the trend to continue. Lawyers spearheaded local government's resistance to CCT. Now ACSeS is struggling to understand CCT's successor, best value. Ironically, it could mean more outsourcing of legal services. Mr Hetherington believes that if frontline services cannot get high-quality legal support in-house at the right cost, they should be able to seek it elsewhere.

As local government legal services transfer to the private sector, the demand for local government lawyers' skills will increase. Recruitment of competent local government lawyers is already difficult. An exodus will make the problem worse.

Councils' need for legal advice is increasing exponentially. The old specialisations like compulsory purchase may have disappeared but in their place are the complexities surrounding the private finance initiative, partnerships and local authority companies. And there is an increasingly litigious public which sees local government as a prime target. The new flexibility on costs will open up judicial review to a whole new class of litigants.

The government's plan to separate the executive from backbench members does not remove the need for decisions to conform to Wednesbury principles, but it will be more difficult for a solicitor to monitor decision making. An elected mayor may brush aside the requirement to have regard to all relevant matters and exclude from consideration the irrelevant. An increase in judicial reviews could well result.

Where does all this leave ACSeS members and how should the association react? What is its vision for the future of the local government chief legal officer?

So far the association has concentrated its attention on electoral matters and ethical standards.

Mr Hetherington admits the government glosses over the role of officers in its white paper, Modern local government - In touch with the people. 'There is no consideration of the effect of the proposals on the checks and balances which exist now. Much more attention is required,' he says.

The government clearly expects the independent role of officers to continue. But is this sustainable if chief officers are answerable to a separate executive? Will the rest of the council believe they are genuinely independent or will the role become more ambiguous?

There is an alternative, however, - to separate the role of clerk to the council from the main officer structure. This would increase the perceived independence of the scrutiny function. Under the new structures, that will be the job to which backbenchers should devote themselves.

Since they will function like backbench MPs, why shouldn't they have a separate staffing structure answerable to them? That is how things work in Westminster. Perhaps ACSeS should be urging that line to the government?

These fundamental changes in local government will have a major impact on ACSeS members. Should the association be pushing an issue wider than elections and ethics - the whole future of the lawyer clerk? And how influential will its input be? ACSeS sees itself working principally through the Local Government Association. But will the LGA listen? Can ACSeS halt the decline?

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