PLC Public Sector reports:
The results received by the Law Society and Solicitors in Local Government to their recent consultation on whether it should be a statutory requirement for local authorities to appoint a chief legal officer to take on the monitoring officer’s duties makes interesting reading.
On balance the responses cannot be described as a ringing endorsement for the proposal given that they were “just about favourable” (34 respondents in favour of it being a statutory requirement for local authorities to appoint a chief legal officer, 33 against) and those local authorities replying to the consultation represented just 13% of the 466 local authorities in England. In addition, analysing the data proved difficult since few of the respondents provided a straight “yes” or “no” to the six questions and many did not answer all of the questions posed.
Those opposed to the suggestion that there was a case for changing the existing arrangements for local authority statutory officers gave a range of responses including:
- There was no evidence to suggest current arrangements were failing.
- Legal advice and support was readily available to non-legally qualified monitoring officers.
- Ideally a senior legally qualified officer should combine the roles of Head of Legal and Monitoring Officer but that it should not be made a statutory requirement.
- In view of current financial constraints, it would be a luxury to require smaller district councils to appoint a legally qualified chief legal officer (although smaller authorities could reduce these costs by agreeing to share monitoring officers with nearby authorities under joint working arrangements).
- Combining the role of monitoring officer and chief legal officer had the potential for conflict where that individual was involved in advising councillors on ethical standards, advising standards committees and investigating complaints.
A large proportion of the respondents (50) were in favour of the monitoring officer being a member of a regulated profession, although 20 of these respondents limited their support to solicitors or barristers or specifically recommended excluding legal executives from the role (mainly on the basis that their standing as a monitoring officer would be undermined by the requirement that they are supervised by a senior officer). The 18 respondents who opposed this proposal did so on the basis that:
- Legal advice was available for monitoring officers.
- Membership of a regulated profession should not be a mandatory requirement.
- Professional standards are designed to protect the profession’s reputation rather than the employing authority.
- This should be a matter for determination by the local authority rather than something imposed by statute.
- The proposal might have the effect of excluding an individual who was otherwise perfectly competent to be the monitoring officer.
Responses received to the question about the necessary technical skills for a monitoring officer demonstrate the wide-ranging nature and increasing complexity of not only the monitoring officer’s role but also that of local government. Suggestions included:
- A grounding in administrative and local government law.
- A knowledge of code of conduct issues.
- Specialist, up-to-date, knowledge of legal issues such as vires, judicial review, maladministration, pre-determination, bias, conflict of interest and legal risk.
- An ability to draft legal documents.
- An understanding of the authority’s procedures, policies and emerging proposals.
- The trust of councillors and fellow officers.
- Political skills.
- Analytical, negotiating, arbitration, communication, networking, advocacy and people management skills.
- Understanding risk management.
- At least seven years’ experience in local government of which 4 of those should be as a senior manager.
- Sense of humour and patience.
Although the responses received appear to have been finely balanced on most of the issues raised by the consultation, there was most support for the suggestion that the monitoring officer should be legally qualified. Objections to this proposal were received from non-legally qualified monitoring officers who, not surprisingly, were defensive, pointing out that their financial professional qualifications were equally important. The Standards Board for England opposed each of the proposals in the consultation. Again this is hardly surprising given that its remit, which involves reporting annually to the Secretary of State on the performance of local authority standards committees and their monitoring officers, is limited to standards of conduct in local government whereas the role of monitoring officers is considerably wider.
However, what is clear is that the consultation stimulated discussion (albeit by a small minority) and the Law Society and Solicitors in Local Government intend to continue promoting their proposal that a monitoring officer’s role is best carried out by a legally qualified individual and encouraging local authorities to appoint their most senior lawyers to the role. Whether their continued campaigning on this issue will have any effect on Government, which is likely to give weight to the views of the Standards Board for England, is debatable but it will be interesting to see how this issue progresses.