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The Bar is one of the few areas of the profession to benefit from the upheaval in local government. Tim Miller reports
The risk of potential surcharge and financial ruin is part and parcel of life in local government.
That's bad news for councillors and senior officers, but it's good news for the Bar.
Faced with the threat of financial penalties, local authority leaders are keen to cover their backs. District auditors have hinted that advice from experienced local government lawyers may not be sufficient and so it is no surprise to see councils running to counsel.
Advice and assistance from the Bar will become increasingly important as local authorities go through a period of rapid structural change. Local government re-organisation and the extension of compulsory competitive tendering (CCT) to a wider range of white-collar services will throw up a number of complicated legal issues.
The need for counsel's opinion on anti-competitive behaviour and employment issues could be among the spin-offs of CCT, some lawyers claim.
But ironically, tendering may also be bad news for barristers as local authority legal departments squeeze their budgets to remain competitive.
"Our policy is to do as much work in-house as we can. We rarely use barristers," says Chris Skinner, assistant secretary, legal, at Yarmouth. For a second opinion, the council has used legal academic and solicitor Professor Michael Purdue, of Newcastle University.
At Doncaster, measures are in place to monitor the selection of counsel more closely. Nicholas Dobson, chief solicitor, says the authority introduced tighter controls six months ago, as part of the implementation of the Law Society's practice management standards.
"We ask staff to complete a report form afterwards which records levels of satisfaction. We also discuss the selection of counsel with the client department," he says. Experience, quality and cost are key factors in assessing barristers just as they are for selecting other contractors, says Dobson.
But other authorities continue to choose counsel on a less formal basis.
"We mainly use the Bar in relation to planning matters," says Edward Hawkins, principal solicitor for King's Lynn and West Norfolk.
Appeals would normally be dealt with in-house, but counsel are instructed for High Court matters.
Hawkins says the authority usually returns to the same sets of chambers. Jeremy Sullivan QC, of 4-5 Gray's Inn Square, is currently acting for the council, on a planning appeal.
"We sometimes go next door to 2-3 Gray's Inn Square. Once you get to know the people, it's a bit like going to your own private solicitor," says Hawkins.
As with any specialist field, the same names and sets crop up. Leading chambers for planning and local government include 4 Breams Buildings, 2 Harcourt Buildings, 2 Mitre Court Buildings and 1 Serjeants' Inn.
Among the notable individuals are Patrick Elias QC, of 11 King's Bench Walk, a leading authority on the transfer of undertakings; Andrew Arden QC, of Arden Chambers, who is currently acting for the Westminster Objectors; and generalist James Goudie QC.
Many of the top silks and up-and-coming local authority barristers are members of the Local Government Planning and Environmental Bar Association. The group was formed as part of a marketing strategy to improve the profile of the local government Bar.
The association will undoubtedly benefit as society becomes more litigious. The need to use specialists will take on increasing importance.
"Judicial review continues to be the main area of growth. Whether it's a planning decision, the verdict of an environmental health officer or a committee decision, there is always someone ready to challenge it," says Hawkins, at King's Lynn.
Stephen Cragg, solicitor for the Public Law Project (PLP), confirms that there is no let-up in the number of challenges to the decisions of public bodies.
The PLP is embarking on a two-year research programme into judicial review cases funded by the Economic and Social Research Council. But Cragg's initial impression from Crown Office data is that local government has been more vulnerable than central government to court rulings.
Many lawyers believe that community care legislation may be a burgeoning area for the Bar. Gloucestershire is currently facing a judicial review application from two pensioners who claim that local authorities should not be entitled to cut off home care services when they run short of money.
Ian Clark, principal solicitor for social services in Kent, predicts that funding of care in the community may trigger other legal challenges. But for child protection work, which has been the growth area over the last decade, much is done in-house.
"Local government solicitors do a lot of their own advocacy. So much is done in chambers that rights of audience aren't an issue," he says.
Clark says that when specialist advice is needed, the authority usually goes to Janet Mitchell, of 4 Brick Court, and Eleanor Platt QC, of One Garden Court, and Joanna Dodson QC, of 14 Gray's Inn Square.
Most local authority lawyers including Dobson, chief solicitor at Doncaster, agree that there is still a role for barristers in child care matters. Use can also be made of the junior Bar, he says.
"We usually have the expertise ourselves, but if a hearing is particularly long, it's just not cost-effective to take someone out for three days, so sometimes it is better to use the junior Bar," says Dobson.