Local authority legal departments are being forced to set up alternative business structures by restrictive rules on in-house lawyers, leading to the “privatisation” of public sector legal services, the director of Essex Legal Services has claimed.
Philip Thomson said relaxing the rules “could have an impact on the number of applications for ABSs that would otherwise have to be made” by local authority legal departments.
Mr Thomson said setting up an ABS was the “only comprehensive solution” currently available to in-house legal services departments in “keeping up with the changes” faced by their employers.
“There is a danger in local authority legal departments being forced to use the ABS as a vehicle to keep pace which could lead to some in-house services being fully privatised,” he said.
“The private sector certainly has a role to play in the delivery of legal services in the public sector, but it would not be in the interests of the public sector to lose the skills, expertise and resource currently held within in-house teams.”
Essex Legal Services, based in Chelmsford, was responding to a Legal Services Board (LSB) discussion paper on the regulation of in-house lawyers, following which the board last week advised both the Solicitors Regulation Authority (SRA) and Bar Standards Board (BSB) that their reviews of the rules for in-house lawyers “will need to be far-reaching”.
The Essex legal services chief said his department was currently made up of 130 staff, providing services not only to the county council but to a “wide range” of other public organisations across England, such as police services and schools.
Welcoming the LSB’s conclusions, he said the conduct rules for in-house lawyers should be changed to allow them to undertake the “maximum amount of work allowable” under section 15(4) of the Legal Services Act, which deals with employed lawyers providing reserved legal services. Currently, SRA and BSB rules go beyond the requirements of the Act.
As an example he gave Essex Cares, a company owned by the county council which provides many of its adult social care services.
Mr Thomson said Essex Cares wanted Essex Legal Services to go beyond providing the company with legal services and provide them directly to their “vulnerable adults” who find it difficult to access normal services for “very routine matters”.
“Allowing in-house lawyers to provide this service to people who currently either do not receive legal services or, if they do, in a way that is not sustainable, will improve access to justice.”
Mr Thomson said issues also arose where services were delivered by public organisations which had become private entities, such as schools which had become academies.
He said these organisations, which had relied on local authority legal services “for years” should not be “locked out” from being able to use in-house lawyers.
The SRA will be consulting on revised rules for in-house lawyers this autumn. Crispin Passmore, executive director for policy, has predicted that the new approach will allow “much more freedom and flexibility for solicitors and businesses”.