Charting a course

These are undeniably challenging times for the public sector but its lawyers should still be upbeat, Lawyers in Local Government President and Director of Essex Legal Services Philip Thomson tells Philip Hoult.

Philip Thomson’s year as president of Lawyers in Local Government (LLG) was never going to be a quiet one.

Since taking over from Lambeth Director of Governance & Democracy Mark Hynes in April at the Weekend School, his watch has seen major developments such as the first local authority-owned alternative business structures (ABSs) and the start of a process that could lead to radical changes to the regulation of employed solicitors. This is against a backdrop of continued cuts to local government funding and renewed pressure on legal services teams as a result.

Thomson has also overseen the further development of LLG, which – it is hard to believe – has been in existence just 18 months following the merger between Solicitors in Local Government (SLG) and the Association of Council Secretaries and Solicitors (ACSeS) in April 2013.

Meeting him at his offices in Chelmsford, you get the sense that the Director for Essex Legal Services – the legal arm of one of the country’s largest local authorities – wouldn’t have it any other way.

[Born and] brought up in Chelmsford, Thomson considered doing a history degree before eventually being persuaded that the law would be a better choice. Queen Mary University was followed by Law Society Finals at the College of Law.

At the time articles were difficult to get without traineeships, he says, and it was difficult to get traineeships without connections. “I didn’t get anywhere with any of my applications until I got the results of my Part 2 examinations, as they were called then. I started getting some interviews, because I did quite well at those, and I got two offers I think almost on the same day.”

One was from a small niche firm in Chancery Lane that specialised in construction. The other was from Essex County Council. It was a ‘Sliding Doors’ moment, but the authority won the day.

Thomson can remember the exact day he started at the council – “5 June 1978” – and he has been there ever since. His first seat during his articles, in the property and conveyancing team, was to have a major influence on his subsequent career, sparking off a career-long interest in legal services management and the shaping of council legal practices.

The department comprised around 30 odd lawyers at the time, principally because the council had recently developed a new town called South Woodham Ferrers and there had been a huge amount of land work. But a team of that size was no longer needed and the legal department needed restructuring.

A spell with the County Prosecuting Solicitor followed but it was a move to the litigation section that was to determine the direction of Thomson’s career next. “It was at the time when care proceedings had just taken off and the litigation team was a small section of about seven or eight people,” he says. “It was completely run off its feet. One of the solicitors used to literally spend their life in the office, sleeping there overnight, eating in their office, it cannot be described….It was manic.

“I went from a department (property and conveyancing), where it was very professional but really the work wasn’t there, to this other department, which was just completely run off its feet with hopelessly inadequate resources. Actually, for a trainee it was quite a good experience in a number of ways.”

Even then Thomson was thinking about how to run a legal service effectively. “I was already starting to ask questions. How come there’s a department of 30 doing not very much and a department of eight that’s rushed off its feet?”

Happily, when he qualified as a solicitor in 1980 the process of beefing up the litigation section had been started and he was offered the post of deputy head of the litigation section – giving him management exposure from day one. At the time much of the childcare work was sent out to the private sector, but Thomson gradually built up the in-house expertise and brought it back in.

Then in the late 80s CCT (compulsory competitive tendering) hit. This coincided, Thomson says, with the adoption within the legal department of a much more commercial approach through the use of time recording and a greater awareness of costs.

The litigation section had by that stage grown to about 40 lawyers and staff. When the local government reorganisation of 1998 happened, various parts of the county council – like colleges, the fire service and so on – were spun off into independent organisations.

“Those organisations were quite impressed by the legal team’s commercial focus and they kept using our services,” Thomson says. “Whereas a lot of the back office services were no longer used by them they continued to use legal, which they do to the current day.”

This was the genesis of the legal team’s move into the trading arena, a development that gained further momentum when, for example, probation services became no longer part of the county council.

In 2002 Thomson’s predecessor as county solicitor, Chris Trowhill retired. It was the right time – he applied and won the role, and has since gone on to make Essex Legal Services one of the largest and most successful local authority legal teams in the country.

From early on in his career Thomson had also been actively involved in the Law Society Local Government Group (as it was then known) and its London and Home Counties branch. “This was because I was very keen to develop both my and our office’s expertise in child care law, which in the 80s was becoming much more specialised, particularly around things like sex abuse of children, organised abuse of children and issues such as brittle bone conditions, which were very difficult to diagnose then and causing quite complex cases.”

For a time he was chairman of a national special interest group for childcare law run jointly by the Law Society Local Government Group and the predecessor to ACSeS. Thomson also joined the national executive of the Law Society Local Government Group and was the local government representative on Chancery Lane’s Family Law Committee. He ended up chairing the group in 1999/2000, a few years before it became SLG.

“Afterwards there was a time when there weren’t so many people feeling able to volunteer and to keep the show on the road, so it needed a few ‘old hands’ to stay on,” he says. “When we became Solicitors in Local Government, there were roles like treasurer and secretary of the company to fill and there was a dearth of people to go round. I eventually became secretary of SLG and so therefore perhaps stayed in contact in a way that I might not otherwise have done.”

Although also on the ACSeS council for a time, he stayed with SLG until the merger of the two organisations was mooted. It was then agreed that there would be one person nominated as president from each of the organisations to be the first two presidents of LLG. Mark Hynes was nominated from the ACSeS side (and became the combined organisation’s first president), while Thomson was nominated by SLG.

His assumption of the presidency comes at a challenging time for local government lawyers. “It’s a time of massive change, threats and huge opportunities and I think the latter is well worth concentrating on if you are making your career in local government law,” he argues. “In strategic terms at the very top of it all is obviously the move for public sector organisations to work together more effectively and in many ways to merge. There is an awful lot happening in the areas of health, for example, and partnerships are becoming much more in-depth than the arrangements around working together that we’ve had for the last few years.”

This, Thomson argues, means there is a growing need for a public sector legal service. “In a sense local government has for years had its own in-house legal service, which is a very accomplished, very experienced legal service with a huge breadth and depth of expertise. It’s something actually that a lot of other organisations in the public sector don’t have. They don’t have that same organisation and that’s quite surprising when you look at organisations such as health globally because it’s a massive public service.

“Although it obviously seeks a lot of legal advice, it doesn’t have lawyers embedded in the same way as local government. I’ve never really understood why because it just seems to me that having lawyers embedded in the same way would bring huge benefits to the administration of health. But it’s not there and it seems to me that as local government comes together with health and other agencies that it works with, that this embedded legal service ought to be something that morphs and grows with that change.”

What better, he asks, for the public sector and also for the lawyers? A public sector legal service, perhaps still run by local authorities, could have the capability of advising across the sector and bringing the skills that it has to assist other organisations. 

“We are going to be working in the middle of all these changes, so as local government and health work together in a far more merged sense than before, particularly once the Care Act is implemented, then local government solicitors are going to have to move with that anyway. We are going to need to move into the space that is there in health. So why not see ourselves as something a bit more than just purely another  local government legal service?”

Essex Legal Services, which Thomson runs, has already moved this way, with one of the largest – if not the largest – income streams in advising other public bodies. But is this really viable for smaller legal teams at district and other councils?

Not necessarily on their own, he suggests, but there is certainly scope for them to join in. “In Essex, for example, we’ve been looking at centres of excellence between authorities which include small authorities. What this means is that there is a virtual team where the fee-earners in three authorities, say, are effectively allocated work by one manager within the three. If you are a senior lawyer in a small district, some of your work that doesn’t require your level of seniority can be passed into the larger group team. Work that is of a more complex nature, which doesn’t originate from your own council, can also come to you.”

This allocation of work to the correct level of fee earner can be done by working in partnership, he adds, and does not necessarily have to be achieved through a merger or formal shared services.

Thomson says the relative stability in the numbers of lawyers employed in local government – going by the figures in the Law Society’s Annual Statistical Review – at a time of extraordinary financial pressure on authorities reflects the fact that there is still plenty of legal work to be done. “It’s all very well saying, ‘Let’s cut the legal service’, but if the work has got to be done that may not help you financially.”.

Trading or income generation is also providing a significant opportunity. “Essex Legal Services has been growing over the last five years, not shrinking,” Thomson points out. “Even though at times we have been part of corporate programmes which have reduced our size, that has gone hand in hand with what we’ve been doing in terms of doing work for other organisations. The net impact of that has been that we are bigger than we were before.”

That is not to say that ELS has been immune to transformation programmes, he admits. In 2011 it was forced to lose 20 staff, about a sixth of its overall number at the time. Since then more work has come in through trading and lawyers have been hired to service that inflow.

So what is Thomson’s take on the arrival of local authority-owned alternative business structures? The two pioneers – Buckinghamshire Law Plus (owned by Buckinghamshire County Council and Bucks & Milton Keynes Fire Authority) and HB Public Law (the shared legal service between Harrow and Barnet Councils) – will both open for business from later this year, having been awarded a licence by the Solicitors Regulation Authority (SRA) on consecutive days in August.

“ABSs, as a proposition for local government legal service, have come at the right time for us because there are aspects…of being on a burning platform,” Thomson suggests. “If you look at the work of say Essex, the county is moving towards being a commissioning authority. This means, increasingly, that services will be delivered by private sector companies, although not exclusively, because the council has an open mind in terms of how services are best delivered.

“There’s no doubt some of the work will be delivered from the private sector and of course we can’t act for the private sector. So in that sense, if we stand still and do nothing, then legal work that we currently do at the moment, and in which we may have considerable expertise, may well end up going out of the council. We will not be able to follow that work, even if the client would like us to, which on occasion they will. Some of the clients, particularly in social care where there is a long history of having expertise in-house, may not be able to use us.”

Why should that be, asks Thomson, adding that it makes “no sense from any point of view” to exclude local authority lawyers who have got the expertise and experience as well as the confidence of the client. An ABS therefore does provide an opportunity to restructure legal services so that, when and if that happens, the expertise that is available in local authority legal services continues to be available to the client who wants to use it.

But does it not blur the line between private and public legal practice? Yes, he acknowledges. “It will be interesting to see how developments go forward. My own view is that we have to look for a middle way between public and private. In other words we need to have a commercially focused organisation, but certainly one with a public service ethos.”

The danger with ABSs is that a legal team could just become another private sector firm, he agrees. “I’m obviously not suggesting that being a private sector firm is a bad thing, but I think it’s important that there is a vibrant in-house public sector legal service,” Thomson says. “So in my mind I believe that we need to look for something that actually does stand between the two, that has many of the features of the private sector, but has a clear public sector ethos. A commercially focused in-house service may not have such a focus on profit [as a private practice firm], but instead one that looks more at the outcomes for its owners.”

The LLG President suggests too that there are areas – such as access to justice – where public sector legal services ought to be looking to plug gaps, and an ABS structure can help. By way of example, he cites discussions Essex Legal Services has had with one of the outsourced companies that the council has in the field of adult social care. These centred on its solicitors potentially acting for some of the vulnerable clients that the company comes across when delivering its service, who can have real problems accessing mainstream legal services.

“Now at first blush that might look like work that is rather foreign to us, but actually we do a lot of that sort of thing already through deputyship work,” Thomson says. “These are vulnerable people not subject to deputyship orders, but often they will have needs that are very similar to those that are subject to deputyship orders.”

The money involved in providing that advice might not be significant but the work might be something that a public sector legal service ought to be thinking of doing, he adds. “At the end of the day we’ll probably have to cover the cost but we don’t have to be so profit focused.” There are also charities that support public services which have real problems accessing legal advice because of the cost involved, he says.

In meetings with LLG, the Solicitors Regulation Authority has meanwhile signalled that it is looking to move away from the concept of ‘employed solicitor’. The regulator takes the view that the great majority of solicitors are employed, whether that is in a law firm, a local authority or a multi-national.

So putting aside regulation to support the rule of law, the SRA could see little need for regulation of solicitors undertaking work for local authorities. Under its new approach, regulation would be based more upon risk proportionate to the vulnerability to the client.

In Thomson’s eyes, these developments will offer opportunities for lawyers in the sector rather than pose a threat to their careers. “On the whole there is far more legal work in the public sector, I’m sure of it. All this change generates legal work and the new ways of working will generate legal work. Areas such as contract management, and all that comes from that, is going into it on an even bigger scale.”

So where does LLG fit in to this? According to Thomson, the most important thing is that there is now an organisation which represents all lawyers in local government, whether solicitors, CILEx members, barristers or practice managers. It is also well placed to harvest the skills of all the different disciplines its members cover and so raise the profile of law and lawyers in local government.

“We have been splintered for far too long – I think that’s a common view – so LLG has got a big job to do to make sure that it’s doing both those things,” he says. “We need a more dynamic organisation than the sum of its two predecessor bodies. That doesn’t mean to say that the previous organisations were not dynamic in their own way, but they weren’t as far reaching.

“In any event the game has changed from even five or ten years ago. We’ve got to get far more organised, we’ve got to get far more professional. The fact that we have a representational company, LLG, which has a subsidiary LGG, which is its training arm, is a good structure to get more professional around what we need to do. We need to provide a greater spread of services to members of LLG.”

He also says that the organisation has an important task in coordinating and collating the huge depth and breadth of expertise it has across its membership and turning that into a product which it can represent at a national level. “That is absolutely vital to lawyers being seen as what they are, which is an important profession in local government and indeed in the public sector. Unless we can harness all this energy and skill, which we haven’t done as effectively as we could have in the past, then we’re not going to punch at the weight that we need to.”

Work has been and continues to be done so that LLG can draw on the reservoir of expertise and ability contained in its special activity areas (SAAs), and supporting the national leads for each SAA is key. “It’s not realistic to expect a busy lawyer to be able to have the time to even really start to map all the groups across the country, make the necessary connections etc. It takes time,” Thomson says.

The organisation has also been looking to develop a stronger platform and build its capacity by enhancing its income streams, through innovations such as the appointment of corporate partners.

In this regard, Thomson pays tribute to the work of his predecessor, Mark Hynes, saying the merger and the subsequent development of LLG was “a real achievement”. His own presidency will be focused on ensuring the organisation continues to be fit for purpose. “As I said at the Weekend School, I really want to hear from everybody about what they want from LLG. I am very conscious that we have got a lot of new members and we need to make sure they – along with members of the previous two organisations – are fully on board. We need to convert all this into action, there’s got to be some outputs.”

Thomson believes that this work will lead to the organisation, for example, having real influence on debates at national level on policy and law reform. LLG’s members have a lot to offer in this regard.

The journey has also seen the organisation launch its inaugural Local Government Legal Awards, to be held in London in late November. Thomson acknowledges that the awards market is crowded, but points out how – in contrast to other ceremonies where there might be just one law-related category – LLG’s event will recognise the depth and breadth of legal expertise across the sector with 11 different awards up for grabs.

“What we wanted to do was celebrate achievement across local government law. Obviously as part of raising profile of local government lawyers and LLG, the more we can focus on the good work that local government lawyers do, the more we can raise our profile. Most awards are very expensive but we are not focused on making a profit – the tickets (at £60) are significantly lower and great value.”

Thomson has always been keen on local government lawyers coming together to celebrate their achievements, network and have a good time. It should be a great evening.

With him at the helm, LLG is in good hands. Construction law and London’s loss was Essex and local government’s gain.