Lord Phillips: 'I'm of the old school.'
Few 73-year-olds retain the passionate fire for reform that is displayed by Andrew Phillips, one of the most outspoken campaigning British lawyers of the last generation. Having spent nearly 55 years in the legal profession he has lost none of the verve and vigour with which he joined it – indeed, some suggest he has only grown more headstrong with each passing year.
He was made a Life Peer in 1998 by the then Liberal-Democrat Party leader Paddy Ashdown and, as Lord Phillips of Sudbury, has focused much energy on highlighting access to justice and civil liberties issues. The London legal practice he founded 42 years ago – Bates Wells & Braithwaite – is renowned as a charity law specialist, which travels under the banner of ‘a City law firm with a conscience’.
Perhaps typically for such an energetic lawyer, Lord Phillips took the view several years ago that younger blood was required in the House of Lords, so he attempted to resign his peerage. Ironically, the law prevented him from standing down. He took a three-year sabbatical and has now returned; and the legislation that prevented his resignation is set for reform itself.
In the meantime, he’s returned with some force. Only several weeks ago, Lord Phillips engaged in a high-profile dispute with Lord Ashdown on the floor of the House as the two battled over proposed reforms for the upper chamber of parliament.
For 26 years, Lord Phillips was to be heard on BBC radio, attempting to make the complexities of law understandable to ordinary people. While that slot has finished, he remains undaunted by the prospect of broadcasting his views – indeed, he positively relishes the opportunity.
You’ve been an outspoken critic of recent legal sector reforms in the UK. What are your core concerns?
I was one of the few people in the House of Lords who opposed root and branch the Legal Services Act and the creation of alternative business structures. It seems obvious to me that what will happen – perhaps not quickly but in due course – is that it will be the coup de grâce of solicitors as a profession. There are many pressures already taking us away from being professionals towards being just businesses, but alternative business structures (ABSs) are the coup de grâce in that process.
Commerce and big business is ruthlessly profit driven. They are not interested in anything apart from making big money. You can be absolutely certain that if major corporations get involved in ABSs they will not do the work that is complex, difficult and under-rewarded, they will cherry-pick – these great supermarkets are renowned for cherry picking, and in their own interests totally.
The consequence will be that the diminishing number of high street solicitors’ firms that are trying to service the whole population – and in particular, the less well off – will have the bits of work that are relatively profitable and relatively straightforward cherry-picked away from them by the ABS outfits. So what will they be left with? The difficult cases, with inarticulate clients, who cannot instruct them in a straightforward manner.
ABSs will offer loss-leading deals until they knock the local high street solicitors out of the market. And then they will up their prices.
It is an approach that is totally devoid of any sense of social contract. It is the marketisation of our lives, that I had hoped would never infect my own beloved profession in the way it has. It is so dominant now.
One of the nails in what looks as though it is going to become the profession’s coffin was giving limited liability to partnerships. It was one of the most profoundly undermining events in this step-by-step movement from being a profession to being a business.
It took away individual responsibility. In the old days when there was a partnership it was legally you; now there’s a thing called the company. And once you get the corporate, managerialist culture it really does things to people. They’ll take the view of ‘I don’t agree with that policy, but it’s a company decision’. Whereas in the old days they would have said ‘I don’t agree with that and I’m going to fight against it because this is my business.’ These days people don’t have that passionate, direct ownership.
When I qualified as a solicitor, the common view was that one would make a good living, not a fortune. Now they make fortunes. And yet most of them are bloody miserable at the same time – over-specialised, cut off, over-pressured. And the majority of City of London lawyers have no significant input to civil society. They do nothing for the public interest. What a tragedy – most of all for them.
And solicitors are no longer respected. Several generations ago, young people wanted to become solicitors because the label carried respect. Not now. All of this has happened in my lifetime and all of it was avoidable. But at every junction we’ve taken the wrong decision.
Are you not in danger of being left drowning in the wake of modernisation with that attitude? Proponents of reform maintain that access to justice could increase through ABSs
I appreciate that it’s very easy to fall prey to the charge of nostalgia. But not so long ago the overwhelming majority of solicitors would have called themselves general practitioners. We did all sorts of work and we were also the archetypal pillars of our community and the community depended on our skills to function effectively. And for some of those roles we were paid – often badly – but also one was expected to do, and did, a huge amount of work at a nominal amount or on a pro bono basis.
That achieved that great rarity – an elision between self-interest and public interest. Most lawyers were engaged in some way in sustaining their communities.
But once you have yielded to the goal of having to earn more money next year than this year – you have to have very strong principles to do the right thing when doing so may cost you money.
For example, look at what we’ve seen in the City of London over the past few years in terms of the economic crisis – that is not an accident. There is a certain amorality about big financial business. And they will hire lawyers to ensure that they can do what they want. Although there hasn’t yet been a complete collapse of morality in the legal profession – thankfully the vast majority of law firms in this country will still baulk at doing something that is plainly unlawful.
What are the longer-term consequences of the increasing commercialisation of the legal profession and of moves away from the vocational approach to the business approach?
The way we are moving will result in the rich and powerful being even more advantaged than they already are in terms of legal services.
There is not even a remote equality of arms these days – the law has become yet another tool for the rich and mighty to use that others can’t access. I find that very sad and profoundly against the public interest.
Lawyers should be gate-keepers of justice. If people can’t access the rights and law that parliament has legislated because they can’t find a lawyer because of cost, it is going to affect access to justice. There is a need for a liberal profession where lawyers approach issues from a broad ethical standpoint – not just asking: can this man or woman pay £200 an hour? They need to take into account the human considerations. If not, then we are in a sad situation.
You famously tried to resign your peerage, but legally were unable to do so. House of Lords reform is a high-profile and controversial subject, and from your liberally minded background one might assume you would support an elected chamber. But you don’t.
I am in favour of significant reform of the Lords, but not of direct elections. It goes against my instincts.
As soon as I entered the House of Lords in 1998 and got the hang of things – it didn’t take long to notice that we were usually making radical reforms to bad legislation coming out of the House of Commons.
I realised three things: the Commons is whipped uphill and down dale all day ruthlessly – if you don’t do as you are told [as a backbench MP] you suffer very directly. In the Commons there is a sad culture where good men and women are profoundly constrained in how they can vote because of the party political consequences of crossing the line.
I haven’t finalised my own pattern for reform because we are still hung up on the draft bill.
But I might be inclined towards supporting a model that has an indirectly elected component – I quite like the idea of having 50 to 70 major civil society institutions having the right to elect or appoint Lords.
The Law Society, for example, could have a vote among its members. That would preserve and enhance the expertise element that the Lords has over the Commons, which has become more important as MPs have become younger and come to the Commons through political routes. And it would strengthen civil society.
I want to see a statutory appointments commission; I want to have a duty on the commission to maintain a balance in the Lords on the grounds of gender, age, region, occupation and other criteria that could be agreed between Lords and Commons; and I want to see an age cut off that should be 80; and people who don’t attend regularly should lose their membership.
As such an outspoken purveyor of liberal views, has coalition government with the Conservative Party stuck in your craw?
It would have been outrageous to sit back following the election and say we were going to let the Tories survive on a vote-by-vote basis. The needs of the country were for solid, certain government at a time when we were on the verge of a financial crisis.
I would have been utterly disgusted if we’d played fancy boys and said: ‘We’ll vote for you when we feel like it. ‘
But we’d all better grow up – coalition is a way of life in most countries. And compromise is always difficult. It has been very difficult for us, as shown by the opinion polls and local elections. But you’ve got to stand up and be counted in politics and that was a time to stand up and be counted.
I’m not saying that I agree with everything that’s been done – I don’t and I’ve voted against the coalition on several occasions in some of the divisions on the legal aid bill. But for the most part, I count myself as a loyal, committed member of the coalition.
Britain at times seems obsessed with law and lawyers. Has the law been good to you?
A hobbyhorse of mine is the lunatic law-making we engage in – we legislate more than any other major democratic country by a long way. I’m talking about 200-300 per cent more; 12-15,000 pages of new statute law a year and we only repeal about three. You don’t need to be a soothsayer to see that the downstream consequences of all that lawmaking are parlous – more bureaucratisation, centralisation, more demoralisation.
But as far as the profession is concerned and the practice of law – I’ve had a ball; I’ve loved my time in the law. I’ve been the luckiest man on earth. I’m in my 55th year in the legal profession. I’m of the old school – I’ve enjoyed the clients more than the law.
CV -- Lord Andrew Phillips of Sudbury
Economics and law degree from Trinity Hall, Cambridge; admitted as a solicitor in 1964. Solicitor with Pritchard Englefield and then Lawford & Co in London before founding Bates Wells & Braithwaite, a specialist in charity law, in the UK capital in 1970. In 1971 he co-founded what is billed as the first ‘trans-Europe’ lawyers’ network, the Parlex Group, as well as co-founding the UK’s Legal Action Group. In 1988 Lord Phillips became the founder and first chairman of the Citizenship Foundation (he remains president). In 1996, he was the co-founder of the Solicitors Pro Bono Group (and is still president).
He was awarded an OBE for establishing the Citizenship Foundation and ‘for services to the law and young people’ in 1996 and was appointed as a Life Peer two years later.
An earlier version of this interview was first published in The Times newspaper on 31 May 2012.