The In-House Lawyer (IHL): Can you describe your career path so far and tell us a little bit about your current role at GSK?
Anthony Kenny (AK): I started off in private practice at Hogan Lovells, which was where I fell in love with the idea of working in-house after working with clients. However, getting an in-house role as a litigator is tricky but, luckily, a job in a related field came up at BT, where I spent two happy years. What I found there is, as I started to do more to help people at the company with disputes, they also asked me how to do things like negotiate contracts, so, almost by accident, I fell into doing non-contentious work, which I loved. I realised that this would allow me to build up a new set of skills and get more exposure to general counsel and other senior businesspeople. Again, almost by chance, I then stumbled across an advert in The Times for a role for Deloitte Consulting as a European general counsel. Luckily for me, the person who hired me was a litigator as well, so my own transition resonated with her.
I started as European general counsel but, because of the Enron collapse, Deloitte, along with many other audit firms, had something of a restructure, so I then went to work in risk management. This involved much of the same legal work I’d done before, but it gave me a new view on the emerging importance of risk management, which has been great for my career ever since. It gives you wonderful insights and adds up to a well-rounded view of legal advice from a risk and analysis perspective.
I got promoted to director, but then was presented with an opportunity to join Boston Consulting Group at the time, and helped to set up the European legal team there over the next course of four or five years. However, I felt I was lacking in hardcore corporate M&A experience, particularly in the context of a PLC, so when the role for at GSK came along, that was a fantastic opportunity. My current role is split between two main sections, one as an M&A lawyer, and the other as a corporate lawyer helping the central business functions.
IHL: What does a typical day look like for you?
AK: There’s no such thing as a typical day. I can be heavily involved in deals one day and then the next doing some internal corporate work, which could be a bond issue or helping new bank accounts. It’s a real mixed bag, which I love.
We’re still home working – we are in a position now where we’ve had the option to go to the office for some time now, but most of us have stayed at home. It’s not working in the office that is the issue for people, I think; it’s more about using public transport. Of course, there are things I miss about the office, like the social interaction with colleagues, the immediacy of getting things done and also the physical separation of work and home life which is important. But, equally, being at home with a relatively young family, home working has made a positive difference for me.
IHL: What are some of the changes within the legal profession that you have seen over the course of your career that have led to you getting more involved in ESG activities?
AK: The first thing to acknowledge is that ESG is a huge topic. Especially in the UK, there’s now an increasing focus on climate, which is a positive development. Climate change poses a potential existential threat to all of us, so it’s good to see companies also taking notice of the issue. Within GSK, as well as the climate issues I’ve been involved with human rights and labour rights even since before the Modern Slavery Act.
Governance has been around for a long time. But now, there is an increased focus on corporate governance in response to the corporate disasters that we’ve had in recent years, for instance Carillion. Companies are really asking themselves how they can avoid a similar disaster befalling them. This means the time is ripe to make boards more aware of other potential existential threats and mitigate them, and as lawyers we are well placed to get issues such as climate change on their agenda.
IHL: Why do you think in-house lawyers are well placed to take the lead on ESG matters?
AK: Some people might assume that only someone at GC or deputy GC level would be able to affect change company wide. However, most in-house lawyers do touch points across most of the business.
We have a great opportunity to help the board and other business leaders understand threats better. We’re plugged into the regulations that are coming through due to our relationships with external law firms, or through our external networks. We use our legal knowledge to understand and interpret what risks and opportunities those regulations create, then apply these to the businesses we work in to help the business form an appropriate strategy to deal with these issues.
One thing I’m adamant about is that it is extremely important, especially in the context of climate change, not to greenwash. A business may want to rush out with a statement saying what great things the company is doing to combat climate change or another progressive cause, but, because many of these causes are ones that people care passionately about, if the business is not able to follow up statements with action, it’s going to backfire.
Just look at what’s happened recently with Richard Branson. He had his flight into space, and the marketing team there have done a great job in publicising that. However, many of the comments on social media are asking, well, what about the environment? You’ve got to think so carefully about the public mood and people’s concerns. If I were working for Richard, I would certainly have been asking questions about whether publicising it in that way was the right call.
But an even greater challenge for a GC working at Virgin Group would be going even further, and asking whether Virgin Galactic is even a business model Virgin should pursue. Essentially, the service is never going to be available to the general public, it’s always going to be a small elite that’s going to be able to afford this, and it’s going to create a massive carbon footprint. Wouldn’t brain power be better used to help those who are trying to solve climate change?
IHL: How did you get involved with Lawyers for Net Zero?
AK: I’ve been interested in this topic for a while, and done some related projects during my time with GSK. I was lucky enough to be introduced to Adam Woodhall, founder of Lawyers for Net Zero community via a colleague.
It’s a great initiative. As in-house counsel, we have an opportunity to drive climate action forward, both because more and more businesses, either of their own accord or due to external pressure, are picking up the need focus on net zero, but also because there are still plenty of laggards who are not doing as much as they could. As in-house counsel, we have a role to play. We have to understand that climate change is an issue we really need to focus on. Pick up any publication, any news feed, and the talk about climate change will be there. And if you look at some of the extreme weather events happening in North America lately, it’s clear that things are progressing rapidly. It’s a threat that we all need to focus on urgently now because time is running out.
IHL: How will net zero change the way companies work?
AK: Another area that GSK focuses on is nature positive. We focus on net zero but there’s actually an equally important biodiversity issue. The book Requiem for a Species makes the point that we’ve probably gone past tipping point – it’s imminent, it’s urgent.
The harsh reality of it is that there will be industries that have to change. I don’t think the airlines can continue the way they are. We all have to challenge ourselves, should we travel the way we did? The pandemic has contributed to that from a work perspective. There’s stats that show that from a business perspective, things probably won’t go back to the way they were before, because they don’t need to.
Oil majors really have a challenge too. Most of them are making a switch to wind and solar forms of energy but it’s moving – excuse the pun – like an oil tanker. You’ve got a whole bunch of people whose focus throughout their career has been on oil, and to switch them into other technologies is going to take time.
IHL: What are some of the incentives and sanctions that you see as being most useful in bringing companies on board with genuine change?
AK: If you’re thinking of a ‘carrot and stick’ approach, until recently, it was hard to visualise the stick, because the effects of climate change all seemed a bit distant. People would rationalise it by assuming it will only have major consequences beyond 2050 and even then, how bad will the consequences really be? What’s happening now is that the problem is becoming real. The fires in North America or Australia recently show that there’s pattern building.
The evidence suggests that we’ve contributed to this problem, and that it’s going to get worse. In that way, the stick is becoming visible. As for regulations, these are going to come from a number of angles. Firstly, sanctions will be placed on all of us as individuals. There’ll be higher fuel taxes, and it will probably become increasingly uneconomical to drive a car. From a business perspective, the European Commission has already talked about the regulatory measures it is looking to take. As we move forward climate action on the part of companies will be mandatory, not voluntary. I suspect that will mean hefty fines for non-compliance. Another example is that non-compliant companies will face litigation as well. There’s going to be increasing pressure from all angles.
It will be interesting to see what comes out of The UN Climate Change Conference, COP26, which is happening in Glasgow in November. One of the things you’d hope to see is that the countries will come together and agree on net zero targets, and everyone will do whatever is required to achieve the targets. Obviously, though, this is easier said than done. Some countries might quite reasonably say, ‘you’ve had chance to grow and have had a major impact on the environment while doing so. What about our chance to grow?’ Other countries may not have the resources to move away from coal onto renewable energy sources. The problem is that we haven’t got time. We need to act now, and there are still major hurdles to overcome.
I have to say what has really impressed me is the other groups that are forming within the legal profession. There are a lot of lawyers out there who care about this.
IHL: What’s the industry breakdown of in-house counsel who are involved in Lawyers for Net Zero?
AK: It’s quite a broad mix. It’s quite a broad mix. We have people from pharmaceuticals, banking, and some large companies like Amazon, Nestlé, BT and E.ON.
IHL: How did you adapt to the initial shock of the Covid lockdown?
AK: I’m happy to say that we adapted very quickly at GSK. It helped that before Covid, people did work from home reasonably regularly, once or twice a week, so the technology was there. The real change was moving it up at scale, because cutting out the travel and doing the large amount of meetings that we would have done face-to-face on Teams required changes. Overall, home working has proved to be a real success for us, and the team did extraordinarily well in adapting.