Wise counsel: Government legal chief Jonathan Jones on prorogation, Brexit, and surviving ‘grim moments’
Laying the ground for Brexit against a backdrop of political uncertainty has taken the Government Legal Department into uncharted territory, with no let up from its normal duties. Perm sec and Treasury solicitor Sir Jonathan Jones tells Beckie Smith about the tasks at hand
Photos: Paul Heartfield
The day the government lost a historic Supreme Court case on the prime minister’s decision to prorogue parliament, it rained. As the judges deliberated, it thundered. When the final verdict was delivered, quashing the shutdown, the skies were dark. If the controversy had been written as a work of fiction, the pathetic fallacy would have seemed clichéd.
It is hard to imagine the mood in the Government Legal Department that September day being any less bleak. For weeks, teams of lawyers across government had worked on the case: litigators preparing to argue in court that proroguing parliament was – as ministers had insisted – part of the normal parliamentary process, and not an attempt to force through a no-deal Brexit; advisory teams aiding the Cabinet Office and the Department for Exiting the European Union; departmental counsels in the Attorney General’s Office and No.10.
But the ever-measured Sir Jonathan Jones maintains that the mood wasn’t quite as grim as the weather. “There was always a chance we’d lose,” the Treasury solicitor and GLD permanent secretary reminds CSW.
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“That’s very often true in these very big, complicated, controversial cases. So it’s not as if people feel utterly defeated when we lose. Very often, we’re emotionally prepared for that possibility because it was always on the cards.”
This is a lesson he has learned through three decades of experience in the civil service, which began in the Office of Fair Trading and has included stints in the Department for Education, the Attorney General’s Office and the Home Office. And clearly any losses have done him no harm; he was recognised in this year’s New Year Honours with a knighthood for his work building up the cross-government legal service and for providing legal services of the “highest calibre”, having been named an honorary QC a year earlier.
Although government lawyers are always prepared for a loss, “the commitment to winning, to doing our best, is unqualified,” he says. “Whatever we might think about the pros and cons of a policy or particular case, we are solicitors for the government. It’s our job to put the best case forward and we do so with the aim of winning.”
"The commitment to winning is unqualified, whatever we might think about the pros and cons of a policy or particular case"
Leaning back in his chair in a large conference room in the freshly-decorated GLD HQ a month after that Supreme Court case, Jones hints that there were some “entertaining moments” shared between the lawyers, advisers and other civil servants who had gathered to watch Lady Hale, president of the court, read out the verdict. The lawyers had to be at hand in case the judgement was ambiguous – but the judges were unanimous in finding the prorogation was “inherently political in nature” and therefore unlawful. Jones says the discussion very quickly moved out of his arena and into politics: “How is the government going to manage this? What government business would be put forward? And so on.”
What exactly happened in those “entertaining moments”, he won’t say. “It’s sort of what you’d expect, really. It was a massively controversial case. The temperature was running high, there’s no avoiding that. It was very high stakes for the government, which staked it all on this decision, very personal to the prime minister and some of his closest advisors. You can probably imagine some of the scenes.”
So with the finer details left to CSW’s imagination, the conversation turns – inevitably – to Brexit. There have been many creative euphemisms to describe the work that has gone into preparing the UK for its departure from the EU, and the effect on civil servants of standing up and standing down those contingency measures multiple times. Last month, civil service chief executive Sir John Manzoni described it to CSW as “a time of extraordinary political complexity”.
Jones is no less expert or understated in handling such sensitive topics. He calls the tumult caused by Brexit “a completely unique situation”. There is, at least, no doubting the novelty of the legal challenges leaving the EU has brought about.
“So much of Brexit is about the law, one way or another. GLD is so closely involved in all aspects of it, whether it’s the negotiation or the legislation or the court challenges,” he says. “And so much of this has ended up in court – Brexit is work for us at every turn.”
Jones estimates that around a third of GLD’s work has been Brexit-focused in the last couple of years. Lawyers have been dispatched across government via an EU exit task force to advise on deal and no-deal planning, trade deals and draft legislation. Like similar structures elsewhere in the civil service, this has been run on a voluntary basis.
“Legally speaking, we’re not in bad shape. We have actually got ready for all these multiple possible scenarios, but it has been really hard work. It’s required people to work very long hours and, in some cases, challenging shifts, and it’s required people to move and so on. But people have been pretty willing to do that.”
“There’s something very special for lawyers about being involved in something that is legally and constitutionally ground breaking, so there are pluses,” he says.
Speaking before the since-discarded 31 October Brexit deadline, the perm sec acknowledges there is no guarantee his staff’s patience would be able to withstand further uncertainty on departure dates and deals. But by December – when CSW catches up with Jones after the general election – the timeline looks more certain. After the election, GLD lawyers worked through the weekend to prepare the Withdrawal Agreement Bill for a fresh vote – a vote it duly passed, thanks to the Conservatives’ new parliamentary majority.
There is still an enormous amount of legal work to be done if the government is to have its future relationship with the EU hammered out by the end of the transition period in December – a negotiation Jones expects to be “extremely hard work”.
But there is no doubt that being able to stand down no-deal preparations “reduces some of the uncertainty” for staff. “That means we’re not planning for multiple outcomes… so for many people that will make their daily working lives easier,” he says.
And having a majority government, which is more likely than its predecessors to be able to push through other areas of its legislative agenda, will also provide more certainty to those working to deliver it, he adds.
Back in October, Jones noted that lawyers, like other civil servants, “get ground down” by the workload and the seemingly unrelenting political uncertainty that has characterised British politics since the 2016 referendum on EU membership.
“Resilience gets tested, when it’s month after month and year after year… some of our people have been pretty full on for many, many months. So I’m not diminishing the challenge. And I’m not diminishing the sort of strain that has definitely put on some people.”
Asked how he keeps up morale in his department, Jones says his strategy boils down to two main points: making sure people take breaks from work and showing appreciation for the team – which explains his frequent references during our conversation to the “sheer professionalism” of the people who work for him.
“I think many people have done a brilliant job,” he says. “They have dealt with everything that’s been thrown at them. We produce the advice, we produce the legislation, we produce the products that the government’s asked for and we should be really proud of that. I am proud. And I say so.”
“These are especially challenging times. It would be astonishing if that hadn’t put extra burdens on people”
This he does not just in person but via Twitter, which he uses mainly to give shout-outs to the team and updates on GLD’s work, interspersed with travel snaps and tidbits about his job.
“I’m eternally surprised by how many people do seem to read my tweets, and will talk to me about the cake I baked or you know, some jokey thing,” he says.
“The risks that I was afraid of were that either there’d be nothing I could talk about, or it’d be a waste of time, or that I’d get endlessly trolled by people who just want to have a go at the civil service and trash us over Brexit. That’s hardly happened at all,” he says.
But while his timeline has happily remained – for the most part – troll-free, there’s no doubt that the headline events of the last few years, including the Article 50 and prorogation cases, have put government lawyers in the public eye in a way that few have experienced before. How has that affected him personally? “It’s been hard work, actually,” he says.
But he adds: “It has also been, if it’s not too cheesy to say, a privilege to be doing this job at a time when the demands are so great. The stakes are so high. The complexity of the legal work is above and beyond anything I’ve ever seen in my 30-year career, and it so happens that this has all come about while I’ve been in this job.”
Like many perm secs, Jones is running a department while simultaneously looking at ways to change it for the better (or as Manzoni once called it, “flying a plane and reforming it at the same time”). Jones says balancing the two is “really difficult”.
In the last year, GLD has published a renewed people strategy as well as a department-wide five-year strategy and moved from Holborn to Petty France, where it now lives alongside the Ministry of Justice and the Crown Prosecution Service.
Nearly 1,300 staff – around half of the total headcount – moved and, Jones notes, for many that will have had as great an impact on their day-to-day lives as Brexit.
Jonathan Jones on... nitty-gritty cases
As Brexit preparations have ramped up, GLD’s other responsibilities haven’t stopped. “There is always a risk, and I’m acutely conscious of it, that with the spotlight on Brexit we forget some of the other work that’s going on,” Jones says. There are government lawyers working on “virtually every topic that affects the citizens of this country, whether it’s transport or health or animal welfare, or criminal law or national security and so on,” he adds.
Last year GLD lawyers succeeded in getting a legal challenge to the expansion of Heathrow airport dismissed, and lost a case on the Department for Work and Pensions’ change to the retirement age. At any one time, staff are tackling several asylum and immigration cases, and for the last couple of years others have been supporting the Grenfell Tower inquiry. “Across the whole of government, we’ve got lawyers working on these big issues, some of which are below the radar and always will be; some of which dip out of sight for a bit, and then become news again,” Jones says. “And there are probably 20 other things I could mention.”
Does he have a favourite niche area of legal work? “I like the odd bits of legislation and policymaking – the transport team are working on a bit of legislation on e-scooters, for example. Or the work we did on the bill on ivory banning. The very specific policy issues for which time is found amidst all the Brexit stuff.”
Jones clearly spends a lot of time thinking about the wellbeing of his staff. Which is fitting, given he is also the civil service-wide health and wellbeing champion – a role he took on in 2016.
Asked what he thinks are the biggest obstacles to civil servants’ wellbeing, the conversation quickly returns to the familiar ground of Brexit. “These are especially challenging times for people,” he says. “There’s the uncertainty and – in some cases – the sheer grind of really intense work, month by month. It would be astonishing if that hadn’t put extra burdens on people.”
In an era where “self-care” has become a buzzword, does Jones think too much responsibility is put on individuals, rather than employers, to look after their own mental health?
“Well, I think it has to be both,” he says. He cites the 2017 Thriving at Work report – an independent review commissioned by the government that urged employers to provide more support for mental-health conditions. The civil service was the first employer to sign up to its recommendation to put standards in place to ensure staff had “the knowledge, tools and confidence” to look after their own mental health and that of their colleagues.
“I’m afraid we all know the bad examples of people who have just, in the end, gone under. That’s terrible for them and, of course, it means they’re not productive at all. That’s lose-lose. So that’s, I think, where the relationship comes between the role of the individual and the role of the employer,” he says.
The civil service is on track to meet the Thriving at Work standards by April. Each department now has its own wellbeing champion and people are now actively talking about mental health at work. Critically, departments have been encouraging people who are struggling to seek support before it becomes a problem and “not just to grind themselves down”, Jones says.
He acknowledges there is still stigma around some conditions that stops people from getting help – he mentions men’s mental health, the menopause and alcoholism.
And more still needs to be done to equip line managers to support people’s wellbeing at work, he adds. “I’m not sure historically that’s been seen as the line manager’s job. Now, increasingly, we think the line manager has a crucial role to play.”
Jones has had his own resilience tested several times during his career. Losing Sir Jeremy Heywood in November 2018 was “a big hit, personally and institutionally”, he says. The late cabinet secretary had appointed Jones to his post and the two had worked closely together.
Jones had also keenly felt the loss of his predecessor, the late Treasury solicitor Sir Paul Jenkins, a few months earlier. “He had been a bit of a mentor to me again, and obviously my boss for some years. Those were grim moments. Everybody has grim moments in their lives, and undoubtedly those were in that category.”
And of course he, too, must deal with the immense workload and unprecedented challenges brought about by Brexit.
His own self-care routine, he says, is “nothing radical”. “I sort of find ways of working that work for me, which may mean going home at a sensible time – in the knowledge I might have to work later in the evening, but it’s more comfortable to do that at home than in the office. And trying to have a normal, sensible social life. I go to the pub and I sing and I like music and walk a lot.” He insists he’ll watch “any old trash” on TV.
CSW wonders if he’s able to watch legal dramas, or if the stereotypes wind him up. He doesn’t mind, he says, but does spy a gap in programming. “I don’t think anybody’s tried to make a programme that really talks about the government lawyers. Maybe they should.” This Thick of It for lawyers would doubtless attract “a certain type of niche, geeky audience”, he adds.
How about Jones’s own career – has he experienced many Thick of It moments in his three decades in Whitehall? “Of course. But I’m not giving too much away,” he says with a smile. He is a lawyer, after all.
Jonathan Jones: Treasury solicitor, GLD permanent secretary and HM procurator general
April 2020 marks GLD’s fifth anniversary, but the Treasury solicitor post dates back to at least 1661.
Jones has led the Treasury Solicitor’s Office since 2014, overseeing its transition into GLD – which he has called a “better, more joined-up and efficient legal service” – the following year. He has overseen several structural changes, including mergers with other ministries’ legal teams, and adding divisions focused on commercial and European law.
GLD now provides services to most government departments. It directly employs a 2,400-strong team of lawyers, allowing them to adapt easily to machinery of government changes – like when Brexit negotiations moved from DExEU to the Cabinet Office (and back again).
As Treasury solicitor, Jones technically owns some public assets including the Bank of England (which, his predecessor Sir Paul Jenkins once told CSW, came in handy securing an overdraft one Christmas when TSoL had no money to pay its staff because its clients hadn’t yet paid their bills).
And he is responsible for collecting “bona vacantia”, or ownerless goods left behind when people die without a will, he told his Twitter followers in a long-running thread marked with the unwieldy hashtag #ThingsYouMayNotKnowAboutTheTreasurySolicitor. “In 2015 I received a BAFTA. OK, it might be more accurate to say I ‘acquired’ a BAFTA.”
Jones also explained that being procurator general means he can intervene in divorce cases if the court might otherwise be misled into granting a decree. But, he added, it’s “not often that I get to ask, ‘Where’s my royal warrant?’”
The job also gave him a formal role in Prince Harry’s wedding in 2018. “Something to do with getting the archbishop’s licence. Not sure even I fully understand this.”