Closing argument: ex-legal chief Jonathan Jones on Brexit, Covid and leaving government

Jonathan Jones’s three-decade civil service career came to an abrupt end in September when he quit over controversial elements of the internal market bill. The government’s former top lawyer tells Beckie Smith about his departure, cocktail recipes, and the legal side of the Covid crisis
Sir Jonathan Jones, pictured for CSW in 2019. Photos: Paul Heartfield

Sir Jonathan Jones chooses his words carefully. As a civil servant and a lawyer, you have to. But Jones is no longer a civil servant – and so he is finally free to say the things that many have undoubtedly been thinking over the last few months.

This he has done on more than one occasion since resigning as Treasury solicitor and Government Legal Department permanent secretary, through the unconventional medium of cocktail recipes. One he shared on Twitter, featuring No.10 gin and “more heat than light (ginger liqueur)”, instructed readers to “shake chaotically over shards of ice until melt-down”. After inviting suggestions, he named it the Classic Dom .

Reports of tumult and power struggles in No.10 have been widespread during the coronavirus pandemic, with the officials implementing its policies straining to keep up with its last-minute decisions and U-turns. 

“Of course, it did feel pretty chaotic, because this was a national crisis, the situation was changing very quickly and unpredictably,” Jones says. “And the politics of it were obviously very complicated. You had an attempt to strike the right balance between protecting health, but also not crashing the economy, which has proved a really difficult judgement… and what we therefore saw was decisions not being made until the last minute.”

"It did feel pretty chaotic, because this was a national crisis, the situation was changing very quickly and unpredictably"

The effects of this were keenly felt in GLD, the 2,700-strong department Jones was leading until September as many of its lawyers drafted legislation required to tackle Covid-19.

“The legal content of the response to Covid was huge, because of course, it involved legislating for just about every aspect of our life and our economy and public services – often at very high speed. Literally, decisions would be made one evening and it would be the job of lawyers to draft the relevant legislation overnight,” he says.

Government lawyers were working not only on lockdown laws, but on legislation needed to kick off the furlough scheme and other economic support measures; to close schools; to increase Universal Credit payments. “All of that required legal input. I’m sort of in awe of the dedication and the commitment that people have shown – in this case lawyers, I know this is true across the civil service. They exemplified that spirit of responsiveness and commitment. And they just go along with it.”

The last time Jones spoke to CSW, in late 2019, the government had just lost a Supreme Court case over the prime minister’s prorogation of parliament, and was frantically preparing for Brexit. Back then, he said staff had been working “pretty full on for many, many months”. Preparations for the end of the transition period continued in 2020, alongside GLD’s usual business of providing legal services across government, even before the “completely unexpected tsunami of work” Covid brought.

Jones clearly feels a great deal of loyalty towards his former colleagues, occasionally referring to “our people” before correcting himself (“I still feel I have some ownership for this,” he says).

"Decisions would be made one evening and it would be the job of lawyers to draft the relevant legislation overnight"

He is speaking to CSW in December, a week after his civil service career has officially ended – although he notes that he has been “outside the circle, obviously and rightly” of those at the centre of the response to coronavirus and Brexit, among other things, since his resignation was announced two months prior.

His departure was triggered by the government’s plan to use the internal market bill to back out of parts of its withdrawal agreement with the EU. He says the move, which Northern Ireland secretary Brandon Lewis admitted would allow the government to breach international law “in a limited and specific way”, was “utterly disreputable”.

“There is no possible justification for it, in my mind, this willingness to break the law,” Jones says.
“The government introduced its own explanation for what it was doing, Brandon Lewis said what he said and the attorney general later gave her explanation of what was going on. And I completely disagree with it… that’s why I resigned.”

It wasn’t just Jones who was worried; staff had raised concerns about the legislation, which he shared with ministers and then-cabinet secretary Sir Mark Sedwill. Jones adds that he had made it “pretty clear” that he would be forced to quit if the government did not change course. “I did what I could to head off this response,” he says. “Obviously I failed and so the clauses were introduced.”

"The government... was saying publicly that it was prepared to break the terms of the treaty which it had concluded. That seemed to me to be disgraceful"

Ministers subsequently scrapped the offending clauses, clearing the way for a final Brexit deal on Christmas Eve. But Jones says it didn’t change his feelings about leaving. “The point is that the government... was saying publicly that it was prepared, avowedly, to break the terms of the treaty which it had concluded and indeed, implemented into UK law only months before. That seemed to me to be disgraceful,” he says.

“My own view, aside from the legal principle involved, is that it was also just a completely bonkers and hugely damaging approach, for the policy and the negotiations. What kind of message is it sending, both to the EU but also to all the other countries with whom we want to be negotiating trade agreements, or any agreements, that we’re prepared to rip them up if we don’t like them months later? That seems to me to be a really terrible message.”

He adds: “Obviously, I regret the fact that any British government was prepared to do [what it did], because of what it says about its attitude to the rule of law and its commitment to international obligations that it has entered into.

“I also regretted it personally because I didn’t particularly want to leave.” But he has not “for one minute” regretted resigning. “In the event, it was the right thing to do.”

And he has no other regrets from his time in government. “I’ve had a really, really wonderful career. I won’t say I enjoyed every minute but overwhelmingly, I had a great time. Under this government, I’m afraid, some of that changed. And the attitude to lawyers and the rule of law has become, I think, more problematic.”

Does he think Boris Johnson’s prorogation of parliament marked a turning point in the government’s attitude to the law and constitution? “We definitely felt we were being pushed to the limit, in terms of the government’s willingness to comply with the law,” he says. “At that time, the law required us to seek a further extension [to the Brexit deadline] and the prime minister was saying that he wasn’t prepared to do that. So that undoubtedly sent alarm bells around my bit of the system – ‘what does that mean for the rule of law?’”

"It was a difficult, complicated episode but in the end, the system did what it had to do"

In the end, the prorogation was ruled unlawful and Johnson sought the extension. “So we got through that period, but it wasn’t comfortable, and maybe was a sign of things to come,” Jones says. But he adds that the prorogation fell into a “slightly different category” because “it was a difficult, complicated episode but in the end, the system did what it had to do”.

There are those who would prefer that he hadn’t said any of this; civil servants must be impartial, and after CSW published some of Jones’s comments on the legislation in December, some suggested ex-officials should stay that way. Responding on Twitter, Jones noted that he hadn’t breached any confidences – and never would – and that he was commenting on events already in the public domain. “My use of non-mandarinesque language… reflects my strength of feeling,” he added.

That strength of feeling has been reflected a few times on his Twitter account, where @SirJJQC has challenged Eurosceptic MPs’ claims that the Brexit deal was at odds with UK sovereignty. He has also used it to hit out at attacks by home secretary Priti Patel and others on “activist lawyers” challenging Home Office immigration decisions, calling the phrase “crass as well as damaging”.

When CSW suggests it must be liberating to share these opinions publicly, he laughs. “It’s just some tweets… It’s not that I’ve got some kind of agenda. It’s just that there’s plenty to comment on. And there is an awful lot of rubbish talked about these things.” The argument about parliamentary sovereignty, for example, “is completely misconceived, or else people don’t understand what they’re talking about”.

“And I do think the attack on activist lawyers is both unfair and wrongheaded. So if there are things like that I feel I want to comment on, I will.”

The use of Home Office social media channels to deliver political messages about “activist lawyers” was widely criticised last year, with perm sec Matthew Rycroft later saying the language was “incompatible” with civil service guidelines. But Jones, who was previously a director general at the department, says he is “criticising the message, not the messenger”.

“I don’t want to criticise former colleagues and civil servants in the Home Office who are no doubt trying to do their best to serve ministers loyally, which is their job, while keeping the right side of all the various lines that we tread,” he says. 

"It’s damaging to people’s confidence in government: a further sign that it doesn’t really care about the rule of law, it doesn’t understand the law, or it understands and is just delivering a policy agenda"

Jones insists the activist lawyer label is “just factually wrong”. “It’s a misunderstanding of the role of lawyers in the way the system works,” he says. “And I think in the longer term, it’s damaging to people’s confidence in government: it’s [seen to be] a further sign that it doesn’t really care about the rule of law, it doesn’t understand the law, or it understands and is just delivering a particular policy agenda, and who cares who gets trampled underfoot in the process?

“Those are really negative messages to be sending, in this case to lawyers and the legal profession, but I think the damage is wider than that.”

Of the events that dented people’s confidence in the political establishment last year, surely none was more talked about than Dominic Cummings’s springtime journey across the country while suffering from coronavirus. As a lawyer, what did Jones make of Cummings’s creative interpretation of the lockdown rules? “It was desperately unhelpful,” he says. “There we were, trying to persuade the population at large, including civil servants, to abide by both the legal rules and the guidance. And there you had a very senior public figure not doing that. So that definitely set a bad example.”

But he won’t be drawn on whether the government is better off without Boris Johnson’s now ex-chief political adviser, saying: “I don’t know now, because I’m not there.”  

CSW wonders whether, as a recent leader of a government department, Jones sees any merit in Cummings’s criticisms of the civil service – that it is elitist, old fashioned and closed minded, and that its HR practices reward mediocrity.

“I think it’s a bit of a mixture,” he replies. “There is always merit in constructive critique and challenge, and who’s going to claim that the civil service would not benefit from reform? Some of the criticism is absolutely fair.

“I would say, though, that it would be nice if it the criticism could be more evidence based – if it were more obviously based in some kind of proper understanding of what really happens, or what the evidence is now of what the civil service does and how it is constituted – rather than feeling like a kind of undiscriminating attack, which is sometimes how that criticism feels.”

And he suggests that political figures attempting to drive change might have more success if they were more willing to recognise what the civil service does well. “That’s human nature: if you’re given credit for what you do well, you’re more likely to cooperate in the improvement of things that are not so good. And there are things in that category.” Ways of working will have to evolve, he notes, and there are questions about location and diversity that need to be answered.

Many of these questions could be addressed in an ongoing review of the Cabinet Office by the department’s onetime minister, Francis Maude. The review is seen by some wary officials as Lord Maude’s second shot at civil service reform – something he tackled enthusiastically while in office, but which did not always make him popular.

"It’s not perfect and there are new things to change and improve. But the idea of creating GLD was the right one"

“They may be right to be nervous, I don’t know what he’s going to say and he may or may not be right,” Jones says, laughing. But he says he draws “some comfort” from the fact that when he and others were reforming the legal function, Maude was supportive. “I would focus on that, wouldn’t I? But it is encouraging when you’ve got somebody that recognises that.”

Those reforms are especially close to Jones’s heart; reflecting on his 30-year civil service career, the erstwhile Treasury solicitor says his role in creating GLD in its current form is “the one big thing that I’m still very proud of”. He began leading GLD’s forerunner, the Treasury Solicitor’s Department, in 2014, and oversaw its transition into what he has called a “better, more joined-up and efficient legal service” the following year.

“It was quite a big structural change for the profession,” he says. “It took many years to accomplish and, like any change, involved some winning of hearts and minds, but we did it. And I think, overwhelmingly, it was a success. It’s not perfect and it’s five years since we created GLD, so there are new things to change and to improve. But the actual idea of creating GLD was the right one.”

He adds: “And that absolutely put us in a much better place to respond to the challenges of Brexit and Covid than we would have been in the old, rather loose, federated model.”

Jones on... having fun at work

Even when times have been strained, Jones says he has followed the example of his predecessor as Treasury solicitor, Sir Paul Jenkins, who “attached a lot of importance to having fun in his working life”.

“I’ve certainly tried to do that. Even when you’re dealing with really serious things, there will normally be a funny side, and I’ve always been quite keen to make most of the funny side. Even if it’s gallows humour, which it sometimes is. And I have had fun – lots of fun.”

He recalls, with some amusement, being sent by then-cabinet secretary Jeremy Heywood to sound out a former judge for an inquiry. “I would be asked from time to time when the government wanted to set up a public inquiry, to go and try and bully some retired old man – because he would tend to be a man – out of retirement to chair it.

“It was a bit of a hospital pass for him and a bit of a poisoned chalice but nonetheless, [then-Cabinet Office ethics chief Sue Gray and I] concluded that he might be the right person. We came back and reported to Jeremy and Jeremy said, ‘Well, he’s not too posh, is he?’ They tend to want someone who can understand the public they’re dealing with, so Jeremy was a bit concerned. And I said to him, ‘He’s got a knighthood and two homes, and a double-barreled name. But then he’s a retired Court of Appeal judge, he’s going to be a bit posh.’”

Had the controversy over the internal market bill not happened, Jones would have had around 18 months left at GLD. So although his departure was unexpectedly abrupt, he says he had already begun to think about the future. At 58, he’s not ready to retire yet and is expecting to move to the private legal sector.

But he has never had a meticulous long-term career plan. “In retrospect, it may look as if my career was very carefully planned, and it’s all gone terribly well. But it wasn’t really planned at all,” he says. “I was encouraged by a boss early on to be open to doing new things and taking an unplanned route through my career, and I think that’s good advice and I’ve done it. In any given job, I hope I did a good job. And then something else would come along.”

From the Office of Fair Trading, where he joined the civil service in 1989, that approach took him all over government. He has been the Department for Education’s legal director, the head of the Attorney General’s Office and the Home Office’s legal DG, all of which led him to becoming the government’s most senior lawyer. 

“I just sort of did it. And I’m glad I did. Being open to new things and not over-planning your career, I think is good advice for a whole load of reasons,” he says.

Before the pandemic hit, Jones had envisaged taking some time to travel before his next move. Australia, perhaps, to visit his sister; or New Zealand, where he’s never been. “It is a shame that some slightly more intrepid travel won’t be possible, but I’ll find something to do – just having a break,” he says. “And look, the one thing I’m not worried about is how I will amuse myself and relax for the next few months.”

Jones will also make his first public appearances since stepping down, with some lectures lined up early in the year. And of course, there will be plenty of cocktails. 

 

 

 

Read the most recent articles written by Beckie Smith - HMRC begins move into Birmingham hub

Categories

Brexit Legal
Share this page
Read next
Partner content