By Matt.Ross

16 Nov 2011

Treasury Solicitor Paul Jenkins is the permanent secretary champion for equality and diversity. His motivations are very personal but, as he tells Matt Ross, the strongest arguments for equality are rooted in business success.

Public expressions of prejudice, Paul Jenkins (pictured above) points out, are no longer considered acceptable across large swathes of British society. “One of the things we’ve achieved over the years is that we’ve made the racist, sexist, homophobic, anti-Semitic people go underground,” he says. “Almost nobody will make an overtly racist remark any more.” But this does not, he adds, mean that the bigots have been defeated: “They’re now much more subtle, much more insidious. We’ve made the racists become clever.” Even within the civil service, he says, “I’m sure there is still quite a lot of subconscious – or even deliberate – bad behaviour.”

Such subconscious prejudice may help explain the fact that, while in 2010 some 9.2 per cent of civil servants were from ethnic minorities – roughly equivalent to the proportion within wider society – among senior civil servants (SCS) the figure is just 4.3 per cent. Similarly, while 53 per cent of civil servants are women, the proportion drops among SCS to 36 per cent. Those aggregated figures, however, conceal some striking differences – and in the Treasury Solicitor’s Office (TSol), where Jenkins is the chief executive, 2011 data reveals that about 15 per cent of SCS are from ethnic minorities, and 56 per cent are women.

These statistics help explain why the cabinet secretary asked the TSol chief to replace retiring defence permanent secretary Bill Jeffrey as the permanent secretaries’ ‘diversity champion’. “Gus said: ‘You seem to have cracked it. You’d better do it for the civil service!’” Jenkins recalls. But there’s another reason why Paul Jenkins – a white, male, middle class baby boomer like so many of his colleagues – knows something about diversity issues: personal experience.

“When I was very new [in the civil service] I wasn’t ‘out’ as a gay man. I was in a very friendly, very liberal office, but there was a lot of what people call ‘harmless banter’ – and it sure wasn’t harmless banter if it was about you,” he remembers. “I remember being very, very nervous about anybody saying to me: ‘Why don’t you go and work for the Ministry of Defence?’ because I knew I’d have to be what was then called ‘positively vetted’.”

In the end, says Jenkins, the time he spent feeling “very uncomfortable” about his place in the civil service “just encouraged me to come out – and it was fine after that”. But the experience left him with a profound commitment to furthering equality of opportunity within the civil service: speaking earlier this month at the Civil Service Diversity & Equality Awards (see news) he emphasised that, for him, the moral case for equality is utterly convincing.

He knows, though, that if diversity issues are to win out in hard-nosed budgetary calculations, they’ll have to do so on their business case; and this, he argues, is also cast iron. For the civil service to successfully understand and serve an increasingly diverse and multi-ethnic country, Jenkins believes, it must both contain a similarly diverse range of people, and make full use of all of their talents.

Diverse challenges
It is Jenkins’ misfortune to be pursuing this agenda at a time of savage budget cuts and large-scale redundancies, particularly among senior officials – factors that are reducing the opportunities to get more women and minorities into the SCS. Coaching schemes designed to propel talented black and minority ethnic (BME) staff up the ladder are, he admits, “not hitting their aspirations, I think as a result of the fact that it’s harder to get into the SCS at the moment.”

Meanwhile, Jenkins fears that disabled people may suffer disproportionately in redundancy schemes. “Some people with disabilities may have more hospital appointments, for example,” he says. “If redundancy [decisions] consider attendance records, will they be singled out?” There is, then, a danger that the next civil service staff survey results will show a declining proportion of disabled people. “It will be a scary few days waiting for those figures,” comments Jenkins, who acknowledges that at a time of such pressure on budgets, “there is a risk that people deep down in organisations may take their focus off diversity and focus very narrowly on bottom line cost issues.” The only solution, he argues, is for very senior officials to loudly proclaim that staff diversity is essential to their businesses. “Diversity is even more important at the moment, because of the business case,” he says. “That’s got to be the mantra – and it’s a mantra that you have to keep pushing down from the top to the middle managers, because as the holder of a small budget you’ve got to be very visionary to see that.”

Jenkins himself is not, of course, immune to those budgetary pressures. Despite rising costs, TSol – a trading fund – has kept prices frozen for four years; in the spending review, Jenkins agreed to cut his prices by five per cent and hold them there until 2014. Hired in 2006 as someone who would drive down costs, Jenkins soon introduced a Cabinet Office-style control regime on recruitment; applied ‘Lean’ management techniques to flabby business processes; cut back on administrative staff while protecting his fee-earning legal experts; stripped away the ‘gold plating’ of some less sophisticated areas of work; and outsourced much of TSol’s bulk, low-value case handling to specialist firms, such as personal injuries claims handlers, that could squeeze costs. The latter policy has been something of a double-edged sword – “One of the problems of pushing the low value work out is that when you’re under cost pressure you’d quite like some of it back!” he admits, before adding wryly: “It’s actually been a huge success, and one that I don’t really regret.”

The business of government
Some of Jenkins’ success in cutting costs clearly rests on his own ideas and leadership; but TSol’s structure as a trading fund, he believes, has also been important in concentrating its work around its core objectives. “I’ve been Treasury solicitor now for just over five years, and right from the start what I really wanted to do was change the culture so that people felt it was first and foremost a legal business they were working in – but to do that without losing the civil service’s culture and values,” he says. “One of the things that’s really important about having a classic business model is that you have all the business drivers; it’s far easier to be efficient if you have that quasi-commercial drive.”

Having slimmed down TSol’s overheads and streamlined its processes, Jenkins believes he can run government legal operations significantly more economically than in-house departmental units – and the environment department evidently agrees: Defra has just passed its large legal team over to TSol. “The Defra lawyers are still mainly located in Defra, but they’re now employed by TSol and we charge Defra for the work we do,” he explains. “We reckon we’ll do the work more cheaply than it was being done in-house, but at least as professionally and efficiently.”

More controversially, TSol is working with Cabinet Office minister Francis Maude and attorney general Dominic Grieve to “create something pretty close to a single shared service for employment law”, says Jenkins. “We now have a classic Francis Maude ‘comply or explain’ regime: if departments want to keep their own employment lawyers or expand their own employment law teams rather than use my services, then they’ll have to justify it and show that the business case makes sense. We’re just about to go through the first of the ‘comply or explain’ exercises.” By centralising the provision of all employment law services, the government believes it can drive down costs – and as Jenkins points out, this year’s wave of redundancies is creating an awful lot of legal work: “In the current climate employment law – both litigation and advice – is quite big business.”

“The other area in which the government is rightly concerned to get much more coherence and consistent professionalism is commercial and procurement law,” continues Jenkins. “That’s an area where traditionally civil service lawyers have done some of the work, but they’ve liaised very closely with big private sector providers. Some departments have very large, very efficient legal teams doing that; others less so.” The government’s solution, he explains, is for Jenkins to hire a “general counsel (commercial), reporting directly to me but based in the Cabinet Office’s Efficiency and Reform Group”.

Working with the ERG’s procurement chief John Collington, Jenkins’ new hire will build a team to “troubleshoot on difficult commercial issues in other departments and in Cabinet Office work, and also begin to look at the geography, the structure, the architecture around commercial and procurement work across legal Whitehall to see if it can be done better and more efficiently.” It sounds like the groundwork is being laid for another ‘comply or explain’ regime, I suggest. “We don’t know,” he replies, adding that one of his new recruit’s tasks will be to “see whether there is scope to go down that route”.

Doing less for less
As well as carrying out government legal work more efficiently, Jenkins also has a role – one less well served by his trading fund business model – in reducing the government’s litigation caseload. “Part of my long-term strategy is to help departments avoid needing my services in the first place,” he says; he cites work he’s done with the Prison Service to improve records systems, shutting down opportunities for prisoners to claim extortionate compensation for lost property. “The system couldn’t prove that you hadn’t come in [to prison] with a Rolex and a fantastic pair of trainers,” he says. “We spent an absurd amount of time defending these daft cases, and now we’ve cut right back on that.”

At the other end of the legal glamour spectrum, Jenkins has led work to settle claims when appropriate rather than fighting on – most obviously the cases brought by the British residents held in Guantanamo, which “were probably going to take ten years and cost us £100m to fight”. Jenkins has “no doubt that we could have won if we could have fought properly, but a lot of the evidence was such that if we disclosed it, our relationships with the Americans would have become very difficult. This was a case that cried out for mediation, so we mediated and we settled it.” Though Jenkins says he can’t reveal the terms of the settlement, last month justice secretary Ken Clarke inadvertently told the House of Commons that “we had paid out a total of £20m, together with costs”.

In part, it’s high-profile work such as this which enables Jenkins to recruit talented lawyers in a jobs market which pitches TSol against high-paying criminal and corporate law firms. “There are a lot of lawyers driven by money,” he notes. “And there are trainees in the American law firms in the City now that are hitting six figures straight out of university. You have to be the legal adviser to quite a big department to hit that. So why would they come and work for me?”

The answer, he explains, lies partly in the variety of work undertaken by TSol staff: City lawyers “specialise, and get narrower and narrower throughout their careers, while we still follow the civil service generalist model, allowing people to move around”. But the main attractions are “a combination of alternative working patterns, work-life balance, part-time working, and fascinating work.” This flexibility around working hours and locations attracts parents – particularly women – who want to fit work around the kids, boosting the number of high-flying female lawyers who stick with TSol and move up into the SCS.

The race to recruit
Jenkins is less clear about why TSol has so many BME SCS, but there are several possible explanations. For some years the department has invited groups of local schoolchildren in to explore its work, and Jenkins ensures that the kids come into contact with – and, hopefully, are inspired by – high-flying BME lawyers. More immediately, recruits to TSol’s legal training scheme – “our equivalent of the Fast Stream,” says Jenkins – are chosen in a ‘blind’ process, in which selectors aren’t shown applicants’ names or even their universities.

It may also be relevant that the civil service has what Jenkins calls a “really good brand”, compared both to City lawyers and to professionals in other fields such as finance, politics and the media. “We haven’t had hacking, expenses. Try as they might, the Government Procurement Card never really takes off as a scandal story,” says Jenkins, adding that the new Head of the Civil Service will have the job of “getting out and about and saying [to the civil service]: ‘Actually, we think you’re fantastic – and ministers privately think you’re fantastic.’ You will never get ministers to stand up and say: ‘We love the civil service very much,’ because there are no votes in that – but we’ve got to do it.”

Finally, up-and-coming BME lawyers may simply feel more comfortable in the civil service in general – and in TSol in particular – because minorities are both better-established and better-understood than in parts of the private sector. Many big FTSE businesses are, says Jenkins, “way, way behind” the civil service on diversity issues; in some fields, “it’s like the civil service was 30 years ago: a little light is just beginning to go on.” Jenkins is, he adds, involved in a mentoring scheme to recruit more women onto FTSE company boards. “It seems to me that it says quite a lot about the City that they’d think to ask a male permanent secretary to mentor women onto FTSE 100 company boards,” he says quietly.

A look ahead
Asked what he’ll be focusing on as diversity champion in the coming months, Jenkins picks out the system for arranging ‘reasonable adjustments’ to working environments for disabled people. A recent report examining why levels of engagement are so low among disabled staff unearthed some stories that, he says, make for “horrifying, really awful reading. People can take a year to get a reasonable adjustment, and you immediately think that’s got to be incompetence or malice.” In fact, he says, many of these delays occur because, with many elements of the working environment run by third parties such as estates management and IT firms, the civil service has limited control – but there’s still plenty of room to improve the system, he believes: “We need to get better, whether we centralise the handling of reasonable adjustments through civil service HR or whether we move, for example, to a series of centres of excellence” – the latter designed to advise and support smaller and less experienced departments.

Beyond that kind of specific initiative, says Jenkins, “possibly the most important thing, and the easiest and softest thing to do, is simply to provide visible leadership: to go out and about, and show people that this matters to the civil service.” He’s also won agreement from the Civil Service Capability Board for the retention of the diversity targets, under which the SCS should comprise five per cent ethnic minorities and 36 per cent women by 2013. “Targets may be falling out of fashion,” he comments, “but it seems to me that, given the stately progress we’re making towards these targets, it would be shocking to throw them away. It would look as though we knew we were going to fail.”

In the future, Jenkins argues, the civil service will have to become “more businesslike. We need more entrepreneurialism in the civil service, a coalition between ministers and officials”, and a less risk-averse culture; currently, he comments, “you can have a risk-averse official working with a risk-averse minister, and nothing ever happens. That’s not an unusual combination.”

In order to adopt this more businesslike approach, Jenkins believes, the civil service will have to reinforce its commitment to improving and supporting diversity – for greater diversity will, he insists, strengthen the civil service’s efficiency and its ability to realise its objectives. “I took the whole issue of diversity to the Civil Service Capability Board a few weeks ago, and asked them: ‘Do we still care?’” he recalls. “I was being deliberately provocative, and I got a fantastic response – almost a more passionate response than one could have hoped for. And why do we still care? Because it’s morally right – we shouldn’t have inequality, discrimination – but also because the business case for diversity has always stood up. And that’s particularly true in the current climate.”

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