By Matt.Ross

20 Mar 2014

Sir Paul Jenkins has spent his time as Treasury solicitor creating a shared legal service, and tackling discrimination. As this very unusual barrister retires, he gives Matt Ross his final, divergent verdicts on the progress in both fields

By any standards, Sir Paul Jenkins has had quite a career. He made it from a state school to train as a barrister at Middle Temple – where in 1977 he met Patricia Scotland, another London state school pupil tipped for success – then joined the Government Legal Service (GLS). After a 29-year tour of the departments he became Treasury solicitor, working for attorney general Lord Goldsmith; a year later, Goldsmith stepped down and was replaced by the now-ennobled Baroness Scotland, whom Jenkins served until the 2010 general election. Since then he’s notched up another four years under current attorney general Dominic Grieve – making him the longest-serving Treasury solicitor in nearly half a century – and won plaudits for his work as the permanent secretary diversity champion. Given all this, it’s something of a surprise to hear him talking – in an interview given in the week of his retirement – about his “strong sense of failure”.

Jenkins is referring to his own achievements as diversity champion: specifically, he hates the fact that the proportion of ethnic minority candidates making it into the senior civil service is in decline, and regrets that he hasn’t been able to publish a new diversity strategy. “We made a bit of progress on getting black, Asian and minority ethnic people moving into the senior civil service – but it stalled, and it’s now getting worse. Those figures are quite frankly disgraceful, and we are struggling to make any improvement at all,” he says. “I remain profoundly depressed about that, and I feel quite a strong sense of failure in that regard. And I do also feel a strong sense of failure that we have not got a strategy.”

These are strong words from the civil service’s own diversity champion – particularly given that Jenkins can’t be depicted as one of the recalcitrant, Sir Humphrey-ish Whitehall warriors believed by some coalition ministers to be obstructing government policies. Quite the opposite: he’s the architect of a shared services programme often held up by Cabinet Office minister Francis Maude as an example of best practice in civil service reform. The Treasury Solicitor’s Department (TSol) is currently absorbing legal teams across Whitehall, in the culmination of a huge change scheme which has delivered efficiency savings of 7% every year since Jenkins took the job.

There is, then, plenty to talk about. But let’s start with Jenkins’ day job as one of the government’s most senior legal advisers and troubleshooters: which have been his most interesting cases? Negotiating a settlement with the British Guantanamo Bay detainees was “probably the most interesting, most difficult thing I’ve done”, he replies; by enabling the courts to hear intelligence evidence in secret, he believes the subsequent Justice and Security Bill “will make a big difference to our ability to defend cases in a way which is fair to both sides.”

He also mentions the current set of reforms to the operation of judicial review – a court proceeding which, he believes, increasingly clashes with the democratic mandates of elected governments. “Judicial review is hugely important; I’ve described it as the jewel in the crown of common law,” he says; but because it evolves by case law, “every so often you need to stand back and look at where you are. And all the changes that have come in through that evolutionary process have made it harder for government to govern.”

Jenkins cites the court challenges to the education secretary’s cuts in the Building Schools for the Future scheme: “We had a very clear, strong, manifesto commitment to take away the funding that was going in there. And we had the courts appearing to second-guess the democratic will of the people,” he says, adding that in such circumstances ministers respond: “Why are the courts telling us we’ve got to consult yet again? We consulted the electorate!” If the current Criminal Justice and Courts Bill becomes law, says Jenkins, it will create a “degree of necessary rebalancing” between the powers of the judiciary and the executive.

Jenkins’ biggest task, however – and, from the civil service’s perspective, his most powerful legacy – has been the unification of much of the GLS within a single management structure: over the course of a year, TSol is absorbing the legal teams of the communities, energy, transport, health, and work & pensions departments, plus the ministries of defence and justice and the Home Office. By the summer, TSol’s workforce of lawyers will have grown from 700 to 1700, omitting only some HMRC staff and the business department’s legal team.

Asked what risks are involved in merging departmental teams into a shared service, Jenkins names two. The first is to produce efficiency savings whilst retaining the public service ethos. In 2006, he recalls, “we didn’t even have the most rudimentary financial information systems. We were charging our clients, but we didn’t know whether they were paying us or not – and when they didn’t pay us, we couldn’t pay the staff!” He’s since “imported a culture from business, from professional practice” – buying in IT systems, for example, and farming out low-value litigation work – “but the trick has been to combine that hard-edged business approach with the public service values that motivate people. If you lose the public service side to this place, people might as well go and earn a lot more money in the private sector.”

The second big difficulty is creating a sense of shared purpose and a common identity as TSol staff: “We are bringing together a lot of different teams, each with their own culture, embedded in their departments,” he says. “Preserving their links and their empathy with their client departments whilst at the same time making them feel part of a single shared service is the biggest cultural challenge.”

Looking ahead, Jenkins says improving efficiency will restrain government’s ever-spiralling legal bills – ensuring they “grow significantly more slowly than the volume of legal business.” And are there ways to reduce demand for TSol’s services? “If the current reforms of judicial review work; if the changes to the immigration judicial system work, then it might be that eventually there will be fewer jobs here – but I don’t see it coming anytime soon”.

This is partly the case because, in Jenkins’ view, this is one field within which the public sector can offer better value than private businesses. In other new shared services, such as training provision, government has outsourced much of its delivery work – but in the legal field only the “low-value, straightforward litigation work” such as personal injury and debt cases are most efficiently handled by private firms, says Jenkins; and the current mergers won’t bring in much of that.

In fact, he explains, TSol has been “taking employment law work back from the private sector providers who’ve been doing it for years without any very rigorous control on their costs” – and saving millions in the process. “I’ve always been absolutely clear that if work can be done better, more efficiently in the private sector, then that’s what should happen,” he says; but with “most legal work, it’s cheaper to do it in-house than outsource it.” Remember, Jenkins says, that “my job isn’t to make a profit, but to ensure that my clients get the cheapest possible deal consistent with high professionalism. I’m not in the business of ripping off my clients, or over-charging, or charging what I can get away with. The private sector don’t understand that at all.”

Along with his expanding employment law team, there’s another big field of work that Jenkins wants to see handled by TSol rather than farmed out to private practice: “I hope we will be able to build a similar capacity in relation to commercial law,” he says, noting that his successor – former Home Office and Northern Ireland Office legal adviser Jonathan Jones – is “looking at proposals which he will put to the Efficiency and Reform Group [ERG] in the very near future about how we think we should reorganise commercial law in government at the centre.” There are obvious synergies with the work of the ERG’s Crown Commercial Service (CCS), which is strengthening central management of the departments’ procurement professionals: TSol, says Jenkins, will “have done what ERG aspired to do right at the outset: all the lawyers will be here.”

This should boost the CCS’s efforts to unify departments’ approach to procurement – and strengthen the government’s ability to recruit commercial lawyers to boot. “I hope, by creating a bigger critical mass of commercial lawyers, we’ll make it a more attractive place for people to work and therefore we can recruit people from the private sector more readily – and take work [back] from the private sector as well,” says Jenkins. This benefit is particularly valuable to him because, whilst the chance to work at the “interface of law and politics” helps TSol compete for staff with private firms, that effect is weakest in fields such as commercial and property law. “If people are any good, in the main they take a pay cut to come here,” Jenkins points out. “And if you’re doing commercial law, it’s a big pay cut.”

In the field of law, then, Jenkins sees many benefits to creating a single, shared service that can “cut across departmental boundaries and make things work in a much more efficient, much more joined-up way.” And in his view, there’s no fundamental difference between law and other support services such as HR: “I don’t think I’ve heard anyone even begin to explain why we’re different, and I really don’t see why we are,” he says. Yet he’s heard his own staff complaining at the prospect of joining, for example, a shared HR service: “I’ve said: ‘How can we, of all people, say: ‘No, it might be alright for everyone else, but not us! We must go into it’.”

Jenkins dismisses concerns about accounting officers losing control over the functions for which they’re accountable: “The permanent secretary of the Department for Education has taken his legal services from TSol forever, and his chief lawyer is as accountable to him as she is to me.” And the complexity of bringing together staff employed on differing different terms & conditions is “an irritant, but nowhere near as big a block as one might think.” Jenkins is careful not to express a view on whether policymaking could ever be brought under one roof, but he’s convinced that other support functions can benefit from moving into a shared service.

And so to diversity, and a far less rosy picture. Jenkins is proud of the progress made on gender equality: the permanent secretary cadre might again be dominated by men, he says, but “if you look at the pipeline, the people coming through, it’s getting better.” And he points to the many individual initiatives underway to help black and minority ethnic (BME) people climb the greasy pole: groups such as the Minority Ethnic Talent Association, he says, get huge support from people at the very top of the civil service.

However, he sounds less happy about the picture for disabled civil servants: their staff engagement scores are well below average, he notes – pointing out that, on average, it takes a full year to win a ‘reasonable adjustment’ to a workplace. This timescale could be dramatically shortened by establishing a central reasonable adjustment team, he says: a centre of expertise in pursuing and delivering adjustments. He’s been running pilots with permanent secretary disability champion Lin Homer, the chief executive of HMRC, to “work out whether central reasonable adjustment teams can make a difference – and I think they can.”

Meanwhile, on the crucial metric of BME staff entering the senior civil service, Jenkins is deeply unhappy. “I’ve failed to make any progress at all in relation to BME and the SCS, and that’s just a shocking thing,” he says. “I remain profoundly depressed about that”. Asked why progress has stalled, he points to the austerity agenda: “One of the things we were always very conscious of was that as the civil service shrank in size, the opportunities for promotion into the SCS were going to get fewer – and that’s undoubtedly happened,” he says; the disappointing number of BME people entering the top grades is “primarily due to a restriction in the number of opportunities that are there.”

Subconscious discrimination is another problem, he says, recalling a conversation with a black woman – someone “right on the cusp of the SCS” – who “said to me: ‘When I prepare for an SCS interview, one of the things I do is try and think myself into being a white man.’ That is shocking because it isn’t about diversity; it’s about stifling diversity. There’s undoubtedly a perception that the SCS is white and male and has certain cultural mindsets that are subconsciously discriminatory.” The solutions, Jenkins suggests, include dedicated training and the selection of more diverse panels – even if that means that officials have to “stop obsessing about grade”, and put a more junior civil servant on the panel.

The other key disappointment for Jenkins is his failure to push through the publication of a new diversity strategy. “I would have liked to have had, before I left, a clear, strategic approach in place,” he says. The ‘One Year On’ update to the Civil Service Reform Plan, he points out, promises that “there will be a diversity strategy in place by March 2014. That won’t happen. I don’t think it’s been mentioned yet, but it won’t.”

The previous strategy expired in 2013, he says, and “I believe very strongly that we need a single, coherent approach across the whole of the civil service. We need to know where we’re trying to get to. It’s not good enough to say we aspire to look like the population we represent. In London, the BME population is 40-plus per cent: that’s a ludicrously far-off aspiration. We’ve got to show how we get there, through milestones or whatever.”

Jenkins doesn’t use the word targets, but it’s clear what he’s getting at: unless the government puts a clear set of metrics in place, he worries, senior officials won’t prioritise diversity issues. But he’s the diversity champion: why hasn’t he managed to publish a plan? “We’ve produced various versions of the strategy,” he replies: the work was first paused to await the production of the Civil Service Capability Plan, then stalled by discussions over how to pursue its gender equality elements. Those debates have now resulted in the commissioning, via the Cabinet Office’s Contestable Policy Fund, of work into the representation of women within the SCS – but there was a significant delay: “That has taken what I regard as a disappointingly long time to get agreement on,” he says. The reasons set out for each pause sound sensible enough – but asked whether he’s encountered obstacles that have prevented him from delivering a strategy, Jenkins replies: “I think if everyone thought that a new strategic approach to diversity was as important as I think it is, we wouldn’t still be waiting for a strategy”. It sounds like he has fought some major battles within Whitehall – but victory has obviously escaped him.

So Paul Jenkins is clearly very disappointed – but as he enters his retirement, he does seem confident that both of his cherished agendas are in safe hands. The diversity brief will pass to Simon Fraser, the Foreign Office permanent secretary: asked whether it sits easily in the hands of a privately-schooled, Oxbridge-educated white man, Jenkins responds that he himself only ticks “one of the ‘protected characteristics’ boxes” (he is the first permanent secretary to be in a civil partnership) and talks of Fraser’s passion for and commitment to the subject. “The test is: how credible are you when facing diversity groups or addressing events?” he says. “And I have complete confidence that Simon will be credible; if you’re talking with conviction and understanding, that’s what matters.”

The new Treasury solicitor Jonathan Jones, meanwhile, is a former deputy Treasury solicitor and a onetime head of the Attorney General’s Office. Lawyers across government know Jones, says Jenkins – and know that he’s “an absolutely first-class lawyer, and someone who really understands the way that law and politics operate right at the heart of government.”

Retirement won’t suit Jenkins, an energetic figure who loves the intrigue and complexity found at the intersection of law and politics – but he’ll find plenty of things to do (for a start, the New Zealand government wants his advice on creating a shared legal service). His activities certainly won’t include giving grumpy quotes to newspapers, moaning about how everything in the civil service was better in his day. “So much of what we do is fantastic; really awe-inspiring,” he says. “And yet we do it in an era of considerable transparency: we’re much, much more open to scrutiny.”

These days, he points out, select committees are “seeking to reassert the credibility and authority of Parliament through greater power; greater holding of officials to account.” And the media, generally, is “only interested in bad news stories – which these days come out in a much clearer, more transparent, more political way.” It is now, in short, a more uncomfortable time to be a civil servant: “If you get something wrong, it’s going to be much more painful that in the old days when you could, umm…” For a fraction of a second, his lawyer’s ability to spot beartraps eludes him, “….when it wasn’t quite so public,” he finishes smoothly.

Yet the civil service is, in 2014, “as good as it’s ever been,” he says. “Nobody ever talks about the good news stories, but they’re there. And I leave the civil service as proud a civil servant as I was the day I joined.” Paul Jenkins richly deserves his retirement, but he’s really going to miss being a civil servant. And the civil service is really going to miss him, too.

Read the most recent articles written by Matt.Ross - Kerslake sets out ‘unfinished business’ in civil service reform


HR Leadership Legal
Share this page