Former Whitehall legal chief warns of civil service ‘strains’ in face of Brexit

Former head of the Government Legal Department Sir Paul Jenkins says Whitehall needs better political guidance on Brexit priorities


By Richard Johnstone

19 May 2017

Sir Paul JenkinsCredit: Photoshot

A former top government lawyer has told Civil Service World that Whitehall leaders will need to take action to ensure the wellbeing of civil servants during the “very long, tough haul” of the Brexit negotiations.

Speaking at the launch event of the Brexit Exchange forum for UK and European businesses to set out their priorities for the talks, Sir Paul Jenkins said the process represented the biggest challenge for the civil service outside the second world war.

Jenkins, who was head of the Government Legal Department and permanent secretary to the attorney general from 2006 to 2014 and who is now a practicing barrister at Matrix Chambers, said he was confident that the civil service had the brains and capability to deliver Brexit, if not currently the capacity.


“What you need more than anything else is the resilience that civil servants are used to,” said Jenkins, who first joined the Government Legal Service in 1979 and was also a civil service diversity champion in his time as head of the legal department. “We got through the opening days of the coalition, in fact we got through the whole of the coalition, we’ve all done really difficult things.

“We need to focus in on resilience and wellbeing because actually this is a very, very long tough haul.”

Civil service chiefs will therefore need to “recognise the strains” that will be caused by the negotiations, he told CSW.

“I think there is a big leadership issue for the leaders of the civil service, recognising that the strains and the stresses that they will be under but also their teams will be under.”

He said he agreed with Jonathan Powell, a former chief of staff to Tony Blair in 10 Downing Street and fellow speaker at the Brexit Exchange launch event, that the leaders at the Department for Exiting the European Union – Oliver Robbins, Philip Rycroft and Sarah Healey – were among “the brightest and best” civil servants he worked with.

“So if anyone could pull it off, they can, but it is going to be a very long haul,” Jenkins said.

But there was a question over the capacity for Whitehall to prepare for all the possible outcomes of the Article 50 talks and negotiations for a future trade deal, and he indicated the service needed ministers to set out a greater sense of direction.

The time since the referendum has been to “prepare and prepare and prepare”, he said, but there now needs to be progress on setting out priorities “quite quickly”.

“They have done all the basic research, and they have had this time to do it, but they have to be told what to do. They need to have a sense of direction and they haven’t got it at the moment,” he said.

The “worst nightmare in Whitehall was the need for twin-track planning”, he said – to prepare for both an agreed EU exit deal and the possibility of leaving the bloc without a plan for Britain’s future relationship in place, he told attendees at the Brexit Exchange event. 

He subsequently told CSW there were not only two options, but “quite a wide variety of potential deals", which was one of the capacity issues that he said “keep coming up” alongside questions about the ability of government to negotiate trade deals with other countries.

“You may not know until the last minute which of the deals is going to be done, but you’re going to have five minutes to give effect to it then,” he said. “That is why you need quite draconian powers to change the law [proposed in the so-called Great Repeal Bill] with very little parliamentary approval, because you’ve got to do so overnight in some cases.”

More detail would therefore need to be forthcoming to allow the civil service to plan, he added.

“There are perfectly good reasons why they don’t know at the moment, I’m not being critical when I say that, I’ve been very clear that it would be insane for Theresa May to go frequently to the House of Commons and say 'this is my negotiating position',” he said.  

“Of course she is keeping things close at the moment, but at some point she has got to start sharing a bit more with the civil service, and I’m sure she will because otherwise she won’t be able to do anything.”

Jenkins was speaking to CSW at the Brexit Exchange project, a forum to help UK and European businesses tackle the complex Brexit negotiations that is sponsored by CSW’s parent company, Dods. 

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