Over fish and fizzy water at Lutyens on Fleet Street, the former Treasury Solicitor and head of the Government Legal Service, now at Matrix and soon to be patron of the Public Law Project and treasurer of Middle Temple, discusses his Brexit blues, prime ministers and his Leveson claim to fame, and defends control orders.
Sir Paul Jenkins was in sombre mood when I met him, minutes after Sir Tim Barrow had hand delivered Theresa May’s letter to Donald Tusk, firing the UK’s Brexit starting gun.
A consummate Europhile, as a schoolboy he belonged to the Young European League and since 2009 he has been in a civil partnership with a Dane – now one of Theresa May’s ‘bargaining chips,’ he notes.
Having worked at the heart of Brussels, he says: ‘I didn’t have to spend very long there before I slightly fell more in love with the project, because it just makes sense. It’s all terribly sad and a dreadful mistake.’
Jenkins joined the Government Legal Service in 1979 and for eight years, from 2006-14, was the most senior lawyer in Whitehall. Out of government, safely ensconced at London’s Matrix Chambers, his advice to Mrs May as she seeks to steer the UK through the choppy Brexit waters is to ‘start managing-down the expectations of her Euroscpetic right.’
‘If she doesn’t – and if she carries on allowing them to believe that we are going to leave the jurisdiction of the European Court of Justice (ECJ) totally and utterly, have tight controls on immigration, and have nothing to do with the customs union, we will get the hardest of hard Brexits — and that will be catastrophic.’
Still relatively new to the office of PM, he says, the party won’t want to kick her out yet, so she needs to start standing up to them.
Watch out over the next year, he says, for a ‘softening of language’. Something he detected in the speech May gave to Parliament just after that letter was delivered. ‘Already she has started softening her language on the ECJ – very carefully. Instead of saying “we’re going to be out of the ECJ”, she said “we’re going to make sure the ECJ has no jurisdiction in Britain”.’
Her ‘carefully crafted words,’ he says, indicate that she sees the need to make the Euro-toxic right recognise that you cannot operate in a world of free trade or regulated trade without supranational courts, and the ECJ is going to be part of that.
Find an early compromise on the ‘bargaining chips’ and residence, and on the money, he suggests, predicting the UK will have to ‘pay quite a lot’ into the EU coffers before quitting.
‘It’s not just about [Nigel] Farage’s pension; there’s a lot of other stuff. There’s a lot of planed investment by the European Investment Bank into the UK. If we don’t pay our share, they can just say “why should you have the money?”’.
One of the difficulties, he says, is separating the ‘rhetoric and posturing’ from the reality. In the debate over the sum the UK will we’ll pay, different players, he says, are ‘just waving figures around’.
‘We go €5, they go €82 million – it’s just like any other negotiation, only it’s being conducted by megaphone’.
And if May refuses to cough up, while he says there is a ‘respectable argument’ that the EU may sue for some liabilities, he thinks it unlikely.
Having pressed the Brexit button, there is a two-year deadline to agree an orderly exit. But, Jenkins points out, nothing much is going to happen before the French and German elections are out of the way. And then it seems to be accepted that there will be a six-month ratification process – by the British and European parliaments – which leaves about a year of ‘hard arguing in the middle’.
Explaining the process he says the two-year period will merely establish a framework, before the really hard stuff begins. Achieving a fully-formed, legally-binding articulation of our long-term relationship with the 27 states, he predicts, will take longer than two years.
And while so far there has been much talk about article 50, now comes article 218 – which, he explains, is the treaty provision that deals with agreements between the EU and third countries.
Using the clichéd analogy of a divorce, he states: ‘Article 50 is where you sort out who gets the house, who pays the maintenance and you get some fairly high level principles about what happens to the kids.
‘Article 218 is the really hard grind about which schools they go to, who has access this weekend, who has access the weekend after — the really difficult stuff.
‘If it is done as it’s done in the family court, you’d do it sequentially. But sequentially is a complete disaster for us, unless you get really good transition arrangements in the middle’.
He predicts that the other 27 are not going to give us a gentle ride from article 50 into the ‘new free world’. While the negotiations will be split into manageable chunks, all deals will stand or fall together.
And he points out it could all be scuppered over one issue, such as immigration, if May can’t rein in her right wing. ‘If we really annoy the Poles, Bulgarians and Romanians – three quite big players — and then Spain spots that it can join them and really cause trouble raising the issue of Gibraltar – they could bring the whole thing down’.
On whether no deal is better than a bad deal, he is emphatic: ‘No deal is absolutely catastrophic. No deal is at the end of two years you just fall out and you cease to be a party to every treaty including those with third countries.’
Provisions covering air travel are a useful example, he says: ‘If you fly to the States, you do so under the 2007 open skies agreement between the EU and the US. If we leave over the cliff edge with no deal, after two years and a day that treaty will cease to apply to the UK instantly. So they’ll be no legal basis for flying. Without a legal basis for flying, an airline would lose its insurance overnight’.
He predicts, with no degree of optimism: ‘The worst they will offer us is something that is better than no deal’.
Adding sadly: ‘One thing that people in this country really don’t get is how much idealism there is at the heart of the European project. So the idea that they’re going to be like us – looking for mucky compromises and economic deals, misses the point.
‘Our idealism is that we want to “take back control”. Their idealism is an ever-closer Europe’.
The hellish prospect of more litigation
The route to Brexit, he says, may go through a number of ‘hellish scenarios’ with further litigation by citizens and states.
‘The masters and mistresses of the art of negotiating compromise in Brussels may come up with a deal that looks quite good to everyone, except that it fudges the four freedoms so much that people who don’t like it go to Luxembourg with it, and suddenly you’ve got the court coming in and ruling on the vires of it’.
Or he, suggests there will be argument over the process for agreeing certain deals and whether an agreement is a ‘mixed’ agreement, and therefore requires national, as well as governmental agreement. ‘That’s when you get the Walloon-type issue,’ he says, adding: ‘Then, I suspect we’ll see the European Court at its most political because they’re not going to want to scupper this’.
The role of the civil service
While negotiations will be conducted on many levels, with some set-piece encounters with all the heads of government, much work will be done by the civil service, in London and Brussels.
The scale of their task, he says, is massive. ‘In my most hyperbolic moments, I’ve said it’s the biggest peacetime task facing the civil service in the history of the country’.
Three years out of the service, he remains a loyal fan and is confident that they are up to the task. Despite having shrunk under the austerity measures to its smallest since the second world war, Jenkins says the service is still large and has a huge amount of expertise, even in quite surprising subjects. ‘There’s a chap in the British civil service who has responsibility for bees,’ he says, by way of example.
‘And there’ll be the equivalent of that everywhere – real experts who will have been advising behind the scenes’.
So, on a positive note for lawyers who want to continue to practise on the continent, he reckons there will be someone in the Ministry of Justice who knows all about it, so while it won’t be high priority, it won’t be forgotten.
And he adds: ‘Lawyers are very good at special pleading – you don’t imagine that the European practitioners at Matrix and elsewhere are sitting there saying “oh dear, I wonder what’s going to become of us”. They will be raising the profile’.
But two areas concern him– the lack of expertise in trade negotiation and the capacity to carry out twin-track planning, preparing both for a successful deal and what to do if it all goes wrong. ‘They are two very different exercises and I’m not sure how you do them together’.
Strategically, he says, having Liam Fox, Boris Johnson and David Davis inside is very clever, though he fears all three underestimate the scale of the task ahead.
When Davis and Fox were appointed, he says, both believed that everything would be sorted after a short series of meetings and that the UK would get out with what it wanted because the Germans want to sell cars.
‘By all accounts Liam Fox still believes that and is therefore proving catastrophic. But, David Davies, everyone tells me, has been on an amazingly steep learning curve and gets more and more worried by the day. He gets it and knows exactly how complicated it is.’
And if it all starts to go really wrong and looks too much like a cosy deal, Jenkins is interested to see which of the three Brexiteers will go first. ‘If Johnson or Davis go that will be damaging, because they could be at the heart of a campaign against her [May] on the Tory benches. But I think most people regard Fox as expendable’.
In any event, he says it will take ten years before we have a clear idea of Britain’s place in the world. Some sort of deal will be done in two years, but it is the three to five years after 2019 that Jenkins says will be the ‘critical period in terms of forming our relationships with the EU and beginning to form our relationships with the rest of the world’.
And, he predicts, London will still be a ‘thriving, buzzing, great capital of the world’ – ‘it’s not just that it’s impossible to imagine it any other way; it’s inconceivable’. But, he says, a lot of the country will suffer.
However, there may possibly be an escape route. The process, he suggests, is not irrevocable and there is a case for leaving open the possibility of a second referendum if it’s all gone catastrophically wrong in two years. Though ‘we should never say never,’ he thinks the chances of a second referendum are unlikely.
And, he adds: ‘One of the things people underestimate is just how stubborn the Great British public is’ – a problem that he suggests Nicola Sturgeon is also up against in her quest for an Indy Ref 2. ‘There will be people who voted in favour of independence or against leaving the EU, but if you ask them again, even if it’s gone really badly, and you ask them again, they will say “go away, you asked me once, don’t ask me again”.’
Where does it leave the UK?
He is a ‘huge admirer’ of Sturgeon, whom he rates as a ‘far more cannier politician than Alex Salmond’. ‘If she’d have been in charge last time, they’d have won. If anyone can achieve an independence vote it will be her’.
But, he says, she has a difficult task. If she caves in to her hardcore wing and called a referendum now, he says, she would undoubtedly lose. And it is only Brexit that has given her the chance of another pop. ‘If they have a second referendum, they won’t have another, so she can’t afford to screw it up’.
While he says: ‘People will continue to neglect Northern Ireland – no one is terribly interested in it and it’s seen as a dysfunctional place’.
Although he predicts that once the demographic of the population alters, it will, in the lifetime of the younger generation, shift towards unification.
It was, he suggests, perfectly reasonable for Theresa May to fight the Brexit legal challenge. And, he notes, it filled time between the referendum and March, so gave the civil service, who had been forbidden from pre-referendum contingency planning, a bit of time to think.
‘One of the predictions I got right was that if Cameron lost, he’d go the next morning. But I assumed we’d have a Tory party election contest, which would go form June to the conference in October, during which time all civil service leave would be cancelled so they work out what to do’.
Does he wish he was part of it? ‘Absolutely not! If you’ve spent 35 years in and out of Brussels making it work, I can’t imagine being there now helping to pull it apart’.
The blame game
For all this mess, he lays the blame, as many others do, squarely at the feet of David Cameron, whom he nonetheless describes as the ‘best tactical prime minister I came across’.
‘If you were in a crisis and you need to get to the end of the week, he’d get you there. He was a safe pair of hands and was brilliant in parliament. But, if you tried to get him to think strategically about where something was going in six months or a year, he wasn’t interested’.
When it came to the referendum, he says Cameron acted with a ‘sort of arrogance’ and a ‘fairly typical, cavalier attitude’ believing everything would be fine.
‘I just don’t think it occurred to him that he was doing anything stupid. This was a way to shut the party up and we’ll be fine. And he got it wrong – massively’.
The behaviour, he suggests, epitomises the ‘failure of leadership’ in the Conservative party over recent years. ‘The last time we saw any serious leadership on this issue was with John Major, who many civil servants will tell you, and I’m one, was a much under-rated prime minister and one of the nicest people you could ever work for’.
Although, he says he does not know Theresa May very well, he says: ‘Her public image is very much what’s there. There a certain austerity and chilliness’.
One of the constant duties of his time as treasury solicitor, he recalls, was ‘ensuring that ministers stick within the rule of law’, though he fully accepts that they are entitled to push its edges and test the boundaries.
‘Both Dominic Grieve and I had terrible trouble with David Cameron, for example, on prisoner voting, where he was determined to push beyond what was permissible’.
But as home secretary, while Theresa May would ‘test you and test you and test you, when she was finally convinced that the law was what it was, she had absolutely no qualms about obeying it’.
Life as the Treasury Solicitor
Jenkins was treasury solicitor for eight years, serving under three prime ministers – Blair, Brown and Cameron.
‘I didn’t have much to do with Gordon Brown. We all used to have lots of contact with Blair and when Brown was made prime minister someone said to me “you’ll all start thinking you’re not getting as much access, and you’ll think that’s rather sad. But when you get access, you’ll realise you were quite lucky not having it”.’ Quickly adding that he never had any trouble with him.
Accepting that it is an ‘unfashionable view’, Blair, he says, was a ‘complete joy to work with’ and he would ‘work for him again tomorrow’.
‘Lots of civil servants still hark back to those days – he was clever, polite and focused, but made one mistake – and at the time most people didn’t think it was a mistake’.
He feels sorry for his former boss and the way the cloud of the Iraq war has hung over Blair, overshadowing his achievements and preventing him from playing a greater part in political life since leaving office. ‘Whatever the media was saying, he was one of the ones who wanted to get the [Chilcot] report out, because he knew that until then there was absolutely no chance of him moving on’.
Jenkins adds: ‘The way that he’s had to suffer since, and the way that the media has dealt with and continues to deal with Cherie is absolutely scandalous.’
The Leveson enquiry and the mediated settlement over claims brought by 12 British citizens detained at Guantanamo Bay, he reflects, are the defining moments of his time as Treasury Solicitor.
On the former, he recalls: ‘There was very little doubt that we had to set up the enquiry, because they’d hacked Milly Dowler’s ‘phone’.
But, he muses: ‘If David Cameron had known that Andy Coulson and Rebecca Brookes were having an affair, would he have set it up? I don’t know’.
While many journalists take a different view, Jenkins takes pride in what he describes as his ‘great claim to fame’ – he came up with the idea of a Royal Charter to set up a new press watchdog.
He recalls: ‘Cameron had said he’d implement Leveson if it wasn’t bonkers and didn’t require legislation’. While other lawyers suggested a statute would be required, Jenkins, who had been legal advisor to the Department of Culture Media and Sport in the 1990s when the Arts Council and Sports Council were set up by Royal Charter, suggested the same thing for press regulation.
On the Guantanamo claims, he recalls: ‘We wanted to try and draw a line under them. We thought we could probably defend them, but it would take ten years, cost a huge amount of money and, although we may have been able to win, we could have only done so by using intelligence material that would have damaged our relationship with the States. So we had to try and mediate’.
The lawyers went to Cameron and coalition deputy PM, Nick Clegg – the latter of whom Jenkins describes as ‘an awesome politician and a wonderful person’ – with a package for the mediation, an enquiry [the Gibson Report] into what went wrong and the introduction of secret courts, or closed material proceedings, by the Justice and Security Act 2013 — which they went along with.
‘Cameron and Clegg backing us on that was absolutely critical,’ he says, and while everyone thought the mediation would be the hardest part, it was concluded in two-and-a-half weeks.
‘Interestingly when one of the people who got compensation blew himself up in Iraq a couple of weeks ago, there was only a mild sort of media shit-storm. I had waited for this moment, thinking I’d be dragged in and there’d be a public enquiry. I was quite surprised how quickly it went away’.
One of his big achievements, he says, was bringing the fragmented government legal departments into a single organisation. ‘By the time I left it had around 1,500 fee earners, so it’s quite a big legal business.
‘The great thing about the job, is that if I was doing that in a magic circle, I’d be doing nothing else – I’d be the managing partner. Whereas with this 40% of my time was spent doing real work. I never had to let go of being a lawyer’.
Do ministers listen?
As you might expect, his answer to that is a big, fat ‘yes’. ‘Our job has always been to advise. One of the things you do as a lawyer in the civil service is try and deliver what politicians want – they are our political masters and mistresses and the elected representatives. If they want to do something, our job it to try and make it happen’.
Though, he says, that quite often they will want to achieve their aims in a way that does not work legally. ‘So part of the skill is to find innovative, imaginative ways of delivering what they want.
‘Good ministers will understand that and listen right from the start. Some just close their minds to it. In the end they suffer, because they end up not delivering what they want or what they could if they listened a bit more’.
When the government loses legal challenges, that is not, he says, a failure of the civil service. ‘It’s perfectly legitimate for government to test the law to its limits’.
For example, the government was right to test the law over control orders. ‘The government was perfectly entitled to establish where the high-watermark of the law was in relation to controlling suspected terrorists, who you can’t put through the normal justice processes.
‘We came out with what we thought we could do and the court said “no”. So gradually we got to the point where we had to give up on control orders and we came up with TPIMS – which never really worked.’
In defiance of critics, he adds: ‘I suppose this is controversial, but during those years what did the control orders do? Well they controlled actually – they worked – they may eventually have been found to be too severe, but for a long time they didn’t half work’.
He goes on: ‘The very hard-edged, campaigning lawyers think that’s an unacceptable approach, and that one has to be purer than pure about these issues. But you’ve got to have an element of pragmatism about this if you’re the government.
‘It’s easy for campaigning lawyers to say “This is outrageous” and for politicians to shout about it. But if you’re a government minister you’ve got a duty to try and do your best’.
Politics, he muses, is a ‘pretty unsatisfactory place to be’ and ‘very difficult’ for lawyers. ‘I’ve always said that lots of lawyers make really bad politicians, because lawyers are the epitome of normal logic and have the most rigorously logical minds.
‘Politicians have rigorously logical minds, it’s just that it’s political logic and that’s completely different to legal logic. What a politician thinks it logical, most normal people think it utterly irrational’.
On the subject of one lawyer turned politician, however is he effusive in his praise. Keir Starmer, whose time as DPP coincided for three years with Jenkins’ time at TSol, he says is ‘wonderful – absolutely one of the most decent, splendid human beings on this planet. He’s got amazing values and is a lovely person’.
While he does not want to give his political potential the kiss of the death, he reckons that the Labour party ‘could do a lot worse’ than have Starmer lead it.
Despite being so closely involved with politics for 35 years, Jenkins says he is not party political and belongs to no party. ‘One of the reasons I didn’t go into politics was that my political views are all over the place. And being a lawyer who likes logical thought, I’m not vey good at compromise, which most politicians are’.
Giving an indication of where he sits on the spectrum, he adds: ‘It is fairly rare to find a civil servant who’s far to the right of centre – it’s a sort of centre left profession’.
Life after TSol
‘It takes a while to get used to not being at the centre of things and not knowing what’s going on. But you get used to it,’ he says. When time away from advising on Brexit permits he does investigatory work from his base at Matrix.
Returning to the bar after an absence of 35 years has been an eye-opener. ‘It’s all so much more professional — you now do a lot of marketing and work with clients to help them understand what you’ve got to offer.
‘And that makes perfect sense, but 35 years ago you weren’t even allowed to have a drink with a solicitor. You certainly didn’t have a chambers party and, if you did, you wouldn’t invite solicitors’.
The son of two junior civil servants, Jenkins went to a state school – Harrow County School for Boys – and was the first member of his family to go to university. As a teenager he listened to the recreation of famous criminal trials on the radio and fancied a career at the bar.
At Manchester University, he found he did not enjoy much of his studies, but his legal aspirations were saved by one inspirational lecturer – Harry Street, famous as the author of one of the leading textbooks on tort.
Street developed a final year course on public law, which rekindled his interest and gave him an understanding the way law and politics work together.
Then it was off to 2 Hare Court, now Blackstone chambers, before joining 10KBW, where he had a classic knockabout practice doing a daily mix of crime, matrimonial and civil law.
As an idealistic 22-year-old barrister, he recalls: ‘I remember the first time I realised that a client was lying to me – it was the most terrible shock’.
After that, the disillusion set in pretty quickly and he fled private practice for the government legal service. That was in 1976 and, he since then he says, ‘I can count on the fingers of one hand the number of dull weeks I had there in 35 years there’.
‘If you want to do public law and you’re interested in politics, but don’t want to be a politician then working in the government legal department is just amazing’.
Jenkins, who is a bencher of Middle Temple and next year will be its treasurer, says he owes a lot to his Inn, which gave him a scholarship and helped him get pupillage. ‘It was very odd being a state schoolboy with no legal connections in 1976. If Middle Temple hadn’t looked after me, I don’t know if I’d have enjoyed it so much’.
As Treasurer, he wants to do all he can to encourage and support students from non-traditional backgrounds come to the bar. ‘I worry enormously about the future of our profession. I worry that it will slide backwards to the socially exclusive profession that it was when I joined’.