Brexit will be ‘largest legal, legislative and bureaucratic project in British history’, says former UK Treasury Solicitor
Following yesterday’s referendum vote to leave the European Union, the UK civil service faces the “largest legal, legislative and bureaucratic project in British history except for a world war,” the UK government’s former chief legal adviser has told Global Government Forum. “This is bigger than anything anyone has ever attempted before: unravelling 40 years of an entrenched constitutional position.”
Sir Paul Jenkins – who was Treasury Solicitor and Head of the Government Legal Service between 2006 and 2014 – also warned that “the first thing that both the politicians and the civil servants need to do is rebuild trust in each other” following a bitter and acrimonious campaign.
Prominent Brexit figures have argued that HM Treasury and the Bank of England skewed research to support the Remain campaign, with select committee chair Bernard Jenkin accusing them of “startling dishonesty”. And on Tuesday, justice secretary and leading ‘Leave’ campaigner Michael Gove challenged the near-unanimous view amongst economics authorities that leaving the EU would damage Britain’s economy, drawing parallels between their forecasts and the efforts of Germany’s 1930s Nazi government to squash Einstein’s work on physics. “They got 100 German scientists in the pay of the government to say that he was wrong,” he commented – though he later retracted his comments, calling them “clumsy and inappropriate”.
Following prime minister David Cameron’s announcement this morning that he’ll step down by the end of September, government ministers who campaigned for Brexit are likely to receive prominent roles in the Cabinet – enabling them to begin negotiating exit arrangements with the EU. But Jenkins pointed to challenges in building the relationships required for this huge task. “Civil servants are used to politicians trading dodgy opinions in general elections – that’s the meat and drink of politics,” he said. “Politicians telling outright lies and then going to the extreme of calling experts – including Treasury experts – the equivalent of Nazi scientists is much more profound in terms of damaging trust.”
Several Brexit leaders already have difficult relationships with the civil service, he added: “Both sides are going to be quite wary of each other, and they need to set about rebuilding trust.”
Formal negotiations on British exit are unlikely to begin until the Conservatives have elected a new leader, Jenkins explained: it will be their job to start the clock on the two-year ‘Article 50’ exit negotiation period. Meanwhile, UK civil servants will have to begin forging a negotiation position – encompassing both the departure arrangements, and talks on a new trade treaty between Britain and the EU.
“It needs a huge amount of scoping work,” he said. Officials will want to create an “overall ‘route map’ including a number of parallel tracks – because on the one hand they’ll be negotiating the terms of our departure, and on the other they’ll have to talk to other trading partners like the World Trade Organisation, so that if we fall off the cliff edge after two years we’re not in the trade wilderness.”
Led by the Foreign & Commonwealth Office and Cabinet Office, he added, the civil service is likely to create “an overall ‘Sherpa’ group leading the whole thing under the direction of a senior minister, probably Gove, and underneath that there will be individual teams”. This group will manage the centre of a process in which departments both work out their goals in the Article 50 talks, and consider how to reshape their regulations, legislation, processes and organisations for a changed set of responsibilities and policy goals.
Until the Conservatives elect a new leader, Jenkins said, politicians will be “desperately preoccupied with their own leadership contest.” This gives a “good opportunity for the civil service to begin to plan all this in quite a calm and measured way. If they can get some decent steers from [Brexit ministers] in the next couple of days, they can go away and do some planning. Then by the time [the Conservatives] have a new leader, they’ll be able to give them files with all their options. They won’t have any summer holidays, but they’ll be fantastic at it.”
However, Jenkins warned that it will be extremely difficult, if not impossible, to forge a trade treaty that satisfies both the EU’s insistence on free movement of labour and the Brexit campaigners’ demand for control over immigration. “What we saw towards the end of the referendum campaign was the beginnings of what would amount to a manifesto,” he said, pointing to “a pretty clear articulation that controlling immigration – removing the right of workers to move freely in and out of the UK – is more important to them than access to the single market. So if they can’t achieve access with us completely in control of our borders, they’ve said they’ll go for controlling our borders.”
Although the UK hasn’t conducted trade talks for 40 years, Jenkins added, the civil service “will be well equipped to work out the route map and present ministers with a range of operations, and to conduct the main Brexit negotiations. They are used to negotiating in Brussels and very good at it, and there’s expertise in the FCO, in departments and in our representative in Brussels.”
Read our June interview with Sir Paul Jenkins for an explanation of the process of negotiating a UK exit
For up to date government news and international best practice follow us on Twitter @globegov