Sir Paul Jenkins, former UK Treasury Solicitor: EU Referendum interview
The EU referendum debate lacks hard facts on how any UK exit would be negotiated, says the British prime minister’s former chief legal adviser. And Sir Paul Jenkins tells Matt Ross that the frameworks for negotiations and voting could force Britain to make big concessions – or risk a chaotic departure with no trade agreement
The distortions, semi-truths and political spin on both sides of Britain’s EU referendum debate, Sir Paul Jenkins believes, are hurting the credibility of politicians across the board. “The long-term effect of the exaggeration on both sides will be to further undermine people’s confidence in trusting the British political class,” he says. “Day after day, people see opinions being passed off as scientifically-based – and then there’s the odd straightforward lie.”
As an example of a “glaringly obvious” untruth, he cites the Leave campaign’s statistic of £350m for the UK’s weekly contributions to the EU: given Britain’s ‘rebate’ and EU spending within the UK, the real net transfer is less than £150m/week – or £8bn a year. “Why exaggerate? Go for the £8bn a year; it’s big enough!” he says. “Even people who believe that it’s right to get out say: ‘Actually, this is nonsense.’ And I think it will have a damaging effect.”
The amount of ill-informed “speculation as to what might happen” following a vote to leave the EU on 23 June also worries Jenkins. For whilst both sides confidently offer very different views on how EU talks and international relationships would play out following a ‘Brexit’ vote, many commentators seem to understand little of the process for negotiating an exit – and, thus, of how important it would be in deciding the talks’ outcome.
With decades of experience in negotiating within the EU, Jenkins knows how process shapes results in Brussels. A UK government barrister for 35 years, he spent 2006-2014 as Procurator General, Treasury Solicitor and Head of the Government Legal Service – the government’s chief legal adviser and the leader of 1700 civil service lawyers. Now retired and working with overseas governments and London barristers Matrix Chambers, he explains that the system for negotiating a Brexit could leave the UK facing both tight deadlines and powerful opponents.
28 interests; one negotiation
Under Article 50 of the Treaty on European Union, Jenkins explains, once a state gives notice that it wishes to leave, the clock starts ticking on a two-year negotiation period. This could only be extended with the approval of all 28 members; and if it ended without agreement, the UK would exit without the right to trade freely in the EU. “We would need to regain our own place at the World Trade Organisation [WTO] and, absent specific deals, our trade relations [with the EU] would be as with any other WTO member,” he says. Even the fiercest ‘Brexiteers’ recognise this as a bad outcome for the UK.
Article 50 talks would cover many of the issues that most rile Eurosceptics, such as the free movement of labour, EU contributions, and the powers of the European Court of Justice. And Jenkins warns that this two-year “cliff edge” could “give all the others, the 27, the upper hand: they can just say ‘no, no, no’ and walk away.”
This time pressure could be avoided by concluding the negotiations before giving formal notice – shifting “the power balance back to the centre and away from the remaining 27.” But Jenkins, who advised three UK prime ministers, believes that “politically, it would be very difficult for the prime minister – whoever he or she is – not to give that notice pretty quickly. People will start to think they smell a rat: there will be high levels of distrust, and the hard right of the Eurosceptics will be looking for signs of backsliding”.
The ‘Brexiteers’ argue that Britain’s economic clout and hungry import markets would make the 27 keen to agree a deal, pointing to our taste for French and German goods. But this view, says Jenkins, treats the EU as a homogenous block: in reality its members have very diverse interests, and the voting system could allow a few countries to hold the negotiations hostage.
“An Article 50 agreement requires a ‘super qualified majority’” in the Council of Ministers, he explains – meaning the votes of 20 of the 27 remaining members, representing at least 65% of the EU’s population – as well as a simple majority in the European Parliament. “So big beasts, or a coalition of smaller countries, can block agreement.”
Between The Rock and a hard place
If an EU member with little taste for compromise “has a particular interest – maybe unrelated to the issue – then they can slow things down”, Jenkins adds – ratcheting up the time pressure on the UK to squeeze out concessions. As an example, he cites Gibraltar: without an Article 50 agreement governing border controls, “Spain could go back to what it did before [the UK joined the EU in] 1972: they could just close the border. Gibraltar would collapse within weeks. More likely, [the Spanish will] say as part of their negotiation strategy: ‘We want some different arrangements in Gibraltar’.” The UK would, of course, resist any dilution of its sovereignty – but if Spain held fast, the PM could face a very uncomfortable choice between protecting Gibraltar and retaining access to EU markets.
The voting system also gives great influence to groups of smaller countries, such as the Eastern European nations whose main export to the UK comprises large numbers of migrant workers. “Are the Polish government really going to agree to give us preferential treatment if none of the Polish workers in this country are to be allowed to continue working here?” asks Jenkins. So if eight of the EU’s 11 Eastern European members proved to be more interested in sending workers than goods to the UK, Britain would either have to compromise on freedom of movement or face an exit with no trade agreement.
Amongst the Western European nations, there would be pressure to play hardball in negotiations in order to deter other nations from seeking an exit. “They don’t want us to trigger some kind of domino effect,” comments Jenkins. “If they think that giving us a lot of what we want will encourage [French Front National leader] Marine le Pen, the far right in Austria, the far right in Denmark to say: ‘Look you can leave and it’s not the end of the world’, then I think they’ll be very nervous about that”. Authoritarian, right-wing, anti-EU parties are on the rise across Europe, he adds, and many mainstream leaders will fear that “the British departing will show that you can put two fingers up to the status quo; that it would encourage these other groups.”
Given the power this system hands to larger EU members and alliances of smaller countries, Jenkins suggests, Britain would find it difficult to conclude an agreement without making substantial compromises. But the chances are that the UK’s negotiators would find that difficult to swallow – for in the wake of a Brexit vote, we’d quickly have a new and much more Eurosceptic prime minister.
A tournament of toughness
“I don’t buy this idea that [David] Cameron can lose the vote and stay; I think he’d have to go,” says Jenkins. A new Conservative Party leader would then be chosen by MPs and constituency parties that are “overwhelmingly Eurosceptic”, and Jenkins suspects that the leadership campaign would “turn largely on people having some dreadful Dutch auction about what we’re going to screw out of Europe. The winner will be the person who says they’re going to be the most beastly to Europe.”
The risk, then, is that the negotiators on both sides are reluctant to compromise, pushed by domestic political pressures into positions that preclude a negotiated settlement. And if EU nations proved unsympathetic, says Jenkins, some Brits “would say: ‘let’s just walk away’. Then you’ve got nothing. It’s insane, but it is one of the things that some of the commentators talk about on the Brexit side.”
Walking out would “probably be in breach of [Britain’s] international legal obligations, but it’s something we seem quite comfortable to do when it suits us,” he adds. “The prime minister is lecturing China at the G7 today on how they must obey any judgements from the Hague on the territorial disputes in the South China Sea. At the same time, he’s refusing to implement the judgement of the European Court of Human Rights on prisoner voting. He has done for years; [he says] it makes him ‘physically sick’ to think that he would actually have to comply with international law.”
The irony, in Jenkins’ view, is that the UK currently has a privileged position within the EU. “We should never lose sight of the fact that we have probably the best deal of any member of the European Union,” he comments: we’ve retained border controls and “we’re not in the Euro; we have the opt-out from the justice and home affairs agenda; we have the opt-out in relation to the Charter of Fundamental Rights; we’ve got Thatcher’s rebate. That’s a special place to be.”
On fallout if the UK falls out
Whatever the terms of Britain’s exit from the EU, Jenkins argues that relationships with individual EU members would suffer – creating more trouble on other fronts. For example, France has permitted the UK to establish border controls on the continent to manage the Channel Tunnel Rail Link and control illegal immigration. Brexiteers argue that this is not an EU agreement, and thus would be unaffected by a UK departure. “But the French did this as a massive favour to us, and they’ve got nothing but grief,” says Jenkins. “The last thing they want is to be blamed for the squalor of that [Calais illegal migrants’] camp. So actually if they didn’t feel any fraternal closeness to the UK, it would be basic common sense for [French premier François] Hollande to say: ‘Right, Dover for the lot of them!’”
Back in the UK, a British exit would prompt renewed calls for another referendum on Scottish independence – so the UK government would be under pressure to pass a substantial chunk of the money saved in EU contributions to Holyrood. “If some of that isn’t directed into Scotland there’s likely to be another independence referendum, and sooner rather than later,” comments Jenkins.
Completing the list of key risks, Jenkins suggests that Brexit would make Europe more vulnerable to internal tensions or external threats. “The EU is a massive power block,” he says. “Britain leaving would undoubtedly weaken it. The perception in Russia would be that it would weaken it considerably; and they’d probably be right.”
On the list of key benefits set out by Brexit campaigners, Jenkins is sceptical. The Article 50 negotiation system would make it difficult to secure goals such as controlling migration and reducing EU contributions in any trade agreement, he says. And Brexit wouldn’t release Britain from the obligation to comply with European Court of Human Rights rulings – for the ECHR is an arm of the 48-member Council of Europe, not the EU.
Some Brexit campaigners, Jenkins adds, “look lovingly and longingly back at the old Commonwealth, and think that provides us with a network of friends around the world who’ll be anxious to do a deal with us. I say to them: go to Singapore.” The city-state is one of the fastest-growing financial and business service centres in the world, he points out, and “if you want to get them laughing you suggest there’s some residual loyalty to the Commonwealth. It means nothing to them.”
New tests for the civil service
As the UK embarked on these difficult rounds of negotiations, it would have to work hard to improve its civil service’s capabilities. For as Jenkins says, “there are very few Brits in the European Commission any more” – our weak language skills and half-hearted commitment to European institutions have caused a “decline in the capability of the British civil servant to operate in Brussels.” We’d also simultaneously be trying to negotiate a host of other deals with countries around the world, but “we haven’t got vast expertise in international trade negotiations, because it’s all been done by the EU.”
Nonetheless, Jenkins has huge faith in UK officials’ ability to get the best deal available. “If anyone can see their way through this, it’s my old profession the British civil service,” he says. “Give them the problem, and they will work it out. So the one thing where I fundamentally disagree with the ‘Remainers’ is [their view that] this is all too difficult. It is incredibly difficult, there will be two to five years of complete chaos and uncertainty, but the British civil service will work out how to deal with it in the end.”
Asked to predict the referendum result, Jenkins is cautious. “You have to assume that the British electorate are taking this very seriously, and there’s quite a lot of evidence that they are,” he says. “People are getting the message that this is potentially pretty disastrous, economically.” And he turns to the advice of “the best boss I’ve ever had”: Gus O’Donnell, the former UK cabinet secretary. “He says that the pollsters haven’t got a clue, but the bookies know. And the bookies have the odds of us staying as very, very high. So it’s more likely than not that we’ll stay – but I wouldn’t put a lot of money on it.”
Even in the case of a vote to remain, though, Jenkins foresees the “terrifying prospect” of a series of further referendums. Many Conservative politicians have, he says, told him that “the composition of the Tory party at the moment is such that the 2020 [general election] manifesto would have to have commitment to another referendum.” Then there’s the European Union Act 2011, which requires the UK to hold a national vote every time there’s a substantial treaty change – this could apply “every time a new member state wants to join, for example.”
Looking for the upsides
In recent years, the union – assailed by financial, economic and migrant crises and ever less trusted by Europe’s electorates – has plainly failed to cope with the challenges thrown at it. So does Jenkins think that a remain vote could prompt substantive reform? “The idealist in me would think that if we voted to stay, this [referendum] would be a sufficient fright that the Franco-German alliance would try to drive reform,” he replies. But he struggles to see what form that would take: the UK has always fiercely resisted any moves to democratise the EU by strengthening the European Parliament, he notes, and today’s continental politicians fear that doing so could provide the far right with a new route to power.
“To get reform you need rational, reasonably moderate politicians at the centre,” he adds. “So Cameron, Hollande and [Angela] Merkel [of Germany] is a pretty good trio, if they sat down and said: ‘We’re going to reform this’.” But there are elections in both France and Germany in 2017 – and in France, “at the moment, Marine le Pen is ahead.”
And if the UK votes to leave, then who are the winners? “It’s very difficult to know,” he replies. “The world would notice that the UK has gone it alone – and the Brexiteers might have a certain amount of pride in that, at least until they realised that it didn’t bring a lot of clout or take us back to the 19th century when we were the heart of a great empire.” The UK would have more freedom on some issues such as setting VAT, he adds. The Scottish nationalists would enjoy a boost for their campaign to leave the UK; and if they were successful, then the Conservatives would be dominant in the rump UK until “the British electorate worked out that something had to be done about this”.
In Sir Paul Jenkins’ opinion, though, some of the biggest Brexit winners would be his peers in the legal profession – for the task of unpicking and remaking laws, regulations, policies and agreements across the public and private sectors would generate vast amounts of legal work. “Undoubtedly, one of the major beneficiaries in the short to medium term would be the lawyers unscrambling this,” says the former Treasury Solicitor, one of Britain’s most senior lawyers. “On 24 June the legal gravy train would be stacking up with extra lashings of gravy, for several years to come.”
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