Sir Paul Jenkins, recently retired Head of the UK Government Legal Service

By on 15/09/2014 | Updated on 15/09/2014
Sir Paul Jenkins, until recently, the UK government's chief legal official

Sir Paul Jenkins talks exclusively to Global Government Forum about governance in governments and why, when things are going well, that is exactly the time you should start thinking about disaster.

When Paul Jenkins was a child he knew what he wanted to be when he grew up – a barrister. When he grew up he became a barrister. Was he now happy and fulfilled? ‘I hated it’, he says now. ‘Which was a bit of a shock.’

However, the private legal profession’s loss was the civil service’s gain. He soon moved up from being a lawyer in the civil service to being a Legal Adviser to several departments in the UK government, such as National Heritage and Department of Justice. In the Lord Chancellor’s Department he ran the international team selling British legal services abroad, opening up markets to another way of doing things.

When he moved to the Department of Work and Pensions (DWP) his title was Director General of Law, Special Policy and Governance. This is an aspect we will explore further, but he retired in 2014 as Treasury Solicitor, the Chief Civil Service Legal Adviser to the Government. Now on the outside, he has a long and penetrating perspective of what goes on inside.

Governance in Context

One of the ‘big picture’ issues he sees is what he calls ‘governance in context’. He describes what he sees as one of the key differences between private sector and public sector and the government in particular.

‘In the private sector the context is generally much more straightforward than it is in the public sector. You have an organisation which has normally one primary focus which is that they make something, they sell something. They may have a service they offer and their job is to deliver that service or that product. High quality, maximum efficiency. They are concerned about their employees; senior executives are concerned about their board, their non-exec directors, shareholders and that bottom profit line.

‘The governance context is comparatively straightforward. You try to make high-quality widgets, you have a board who are, hopefully, supporting you, the non-executive directors who are challenging you and shareholders who need remuneration.

‘Contrast that with government where the context is almost infinitely complicated. I think one of the things you see is a senior executive coming in from the private sector, to the top of the civil service, where they struggle with the incredible complexities of the governance systems in which they find themselves enmeshed. You see it time and time again when you are talking about governance to senior executives who are coming from the private sector. Utter bewilderment as you explain it to them. Some of them say it is ludicrous, it is illogical, it is irrational.

It is by the logic of the non-political world. Lawyers are very good at logic in a way that anyone understands it. You follow the evidence and it leads you to logical conclusions. You analyse things in a logical way. Political logic is completely different. It is just a completely different set of logicalities from the logic that everyone else understands.

‘One of the tricks of being a good civil servant is to understand the political environment, what is not acceptable, can or can’t be done, where the political problems lie and what political logic is. You always see the occasional bad government lawyer who doesn’t get that so they bang on and on about what is legally logical and they don’t understand the context, the political context in which they are operating.’

The Accountability Chain

To Jenkins, that context includes ministers, elected politicians driven by political logic, who head up a department but who, when they arrive, often do not know much about the subject of the department and almost certainly will not know any of the detail. What interests him is that this minister is then accountable for his or her department. It is the minister who has to stand up in the House of Commons or face select committees. And the convention certainly was that if the department did something really wrong then the minister resigned even if it was nothing to do with him.

Adding further complexity to that scenario is the Accounting Officer. It is the Accounting Officer – usually the Permanent Secretary – who is responsible for the proper expenditure of public money and the efficiency of the department. That officer is accountable to Parliament through the Public Accounts Committee (PAC). But the PAC, in Jenkins’ words, is ‘pretty light on any logic except political logic’.

Private Sector Responsibility

Jenkins sees changes coming in the accountability chain. ‘I think we will see, over time, a gradual shift. We will see more select committees as well as the PAC calling officials in, seeking to cross-examine them about decisions they made and not just calling their Secretaries of State.’

The complexities of accountability continue to develop in new ways as more government services are executed with a private sector partner or through jointly funded ventures. He sees this as an important area where accountability needs to be carefully considered, particularly if something goes wrong.

He can see the advantage of being able, quite reasonably, to blame the private contractor if they were the ones in error. He recalls a particular incident when he was Treasury Solicitor working with a private sector firm’s lawyer. The lawyer left highly sensitive material on a luggage rack on a train. The material was then stolen. This happened at a time when civil servants were being sacked for losing data.

‘One view,’ as Paul Jenkins remembers now, ‘was that some very sensitive data had been lost on my watch. I was ultimately accountable.

‘Fortunately, because I had been very clear with these people in the contract about their accountabilities, I was able to sack them immediately for the breach. I was able to say these people were not up to the job, they didn’t do what they were contracted to do, we’d given them all the right guidance about handling secure material and they didn’t comply with it. And therefore as soon as I found out about it the first thing was I sacked them. That is quite a good space to be in if you are accountable in that respect.’

NEDs On Board

The increased use of private sector organisations working with government has been coupled with an increase in other private sector corporate governance structures like boards.

‘First of all, we’ve seen the introduction of boards chaired by the Secretaries of State. In some instances the Secretary of State is really interested in chairing the board and is really good at it. In others they have never run anything, are not interested or maybe not very good at it. Then what you see is much more reliance on an executive team which is, in effect, a sort of shadow board operating beneath the headline board. Yet more complexity.

‘The other thing this government has done which I think has been a real benefit is to really boost the role and credibility of the non-executive directors in government. Sometimes in the past departments struggled to get very good people because their non-executive roles weren’t seen as particularly impressive by the outside world. We now see really first-class non-executive directors coming in from the private sector and adding real value and a real challenge – which is good. But also adding additional complexity to governance and accountability.’

The Final Say – The Accounting Officer

But there is one more layer of complexity. As mentioned earlier, the Accounting Officer has ultimate responsibility and accountability for spending public money. This is another layer, unique to government but added to what can otherwise these days, as Jenkins points out, look more private than public sector:

‘You have all these structures which look more or less like public limited company structures: boards, non-executive directors, independent chairs. But at the heart of we still have the Accounting Officer – the Permanent Secretary – who cannot delegate that responsibility. The non-executive directors and the board can say what they want to happen but ultimate the Accounting Officer can say “No, I am the one answerable for this. I’ll take the decision.”’

Political Logic

He highlights that even this complex matrix is not always that simple. ‘One other complexity is that the Secretary of State can direct the Accounting Officer to do something that doesn’t make sense in terms of value for money with policy. This takes us back to context, the ability and the structures for the Secretary of State to say “For political reasons I want you to do this. It may not be brilliant value for money but the politics and the political logic are such that you must do it.”’

Jenkins is aware that doing this, necessarily in a public way, can often be ‘a nuclear trigger’. He feels that this is an area that has not been fully explored or normalised yet as it can be seen as a confrontational challenge to the Secretary of State. With the new batch of Permanent Secretaries appointed on fixed-term contracts, there may be even less enthusiasm for them, as Accounting Officers, to challenge their Secretaries of State.

Prime Ministers in Practice

But of course the Secretary of State is also accountable not just to Parliament but also to the Prime Minister. While this accountability is always there and always has been, how it is works in practice depends on the individuals concerned. Jenkins has seen the whole range of options:

‘In my career we have seen a whole variety of different models depending on whether the Prime Minister is interested or not. Some Prime Ministers might be keen on managing quite lot. Others take a much more hands-off sort of non-executive type Chairman role, only really diving in either where there is an issue of a particular political difficulty or, the worst possible, where it’s gone wrong.’

Catastrophic Blame Game

To Jenkins the way the relationship between senior officials and Ministers work best is if it is conducted frankly but in private. Where there is trust and confidence in the relationship between them, then private conversations can lead to a resolution arrived at beyond the eyes of the media.

As he put it: ‘I don’t think one should ever want a culture where Permanent Secretaries are challenging their Secretary of State publically. That would be catastrophic. What is equally damaging, and I think we have seen quite a bit of it in recent years, is ministers briefing against civil servants. If ministers want to conduct their relationship with senior officials by megaphone or via the media, then that is a fundamentally different relationship and one more often than not that will end in tears. More importantly, it will often end in the failure of ministers to deliver what they want and what they are entitled to have.’

The British Model

‘Our model’, he says of the British model, ‘in the main, does work quite well. I think the key to making it work is the same with any civil service, any bureaucracy, almost around the world. You have a strong relationship of trust and confidence between objective, apolitical officials on the one hand, and elected politicians on the other. People talk of speaking truth unto power; I prefer honesty and frankness.’

He feels this is better, at least for the UK, than the US model where senior levels of the bureaucracy are chosen by incoming politicians. He makes the point that, just because they are of the same political party and have perhaps worked in some degree with the incoming politicians, that does not mean there is the level of personal trust and confidence that you need. He doesn’t see an immediate push towards the US model in the UK but he does believe that new fixed-term contracts for Permanent Secretaries, coupled with the new tendency to brief against senior officials will lead to less frankness, more nervousness of speaking truth unto power.

New Zealand Test Lab

New Zealand, which Jenkins has been working with, presents another, fresher perspective. ‘One of the things that I really admire about New Zealand as a country and as a body politic is their willingness to experiment with things that are really quite difficult. I see them almost as a sort of constitutional policy test laboratory.

‘They change things, they see if they work or they don’t work. That, I think, is one of the reasons you’ll find British civil servants and British ministers going to New Zealand quite a lot, because they can see how well they develop and test ideas.’

One of the innovations that made the journey from New Zealand to Great Britain is the idea of fixed-term contracts, as mentioned above in relation to Permanent Secretaries. In New Zealand that diminishing of job security is accompanied by a larger salary but that is not going to happen in the UK. As Jenkins put it: ‘We are moving to much less job security without the rewards they get in New Zealand.’

Change and Risk

Some changes are small, some are enormous, and all change involves risk. Jenkins has had plenty of experience of change and the risk that goes with it. He remembers, when discussing his work as Chief Civil Service Legal Adviser, how he oversaw the biggest changes in the department’s 400-year history:

‘There are about 2,000 lawyers working for the government. When I started this, 700 were working for my organisation – by the time I left that had grown to almost 1700. And I make that point to show some sort of scale of change for quite a small organisation.

‘Another helpful way to look at it is to see how many stories are in the media every day that you are involved in in some way or another. Before we started the change programme I would say it was 25% of the difficult stories going on in the media. By the time I left it was around 90%.

‘You don’t need to be a governance genius to work out you have done something terrible to your risk register there. But at the very least you need to make sure you have got governance systems that can cope with these new responsibilities.’

Change in Context

The experience of going through major change certainly produced some valuable lessons, which he outlines here:

‘One of the first things you want to do when you set off on a major change programme is to work out what, if any, additional governance you need around the change programme. You are bound to want some serious governance around the change programme to make sure it happens and it happens in a proper way.

‘The crucial context is governance within a bigger department. You want to make sure that change governance you are devising dovetails perfectly with the ongoing governance structures of the department. You don’t want to set up a change programme that has a perfect little governance mechanism that does nothing but talk to itself. It is so possible to do that.

‘What I did in my case, which worked really well, was I worked closely with the Treasury Officer of Accounts, who are the custodians of the Accounting Officer theology. They were really helpful in terms of me realising just how different my governance structures needed to be. In particular how much stronger I needed the non-executive presence to be.’

And to return once more to the complexities of accountabilities, this large shared service, headed by one Accounting Officer, had to establish a suitable relationship with the Accounting Officers in the customer departments. This is an issue which still bedevils the wider use of shared services in the UK government.

Stress Testing

This practical experience informs his world view of what really works. It is a wisdom hard-won and is illuminated by seeing how other governments around the world have dealt with difficult but common issues. He summed up his thinking on the tricky subject of governance:

‘One of the critical things about good governance is it has to work when tested in crisis. You can write all the text books in the world about governance, and have the perfect model. But if it doesn’t work under pressure when something is going hideously wrong then you are in real trouble.

‘If something goes wrong and there is a disaster, let’s see how the accountabilities work and, if they don’t work properly and they don’t link through into responsibility and power, there is something wrong.

‘I think the most important message is that you need to test how governance will work under pressure. When things are going well you need to spend a bit of time scenario planning around disasters and seeing how the systems work. Will they stand up under pressure? Will they get you through the disaster in the first place, and will they then stand up to scrutiny as you go through the legally logical scrutiny of the courts and the politically logical scrutiny of Parliament?

‘But senior civil servants don’t and quite rightly shouldn’t spend their days obsessively worrying about governance and structures and responsibilities. Their primary job is to get on and deliver. That’s what we all do.’

Sir Paul Jenkins will be speaking at a special Global Government Forum seminar on Governance in Context in March 2015. If you are interested in attending this seminar, please email your name, job title, organisation, country and email address to [email protected]. This event is free to attend for the public sector.  Places are limited, so please respond early.

About Graham Scott

Graham is an experienced editor and publisher and an award-winning writer. He has travelled extensively and is interested in world cultures.

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