The referendum and renegotiation
UK in a Changing Europe (UKICE): Can you start by explaining what the Government Legal Department is, and what your role in it was.
Jonathan Jones (JJ): The Government Legal Department (GLD) was created, formally, in 2016, when we brought together pretty much all the legal teams from around Whitehall into a single department. It now comprises almost all of the legal teams in government, conducting almost all the government’s litigation and handling almost all the government’s legal advice. There are a couple of exceptions to that, the main ones being Revenue and Customs (HMRC), which remains a separate legal team, and what is now Foreign, Commonwealth and Development Office (FCDO). So, the Foreign Office legal team is also, organisationally, separate from GLD.
But GLD is, as its name suggests, the main government legal department. It’s now made up of something like 2,700 people. The number has probably gone up since I left. So it’s quite a big department, and I was its head and Permanent Secretary.
UKICE: If we can take you back in time to pre-referendum days, were you involved, at all, in any of the discussions around David Cameron’s renegotiation?
JJ: Yes, I was a bit. This was in the days when the negotiation was being led by Tom Scholar and by Ivan (Rogers). Government lawyers were supporting that, in the same way that they would support any other negotiation and any other engagement with the EU. This legal work was led by GLD’s then European Law Division, headed by a Legal Director called Daniel Denman.
From time to time, I, personally, would be brought in. I remember a few occasions when Tom Scholar would bring me in, or give me a ring, to ask for a steer, if things were getting particularly choppy. So I had some involvement, and certainly, GLD – or it was probably still the Treasury Solicitor’s Department in those days – was providing legal support in the usual way.
UKICE: So what would you be looking at? Would you be looking at whether the things stacked up within EU law or were translatable into UK law? What, exactly, is the legal input in these circumstances, when you’ve got what is, essentially, a political negotiation, but about new rules or a new framework for the UK’s relationship with the EU?
JJ: I think you’ve summed it up rather well, actually. I think it would be both of those things. It would be looking behind the veil of the EU’s position, to see what might be possible within EU law, and what novel things the EU might be persuaded to do, which would not be completely incoherent from the point of view of its legal order. The EU, of course, being the most legalistic framework of any organisation, probably, in the world. There would always be questions about what was possible within the four corners of EU law. The EU itself, or the Commission, might take a position on that, but we might want to argue them to a different position. In that sense it would be the job of the lawyers to look at it through the EU law lens.
Then, of course, we would also be trying to examine what the implications might be within UK law; what domestic laws might need to be changed, what the wider implications might be for particular areas of law, like immigration or free movement, and all of those things.
Of course, in the end, this would have to be turned into legal text, which would have to be agreed with the EU, and it would need lawyers to help finalise the text, to make sure it said what people wanted it to say.
UKICE: What was your impression of the deal that was struck? Were you pleasantly surprised by how much they’d achieved?
JJ: Well, yes. I think they had achieved as much as they thought they could, and it was a lot. The UK already had a whole set of exceptional arrangements, and the Cameron deal secured a lot more. Obviously, the conclusion of the Cameron Government was that this was the best they were going to get, and it was pretty good, and it was enough to justify recommending that we stay in the EU.
I didn’t have a personal view that went much further than that, but I think that was the overall impression.
UKICE: Were you consulted at all by the Prime Minister, by Number 10, or by whoever was leading on the Referendum Bill, about how the referendum would be constructed? Was there any legal input into it?
JJ: Yes, there was legal input into it and, of course, it needed a Bill to authorise it. So I, personally, in my role, would be dipping in and out of these things, but there would be full legal support for the planning of the referendum, for the legislation that was necessary, and so on. All of that needed legal advice. That probably would have come, mainly, from our Cabinet Office team.
One vignette that does stick in my mind is, if you remember, the website by which you could register to vote in the referendum went down at the last minute. There was a huge push to get people to register. I got a phone call, very late that night, to ask whether there was any legal basis for extending the deadline, so that there was time to get the system up and running again, and people could then register late.
In fact, we ended up making a statutory instrument to extend the deadline the following day. So there was a huge legal flurry around that in particular, because there was a legal deadline, and there were questions as to how we could extend it. Whether the Government was then glad that they’d bothered to do that, given the result, I don’t know. But I just give that as an example of how, maybe in unseen ways, there’s a huge, quite elaborate legal apparatus that underpins any referendum or any vote, and that included the EU referendum.
UKICE: Was there any discussion about the franchise? It actually became quite a big issue in the run-up to the referendum, because the franchise was as for a general election, which meant no EU nationals could vote in the UK, unless they happened to be Irish or Maltese. And of course, no UK nationals could vote if they’d been out of the country for more than 15 years.
JJ: I think the answer is, yes, there would have been. I don’t, if I’m honest, remember what the arguments were around the franchise. There are some things where, though they needed to be reflected in the legislation, I would have said, ‘That’s a pure policy question’. There were choices to be made about the franchise. Of course, there always are in any poll. And choices to be made about the wording of the question to be put. Lawyers will assist in that, and in the end, whatever policy decision is made, it’s the job of the lawyers to make sure that the law gives effect to that.
But in the end, they were policy calls, not legal calls. I’m sure those issues would have been debated.
UKICE: They became legal issues, didn’t they? Because there was quite a lot of litigation on just those questions.
JJ: Yes, exactly. Of course, the legal advice will have helped to identify what the risks were of litigation. This may have fallen into the category of issues where there was bound to be litigation, whatever decision was made, because this was highly contested territory. This is not a get-out on my part, but if you’re asking me, ‘What were lawyers saying about this?’, some of this would have been privileged anyway, but also in the end what matters is the ultimate policy decision.
Because on a big policy issue, like, ‘What’s the question in a referendum, and how is the referendum constructed?’, in the end, the politicians will take those decisions, and not the lawyers.
UKICE: Did you have any discussions with Jeremy Heywood or Departmental Permanent Secretaries, or any internal thinking, before the referendum, about what the scale of the challenge to government lawyers would be in the event of a Leave vote? About whether the UK was, in any way, prepared for that in terms of resources and legislation? Or did that just happen on 24 June 2016?
JJ: You know that the party line was that there was no contingency planning for a Leave vote. I don’t know what I don’t know, or what might have been going on elsewhere in government. But just towards the very end, certainly, as the polls were showing a greater risk of a Leave vote, there were a few quite anxious conversations convened by Jeremy (Heywood), and I was party to some of them.
So, you might call that contingency planning for contingency planning. It was all done quite privately, for obvious reasons. The conversations I was part of didn’t really go much further than, ‘How will we manage the first couple of days? What will the line be? Will Cameron resign, and if so, what do we do in that gap?’ It was that kind of quite practical, very immediate planning for a Leave vote. I think that probably did include, in Jeremy’s mind, ‘Who would we put in to lead on this on the official side?’.
I suppose, to the extent I’d done any planning on the legal side, it was all pretty high level, in my head. It wasn’t really discussed with anybody very much. So that was the extent of the planning that I was aware of, and that, of course, reflected the instruction from David Cameron that we weren’t to do any planning. So beyond what I have described, we didn’t.
Preparing for the withdrawal negotiations
UK in a Changing Europe (UKICE): What did you do on 24 June? I don’t know whether you’d stayed up all night, watching the results, or sensibly gone to bed.
Jonathan Jones (JJ): No, I was very unsensible. I had done the classic thing of having a bit of a party with people who were interested in watching the results. Then, as it became apparent that we were going to be leaving, I did then get some sleep. Unsurprisingly, I got a phone call the following morning from Rachel Hopcroft, who was then Jeremy’s PPS, saying, ‘Can you get down here now?’
In my hungover state, I went down to 70 Whitehall. Again, a small handful of us got together, just to work out what we were going to do that day, what the choreography was going to be, what the very early organisational decisions were going to be. It was all pretty surreal, not just because of my hangover, I think, but the world looked and felt very odd that day.
You will have heard this from others, I guess; there was also quite a lot of emotion around. Some of the early things we had to do, as leaders in the Civil Service, was start communicating with people, quite honestly, about what we did not know, acknowledging people’s own uncertainties, and in some cases, this whole range of emotions, from, no doubt, jubilation and optimism, to real anxiety and depression. Just acknowledging that and being honest about the fact that there wasn’t, yet, a blueprint for what was going to happen organisationally, let alone in policy terms.
There were lots of communications going on in those early days, even if the communications weren’t saying very much.
UKICE: When was the first moment you opened or downloaded the Comprehensive Economic and Trade Agreement (CETA)?
JJ: I can’t remember the exact moment. But yes, you can imagine we were starting to think what the questions might be, and the different possible models for our future relationship There was quite an early focus on what dispute resolution mechanisms might be, given the phobia of the ECJ. At the beginning it was all inevitably very high level and all very speculative. Nobody really knew what direction this was going to go in, because we didn’t even know who the Prime Minister was going to be, at that point. So we had no policy lead, and this was all very blue-sky, speculative thinking.
UKICE: In that interim phase, before Theresa May came, we had the Robbins-(Oliver) Letwin unit established to do a bit of scoping work. Did you start scoping out what the scale of the legal task might look like, and where there were gaps, whether it was on trade law, or just in terms of repatriating the EU statute book?
JJ: Yes, we did. One meeting I do remember, very early on, was with Oliver Letwin and Elizabeth Gardiner, the First Parliamentary Counsel, where we just talked through what would be needed in terms of domestic law. You talk about repatriating the statute book; that was really the purpose of that conversation. Early on, we realised that if we left the EU, we were going to need, in some way, a holding position for that huge body of law, which derives from EU law, but would not change on day one.
In that meeting with Oliver, we came up with a model that, actually, turned out to be the one we followed, which is to enact UK legislation to effectively freeze existing EU law, to translate it into UK law. But we recognised that there would need to be a load of amendments for it to work in a post-EU context. It was easy to think, off the top of our heads, of what some of those might be. I think it’s fair to say, I, personally, underestimated just the sheer number of changes that would be needed to EU law to make it work after the UK’s exit.
But the concept of a statute that made the main translation, and then a load of detailed amendments, which ended up being done in thousands of statutory instruments, was the only model. That’s the one we came up with, and that’s the one that, with many tweaks and refinements, ended up becoming the EU (Withdrawal Agreement) Act 2018.
So, I certainly had conversations about that. I suppose what was more difficult, because this was such a huge policy question for government, was what the terms of our exit would be. We could plan for exit. We could plan for the idea that we’d be out of the EU, and we knew we needed to do something for the body of law that would be affected by that.
More difficult, as lawyers, was to plan for what the terms of our departure would be. Were we talking about EEA? Were we talking about a free trade agreement? All these questions that then, later, emerged about participation in the Single Market and the customs union, let alone what the position of Northern Ireland would be. I don’t think anybody was talking about Northern Ireland then.
None of that was on the table, although I’m sure I and other lawyers were thinking about it, in the same way that lots of other citizens were beginning to think about it. There wasn’t a legal template for any of that, because all of that needed to be driven by the policy, and we were miles off that.
UKICE: When Theresa May came in, did you have any meetings with her, or were you always one step removed, working with Olly Robbins in the unit and then the Department for Exiting the European Union (DExEU), or with other officials? Did you ever get a chance to talk through the legal issues with the Prime Minister or her team in Number 10?
JJ: Yes, from time to time. Some of this was to do with her personal approach and, indeed, relationships. I knew her from when I’d been Legal Adviser in the Home Office, so she did know me, and she did, occasionally, bring me in and I went to some meetings with her at Number 10. I also knew Nick (Timothy) and Fiona (Hill) quite well from when they’d been her Special Advisors in the Home Office. So I was, on occasion, physically part of the team advising her.
Again, partly because I knew him very well, once Olly was in place, he very often brought me in. I was part of his regular planning meetings. He rightly spotted that he needed to have lawyers very closely involved. So I, personally, was part of many conversations, but lawyers as a whole were very well plugged in right from the beginning. That seemed, to me, to be absolutely essential.
UKICE: Were there big resource gaps? Whether it was you and Elizabeth Gardiner identifying the need for more parliamentary draftspeople, or people to do rollover trade agreements and all those sorts of things, were you concerned about getting the right people in? Or did you make the decision just to buy it in from city law firms?
JJ: First of all, the core of the EU team was quite quickly assembled from our existing expert teams. We created a new legal team for DExEU, which was based on our old European Law Division, headed by Daniel Denman. There was lots of pre-existing expertise, and indeed, people who’d been involved in advising on the Cameron negotiation.
We bolstered that partly by borrowing some people from the Foreign Office, and in the end, created a kind of double headed DExEU team, the other head being somebody called Cathy Adams, who’s another expert EU and international lawyer who came to GLD from the Foreign Office. So that was our core Brexit team, and we certainly had to expand it by bringing in lawyers from other parts of GLD and beyond. But there was lots of pre-existing expertise and knowledge there.
The bigger gap, as the Department for International Trade (DIT) was created, was in trade law more generally. In truth, we weren’t going to start entering into trade agreements straight away, certainly not until we’d left the EU. So tooling up DIT was a more gradual process. That involved bringing together a group of existing government lawyers who already had some trade expertise or experience of negotiating international agreements of various kinds, and bolstering that by recruiting externals, including some overseas lawyers with experience in this area. We started recruiting for lawyers, of all kinds, almost straight away, after the referendum result. Probably, GLD is still in a continuous recruitment phase now. It always needs more lawyers!
Pay was, and I believe remains, a major limiting factor in GLD’s ability to recruit. But nonetheless, we had reasonable success in recruiting new people. Over time, we also did engage private law firms; we created a new trade law panel, and firms, including my new firm, Linklaters, have been involved in providing support.
But the core EU negotiating side, and the team that was involved in legislating, was all built around pre-existing GLD lawyers, and still is.
UKICE: In drawing up what became the 2018 EU (Withdrawal) Act, did you look at precedents from when countries got independence from the UK, or did you just come up with this model because you thought it was the only way it was going to work?
JJ: Speaking personally, I didn’t, at that stage, look at precedents. We, in discussion, came up with this as the only way that it was going to work. Of course, this reflects the huge body of law that we had become party to during our membership, a lot of which was already in statutory instruments, under the European Communities Act 1972. So I’m not claiming it was an act of genius to come up with that model.
Lawyers working on the Bill may then have looked at precedents. But if they did, it would have confirmed that this was the kind of model needed. As the detail was worked through, it became apparent that, of course, there were many refinements and many complexities that had to be ironed out. But the basic model, I think, ended up being the right one. It is difficult to see what else you would have done.
UKICE: Why was the EU Charter of Fundamental Rights left out?
JJ: Well, the Charter had always been a bit of a dirty word, hadn’t it, with successive Tory governments. Beyond that, I can’t remember the detailed thinking.
UKICE: Were you surprised that the Prime Minister had called it the Great Repeal Bill when she launched it at the Conservative Party Conference?
JJ: I don’t know. I’m not really surprised by anything these days. Politicians like to give bills catchy names. I think I do remember Elizabeth Gardiner and I sort of shrugging our shoulders and saying, ‘Well, they’ll call it that for now, but it won’t in the end becalled the Great Repeal Bill’, and of course it wasn’t. Because we don’t give UK statutes names like that. But politicians will, sometimes, give them labels, and we shrug our shoulders and say, ‘Fine. If, for political reasons, they want to describe it in that way, so be it’.
UKICE: At various points, you’ve said that the EU is the most legalistic order known to mankind. But throughout the Brexit negotiations, UK ministers – I’m thinking much later, with Dominic Raab, notably, an ex-Foreign Office lawyer – seemed to be surprised that the EU was taking a legalistic approach.
Do you think this was a collective failure by officials to communicate the importance of the EU legal order to ministers, or was it just extreme wishful thinking by ministers, in the face of the advice they were getting?
JJ: Maybe I would say this, but it was probably the latter. Bear in mind that some of the same officials would have been there through the Cameron negotiation. That, too, was a massively legalistic process. We’ve already talked about the role of lawyers in that, and partly about getting our heads around the approach that the EU itself, and the Commission, takes to the EU legal order.
I’ve no doubt that some ministers under David Cameron were mightily frustrated by that. Every time they wanted to do something, the EU would come back saying, ‘Well, that’s not compatible with the treaties’ and so on, or the four freedoms, etcetera. But it wouldn’t be for want of advice that ministers failed to grasp that this was the EU’s approach. It may be, as you say, that it was more wishful thinking, or just frustration.
But then, when it came to the process of leaving, lo and behold, that was all governed by the treaty, by Article 50, and a really rather legalistic process agreed on by the EU. We didn’t have much choice but to go along with it. I’m sure you’re right: ministers were sometimes frustrated by that.
UKICE: How much training did you give, and how much knowledge was there internally, about the difference between the Single Market, the customs union, and a free trade area, and the serious implications of those policy choices about which bucket you go into?
JJ: There will have been plenty of advice on the options. How quickly ministers got their head around it, I don’t know. One of the meetings that I was at was the famous Chequers meeting, where the Theresa May model was presented. That involved a set of choices, as you know, including what to do about Northern Ireland, including participation in the Single Market and regulatory alignment, and all those things.
Some quite sophisticated choices had been made there, and famously, quite a few people in the Cabinet at that time weren’t prepared to agree to it, including the now Prime Minister. So how much they all really understood, I don’t know, but very full advice would have been made available about the options.
Theresa May’s particular style was very much to get her head around the detail, including the legal detail. Of course she made policy choices which, in the end, she was not able to persuade Parliament, or indeed all her Cabinet colleagues, to go along with.
UKICE: From excerpts from Michel Barnier’s book, he was stunned at May’s 2016 conference speech and the Lancaster House speech and the fact that she had, apparently, shut all doors and made it so public. Were you involved in advising on those?
JJ: Well, I didn’t advise on the terms of the speech, so any advice I was giving would have been well in the background. I go back to my point that the policy decisions being made then were just that: they were policy decisions. The decision about what to say about them, and this question of whether the UK was revealing its negotiating hand and so on, were of course highly political judgments for the Prime Minister.
They involved having to negotiate with the EU at the same time as managing what was still a divided party and a divided Parliament. Of course, in the end, she failed in that.
UKICE: The other thing that the Government was doing was contesting the first Miller case on Article 50, where the Government seemed quite surprised that it lost. I wondered whether you wanted to talk to us about why it was so important to contest the Miller case, and whether you were surprised by the ultimate judgement in the Supreme Court.
JJ: Again, there were policy decisions to be made about how quickly to give notice under Article 50, and a judgment was made that we should give notice quickly. Brexit meant Brexit, as you will remember.
Now, we may all have views about whether that was a wise decision, and whether much more time should have been built in upfront, before starting the clock. Maybe, history suggests that that would’ve been a good idea. But there was a highly political decision made by Theresa May and her government not to do that, that we needed to get on with it, and that we needed to give notice very quickly. Well, that was a policy judgment, and you can see why, given the outcome of the referendum.
I think the orthodox view would have been that legislation was not required for that and that prerogative powers were sufficient for decisions about negotiating or withdrawing from treaties, or triggering measures under the EU Treaty. You will understand I can’t comment on the detailed legal advice that was given. But it will be obvious that this was essentially the line we took in the litigation. We realised that there was a likelihood of litigation at every stage, because everything about this was so contested. And there was always a risk that the government would lose, because this was such novel territory. In the event, of course, that is what happened. On balance this is probably not the outcome I would have predicted at the beginning of the process.
But as of course happens with big cases of this sort, the arguments get refined as you go up through the courts. The argument, particularly, about interference with rights was developed, and that held great sway with the Supreme Court. So, it’s just an illustration, I suppose, of how, in a highly-charged, complex and obviously unprecedented area, anything can happen, and it did. There was obviously no case law on Article 50 anywhere in the world, let alone in the UK.
Legal aspects of the negotiatons
UK in a Changing Europe (UKICE): If we move on to post-election, you’ve got the Article 50 bill through, and the letter has been sent. The withdrawal agreement negotiations then started. Could you tell us how you supported those and how those were structured, and where you saw any particular difficulties in those negotiations, from a legal point of view?
Jonathan Jones (JJ): Well, the first point we’ve already touched on, which was that these negotiations were all very carefully structured and organised according to the EU legal framework and the mandate that the Commission had been given by the Council. That led for example to the ‘sufficient progress’ test which meant the EU was not prepared to start talking about the future relationship until we had made ‘sufficient progress’ on the terms of our exit. It was very clear, right from the beginning, that it was the EU that was going to dictate the progress and the structure of the negotiations, and that would all be driven by its legal order and the requirements of the treaty, as it saw them.
The legal support for this settled down, I think, reasonably quickly. Again, it really became clear that we needed lawyers all over this. The expanded team that I’ve talked about, in what was then DExEU legal advisers, provided the core of the legal support for the negotiations. The two Legal Directors I’ve mentioned – Daniel Denman and Cathy Adams – were probably the two lawyers who spent most of their time in Brussels over this period.
Then, as the negotiations progressed in more detail, other lawyers would go out and support different strands of the negotiation. So, lawyers were very, very heavily involved right from the beginning, and rightly so.
I, personally, was present for some of this. I suppose I went to Brussels about a dozen times, for particular meetings, mainly where Olly particularly wanted me there, if particular key issues were on the table or we had reached a pivotal point where it helped to have my input. Sometimes, without being immodest, it helped to be able to say to the Prime Minister that I had been part of the discussion, and was able, personally, to endorse whatever position had been taken.
I couldn’t be there all the time; I had a department to run and other things to be doing. But certainly, there were some moments when it was felt that it was worth me being there in person. Of course, if you’re going to do that, it’s good to do it more than once, so that you get to know people and you’re felt to be part of the team, and I think I was.
In the end, there would have been dozens, if not hundreds, of lawyers, at one time or another, going to and from Brussels, or supporting the negotiations from London. It was quite a good thing that I was able to go too, and thank them and say hello to the teams who were knocking around at the Berlaymont and share their pain, and so on. So it was a sort of leadership role for me, too.
UKICE: When you saw the text in the joint report about Northern Ireland, did you look at that text and think, ‘This is going to be impossible to turn into some sort of workable treaty text’? Or did you look and think, ‘That’s a brilliant negotiating compromise, and we can easily put forward some UK language that will work’?
JJ: Well, I do remember some conversations about that. Maybe I thought a bit of a combination of all those things. Negotiation is, sometimes, about just getting to the next stage. Well, it achieved that. You had to take the negotiation in chunks. But I think I probably did also think, ‘How the hell are we going to give effect to this?’ So in that sense we were putting off some of the pain until the next time round.
UKICE: With the text for the Withdrawal Agreement, why was it that the UK didn’t seem to have its own text, and we worked off the EU’s text?
JJ: I think that’s probably unfair. We were producing lots of text, and some of that, no doubt, did find its way into the final version. So, it was a more evenly-balanced negotiation, from a technical point of view, than may have appeared.
In the end, yes, it was presented as Commission text. Maybe this is always going to happen; somebody has to take control, and it was going to be mainly the EU side for the structural reasons we’ve discussed. But in practice, we were producing lots of text.
From a legal point of view, we had some really brilliant people on the UK side, including the ones I’ve mentioned, who were absolutely the equal of any of their counterparts on the EU side. At the meetings I went to, which were quite a few, sitting alongside some of my fellow lawyers, there was never any sense of inequality in negotiation power. Certainly, on the legal side, there were – and I took part in them – some if not heated, then quite spirited, discussions of legal points. Very often, it was the UK lawyers that would win those arguments. So whatever your view of the politics and the ultimate outcome, from what I saw (which was mainly the negotiation on the Withdrawal Agreement rather than future relationship) it was technically and legally a very even negotiation.
UKICE: We then had the Queen’s speech announcing a number of Brexit Bills. You’ve got the big EU Withdrawal Act going through, proving to be very contentious, and a vast number of statutory instruments required, and new processes in Parliament. How did lawyers tackle the challenge of getting all of that done with a government that had a very flaky majority to call on, and therefore a very stop-start legislative programme?
JJ: It was a huge volume of work, both supporting the negotiations, and then, on the UK side, doing both the primary legislation and thousands of statutory instruments, and handling the litigation. In the event, I think we coped miraculously well.
We were helped in that by, first of all, having some very good lawyers. We deliberately kept together a single central EU/Brexit legal team, despite the various choppings and changes on the policy side between Cabinet Office and DExEU and Olly’s movement from being Permanent Sec of DExEU. That did a lot of coordinating work, both for the negotiations and for the UK legislation, and acted as the legal team for the primary legislation.
The secondary legislation – all the SIs – were drafted in the legal teams advising the relevant departments. So each department, whether it’s the Department for Environment, Food and Rural Affairs (DEFRA), or Business, Energy and Industrial Strategy (BEIS), or whatever, would have responsibility for its own secondary legislation, in its own policy areas. The lawyers in those legal teams would draft the relevant SIs in that area. But there was a strong layer of coordination going on from the centre of GLD, because of course, in drafting those SIs, they were tackling lots of common problems for which we needed consistent legal and drafting solutions.
Which is why many of these SIs, in the end, are terribly boring, because they’re making very repetitive, very common technical changes. Where that was happening, it was important that the drafting was consistent across government.
We just coped. Meanwhile, we were recruiting to bring in more resources. It was, I suppose, quite exciting for youngish junior lawyers to be involved in what, on any view, was the major constitutional legal issue of the day. So even if some of the individual SIs were highly technical, the fact of being involved in this project was interesting and attractive to lawyers. In the end anything that we were asked to do on the legal side, we did. That included, of course, all the domestic legislation as well as supporting the negotiations and in some cases producing multiple drafts as policy changed.
UKICE: Did you regard it as problematic when, initially the Welsh, but ultimately, only the Scots, withheld legislative consent to the Withdrawal Bill? Did you have qualms about the UK proceeding, or were you absolutely clear that, though it was sort of nice to have, it was not a problem?
JJ: Plenty of things were worrying plenty of people. I think I probably regarded that as more of a political issue than a legal one, in the scheme of things.
UKICE: The other thing that was happening was that the Prime Minister was facing millions of amendments and parliamentary hurdles. But early in January 2019, there was a big row in Parliament about the disclosure of the Attorney General’s advice on the meaning of the backstop. Why was that such a big issue? Were you concerned about the Opposition using the humble address process to require publication of the legal advice?
JJ: Yes, I was. This was the Geoffrey Cox advice, who was Attorney General. I was concerned about that. In what is, perhaps, a rather traditionalist, old-fashioned way, I take the view that legal advice should normally be regarded as privileged, and that any client, including the Government, is entitled to get legal advice in confidence, and not have to disclose it.
As you will know, there are particular rules surrounding Law Officers’ advice, which say that, normally, even the fact that the Attorney General has advised, is not disclosed. There are good reasons for that.
But these are only conventions. Of course, privilege can be waived, and there are exceptional circumstances in which Attorney Generals’ advice has been disclosed. I’ve lived through some of them in my career, including the Peter Goldsmith advice on Iraq. There are exceptions to every rule.
By now, this question of the backstop had become so political. And Geoffrey Cox, for good or ill, had taken on a key role in helping to resolve it. Maybe it became obvious that he would, in the end, have to account for what advice he’d given, and of course, he did, reluctantly.
UKICE: If I can just take you back to what you said about legislative consent, were you partly relaxed about that because of what the Miller judgement had said about the Sewel convention? Had that changed your thinking at all?
JJ: I actually can’t remember what my thinking on that was, or how large that loomed with me. Thinking about it now, what the Supreme Court said about the Sewel convention, I would regard as being orthodox. In a way, that is helpful, because it confirms the non-binding nature of the convention.
UKICE: If I can take you back to Geoffrey Cox, one of the things that was seen as signing a death knell for Theresa May’s Withdrawal Agreement was when he made his statement in March 2019, saying that, although he thought there wasn’t much political risk in the protocol, the legal risk was unchanged as a result of the assurances that the Prime Minister had extracted from Jean-Claude Juncker and the Commission team. Did you share that legal assessment, and were you surprised by the way he put it to Parliament in that statement?
JJ: Yes, I think I probably did agree with the legal assessment, and I did discuss it with him. But this this was very much his personal advice and he chose how he wanted to word it. It’s fair to say it was not regarded as helpful by the Theresa May government.
UKICE: When you have a distinguished lawyer, like Geoffrey Cox, as Attorney General, to what extent does he consult his legal officials? Does he just look at it and make his own judgement, as he would if he was being consulted as counsel, or does he really take official advice, and act more like a minister would?
JJ: Well, they’re all different, Attorneys General. I’ve worked with about eight of them now. But Geoffrey Cox’s approach to this was perfectly orthodox. He took advice. He consulted officials, including me. We had meetings with him to discuss the key pieces of advice. Sometimes he had knocked up a draft, which he wanted to test with us.
Sometimes, it will be other way around, and officials will produce a draft, and then there will be an exchange on the basis of that draft. The context was of course highly political, and the Attorney General is both a politician and a lawyer.
But certainly, the end result was very much his own work. That’s as it should be. He is the Attorney General; it’s his advice, and in the end he, personally, had to defend it, perhaps more publicly than Attorneys normally do, (A), because there were the debates on it, and (B), because in the end, the text had to be disclosed. So it was very much his advice and his view, but refined and tested with officials.
UKICE: In this period, there is at least a theoretical threat of a no-deal Brexit. Parliament was trying to get in the way of that. From a legal point of view, did you think the UK was ready for a no deal Brexit, or were you very concerned that there would be gaps exposed in the book, or other legal risks?
JJ: There were endless meetings about planning for a no-deal Brexit, as you will know. Others will have their own view as to whether we were remotely prepared, as a country and as a government. I think I probably thought that the main risks – and they were huge – were practical, political and trading risks, rather than legal ones. But I’m sure there would also have been legal risks, either challenge to the government, or commercial litigation, for example because the status of contracts was thrown into doubt.
Some of that was cured by the 2018 Act and, from a legal point of view, what we had done to stabilise the statute book. That would have applied even in the event of no deal. We would have had a functioning statute book adapted for a situation in which we’d stopped being a member of the EU, even without a deal. So, at that high level, I suppose we’d done what we could, legislatively. Nonetheless I’m sure there would have significant legal risk but they were all just part of the wider great heap of risks that we’d have been running if we’d left without a deal. We would have been prepared in some areas, but not in others, no doubt.
UKICE: Were you at all involved in negotiations with the Opposition about how to give legal effect to some of the commitments being made to them, or did that pass you by?
JJ: I don’t think I, personally, had any involvement with the Opposition. It may have been that lawyers sat in on some of those discussions.
Reflections on the Johnson Government
UK in a Changing Europe (UKICE): The Johnson Government comes in with a commitment to get the UK out of the EU by 31 October. The first big decision was prorogation. Were you at all involved in that, and were you were surprised by the legal challenges, and indeed, the ultimate success of the legal challenge, to prorogation?
Jonathan Jones (JJ): There is not much I can say about the legal advice, partly because any advice would have been privileged, but also because I cannot be certain what advice was actually given (including orally) by others, including the Attorney General. I personally was not brought in until after the event, when we already faced litigation.
The Supreme Court didn’t, in the end, accept that there was a proper legal justification for the decision to prorogue.
There is a view, and I think I probably share it, that this case might have gone differently if the decision had been taken in a different way. This, of course, is not unusual for controversial decisions. In the end, it’s the process and the justification for a decision that gives rise to the risk, rather than the substance of the decision itself. In this case – and this is in the public domain – there was a lack of evidence, to the extent that the only person prepared to sign a witness statement was me.
All I could do was set out the documents that we’d obtained through the process of disclosure. That was the only evidence that the court had. It was rather striking – and everybody spotted this, and why wouldn’t they? – that there wasn’t any more, and that the only evidence came from the Treasury Solicitor, who is not a witness of fact at all. So, all I was doing was setting out the documents.
In the circumstances, therefore, I think I probably was not surprised that the Supreme Court said, ‘Basically, there’s got to be some limit to this power to suspend. In the absence of any proper justification, we think this goes too far’. There it is. Whether if, as I say, there had been a fuller, reasoned justification for the decision, the Supreme Court might have backed off, we will now never know.
UKICE: One thing that happened, possibly triggered by the imminent prorogation, was the passage of the so-called Benn-Burt Act, requiring the Government to request an extension. There were some doubts being cast by Number 10 on whether the Act was really watertight, but also on whether the Prime Minister would actually follow its requirements.
Did you think that the Act was watertight, in terms of what it required the Prime Minister to do, and were the briefings out of Number 10 saying that the Prime Minister might ignore the Act creating a difficult working environment for the lawyers in government?
JJ: Yes, it did. First of all, I think the Act was watertight and it was clear. Secondly, the Prime Minister saying and implying that he wouldn’t comply with it, or in other words, that he wouldn’t seek an extension, was very troubling, because it implied a willingness to break the law. But I reconciled my conscience to the situation on the basis that the Prime Minister might say all sorts of things, but actually, what really mattered was whether he did, in fact, comply with the law, or not. Of course, in the end, he did, by seeking the extension as required by the Act.
So that’s what mattered, rather than statements in Parliament, or anywhere else. But nonetheless, they were cause for concern, and for some quite anxious conversations.
UKICE: Would you have resigned if he’d broken the law?
JJ: Yes, I would. I didn’t have to say it. It’s not a very good look to go around threatening to resign, is it? But I think that there would have been a red line there. Actually, I think there would have to have been a red line for Geoffrey Cox, too.
UKICE: The other thing that this, also, was triggering, was the very different approach to getting a deal and the Northern Ireland Protocol. Ministers seemed to be constantly surprised by the implications of the protocol that they negotiated. How involved were you, and how much were those implications really spelt out to ministers as they did that deal?
JJ: Well, the answer is that I, by now, was less involved, because Theresa May had gone, and Olly had been replaced by David Frost. I never got involved in negotiations with that team, personally, in the same way as I had been under Theresa May and Olly. GLD lawyers were of course still involved but I had less of a personal role.
So, I don’t know whether ministers really understood what they were signing up to, or whether there was some wilful blindness or wishful thinking, or some combination of those things. But I think we’ve, ever since, been bedevilled by a combination of those things, which is over-promising, and blaming others for the terms of the deal that we had agreed to. Behind that, I’m assuming that advice was given on the effect of what was being concluded, and the risks around it, but how far that was really understood by ministers, I don’t know.
UKICE: Were you surprised that there was a deal? Were you good to go with the Government trying to rush through the Withdrawal Agreement Bill?
JJ: Do you mean the ultimate deal?
UKICE: The Government’s deal on the protocol within the Withdrawal Agreement, when the Government was getting it rushed through Parliament. Were you surprised? Were you ready?
JJ: I think by then, we were sort of ready for anything. It’s true that, legally, technically, and in drafting terms, the Withdrawal Agreement wasn’t that different from the Theresa May deal. The politics had changed, and obviously, there was a big change at the heart of the Northern Ireland element. But a lot of the technicalities and a lot of the drafting held good.
UKICE: Coming onto the 2020 negotiations, you mentioned that you weren’t nearly as involved with the Lord Frost team. Was it a very different ask for the lawyers to support the Trade and Cooperation Agreement negotiations, as opposed to doing the much more narrow Withdrawal Agreement? What was the difference in the tasks that they faced?
I wonder whether you thought, in your personal assessment, whether it was at all feasible to do that degree of a deal within the set timeframe.
JJ: It was a bigger project, and of course, it spanned more policy areas, more areas of government, and therefore, more legal teams and more lawyers had to be involved. I don’t know the numbers, but there would have been dozens of lawyers going back and forth to support the individual strands. I suppose, like everybody else, I hoped we’d do a deal, because I thought a deal would be better than no deal. But it was always going to be a stretch in the timescale.
I don’t think that legal input, or the lack of it, was ever going to be the killer point. If the Government was willing to do a deal and had the capacity and the political will to do it, the lawyers would be there to help make that happen and produce the relevant legal instruments. In the end, so they were. That involved some heroic work from many of the lawyers.
UKICE: The deal breaker for you, clearly, was the Government’s confirmation that the Internal Market Bill would break international law in ‘limited and specific ways’. I just wondered if you could talk us through what led you to the conclusion that that was something you couldn’t accept, and what you thought that meant for the lawyers left in government. What did you think of the Cabinet Secretary trying to give them some comfort on the basis of assurances from the Attorney General?
JJ: Well, this is a painful bit of history. It didn’t come out of nowhere. It had been apparent for some time that, having signed up to this deal, there were aspects of it the Government didn’t really like, and was going to try to find ways around. Lots of work was being done to see if there were clever arguments or other ways of ameliorating the unwelcome aspects of the agreement, especially the Northern Ireland Protocol. Lawyers were involved in supporting that work, and advising David Frost and others on it.
I had been tipped off that, if these various wheezes failed in the end there was a willingness in government to legislate, or at least to consider legislating, unilaterally, to disapply the bits of the protocol that it didn’t like. Lawyers were very concerned about this, and I thought they were right to be concerned about it.
So lawyers, being endlessly inventive, are always trying to find ways, even living with a very high legal risk, of trying to do something which might just avert the full clash. Even if that was, itself, legally risky, we’re always up for some legal risk. But it became apparent that if all else failed, the Government was prepared not just to take some risk, but to do something that was deliberately and flatly and expressly contrary to the UK’s international obligations. With each successive turn of the conversation, it became apparent that we were running out of space, and that the Government was, indeed, prepared to do this.
Without going into every twist and turn, I was making it clear, in any conversation I had, that I thought this was a real problem. The Attorney General sought advice from a slightly unusual set of external experts, which in its legal essentials, I didn’t disagree with. In one sense, the legal advice is banal, which is: if you legislate contrary to an international law agreement, you are acting contrary to that agreement. What more can you say?
Then the question became, ‘But is it okay to do that?’ It’s not really a legal question. It’s your view as to whether there is a constitutional or moral or proprietary basis for breaking the law. The Attorney General had persuaded herself that this was, and she said so publicly to Parliament – that it was constitutionally proper for the government to introduce the relevant provisions in the Internal Market Bill. I had made it clear that I thought this was a problem, and I couldn’t see how I could endorse that position. I did what I could, in a number of conversations and in print, to dissuade the Government from going down this route. But I failed to do that. So the rest of that is history, and I felt I had to resign.
I still, as you know, think it was a very bad moment for this Government’s, or any government’s, relationship with the rule of law, not to mention the hit to our international reputation that goes with it. We are a country that’s prepared to renege on agreements entered into only very recently.
UKICE: You didn’t reconsider that, as before with the Benn-Burt Act, this was an area where the Government was taking power to do this, but wasn’t actually doing it? Did you not think that maybe you should wait for the Government to actually activate those provisions, rather than taking the power to enable them to do it?
JJ: No, I didn’t. I don’t think that is really an accurate comparison, because the concerns on the Burt-Benn Act were, in the end, just the Prime Minister sounding off about his approach to seeking an extension. The Internal Market Bill was a bill introduced by government. This wasn’t just political rhetoric.
Even if you take the view, which I’m not wholly persuaded by, that the breach only comes when the thing is done (in other words when the provisions were brought into force), I think legislating in a way that paves the way to taking that step already crossed the Rubicon. You’ve got a government that says, ‘We are prepared to break the law’ – as Brandon Lewis said. There was an acceptance that the Government was putting itself deliberately on a course that would have contravened international law.
Plus, by then, I had disagreed, very profoundly, with the Attorney General and her own analysis of what possible justification there could be. So for a range of reasons it would have been impossible for me to stay. As you’ll gather, I’m perfectly satisfied that I did the right thing by me, and I did what I had to do.
Your question about what this meant for those left behind is a really difficult, interesting question. I never, for a moment, tried to persuade anybody else that they should go. Plenty of people provided moral and personal support but in the end this was a highly personal decision for me, and others took their own decisions.
Because the business of government has to go on. There’s tons of other stuff happening that’s nothing to do with Brexit and nothing to do with the Internal Market Bill, and it’s important that the Government gets good legal advice on that. It was important that somebody came forward and took over from me. As you know, I deliberately hung around. I served out my notice, slightly uncomfortable though that was, partly to avoid leaving an administrative and legal gap, to provide some continuity, maybe some moral support and some leadership to my colleagues, while plans could be made for, first, a temporary replacement, and then a permanent successor.
UKICE: Reflecting back on the entire period, I just wondered if you had any thoughts about what changed as a result of Brexit – the relationship between ministers and the Civil Service, the way we legislate? I know you’ve been concerned by the way ministers legislated on Covid-19, bringing in regulations at very short notice, or indeed, with very little scrutiny. And by ministerial views of the role of the courts.
I just wondered if you had any final thoughts on where we’re left after these five years.
JJ: Well, first of all, I think the Civil Service has actually survived this remarkably well. Obviously, I’m particularly proud of my bit of it. But, in the end, we took everything that was thrown at us, and we did what the politicians asked, whatever our personal views, in the best traditions of the Civil Service. So Brexit was done, in the end, to the timetable, according to the wishes of the politicians.
The big problem is, I’m afraid, on the political side, whether the politicians really did accept and understand what they were doing and what they were signing up to beyond the slogans and beyond the headline and beyond the deadline; beyond getting Brexit done by a given date. To what extent did any politician really understand and own the detail of what was, in fact, being agreed? I think the answer is, there are big gaps. That is part of the problem we’re now seeing. That’s true even of the Cabinet and the Government more widely. But the bigger problem is the lack of meaningful involvement by Parliament. There’s no way MPs in general could possibly have understood the detail of what was being agreed, because of the timescales and the lack of scrutiny. I think that’s a problem.
We’re storing up problems if we embark on these huge constitutional policy changes, with politicians not seriously feeling that they understand them or have a stake in them. That’s partly about timing, and it’s partly about successive governments’ approach to Parliament.
You mentioned Covid-19. It’s a really different topic, but it’s an illustration of the same thing. You’ve got a government which to a large extent – because it can do things in a certain way, at speed – is avoiding parliamentary scrutiny. That leads to worse policy making, and it leads to lower levels of buy-in by MPs. This is what I would feel if I was an MP, and I had had no meaningful say in these huge policy and societal changes. What’s the point of being an MP? To what extent do I feel I’ve got a stake in these things?
The final thing is, what’s the role of the courts in this? The role of the courts in scrutinising government action is currently being reviewed. Although it’s still not entirely clear what the government is going to do, there is a fear that its agenda is to cut back the courts’ role in ways that could be very troubling. it’s difficult to see how this is justified and it’s not borne out by the independent review under Lord Faulks, which recommended only very limited changes.
The particular cases we’ve mentioned, including the two Miller cases, can be critiqued, and people endlessly will, but they are very specific to their own facts, and indeed, the law around them. The prorogation case, you could easily imagine that might have gone another way, if the process had been handled differently.
I hesitate to draw any wider systemic conclusions from those cases. I think that’s borne out by the Faulks review. So I don’t think the courts are really part of the problem at all, actually.