The Brexit experience shows we cannot blindly trust civil servant negotiators to deliver referendum pledges

The Brexit experience shows we cannot blindly trust civil servant negotiators to deliver referendum pledges

There is a strand of thinking right now that Brexiteers should plump for May’s Deal regardless of whatever escape clause paperwork might yet come back in Geoffrey Cox’s suitcase. The premise carries a fundamental flaw.

Let’s leave to one side the range of problems that are left in the Withdrawal Agreement even if the Irish/Northern Irish backstop is fixed. The infamous £39 billion. The surrender of assets, except the stuff that’s radioactive. The complete loss of control over fisheries management, risking the prospect of a ‘final clear out sale’. The locking of the UK into the ECHR, despite previous Conservative pledges to develop human rights law domestically (as Australia, New Zealand, and Canada somehow manage to do).

Or for that matter, the worrying issue of the ‘Rioters’ Clause’, Article 18 of the backstop. This trip wire allows the Commission to suspend any part of the deal where the UK or Northern Ireland gain a competitive advantage. It also operates as the one area where the UK could unilaterally pull out of the backstop, but only if there is mass civil unrest – a fate which the clause itself correspondingly increases over time. Alarmingly, it remains off the general radar.

Let’s assume that we have resolved to abandon these issues and others beside, write them off and put faith in what may prove to be a legal post-it. What then? I would suggest we ought to pay more thought right now to the prospects of delivery. Without this, going for a WTO plus bilaterals, including the Contingency Measures that the Commission and individual member states have already signed up to, would make more sense.

At some point the UK will seek to move away from the backstop. The objective will be to seek a fresh trading arrangement, one that accommodates the EU’s genuine need to ensure that products enter the EU market that are compliant with EU rules – and, it should be added though it rarely is, applies conversely as well in the interests of the UK consumer. Let’s not forget after all that tasty Findus horse lasagne. But the incentive will be for the negotiators to deliver something convenient and easy, closer to the model of a customs and regulatory union applied to all of the UK rather than just to those exporting.

Frankly, the events of the last couple of years should demonstrate that Brexiteers cannot afford to put blind faith in their negotiators, current or potential. Even if the backstop is magically delivered, the delivery of a meaningful Brexit itself remains at high risk. One is left reflecting on whether, had the UK model and approach been copied in Riga and Tallinn in 1991, the Baltic States would today still be part of Russia.

It would be grossly unjust to sweepingly place everyone in the civil service on the same charge sheet. There are many inspiring, professional, bright, competent and visionary people amongst its ranks. But the toll of forty years of membership of the EU system has, inevitably, had an impact on the general systemic psychology of Whitehall. George Eustice’s resignation letter contained a notable statement that DEFRA “more than any other government department, has embraced the opportunities posed by our exit from the EU.” My own experience over the years has shown very mixed levels of open-mindedness towards EU matters across departments, with officials dealing with Fisheries indeed proving rather more keen to address core treaty failings than counterparts for instance in the Foreign Office (no doubt because they were the ones always left holding the wrong end of the policy toilet brush).

Caveats noted, one cannot though ignore the issue of core affiliation amongst top management. Tony Connelly, in his book Brexit and Ireland, recalled the first conflab of the leading civil servants of both countries after the referendum; “‘It’s fair to say that on the other side, most of the people in the room wouldn’t have been happy with the [Brexit] situation,’ recalls one Irish secretary general. ‘So there was a degree of remorse and regret on their side, and equally on our side.’” I can well believe it: I have a letter beside me from as far back as 1998, from an official in the European Union Department of the FCO stating that “we should not ignore or deny the benefits which the European Union brings and which are too often downplayed.”

The same discussion with the Irish “involved a lot of talk” about the UK potentially wanting to stay in the Customs Union. The detail should also alert us to the wider and perennial risk of what happens with civil servants left devoid of clear direction or firm grip: the prospect of dropping policy on ministers’ laps if they don’t work it out themselves. And sometimes even if they do: I recall one former minister at the Home Office telling of a particular policy that he had been presented with, which on asking around with predecessors turned out to be something they had binned but which mandarins had pushed quietly, and repeatedly, back on the agenda for their successors.

We might also consider the proven back history to policy drift involving two of the four negotiating pillars in play, on Justice and Home Affairs and on Defence. The ratio of the Danes using their opt outs in JHA compared to us runs to around 17:1, and they have even walked away from Europol while still EU members. By contrast, when the ECJ was given direct competence over JHA matters under the Stockholm Process, the UK Government signed straight back up to a third of the agreements despite open and vocal backbench Conservative opposition. Meanwhile, as Veterans for Britain has documented, MoD policy towards signing up to, signing off, or sidling away from EU Defence initiatives can only be described as haphazard and, one suspects, dependent on which minister is in the chair on the day. None of this bodes well for guaranteeing a robust and truly intergovernmental form of end deal.

I do not wish to exaggerate the extent to which our form of government is run as a Technocratic Synarchy; a number of political diaries over the years suggest this is determined by the character and resolution of a given minister. What this ought to alert us to, however, is the risk arising from running a process of negotiation around a Political Declaration that remains as ill-defined as Mr Messy, and which senior Commission negotiator Stefaan De Rynck recently acknowledged could deliver an end set of terms that ranged anywhere from an FTA to a combo Customs Union and Regulatory Union.

If one does accept the Transitional Agreement as the route, delivering a final deal that honours the Brexit vote will depend entirely on the quality of leadership and management operating within the Cabinet Office, and even then it runs at very great risk, because of the nature of the task that is being undertaken. One is taken back to the Westwell Report, that reflected upon the limits of the civil service in Margaret Thatcher’s day;

“The Civil Service is a much more formidable obstacle to national recovery than the trades unions. It is difficult for 90 Ministers and a handful of advisers to shape history, in the face of three or four thousand senior civil servants who see it as their job to defend the status quo”

Or again to Norman Straus’s Number 10 Policy Unit paper back in 1981, reflecting on the formation of the top echelons;

“Their lifetime in the Civil Service, and the qualities of obedience, caution, don’t make trouble, observe precedent, which got them to the top are the definitive disqualifications for being able to reform the systems and handle a period of turbulent national change.”

This is before we even get into the matter of delivering clearly enunciated policy that has been unanimously agreed. For an example, I invite you to reflect on the perfectly obscure yet enlightening example set out in Appendix L of the third volume of Churchill’s war memoirs. This relates over a couple of pages how an instruction reached at Cabinet level simply to deliver two tanks to Egypt went badly awry owing to a train of administrative circumstances, including a deceased brigadier, a dinner conversation, a distracted NCO, and an absence of grease. Churchill excuses the anecdote by saying, “I print these details to show how difficult it is to get things done even with much power, realised need, and willing helpers.”

No doubt due and wider balance will be restored across Whitehall simply with the passage of time, the advantage of hindsight, and the operation of fresh recruiting, training and promotions, though it will take some years to percolate into the cadre levitating into the Lords. But for the moment, our current administrative climate is not the best environment to be blindly entrusting people with delivering on referendum pledges. How much more so when you have a poorly-silhouetted exit door, and you aren’t even yet sure the key fits?