The Brexit Battle: How the mandarins from the Ministry are laying the groundwork for leaving

As news breaks that a former colleague in the Better Regulation Executive had been summoned to the front line as part of a ragtag US trade talks team, the International Trade Minister can at least console himself that his team is willing. At his time of greatest need, it seems the DEXEU Minister benefits from no such luxury.

September saw the departure of the Government’s top Brexit official, Oliver Robbins from his role as Permanent Secretary at DEXEU, the Department for exiting the European Union, to a new role at the Cabinet Office working more closely with the Prime Minister.

While some highlight the move as Theresa May taking more direct control of Brexit negotiations with Robbins continuing as the leading ‘Sherpa’ on talks between UK and EU officials, others have speculated that there was friction between Robbins and the Secretary of State for DEXEU, David Davis.

What is clear is that the Brexit Secretary’s role has been undermined.

The Department for Exiting the European Union (DEXEU) was created specifically to take the lead on Brexit, acting as an overarching Secretariat to pull together a common position across government. If nothing else, Robbin’s departure is emblematic of its struggle to do so.

 

Brexit context

This is symptomatic of a number of competing Departmental dynamics in the Brexit context.

First, there is a fundamental structuring problem. DEXEU is a Government Department in its own right, with its own agenda and interests around Brexit to push for. David Davis as Secretary of State has a well-known and very strong view on what Brexit should look like.

Acting as the Secretariat means that DEXEU becomes both poacher and gamekeeper, an untenable arrangement from the perspective of other key Departments, in particular HM Treasury and the Cabinet Office.

A second reason is perhaps even more fundamental. The Senior Civil Service is an extremely strong, capable and bright set of people but the vast majority will have entered the service and forged their careers in the context of the UK being a leading member of the EU.

Whilst political arguments about whether the UK being in the EU was a good thing has rumbled on throughout our membership, officials have simply got on with working closely with the European Commission and with other Member States, a difficult habit to break.

Despite joining the club late, the UK has more often than not punched above its weight. Thus, much of the legislation that has emerged in the form of EU Directives and regulations that we have transposed into UK law were either things that the UK proposed and worked with the European Commission on, or were things that the UK strongly influenced and shaped on their way to becoming EU law.

 

Statute books

In consequence, much of the EU-derived legislation on the UK’s statute books are ones pretty much like those we would have legislated for ourselves anyway.

This is inevitably resulting in internal reviews of EU-derived legislation by officials concluding that much of that should best become UK law exactly in the form it currently exists. In some cases the officials undertaking the review may even have been the architects of what was agreed at EU-level.

Inevitably, therefore the review process must be a frustrating one for Ministers whose vision of Brexit includes a belief that much of the body of EU-derived law is bad for UK citizens and for their economy. This is leading to friction between certain Ministers and their officials, with a great deal of staff turnover in at least one key Secretary of State’s Private Office, and also to strained relationships at senior official level within Whitehall.

Up until the last general election it was well understood, despite the creation of DEXEU and its proposed overarching role as Secretariat for Brexit, that No 10 was in practice running the Brexit show with Theresa May’s Chiefs of staff, Nick Timothy and Fiona Hill, being the key players.

 

Nick Timothy and Fiona Hill

 

Civil Servants with direct experience of working with the two speak of them as exercising a ‘stranglehold’ over Brexit discussions such that matters were never properly discussed between Departments. This is said to have compromised collaborative thinking and working and their

departure was met with no little relief.

However, their departure left a significant power vacuum and into that have stepped the traditional Whitehall players. In normal times pre-Brexit, it was well understood at official level that the locus of power at both Ministerial and official levels sat with the Cabinet Office and with HM Treasury: the former based on its proximity to No 10 (i.e. the ‘centre’ of Government) and the latter because it holds the purse strings and the brief to drive the UK economy.

HM Treasury is an interesting player that combines a tendency to be very cautious, conservative and risk averse with an occasional tendency to push for very radical change. In the context of Brexit it is clear that Treasury are pushing strong positions around the key big ticket questions: the divorce settlement with the EU, future membership of the Single Market/Customs Union and free trade agreements with trading partners outside the EU.

On free trade agreements, however, the Treasury is known to be extremely sceptical about the UK’s ability to negotiate such agreements and they are testing this out in practice by challenging Departments to demonstrate that they can deliver.

We know for example that Treasury officials have challenged, in the form of an unpublished paper of which there are several, the Department for International Trade to prove it can line up free-trade agreements with non-EU countries that can outweigh the loss of European trade associated with leaving the customs union.

 

So, where does all this manoeuvring behind the scenes leave us?

Well, speaking on Radio 4 a week or so ago Sir Bob Kerslake, former Head of the Civil Service, said of Oliver Robbins move that “It does feel a bit like rearranging the deckchairs to be honest,”. The wider problem is that all the while these power plays persist behind the scenes the less ready the government will be for Brexit in 2019 with a transitional period of some kind probably already unavoidable simply to allow the preparatory work that should have already been done to be completed.

 

Graeme Sandell is a Senior Hume Brophy Consultant and Whitehall expert having previously been Assistant Director on the UK Government’s Better Regulation Executive, part of the Cabinet Office. His role involved advising Ministerial teams on responses to regulatory change and working to ensure Government departments made a positive contribution to reducing the costs and burdens of regulation on business.