The resignation of Sir Ivan Rogers as the UK’s Ambassador, or ‘Permanent Representative’, to the EU has seen the New Year begin with more fireworks than the Sydney harbour bridge. His incendiary letter of resignation highlighted not just that the government’s objectives for the negotiations that will follow the triggering of Article 50 TEU are not yet known, but equally worrying that ‘serious multilateral negotiating experience is in short supply in Whitehall’. Sir Ivan had a wealth of such experience. Aside from his knowledge of the EU as David Cameron’s Europe adviser and then Permanent Representative, Rogers had significant experience of the workings of the European Commission having been chef de cabinet to Leon Brittan as EU trade commissioner. He had also acted as Cameron’s G8 ‘sherpa’.
Together with Tom Scholar – David Cameron’s Europe adviser (a position Scholar filled when Rogers vacated the position to become the UK Permanent Representative) – and Ed Llewellyn – David Cameron’s Chief of Staff and now Lord Llewellyn, UK Ambassador to France – Sir Ivan had piloted the UK’s pre-referendum negotiation of a ‘new settlement’ with the EU. The post-referendum and post-resignation chatter depicts Rogers as a gloomy ‘pessimist’, raining on the parade of those who had wanted David Cameron to demand a cap on the number of EU nationals coming to the UK, and those who now view Brexit as world of opportunity if only we’re optimistic and have self-belief.
As regards the renegotiation, a cap on numbers would have required treaty change which ‘old’ Member States would not stomach as it violated a founding principle of free movement and which ‘new’ Member States would view as discriminating against their nationals (who had already been the subject of transitional post-accession labour market restrictions). Not only would a cap or even an ‘emergency brake’ on the number of EU migrants coming to the UK be a political tall order, the need for treaty change would have pushed the timescale for the referendum back. What Sir Ivan and other negotiators sought, therefore, was to achieve a ‘new settlement’ within the framework of existing treaties and feasible legislative change.
In terms of the post-referendum period, the publication of Sir Ivan’s private advice to ministers that a UK-EU trade deal could take up to ten years to implement has irked those who see such statements as evidence of foot-dragging, stalling and civil service attempts to derail Brexit. Yet the advice reflects the uncertainty over how negotiations will be phased – will the divorce and future relationship be sequential or negotiated in parallel? – and the risks of veto and delay that may follow if a comprehensive agreement requires domestic ratification. The outcome of Brexit depends not on optimism or mere force of personality but certain cold, hard political and legal realities.
But for Brexiteers, it seems you are either with them or against them. So much so, that it was suggested that Prime Minister Theresa May should have replaced Sir Ivan with someone who believes in Brexit. Whether or not Sir Tim Barrow – swiftly appointed by Theresa May to be the new EU Permanent Representative – is feeling Brexity is not clear. However, Nigel Farage is disappointed, having used the pretext of Sir Ivan’s resignation to demand a purge of the Foreign Office. Sir Tim is a career Foreign Office diplomat with service as Ambassador to Russia and to the Ukraine.
In his letter, Sir Ivan is clear that he was due to leave office once the withdrawal negotiations were underway. While it may have made sense for a new Ambassador to be in post before Article 50 is triggered, it equally makes little sense for the incumbent to leave his post abruptly just weeks before negotiations begin unless he felt under political pressure to quit. The finger of suspicion has been pointed at the Prime Minister’s joint chiefs of staff and closest political advisers Fiona Hill and Nick Timothy. It may be, however, that it was the Prime Minister herself who lost confidence in her EU Ambassador.
But the political fallout from Sir Ivan’s departure raises important questions about the politicisation of the civil service and the position of the UK Permanent Representative in the context of Brexit.
Conflict between ministerial advisers and civil servants is not new. The Constitutional Reform and Governance Act 2010 put the Civil Service on a statutory footing and in so doing it also recognised in law the role not just of civil servants but also special advisers. Each is governed by a Code of Conduct with a statutory basis. While civil servants have a duty of impartiality, special advisers do not, recognising that they provide more overtly political guidance to the ministers who employ them. However, according to the Code for Special Advisers, special advisers ‘should act in a way which upholds the political impartiality of other civil servants’. It is clear, then, that those advising key ministers engaged in the Brexit process must act within the boundaries of the Code and allow the civil servants who are equally engaged in the Brexit process to provide advice with complete impartiality.
Brexit is a process not a credo. It is a process that requires different strands of government to work together bound by common objectives rather than a shared belief-system. Creation of the new Department for Exiting the EU – to which the UK Permanent Representation (UKREP) in Brussels reports back – was not about grouping together like-minded Brexiteers even if it is led by a pro-Brexit minister. To work well, it needs to coordinate departments across Whitehall as well as working closely with UKREP, all under the guidance of the Prime Minister.
But returning to the specific issue of the politicisation of the appointment of a new Permanent Representative, it is worth highlighting that Sir Ivan is not the only Ambassador to the EU leaving his post. The US Ambassador to the EU, Anthony Gardner will be packing his bags as the Obama administration leaves office and President Trump moves into the Oval Office. In the US, the appointment of ambassadors is an overtly political matter, and nominees are scrutinised in Senate hearings prior to their appointment.
Pre-appointment hearings have become a feature of the British political system with parliamentary select committees scrutinising the appointment of nominees for significant public appointments. According to Cabinet Office Guidance, hearings take place after the selection of a candidate is made but before the appointment is confirmed. It it for ministers to decide whether to act on the recommendations of the select committee. When Sir Ivan’s predecessor, Sir Jon Cunliffe was being lined up as Permanent Representative, the then Conservative MP Douglas Carswell (later jumping ship to UKIP), demanded a pre-appointment hearing of Sir Jon in front of Parliament’s Foreign Affairs Committee. Carswell asked: ‘At what point do those who profess to represent our national interests answer to the nation for the deals that they strike in our name?’
The Foreign Affairs Committee has intimated its intention to hold pre-appointment hearings for appointment of individuals from outside of the diplomatic service to senior diplomatic roles. This would clearly not apply to someone with the diplomatic background of Sir Tim Barrow. But coincidentally, on 10 January 2017, the Committee takes evidence from Lord Llewellyn on his appointment as UK Ambassador to France. Although ex post rather than ex ante his appointment, it is consistent with the idea that parliament should have oversight over the appointment of individuals who have not been public servants in the traditional sense.
In the absence of a pre-appointment hearing it would seem likely that select committees will want an early opportunity to take evidence from Sir Tim Barrow. After all, committees have taken evidence from Permanent Representatives in the past and this is a proper part of parliamentary oversight of ‘those representing our national interest’. Moreover, parliamentary scrutiny would seem particularly important at a time when anyone from High Court judges to ambassadors are apparently fair game to be labelled as ‘enemies of the people’ unless they toe a particular Brexit line. Parliamentary scrutiny might help build broader public confidence and trust in those who have the difficult task of interpreting the Government’s Brexit objectives, as and when they are formulated.
But before the new Permanent Representative gets his chance to appear before Parliament, we may have the opportunity to hear more from his predecessor. The Chair of the European Scrutiny Committee, Sir Bill Cash sent a letter to Sir Ivan Rogers on 15 December 2016 inviting him to appear before the Committee to explain the work of UKREP. More interestingly, on 4th January 2017, and following Sir Ivan’s resignation, Sir William wrote again to Sir Ivan to say that ‘the invitation still stands’. If the invitation is accepted, the New Year fireworks may not yet have ended.
In Brexit Time, nothing, and no one, is permanent.