Statement given by Deputy Le Tocq

Wednesday 27 November 2019

General Update

Sir,

I wish to take this opportunity to provide States Members with an update on the significant progress being made by the working group on the development of a framework setting out the relationship between the States Members and senior officers of the civil service.

Members will recall this direction being set by the States of Deliberation at its meeting of 28^th June 2019, by way of support for the Le Clerc-Soulsby Amendment to the Policy & Resources Plan - 2018 Review and 2019 Update (Amendment 7, Billet d'État IX).

A working group was set up compromising of representatives of:

• Policy & Resources Committee
• Elected Members
• Civil Service
• Law Officers,
• And an Independent Advisor - Corporate Lawyer

This Group has been conscious to deliver a quality, well thought through framework, rather than to rush through proposals despite the tight timeframe being worked to.

Background

As part of the process, the working group sought to verify the intention of each of the Resolutions with Deputy Soulsby and Deputy Le Clerc, as proposers of the Amendment.

It was confirmed that the aims of the Amendment were:

Firstly, to ensure that States Members are appropriately consulted in:

• the recruitment of senior officers;
• the renewal or extension of senior officer contracts; and
• the removal, in certain circumstances, of employees from senior officer posts, and;

And secondly, to provide a means by which States Members may raise concerns and provide feedback to the Chief Executive about the conduct and performance of employees holding senior officer roles, or the appropriate process in the case of concerns and feedback regarding the Chief Executive.

Notably, Deputy Soulsby and Deputy Le Clerc confirmed that, the intention was that each of the Propositions within the Amendment would apply only to the roles of:

• Chief Executive,
• The Strategic Lead positions,
• Managing Director for the States Trading Supervisory Board,
• The Directors of Operations, and;
• Committee Secretaries.

For the avoidance of doubt, the Resolutions do not therefore relate to any other definition of senior officer within the civil service. This will be further clarified in the Policy Letter that will follow and which is currently being drafted by the working group.

Key considerations

The working group has given consideration to the following:

1. fundamental principles, and core values of the civil service, including that civil servants should be appointed on merit, through open competition, and free from political patronage;
2. employment law, and contractual provisions, including that the Chief Executive holds ultimate line managerial responsibility for Civil Servants;           
3. working papers and studies produced by the OECD;
4. current States of Guernsey practices, policies and directives regarding selection and recruitment procedures, and performance related feedback, including the current Senior Appointments Directive;
5. relevant material, including the Civil Service Code and the Code of Conduct forStates' Members;
6. the Public Functions Law 2018, and proposed amendments to the same; and
7. arrangements that exist in other jurisdictions.

OECD recommendations

At the meeting on 28^th June, States Members focused in particular on the recommendations of the OECD, which concludes that there is some support for political involvement in appointments or dismissals, which may be achieved without affecting the principles of public service neutrality.

Within the OECD studies, there was diversity amongst OECD countries, in the level of political involvement. In some OECD member countries, a clear line was drawn between senior staff appointed politically and others appointed using an administrative procedure.

In other countries, senior staff were appointed by a hybrid procedure, in which administrative selection criteria, like merit and experience, were combined with political considerations.

It is clear that, whilst there is obvious benefit in these studies, a bespoke solution will be required in Guernsey, to address the unique nature of Government, and the Civil Service, as I will go on to address shortly.

I would therefore like to take this opportunity to share with you the draft recommendations of the working group, as well as provide a bit of detail from the stakeholder engagement which has been undertaken so far, and inform you of further engagement which is envisaged over the next few weeks.

Stakeholder engagement

As part of the process, the working group has engaged with:

• States Members,
• relevant Unions, and;
• senior leaders within the civil service.

Feedback has generally been very positive, with some constructive and well-reasoned comments. In developing the framework, it will not be possible to please all, and there will inevitably be some give and take on both sides. What we hope to achieve is a practical solution, which assists in delivery of services by the civil service to government.

Recommendations for Developing the Framework

Having considered the arrangements from across a number of different jurisdictions, the OECD recommendations, and stakeholder feedback, the working group is aware that a bespoke and tailored solution will be required for Guernsey, due to the unique style of government and civil service.

It may be appropriate, in time, to develop a legislative framework as is the case in most other jurisdictions. The working group was conscious that preparing legislation in the short term may be counter-productive, and that further development and testing of a protocol, as part of a wider framework is likely to be beneficial.

The working group therefore recommends that, in the short term, a protocol should be developed and agreed, between States Members through the Policy & Resources Committee, as employer, and the Chief Executive, setting out the relationship between States Members and senior officers of the civil service.

Policy & Resources Committee have confirmed support in principle for the further development of the Protocol.

The purpose of the protocol would be to:

1. set out an agreed means by which States Members will be consulted on the appointment, performance reviews and objectives, renewal or extension of contracts and continued service to a particular Committee;
2. promote effective working relationships between States Members and identified senior officers within the context of their respective mandates;
3. develop a consistent approach to responding to concerns or complaints between States Members and senior officers;
4. provide an opportunity for mediation, to resolve complaints between States Members and senior officers;
5. ensure an effective mechanism to deal with inappropriate behaviours on the part of States Members, including, for example, cases of undue influence, or conduct which undermines the principles of good governance and established due process; and
6. ensure an effective mechanism to deal with inappropriate behaviours on the part of Civil Servants towards States Members.

Should a protocol be adopted, it is recommended that there should be a review in two years' time, to assess effectiveness and consider whether it may be appropriate to develop a statutory framework addressing the areas set out in the protocol.

This two year period, allowing for the commencement of a new political term and the full implementation of the civil service new Target Operating Model, would also enable other legislative development, including, for example, any amendments to the Public Functions Law, 2018, and the Law Reform Ordinance, 1948, as may be appropriate.

A two year review period would also enable provisions of the protocol to be fully tested and further developed as appropriate.

Next stages

In terms of next steps, then. As I referred to earlier, The Senior Officer Appointments Directive, which details the recruitment process, and political involvement in the same, has been updated to reflect the new roles of the senior officers.

This updated Directive was approved by the Policy & Resources Committee on 20^th November 2019, and will now be communicated to relevant parties recognising further recommendations will follow as part of a policy letter that will be submitted for debate in February 2020.

With regard to the protocol, it is intended that the proposed terms, which the group have a working draft version of, will now be subject to further stakeholder consultation and roundtable discussions, which I encourage you to engage with as fully and as constructively as possible.

Once the next stages of the process have taken place, a final version of that protocol and accompanying Policy Letter will be drafted and presented for debate in the states meeting in February 2020.

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