Scott v Conyers: the final chapter
Tom Conyers has failed again to grasp the essential points of my view on the Public Service Commission Amendment Regulations 2016, published on page 40 of The Royal Gazette on December 7, 2016.
My comment was that the amendment regulations were beset with problems for several reasons.
First, the amendments fundamentally alter the role of the Public Service Commission from an impartial appointing authority for senior civil servants. The extended role now includes a “politicised, semi-executive function”.
The new function is “semi-executive” because the PSC will set annual performance objectives for senior civil servants. The setting of objectives is one of many executive management functions.
The function is “politicised” because it causes the PSC to collaborate with the Premier and ministers on the Government’s policy agenda.
This alteration to the defined constitutional role of the PSC is most contentious, as it was “slipped in the back door” without the scrutiny of Parliament. It was also done without a proper consultation between the Governor, the Government, the Opposition and the Foreign Office of the United Kingdom.
In Westminster-style forms of government — Bermuda — the use of secondary forms of legislation (regulations) to alter primary forms of legislation (Acts of Parliament) is heavily frowned upon.
It is even more egregious if the Constitution — the overarching legal framework of a country — is the target. In the instant case, the Constitution is the target, but Conyers argues that it is OK.
Clearly, it is not OK.
Second, the amendment regulations were not thought through fully. They do not prescribe how the PSC will intervene into the process of public administration to ensure an orderly and seamless change of government in the wake of a General Election.
Third, the amendment regulations do not set out the competence requirements of likely appointees to the PSC to discharge the new “semi-executive” function. The Constitution provides for a chairman and four other appointees. It is silent on the qualifications or skills required for appointment.
Conyers’s agenda, self-adopted or given, is now clear: his mission is to berate the Progressive Labour Party and the Civil Service. In whose interests and for whose benefit are the questions?
In his first foray, he concocted in his own mind a “campaign” that joined together “former cabinet secretary Donald Scott, the Bermuda Public Services Union and the Progressive Labour Party to roll back amendments to the Public Service Regulations 2001 which reform the work of the Public Service Commission”.
There is no campaign. Quite simply, the 2016 PSC Amendment Regulations are flawed and unworkable. Since the flaws have been identified to Government House, there have been changes included in a set of draft 2017 PSC Amendment Regulations to remove the most egregious provisions of the 2016 version, leaving other issues unresolved.
Conyers’s most recent effort is no more efficacious than his previous attempt, albeit he has now looked at the Bermuda Constitution. It did not aid his cause, though, as his interpretation of section 82 (4) is befuddled.
Further, Conyers raises points citing section 82 (1) in relation to disciplinary control by the PSC over the Civil Service. This was never in question. The central issue relates to the Governor stepping beyond the limits of his powers to alter the role of the PSC to transform it into an agency of the Government by giving it an executive management function of setting annual performance objectives for senior civil servants and thereafter being involved in the evaluation process.
International best practice indicates that the setting of performance objectives is a government function in conjunction with the most senior officials in the public service.
International best practice attempts to guard against the politicisation of the impartial body that holds the responsibility for appointing senior government officials. In the UK, the administering power over Bermuda, the Civil Service Commission is the appointing authority for public officials. In Bermuda, the Public Service Commission is the appointing authority for public officials.
Neither body has heretofore been involved in the setting of performance objectives for senior officials.
In the UK, the Civil Service Commission was established in May 1855 by an order in council. Its purpose then, as it is now, was to separate the commission and its prime function as an appointing authority for public officials from the influence of ministers.
The Bermuda Constitution seeks to achieve the same outcome for the appointment of public officers in Bermuda. The PSC Amendment Regulations 2016 subject the PSC to political risk by involving it in discussions with ministers about setting out performance objectives for the Secretary to the Cabinet/Head of Civil Service, assistant cabinet secretary, permanent secretaries and heads of department. The amendment regulations offend sections 62 and 82 of the Constitution.
I hold firmly that it is a government function in liaison with senior officials to set out in programmatic detail the policy agenda for the government of the day, including the markers for success or lack thereof. The Constitution in section 62 charges the Premier and ministers with the responsibility of the conduct of the business of government, which includes the power to exercise direction and control over departments with the aid of permanent secretaries. The Constitution does not provide for the PSC to be involved in this process and nor should it.
There are well-known international research bodies with a focus on public policy. Their copious literature supports this position.
To be clear, no reasonable person argues against accountability and the need for improvements in the efficiency and effectiveness of the public sector. There is pressure in almost all modern countries for this kind of improvement. There is such pressure in Bermuda, and previous government administrations and the Civil Service have been, and continue to be, engaged in the process of improvement.
To quote a report Accountability and Responsiveness in the Senior Civil Service: Lessons from Overseas: “All ... countries are engaged in a process of ongoing reform, itself a reflection that Civil Services everywhere are under constant pressure to change and improve, as is surely how it must be.”
The report to which I refer was published in June 2013 by the Institute for Public Policy Research in the United Kingdom. The Institute for Government, also in the UK, is another excellent research body on public policy and government. Those who wish to inform themselves about assessing and measuring public-policy outcomes and best practice in reform may wish to seek access to such publications. Many are available online without charge.
Bermuda’s public-sector appraisal process and accountability framework is robust and sound. It descends from the Whitehall model. It is fit for purpose and has been assessed as so by the UK National School of Government (2011). It has sufficient flexibility to encompass 360-degree feedback. Further improvements in overall public-sector performance can be achieved with a concerted focus on compliance within the existing accountability framework.
As to Conyers’s angst with the office of Secretary to the Cabinet/Head of Civil Service and to whom it is accountable, the Constitution provides a clear and easily found answer in section 90. The Secretary to the Cabinet/Head of Civil Service is answerable to the Premier.
There is no officer in the Civil Service that is accountable to no one. Conyers remains lost in his own web of misconceptions by denial of this fact.
Finally, Conyers’s snide and personal jibe was noted. He belittled himself by making such a naive and simplistic remark and should be embarrassed as a professional person in Bermuda.
Conyers, given his mission, conveniently failed to acknowledge that the period 2010 to 2012 was marked also by significant actions of the former government administration to address issues related to financial administration and governance. The Department of Internal Audit was established and the Office of Project Management and Procurement. The Good Governance Acts of 2011 and 2012 were enacted. A modernised financial information and management system was installed in 2011 and Financial Instructions was updated during the period. Further, and in the same 2010-2012 period, $2.8 billion of government revenue was collected and protected by public officers without adverse comment by the Auditor-General.
There is little doubt that the improvements laid down during the period 2010 to 2012 were at the basis of the unqualified audit opinions on the Government’s Consolidated Fund for the years ended March 31, 2013, 2014 and 2015.
To conclude, I have raised my concerns about the problems and issues surrounding the 2016 PSC Amendment Regulations in the clearest possible terms. The constitutional issues are serious.
For the sake of good order, the amended Public Service Commission Regulations should be withdrawn.
It is now for the Governor and the Government to remedy the mistakes.
Donald Scott, now retired, was the Secretary to the Cabinet and Head of the Civil Service from 2010 to 2013
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