Committee Reports > List of Committees > Joint > 2003 > Committee on Finance and the Public Service > Report - Referral of Motion re the Draft Civil Service Code of Standards and Behaviour

Appendix B - Presentation by the Department of Finance:

Civil Service Code of Standards and Behaviour

Presentation by

Mr. Pat Casey, Principal, Department of Finance

To

The Joint Oireachtas Committee on Finance and the Public Service

28 May 2003

1. Introduction

I would like to thank the Committee for this opportunity to discuss the draft Civil Service Code of Standards and Behaviour. As you are aware the draft Code was referred to your predecessors in December 2000 and a presentation was made to the Committee in March 2001. Unfortunately, the previous Committee was not in a position to finalise its deliberations before its dissolution. The Minister for Finance believes that this draft Code will benefit from informed debate within the Committee and would welcome any observations that the Committee may wish to offer.

The draft Code, which has been in gestation for many years, was approved by the Government on 21 November 2000 and laid before both Houses the following week. Prior to submission to Government the draft Code was considered and approved by the Human Resources Management (HRM) Working Group and the Strategic Management Initiative (SMI) Implementation Group of Secretaries General. Around the same time that the Code was referred to the Joint Committee it was also referred for consultation with the Civil Service group of Unions. Detailed discussions with the Unions on the Code took place during 2001. Further discussions will take place after the Committee has finalised its deliberations and early implementation of the Code in the civil service was agreed under Sustaining Progress. The Code was also submitted to the Standards in Public Office Commission who made some observations.

The observations of the Standards in Public Office Commission and the Civil Service Unions, as well as any changes recommended by the Committee, will be re-submitted to Government for final decision before promulgation in the Civil Service.

I propose providing you with some background information on the Code and highlighting some recent developments and issues that were raised by your predecessors at the presentation in March 2001.

2. Background

The introduction of a civil service Code serves several separate needs.

Firstly, there is a need to ensure that civil servants continue to deliver the highest quality of service to the Government, the other institutions of the State and the public. As in other administrations across the world, Irish public servants face new and challenging objectives as a result of reforms in the public sector, such as devolution of responsibility and greater managerial discretion, and the changing relationship between public and private sectors. In this complex environment, it is vital that the integrity and credibility of public servants is maintained and underpinned by the promulgation of codes of conduct which clearly set out expected standards of behaviour.

Secondly, the existing rules governing the behaviour of civil servants are set out in a variety of Department of Finance circulars, some of which date back to the early decades of the State and are written in language which may not relate well to the modern reader. While not superseding the existing circulars, the draft Code sets out in a single document the main principles which should govern the behaviour of civil servants and the values which the civil service wishes to espouse.

Furthermore, the changing environment in which civil servants work has given rise to issues in recent times which have not been the subject of specific instruction and which need to be addressed at this point in time, e.g. offers of gifts and hospitality and post-retirement employment.

On the latter point of post-retirement employment, the Sub-Committee of the Public Accounts Committee, in its first report in relation to DIRT, recommended that the Department of Finance report back on proposals to avoid any conflict of interest where officials leave the civil service to take up employment in the private sector. This matter is dealt with at sections 20 and 21 of the draft Code.

3. Application of the Code

The Code applies to all civil servants, with the following qualifications:

➢the provisions of the Code relate to civil servants on career break, or on other forms of special leave, including the restrictions in relation to civil servants and political activity, save where they are clearly not relevant - e.g. where they concern behaviour while in the work-place;

➢the provisions of the Code apply to the posts of Government Press Secretary, Assistant Government Press Secretary, and all Ministerial and Attorney General Private Office staff whose tenure is coterminous with that of the relevant Minister/Attorney General with the exception of the provisions in relation to civil servants and politics.

A copy of the Code is to be given to all existing staff and to each new entrant to the service. They will all be required to indicate in writing that they have received and read it. A breach of the Code will constitute a breach of terms of employment of a civil servant and may result in disciplinary action. [Sections 2 and 3]

The Code is not intended to be an exhaustive list of guidelines for all possible eventualities. Individual Departments may provide supplementary guidance for their own staff relevant to their own particular circumstances.

4. The main features of the Code in summary

The Code has 21 sections and is divided into three areas

•“Standards underpinning Service Delivery”,

•“Behaviour at Work”, and

•“Standards of Integrity”.

The main “service delivery” features include requirements for civil servants to:

•be impartial in the performance of their duties [section 4];

•respect the law [section 6];

•refrain from engaging in political activity - this requirement does not apply to those in the craft and state industrial related grades [section 5];

•avoid improper disclosure of information gained in the course of their work [section 7];

•maintain high standards of service in all of their dealings with the public [section 8]; and

•report criminal convictions to one’s Personnel Officer. [Section 9]

The main “work behaviour” features include requirements for civil servants to:

•attend at work as required and comply with the terms of sick leave regulations [section 10];

•have due regard for State resources [section 11]; and

•show due respect for their colleagues’ beliefs and values [section 12].

The features of the draft Code relating to “Standards of Integrity” include requirements to:

•refrain from using one’s official position to benefit oneself or others with whom one has personal or business ties [section 13];

•refrain from engaging in outside business or activity which would in any way conflict with the interests of one’s department or office [sections 14, 18 and 19];

•ensure the receipt of gifts by civil servants, from those with whom they have official dealings, is governed by the highest standards [section 16];

•ensure that any acceptance of hospitality does not influence, or could be seen to influence, the discharging of official functions [section 17]; and

•a requirement to seek the approval of the appropriate authority in certain circumstances, prior to accepting an appointment within twelve months of resigning or retiring [sections 20 and 21].

5. Acceptance of employment/consultancy by former civil servants

Sections 20 and 21 - relating to former civil servants accepting appointments or engagements - are new provisions being introduced for civil servants.

These provisions are designed to foster a culture in which civil servants are aware of the potential for conflict of interest when accepting positions outside the civil service following their retirement or resignation. The Code requires civil servants, intending to be engaged in an outside business with which they have official dealings, to inform the appropriate authority of such an intention. More generally, the Code provides that where certain former civil servants consider that a conflict of interest might arise by taking up employment in the private sector they must seek approval from either an Outside Appointments Board - as defined in the Code - or from the Secretary General/Head of Office, depending on the officer’s grade. Approval to take up an appointment may either be unqualified or conditions may be attached. The purpose of these provisions is to ensure that there is no cause for any suspicion of impropriety surrounding the post-retirement or post-resignation employment of former civil servants.

The composition of the Outside Appointments Board, which will be established when the Code is promulgated, with a majority of ‘outside’ representatives will clearly provide an independent element in the process of scrutiny. The Board will also set down guidelines for civil servants in relation to acceptance of outside appointments.

6. Main Developments since the 2001 Presentation by Finance Officials

The main developments since the March 2001 presentation were (i) discussions with the civil service unions and (ii) the enactment of the Standards in Public Office Act in July 2001. This Act requires the Minister for Finance to consult the Standards in Public Office Commission when drawing up codes of conduct.

7. Meetings with the Civil Service Unions

The draft Code was circulated to the civil service group of unions and two meetings were held with them in 2001. The unions were advised at the outset that the Code was approved by Government and any proposed changes to it will require further Government approval. Several issues were raised by the unions. While some issues were discussed and resolved, agreement was not reached on three issues. These are the provisions relating to (i) civil servants and politics, (ii) criminal convictions and (iii) conflicts of interest. It was agreed with the unions that their views on these sections would be submitted to Government for consideration.

I will now give the Committee a brief summary of the unions’ concerns on each of those sections.

7.1 Civil Servants and Politics (Section 5)

The first issue relates to civil servants and politics. Section 5 of the Code reiterates the rules governing civil servants and politics. Briefly, the main rules are:

•civil servants are not permitted to stand for election to either House of the Oireachtas or to the European Parliament;

•civil servants in the craft and state industrial related grades are free to engage in politics. This means that they can be members of political parties, contribute to public debate, campaign during local, national and European elections, and stand for local election.

•Clerical Officers and equivalent grades may apply for permission to engage in politics;

•all civil servants above clerical level are totally debarred from engaging in politics.

The Staff Panel of Unions are seeking a relaxation of the existing rules. They felt that Staff Officers should be allowed to engage in politics in the same way as Clerical Officers. The unions’ main concern is that civil servants should be allowed to contribute to public debate and express their opinions on matters of public interest where those matters are not related to their work as civil servants.

However, changing or even relaxing the existing rules could be problematic. While it may be possible for some civil servants to distinguish what is and what is not related to one’s work, for many, if not most, civil servants it could be very difficult to draw a clear line between these issues. Furthermore civil servants are transferred to new areas of work on a frequent basis and it would not be practical to develop a policy on a post by post basis. Finally, the impartiality of the Irish civil service, and the associated public perception, needs to be maintained and protected. Allowing civil servants to contribute to public debate could interfere and possibly damage that perception. It is therefore proposed to advise the Minister not to relax the existing rules.

7.2 Criminal Convictions (Section 9)

The second issue relates to the provisions on criminal convictions. Section 9 of the Code requires an officer who has been convicted of a criminal offence to report the facts of the case to his/her Personnel Officer - the Unions are agreeable to this. However, officers are also required to report cases where summary proceedings are brought and the Court decides not to proceed to conviction but, instead, gives the officer the benefit of the Probation Act. In such cases, the Unions do not want officers to have to report their charge and the outcome of the case to Personnel Officers.

It is proposed to advise the Minister that the reference to the Probation Act be retained for three reasons:

•Firstly, a person’s position in the civil service could be undermined if that person was charged with an offence and given the benefit of the Probation Act. If a Personnel Officer is aware of the case, he/she may be able to take action to limit the extent to which the officer’s position is undermined, e.g. a person handling cash in his/her office, given the benefit of the Probation Act for larceny, could be moved to a non-cash position.

•Secondly, no employer-employee relationship can survive without a bond of trust. Not being informed of a criminal charge is, in itself, a breach of the bond of trust.

•Finally, the interests of the public service must be paramount and Personnel Officers must be aware of the possibility of damage being done to the integrity of the civil service.

7.3 Conflicts of interest (Section 14)

The final issue relates to conflicts of interest. The unions objected to the inclusion of section 14.4 of the Code as they consider the provision as “far too sweeping” with Departmental management having the final say. Section 14.4 states:

“A civil servant is not permitted to make representations on behalf of an outside association or organisation, either as an individual or as a member of a delegation, in relation to matters for which his/her Department/Office has responsibility except with the prior consent of the Head of his/her Department/Office.”

Civil servants must not misuse their official position to further private interests or organisations. It is proposed to advise the Minister to consider retaining section 14.4 of the draft Code. It is also proposed to advise Personnel Officers to be reasonable in considering requests for consent, but also to take into account the overriding concern of not allowing an officer to be a member of a delegation where a conflict of interest exists or could be perceived as existing.

8. Standards in Public Office Commission’s Observations

The second main development since the presentation to the previous Committee was the enactment of the Standards in Public Office on 14 July 2001. Section 10(3) of the Act provides that the Minister for Finance shall consult the Standards in Public Office Commission when drawing up codes of conduct for the guidance of persons holding positions of employment in public bodies. Accordingly, the draft Code was submitted to the Commission for its consideration and observations were made in April 2002. The Commission’s main observations were: (i) a definition of “civil servant” should be included; (ii) the title should be changed to “Code of Conduct” and (iii) a reference to the fact that the Code is admissible in proceedings before a court, tribunal, Committee of the Commission. These observations will be submitted to the Minister for consideration.

9. Issues raised by Members of the previous Joint Committee

I now wish to comment on the four main issues raised by Members of the previous Committee at the March 2001 meeting.

9.1 - Outside Appointments (Sections 20 and 21)

The first issue related to outside appointments. Information was sought on outside appointments and the practices in other jurisdictions. In 2000, the European Institute of Public Administration (EIPA) produced a report on “Ethics in the Public Sector: Access of Civil Servants to Private Activities”. The main objective of the report was to provide an insight into the legal systems governing the movement of public officials to posts in the commercial sector. The report was considered at an EU conference of relevant Directors General in November 2000.

The EIPA report found that all 15 EU Member States have similar approaches to ethics and conflicts of interest with regard to relations between civil servants and the private sector. However, on the issue of civil servants taking up temporary or permanent employment in the private sector Member States do not have similar approaches.

The report found that the general trend in Member States is the creation of committees in charge of considering ethical issues in public administration who produce “codes of ethics” regulating the relations of civil servants with the private sector. Few Member States have introduced specific regulations to date.

In 12 Member States (Germany, Belgium, Denmark, Greece, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland, Sweden and Ireland) there is either (i) no control mechanism in place or (ii) the public sector employer considers each case and makes a decision. In other words, there is no independent mechanism to consider applications for permission to move to the private sector.

France, where the movement of senior civil servants to the commercial sector is more developed, has the most explicit policy in this area. Cases are submitted to an ethics committee (commission de déontologie) which examines the compatibility of the envisaged job with the civil servant’s administrative function and issues a reasoned opinion. The French are strict on this issue and the ethics committees can impose bans of up to 5 years on taking up employment.

Similarly, in Spain, rules on incompatibility have been laid down which forbid the exercise of private activities in the same field as that of the public post held for a period of two years.

The UK’s system, where proposals to take up outside employment are considered by the “Advisory Committee on Outside Appointments”, provides a valuable model which the Outside Appointments Board may find helpful when developing its system.

In summary, 12 Member States have yet to develop a control system similar to the proposed Outside Appointments Board. Spain has a method of monitoring decisions by public sector employers. France and the UK have independent committees to consider applications for permission to move to the private sector.

The previous Committee also specifically sought more information on the periods of time during which civil servants in other jurisdictions are prohibited from engaging in private activities where a conflict of interest may exist. Spain, like the UK, imposes bans of up to two years while the French impose bans of up to 5 years. I also understand that bans of up to one year are imposed on Canadian public office holders. These bans are increased to two years for Cabinet Ministers and Secretaries of State in Canada.

It is also important to remember that the courts generally take the view that restraint of trade clauses must be reasonable in their extent and nature and in the protection of the former employer’s interests.

9.2 - Civil Servants and Politics (Section 5)

The second issue raised by the previous Committee in the course of the debate related to the issue of civil servants and politics. As referred to earlier, it is proposed to advise the Minister not to change the existing rules for the reasons set out earlier.

Restrictions on civil servants participating in politics have traditionally been imposed to the issue of civil servants and politics. As referred to earlier, it is proposed to advise the Minister not to change the existing rules for the reasons set out earlier.

Restrictions on civil servants participating in politics have traditionally been imposed to ensure the political impartiality of the Irish civil service and public confidence therein. Impartiality is seen as being a core element of an effective and efficient civil service and is reflected in the Code as such. In particular it is felt that involvement in political activity may lead to civil servants being compromised in the performance of their official duties in that the relationship and trust between Ministers and their civil service advisors, which is essential to the smooth running of our system of government, could be damaged if the latter were identified with a particular political viewpoint.

9.3 - The Officials Secrets Act and Freedom of Information (Section 7)

The third issue raised by the previous Committee related to the Official Secrets Act and the Freedom of Information Act (FOI Act). Under the FOI Act members of the public have a legal right to information held by Government departments and other public bodies. However the requirement under the Official Secrets Act that civil servants avoid improper disclosure of information gained in the course of their work still applies.

The Committee is aware that the Government approved the drafting of the Criminal Justice (Protection of Confidential Information) Bill in July 2001. Head 1 of the general scheme defines the circumstances in which a disclosure is made with “lawful authority” for the purposes of the Bill. There is a general provision that disclosure will be made with “lawful authority” if it is authorised under the Freedom of Information Act. In addition, it is also provided that a disclosure will be made with “lawful authority” if made in accordance with a civil servant’s official duty. It would appear that these provisions may address concerns of the previous Committee in this area.

The Bill is included in the Government’s legislative programme for 2003 but is not expected to be enacted before 2004.

9.4 Review Mechanism

Finally the Committee raised the possibility of a review mechanism following promulgation of the Code. The conditions of employment of civil servants are continually reviewed and changes are made to such conditions by the Minister for Finance as appropriate. Similarly, the draft Code will be monitored on an ongoing basis and changes will be made if and when they are required.

10. Conclusion

Under Sustaining Progress it was agreed with the civil service unions that the early implementation of the Code is important. In that context, following consideration of the Code by the Committee, discussions with the civil service unions will be finalised with a view to early implementation of the Code.

I should also mention that the Minister considers the promulgation of the Civil Service Code to be a priority element within the general reform and modernisation of the civil service under the Strategic Management Initiative.

I would like to thank the Committee for taking the time to consider the draft Code and for their time this afternoon. The Minister has asked me to say that he is grateful for the benefit of the experience of members of the Joint Committee and would welcome their views and comments on this Code.

¹ Heretofore referred to as “Civil servants in the industrial categories and in the manipulative, sub-clerical and manual grades”.

² Previously, Department of Finance circulars on politics have used terms such as “political matters”, “matters of current political interest”, “political action or position”, “political issues” and “political activity”. For the purposes of this document, the term “politics” is used to cover all of those terms.

³ Other than a civil servant who holds a position which, after 17 May 1974, has been upgraded through the general restructuring of his or her grade and, as a result of which, such upgraded position carries a salary maximum above that of clerical officer.

⁴ The Civil Service Employee Assistance Service is available to help staff manage personal difficulties, which if left unattended, might adversely affect their work performance and/or attendance and their quality of life.

⁵ “De minimis” use of departmental resources, i.e. a use that results in no actual cost to the state, or the cost to the state is so small as to be insignificant or negligible, is permitted.