Tuesday, 28 December 2010

The Civil Service and Protection under the Rule of Law

There is no single definition of the phrase "the rule of law".   In essence, it encompasses the principle that no one is above the law and that  there is a requirement to act in accordance with and within the law.  Any discretion has to be applied within those confines.  The rule of law is a central foundation of democracy.

The mention of issues concerning the rule of law conjures up visions of complex legal courtroom battles fought between senior lawyers in front of senior judges.  This happens but the reality is not that at all.  A first line of protection for citizens is the civil service.  Civil servants have an onerous task to ensure that citizens are not only treated within the law but also in accordance with fundamental rights.  It is only when a Ministers or  a public officer or servant gets something wrong that resort can or would need to be had to legal process that may end up in a court room.

The core values that govern civil servants when serving the public are succinctly set out in the Civil Service Code of the UK.  They are integrity, honesty, objectivity and impartiality.  Each word carries a heavy weight of responsibility for and imposes an onerous burden on each individual civil servant.   It is the responsibility of  each civil servant to meet these high standards but each individual one should be and needs to be supported by the hierarchy of the service and by built in  systemic safeguards.  It is far easier for the body of civil servants to institutionally provide the support within which these standards can be met than for each individual civil servant to face alone the pressures that they may meet.  Each core value is defined.  A brief explanation of each will show the high threshold that has to be met and the consequent pressures faced by civil servants.

In defining integrity, emphasis is put on responsibility, professionalism, the retention of confidence, ensuring proper and efficient use of public money and resources, fairness, efficiency, promptness, effectiveness, sensitivity, use of best ability, accurate record keeping, accurate handling of information and compliance with the law and the administration of justice.  Additionally, the misuse of a position, acceptance of gifts, hospitality or benefits in manner that may reasonably be seen to be compromising or the unauthorised disclosure of information are forbidden.

Honesty invokes truthfulness, requiring the correction of errors at the earliest opportunity and the use of resources solely for the public purposes for which they are made available.  Deception of anyone or succumbing to improper pressures or the prospect of gain are forbidden.

Objectivity requires the provision of evidence based  accurate information, advice, options and facts, the taking of merit based decisions and the heeding of expert and professional advice.  It is wrong to ignore inconvenient facts or relevant considerations or to frustrate the implementation of policies.

Impartiality requires fairness, justice and equity and forbids acting in a manner that either favours or discriminates   against individuals or interests.  It requires service to the incumbent government whilst maintaining political impartiality, the attraction and retention of confidence of incumbent Ministers but in manner that will not undermine the ability to establish a similar relationship with other incumbents at a future date and compliance with restrictions (which are not absolute but may require permission) on political activity.  It is forbidden to act or use resources in a party political fashion or permit personal political views to interfere.

In the small jurisdiction that Gibraltar is, individual civil servants are more susceptible to be pressured to be more subjective and possibly to cut corners in contravention of these core values.  A strong hierarchical system is needed to give support to such an individual when he requires it.  This, together with security of tenure, provides the core defence against the wearing down of standards in public office.  The first port of call for any civil servant with concerns about his ability to meet these core values is his immediate line manager or head of department.  Thereafter there must be further resort available to a higher authority either by the line manager/head of department or the affected individual civil servant.

The recent retirement  of Richard Garcia MBE as Chief Secretary has left a vacancy that needs to be filled with another strong personality.  The person occupying the position of Chief Secretary is sure to be a likely port of call in defence of these core values.  Abolition of this post should not be within the realms of possibility.

Should the Chief Secretary be the final port of call, however?  In the UK, civil servants have recourse to the Civil Service Commission if a reasonable response is not obtained at any earlier juncture.  The 2006 Constitution continues the existence of a Public Service Commission to deal with certain aspects of the public service. One of those is not to act as a final port of call for civil servants dissatisfied with any response to a complaint arising from compliance with the core values.  This is another area in which legislation could fill the gap and improve democracy in Gibraltar.  A civil service that meets the core values is an essential element to deliver democracy in Gibraltar, especially when  recourse to the courts is restricted by cost and the non-availability of legal assistance to the vast majority of the population.

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  1. "Abolition of this post should not be within the realms of possibility."

    Too late, Rob, it's already happened to a certain extent. That's why Dickie Armstrong uses the title, Acting Chief Secretary and not Chief Secretary. Many of the Chief Secretary's functions - and more particularly anything to do with international - are already being carried out by highly-paid non-civil servant Michael Llamas. Dickie may eventually be given the title of Chief Secretary or similar but the functions will bear little resemblance to the job left behind by Richard Garcia - and even Richard had been doing less and less of the important international stuff for some time. All of which begs the question: why is Caruana bringing in all these non-civil servants such as Michael Llamas, Clive Golt, Gareth Flower etc without advertising the posts and with no involvement of the public service commission? And why not even a squeak of protest from the unions or even, strangely, the Opposition?

  2. The answer to Mark`s question can only be that the CM obviously thinks there are no suitable candidates from within the Civil Service to fill these posts.
    An interesting thing it would be to be a fly on the wall in any of the private conversations that no doubt go on at a senior managerial civil service level when these top posts have been filled.

  3. again the opposition is criticised for not saying anything about posts in the civil service not being filled. The reality is that if they did we would have GSD pyschofans saying that the GSLP did it. I believe in a strong civil services and what wories me is that the union who should be the protector of these post is not doing anything about it.

    I remember all the pyschofans from the GSD heavily criticising the GSLP government Rightly so i think for using non-civil servants or people outside the civil service for doing jobs appertaining to the civil service. Now THEY do not even squeak! Hypocracy seems to rule the Gibraltar waves.

    The fact that Mark states that the CM thinks that there is no suitable candidate and seems to accept this, is very worrying because in the constitution the PSC should be the ones who should be pressing on the Peter Caruana or the GSD Government to advertise the post of chief secretary. The union Prospect in turn should not be accpeting this situation. I wonder if this was done by the GSLP government doing its tenure in Government. People from the pyschofan club would be writing letters in the press to undermine the government NOW its seems acceptable. Why?

  4. Anon

    What's a "psychofan"?? Do you perhaps mean "sycophant"?

  5. Well all know exactly what Anon meant Gianni. Let us not get petty LOL

    As for the union (if you can even call it that)....

    Don't even get me started on that one Anon!!

  6. Oh so the unions are now at fault because they no longer seem to fall in line with the supposed party of the workers. or does Caruana have guns held at everyones head.

  7. Anonymous at 18:22

    Where the heck do you get that from???

  8. Those who think that the Gibraltar Civil Service is professional and well kept have not been lately to the office of the Civil Status and Registration Office. There you will experience racism, bad manners and the best civil status attitude.

  9. A Fly on the Wall tells me that the Governor is about to release the names of those applicants who will be named QC on the occasion of the New Years Honours List.

  10. Fawning after ministers has become an easy option for many civil servants. Brown nosing started for real in the GSLP days, has become acute under Caruana and will continue to grow whether Caruana or Picardo become the next CM. Let us face it ladies and gents the problem is with the political masters of the civil servants and there is no one in the political panorama at the moment who is going to bring us out of the third world banana republic that is Gibraltar at the end of 2010.

  11. Anon 16.47 and 18.22 = psychoFANS for sure!

  12. Anon 19.05

    I know you're probably only amusing yourself by trying to wind up Robert with this little supposed revelation from Fly On The Wall - but can't we discuss any topic on the Llanito World blog without someone bringing up the sore matter of QCs? When has the Govt ever released a list of applicants for anything??

  13. Since writing this blog, I have come across an interesting and relevant statement. It was made by the senior legal adviser to the Foreign and Commonwealth Office in evidence given in the Iraq enquiry.

    He said that he was paid to tell Ministers what the law was, not what Ministers wanted it to be. This neatly summarises the duty of Civil Servants and their key role in upholding the Rule of Law.

    On QCs all I would say is that the rank is a professional recognition and not an honour, so it has no place in the New Years Honours List.

  14. We'll soon see from which side of the prism this so-called "recognition" comes from in the applicants made QCs!

  15. Before anyone corrects me I mean "Honour" in the sense awarded in the New Years Honours List and not that being a QC is not an honour.

    Thank you for the other comments on appointments of QCs but it is not my intention to publish any more of them. They are off topic.

  16. I understand that the law courts traditionally receive gifts during this time of the year in the form of wine, chocolates, etc. from various legal chambers and individuals, is this not inappropriate and contrary to the above article?

  17. Anonymous at 16:49

    Not at all, the acceptance of gifts is forbidden if they are accepted in a manner that may reasonably be seen to be compromising. The type of small tokens that you refer to given openly at Christmas, as a gesture of thanks, clearly cannot be reasonably seen to be compromising.

  18. However, these gifts may be seen by some and interpreted as a way of 'softening' the relationship between the courts and individual or chamber.

    Para que le faciliten las cosas.

    The effect on the individual public employees may be that it is done for convenience, you know, you scratch my back & I will scratch yours.

    I believe that the mere possibility that this may be thought by any member of the public is reason enough to eradicate this practice, if indeed this practice is happening.

  19. Anonymous at 18:16

    I think that your reasoning is far fetched and not reflective of the actual situation.

  20. Like appointment of QCs, possibly also off-topic, but certainly very seasonal - New Year message from Spanish Foreign Minister:


  21. You say "as a gesture of thanks" and I ask, thanks for what?

    They are public servants! They get paid for the work they do, don't they?

    Gifts, particularly to the law courts, would be frowned at anywhere else.

    If we want to improve our Gibraltar, we need to start with the small things, I humbly submit.

  22. Anonymous at 18:26

    I still believe this reasoning is far fetched. It is not the objective fact of a gift that is frowned upon it is only if a gift can reasonably be seen to be compromising. The types of gifts that you refer to are clearly not capable of being compromising.

  23. Respectfully, can one not reasonably think that receiving such gifts may conjure doubts as to the honesty of such gifts and the rationale behind it?

  24. Anonymous at 04:48

    One would have to be a humbug and a real conspiracy theorist and being either or both defies reasonable conclusions!

  25. Anon 18:26

    I agree with Robert on this one.

    Dudo mucho nadie se venda por una botella Vino y una caja Quality streets!! LOLOLOL

    The thought of it is preposterous!

    I think you should give our Civil Servants a TAD more credit Anon.



  26. I think (and I am not a Civil Servant and have no relation to but work with them) that the Civil Service nowadays is definitely the best qualified and has the potential to be the best ever. Unfortunately we have a situation where the old dinosaurs in the higher echelons do not allow this to be seen. The CM and others only see some who are possibly less well qualified and less able around them and assume that the rest of the Civil Service is just as bad. Not so! There are fine people who know what they are doing and want to improve things but dinosaurs and antiquated systems stop them from shining. Hence we get a whole bunch of outsiders taking top jobs which could have been filled by good honest Civil Servants. This all has a demotivating effect hence the bad press the Civil Servant gets at times. Yes a shake up is needed but the shake up should start with real leadership, no screaming and tantrums, please! Buen principio a todos.

  27. Cyril says:

    On the subject of non-civil servants parachuted into top well-paid jobs, have any of you lawyers received this caution from the new Courts CEO:

    In yesterday's Chron: "Lawyers have been asked to curtail their curiosity and avoid snooping around the new courts complex while it is still under construction.
    The new courts will represent a major improvement to the current facilities and there is keen interest in the legal community as to what the finished product will look like.
    But news that some lawyers had been sneaking a peek inside the construction site has prompted Alan Davies, the chief executive of the Gibraltar Court Service, to send a cautionary circular to all of Gibraltar's law firms.
    "I realise that there is a great deal of interest in the project and there is a natural temptation to see the work in progress," Mr Davies wrote."

  28. Ghost says:
    Mr Vasquez after countless Evos with the family, some champers, I can safely say that I have gone beyond the light Corona's.
    Happy New year to you and yours and of course all bloggers. Regardless of the political banter, incredibly heartfelt opinions, Andorra, Cordoba, Breakfast in Madrid, Brussels, Utrecht, su madre y la madre que la pario, I am proud to say that (I think) we all enjoy a great spirit and jeu de vi in what my mother describes as a place en qual nos apanamos muy bien.
    I will steel K and Sparticus' thunder and finalize with Que VIVA...............................Que Viva Gibraltar.
    All the very best y un fuertisimo abrazo.

  29. Your mother is very wise and I fully agree with her. We are only trying pa hacerlo mejon.

    All the best!

  30. On gifts to law court staff in my replies I am assuming and trusting that these are reasonable and proportionate.

  31. Just read this article and I'm quite interested that you should bring up the Civil Service Code of Practice.

    Unfortunately I am almost six months late with my comment, so I will just limit myself to the impending appointment of DA as the new Chief Sec. To date he has still not been appointed and it would seem that he will get the nod sooner rather than later.

    It would not surprise me that the least qualified (academically) of all High Ranking Civil Servants will eventually get highest paid job. But the least said about this man the better!!