Is the Head of the NI Civil Service defending the indefensible?

So to start with we have an empassioned plea from John Dallat, the Northern Ireland Public Accounts Committee’s longest serving member that, according to the News Letter:

“that Sir Bruce Robinson be forced to appear before it to explain his decision and said that he wanted an assurance that the committee could scrutinise public spending without senior civil servants covertly attacking it.”

Interestingly none of the other parties in that committee wanted to proceed without taking further advice. Although beyond taking action, Sinn Fein’s Mitchel McLaughlin did not mince his words:

“I think that the key issue that has emerged here – over and above the Paul Priestly affair – is this question of who the senior civil service is accountable to.”

He said that he had “a significant problem” with Sir Bruce deciding what was appropriate as punishment for another senior civil servant and added:

“I have a grave difficulty with him telling us that’s the end of the matter and that effectively that’s the end of the business. We don’t even know what disciplinary breach Mr Priestly has been found guilty of – it’s a bit ridiculous.”

Mr McLaughlin was pushing at exactly the problem outlined here on Slugger on the same day. Only, contrary to Mitchel’s protests of ignorance, we know exactly what the breach was. And his own party’s Minister was in no doubt (within 24 hours of that UTV documentary) what the problem was either.

Tonight, Bruce Robinson has made his own response to the discussion and stated the following:

“There is an important distinction between the performance of civil servants and the role of the Civil Service as an employer.

“Quite rightly civil servants are accountable to Ministers for the performance of their duties and, in the case of Accounting Officers such as Permanent Secretaries, there is a direct and personal accountability to the Assembly for the proper use of resources. 

There is, however, an important distinction between that accountability and the role of the Civil Service as an employer and in particular in this case in dealing with disciplinary matters.

“In regard to the issues raised about conduct in the NI Water PAC Hearing, I have formally responded to the Public Accounts Committee just as DRD and DFP have responded on matters relating to their departments.

“In regard to the suspension and investigation of Paul Priestly, the NICS is acting in its role as an employer.   Mr Priestly’s case was managed strictly in accordance with the disciplinary policy and procedures contained in the NICS HR Handbook, which is published on the website of the Department of Finance and Personnel.  This makes clear that the Head of the NICS deals with disciplinary cases involving Permanent Secretaries.

The process that resulted in Mr Priestly’s downgrading was both thorough and, where appropriate, independent.  Mr Priestly was suspended pending an independent investigation carried out by Sir Jon Shortridge to establish the facts of the case.  On receipt of his report I decided to initiate disciplinary action against Mr Priestly. 

In accordance with NICS disciplinary policy, an independent board of inquiry was convened to consider the disciplinary charges against Mr Priestly and to recommend to me what, if any, disciplinary penalties should be imposed.  The board’s recommendation to me resulted in my decision to downgrade Mr Priestly. 

Under NICS procedures Mr Priestly was entitled to appeal the decision to downgrade him and his appeal was considered by an independent person with no prior involvement in the case.  The appeal was not upheld and my decision stood.  I had no involvement in the appeal stage of the process.

“All of this took place under NICS HR policies and procedures and is in accordance with employment legislation which protects employees’ legal rights and their right to confidentiality.  To breach the right of employee confidentiality would undermine the integrity of our disciplinary processes and the ability of the NICS to manage future HR related casework in respect of staff in the NICS.”

Now here’s the unvarnished rub. Mr Priestly breached a line between his role as an employee of the Northern Ireland Civil Service and his “direct direct and personal accountability to the Assembly for the proper use of resources”.

To whit, he used those resources to vicariously attack the right of the Northern Ireland Assembly’s Public Accounts Committee to hold himself and others to proper account for the conduct of certain affairs in their department.

This is, on the face of it, a major breach of confidence in the general compact that protects both the independence of the civil service and the right of elected representatives to hold their executive functionaries to account.

So the Head of the Civil Service, no less, is resiling to HR regulations to cover a serious misconduct which was singleminded aimed at undermining his own organisation’s relations with those people elected to provide him with democratic oversight.

We shall be listening to GMU tomorrow morning with especial interest!

Adds: Here’s Eamonn’s take on the matter:

“On reinstated civil servant Paul Priestly: what if he fails to find home in department? Will settlement pension package logically follow?”

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  • I wish that Bruce Robinson was wrong about this but I fear he might be right. And lets be honest he has probably taken advice.
    The fact is that it has to be Human Resources problem and an Employer/Employee matter is probably correct. Yet whether the punishment fits the “crime” is a different question.

    To use a sporting analogy.
    If two players from the same club seperately broke club discipline and one was a multi-capped international and the other was the third choice left back with three months left on his contract…..would the club take the same action against both.
    And a military one.
    Is a General found drunk on duty as likely to end up in the guardhouse as a lance-corporal might.

    I think all senior civil servants know there is a cat and mouse game to be played with pesky committees and if you play that game there is a risk of getting caught out.
    A problem for Human Resources.
    But if an office junior photocopied her backside, and was caught out. Again for Human Resources.
    But which is more likely to get the sack?

  • Mick Fealty

    I’m leaving any answer I might, or might not, have to that, until the morning light comes shining through… Night all..

  • The Raven

    Agree with everything written in the comment above; and yes -I think Bruce Robinson is correct in his assertion. The employer has a duty to its staff – including handling a disciplinary matter away from the baying dogs of the assembly. Even if we as voyeurs, and MLAs as tyre-kicking, vote-grabbing, pitchfork carriers don’t like the outcome.

  • Mick Fealty

    Ah before bed, here’s Eamonn’s worthwhile take on the matter:

    “On reinstated civil servant Paul Priestly: what if he fails to find home in department? Will settlement pension package logically follow?”

  • oracle

    Bruce is spot on to do what he wants, time and time again it has been shown the NI electorate have no intrest whatsoever in a protracted political controversy if the mainstream media cease to highlight it and push for action.
    Adams got off the hook for worse and Iris is regarded as a victim for christ sake.

    So Bruce fair play to you just tell these gutless wonders to fuck off… but in civil service language.. oh you’ve already done that I see.

    In a 3 weeks Priestly will be forgotten about and his punishment accepted will “there must be more rigid discipline in future mantra from Political parties coming as a get out clause”

  • Lionel Hutz

    Oh its a tricky one.

    I think Mitchell McLaughlin has the right question on his mind. It all depends on how the employment relationship is defined. Who is Paul Priestly’s employer exactly?

    Personally I would have thought that all civil servants are ultimately employees of the Department of Finance and Personnel.

    From the NICS handbook on disciplinary procedures:

    “12.1 Departments should record on your file, or the appropriate erecord, the full circumstances of any disciplinary offence, the action taken, whether an appeal was lodged,its outcome and any subsequent developments. Such records will be carefully safeguarded and kept confidential. Except for very serious offences where specific warning will be given, no account will be taken of earlier offences in subsequent disciplinary actions after alapse of three years.”

    So yes, I think Mr Robinson is clearly right. But I would have thought that Sammy Wilson would be allowed to see it?

    It all seems very complicated. It shouldn’t be in the public domain but surely it should be known to the politicians????

  • Re Mr Fealtys comment above on what will Priestly do next.
    I think a lot depends on his age….and possibly his resolve and the reaction of those around him.

    I dont think its fair to personalise it.
    Lets say that a man of around 53 years old has a job which is paying £105,000 a year.
    He commits a breach of discipline and is rather publicly slapped down. Reduced not quite to the ranks to £95,000 a year.

    If this was …..me…..it is unlikely I would feel anything but contempt or worse for those I thought had been the cause of my humiliation especially if I had behaved in a way that showed I had contempt for them in the first place.
    My new position, effectively one grade down would still bring me into contact with the same people. Not sure that I could brazen it out, pretend that I had a degree of respect for them.
    Or I might say “Stuff you all……..I still earn twice what you all earn”.
    Of course the reaction of those other top and near top people might influence me.
    I might be popular with my peers who might feel that there for the grace of God go they. Or I might feel that they were …unsupportive for letting the side down.

    Yet a package would probably look good to me especially if my old doctor was still around and willing to write me a sicknote.
    Or I might just wait until I could take my full pension and fess it all out.

  • I think Mr Hutz nails it.
    A junior civil servant fiddling his flexi time would be treated less well than a senior person doing that or worse.
    Hardly sacked but certainly disciplined.
    Is what Priestly did as bad, better or worse than fiddling your flexi time or using the office phone to make personal calls?

  • Lionel Hutz

    I think it is worse because it is against the NICS code of ethics.. IN fact, the following can result in a finding of gross misconduct (and therefore summary dismissal even if you have a clean record):

    “actions likely or intended to corrupt or seriously affect the integrity of departmental systems, policies or information and destroying the trust between management and staff.”

    I think he did that. Personally I think he would have had a hard time in bringing a successful claim to an Employment Tribunal had he been dismissed for this, particularly given the procedures that were followed through.

    The confidentiality is a very tricky question and I’m in two minds. This is not the private sector. There should be circumstances in which the confidentiality would be inappropriate.

    Most of these HR books in public and private work have confidentiality as a part of the process. However, there are obviously circumstances where confidentiality is innappropriate. An extreme example would be if a carer was foudn to have mistreated a patient in a nursing home. That has to be forwarded on to other bodies and you could end up on the POCVA lists. Or stealing from an employer could lead to a referral to the police.

    But something like this is very hard to call in my view. He is not some grade 2 civil servant fiddling the flexi-time. Does it make it different?

    I know my employment law and genuinly not sure.

  • aquifer

    If MLAs think they want to play personnel managers in their spare time they have lost the plot. MLAs should leave their hard working civial servants alone, as a few key resignations and the whole edifice could topple. Could be fun seeing former secretaries standing for election against their former masters though.

  • I don’t know enough to comment on whether the discipline was appropriate but I fully accept Sir Bruce’s argument that this was an employee HR issue outside the purview of the politicos.

  • There has been some discussion here about whether or not a senior employee would/should have the same standards applied as would be to a junior employee. I had a Vice-President to whom I reported some years back. I considered him very wise and he became a mentor to me. He told me that if there was a “rule” that he wouldn’t apply to a senior staff member, even a close friend, then he wouldn’t apply it to anyone. I saw him apply his philosophy in practice.

  • backstage

    Does this mean that Bruce Robinson is the only person in the Civil Service who is accountable to politicians and the public? Every other Civil Servant is only accountable to Bruce….?

  • Linda R McKee

    based on the experience of the information commissioner .. forced to leave one job .. but gained another with the new charity commission. no point wasting time talking about what may happen here – he has been reprimanded in line with policy and remains employable …

  • Well of course we did see a former civil servant stand against Jack Straw a few years back.
    But I am going back to the Thatcher years for a thought.
    I recall two instances.
    One a junior civil servant was jailed for about nine months for leaking something to the Guardian.
    And latera very senior civil servant who notified the Press or Opposition about something was prosecuted but was found not guilty by a jury in what was regarded as a “perverse judgement”.
    I think Michael heseltine was involved at the time.
    For the life of me, I cant recall the names but I can “see” them stiill.
    “Sarah Somebody” “Lawrence Somebody” ???

    Consider also the case of Dr David Kelly. The point wasnt that he was having lunch with a journalist or even known to be talking to a journalist. But that he had perhaps overstepped the mark. Certainly he was hung out to dry by his Minister rather than Human Resources.
    So clearly there is a duty of care which cannot be overstated.

    But if a typist in the (say) Department of Health at Stormont was having lunch with a local TV Health Correspondent at the Stormont Hotel, it might raise eyebrows.
    But when our local journalists say “a source within the Department says….” surely thats a civil servant talking. And a senior one. Not just a Press Officer or Special Advisor.
    If the PSNI raided the Press Bureau at Stormont today and confiscated every cell phone, would they find some highly placed civil servants. Surely thats the name of the game.
    A ritual involving politicians, journalists and senior civil servants. “will no one rid me of this turbulant priest” can be translated as “will nobody rid me of these awkward committee questions”?

    The plain fact in Life in general (not this case) is that the more senior a person is the more likely he is to “get away” with stuff.
    If a senior international banker is in a posh hotel room in New York City……..does he think he has more rights than a travelling salesman in a cheap B&B in Blackpool?
    Taking Mr Canucks point that his mentor treated all folks the same……I think in business thats the exception.
    Rank does bring Privelege as much as it brings Responsibility.

  • Cynic2

    “There is, however, an important distinction between that accountability and the role of the Civil Service as an employer and in particular in this case in dealing with disciplinary matters.”

    A beautifully crafted Civil Service Opt Out. However, what Bruce miisses is that his personal role and performance in the disciplinary matter is also a matter of the ‘performance’ of the Civil Service and therefore the Assembly and PAC is quite within its rights to question him in detail on why he took certain decisions and to satisfy itself that penalties were appropriate and that the discipline system is working effectively

  • Pigeon Toes

    Actually agreed that the disciplinary matter should be without outside interference, but wasn’t there rumours of some senior civil servants lobbying against any disciplinary action being taken?
    http://sluggerotoole.com/2010/11/24/sir-jon-shortridge-concludes-his-inquiry/

    But why should the Shortridge report remain confidential?

    I just wonder whether any criminal charges had been considered such as malfeasance, and whether these were discounted.

  • pippakin

    I don’t believe the report should remain confidential and I also wonder if there is room for further charges. If in the case of a senior civil servant a breach is so serious as to merits demotion then there should be a duty to inform the public. If not then it looks too much like an ‘inside’ job and an ‘inside’ fix.

  • Nunoftheabove

    By the standards of the NICS Priestly’s demotion is quite a radical outcome. I’ll bet a lot of the mardarins are genuinely scratching their heads about what all of the fuss is about.

    It’s not that long ago (and for all I know still goes on) that it would have been much more likely that Priestly would have been quietly transferred, if necessary by virtue of promotion, to another role and not another word said about it. I know of two fairly well known NI seconded TU repesentatives, one of them in the papers again recently rabble-rousing about strike action over the right to be ‘pretend sick’ as often as one feels like it without sanction who were personally promoted on the nod by a senior civil service figure directly as a consequence of them lodging laughably baseless grievances.

    The NICS is a union co-managed, self-serving, entitlement-obsessed incompetent scandal of an organization.

  • DC

    The NICS is a union co-managed, self-serving, entitlement-obsessed incompetent scandal of an organization.

    Yip – you have nailed that sucker down.

    But how did it come about?

    I tell you how – New Public Management – the introduction of private sector manager techniques into the Civil Service in the 80s and up. Noticeably – and quite unnecessary – civil service salaries have shot up – even outside of the Civil Service itself, in non-department bodies there are ‘CEOs’ earning 100k plus, for a non-profit making body?

    The union i am involved with – NIPSA – has a lot of managers and senior supervisors as members and they are on the branch committee. Votes are taken on a majority basis of which managers and supervisors form that block – the lower admin staff and junior supervisors are held captive to managerialism and its wishes and desires for an easier life, usually pushing more work down onto the junior staff. There is a tendency for the union officials and management to work hand in glove when it suits. There is no hope of accountability nor transparency when they both lock out the agenda and keep information to themselves.

    The modern union in the public sector has in some areas of work fallen victim to oppressive managerialism itself simply because a lot of its members are in fact managers.

    I was thinking it’s probably about time that a new union was created – one for decision-makers and a different one for non decision-makers, to cover admin/supervisory staff.

    This would get round the conflict of interests in NIPSA which protects shoddy managers – who took and made poor decisions over ‘the managed’, simply because NIPSA want to protect the overall concept of public services, rather than weed out wasters in management who make life hell for junior staff thanks to their persistently poor judgement and decision making over them. These thing have a tendency to end up in tribunals if it all goes wrong – and who pays for that mess?

    New Public Management has changed the face of the union, so NIPSA must change too. Time to split into two different groups of members and kick out the wasters in m/ment who want maximum reward and minimum effort.

    Also can’t the public sector get back to what it is good at – administration, than ‘execution of policy’ which is what New Public Management is about. There are too many managers.

  • DC

    Oh, guess who passionately introduced New Public Management in the civil service – the Tories.

    It’s been costly because civil staff or the senior managers are now demanding salaries similar to private business.

  • DC

    ^*civil service staff

  • Nunoftheabove

    DC

    The issue is as much if not more to do with the proportion of the managers not willing or able to manage than it is with the number of them. It’s also to do with the fear of upsetting the applecart re. union-management relationships we are both aware of. Either way it’s inefficient. You simply can’t develop an organization and deliver efficient service when so much is subject to the veto of self-interested and reactionary union officials with no commitment of any discernible kind to decent standards of peformance and even conduct on the part of their members.

    The argument about CSs being deserving of private sector pay is as old as the hills, however, in brief:

    ~ The vast bulk of their jobs aren’t objectively worth the same as comparable private sector jobs and never will be; one has a choice (how re-employable in the private sector are many long-term civil servants, a good chunk of them have no third level educational qualifications, professional qualifications and are ‘institutionalized’ ?).

    ~ Their terms and conditions in respects other than salaries would need a substantial reality check. Flexibility, tenure, ease of firing, genuine personal accountability for conduct and standards of performance, hours of work, sick leave, comparable pension provision etc would all need to come into line. Breath not held.

    ~ An end to the inability of unions to dictate how the organization is managed. C’est simple.

    ~ A rationalisation of staffing in line with reasonable private sector principles. Massive overhaul long overdue. Streamlined structure, job redesign; clear out the deadwood managers and staff. Rehire only the competent. Job not needing to be done – discontinue the employment of anyone in those jobs and don’t backfill them or invent other jobs not needing done.

  • Pigeon Toes

    So just how autonomous was Mr Robinson’s decision?

    http://www.dfpni.gov.uk/6.03-discipline.pdf

    “2.7 The Head of the Northern Ireland Civil Service will deal with any cases if you are a Permanent Secretary or equivalent or a Head of Department/Agency Chief Executive. In such cases, the normal practice, after consultation with the Minister of the Department concerned and with the Secretary of State for Northern Ireland, will be to set up a board of inquiry that will report to the Head of the Northern Ireland Civil Service.”

  • Allow me a little late night speculation.

    The story so far. As I recall Priestley appeared before the Public Accounts Committee ostensibly about the procurement irregularities; as an Accounting Officer he is responsible for regularity etc but we all know (think we know) that the procurement irregularities were a pretext for a decision to remove the board. The PAC, suspecting this, dug deep concerning the NIW board and strayed into policy matters and put the Independent Review Team in their sights knowing that the Review was just a means to an end. Priestley then took steps to protect his Minister and a sensitive review chair but unbelievably left a trail.

    At this point we should look at the three relevant relationships .

    Firstly the chain of financial accountability and the personal accountability of the Perm Sec as Accounting Officer for his Department’s stewardship of public funds. This is the foundation of the Assembly’s ability to hold the Executive to account for public spending; which is where the PAC (and procurement) comes in.

    Secondly the chain of Ministerial responsibility. Hard to believe but Ministers are answerable to the Assembly for policy decisions and the actions of their departments and their executive agencies. This is where the statutory scrutiny committees, in this case Departmental committees, often come in (but not on this occasion). In addition the Armstrong doctrine reinforces that when a civil servant say gives evidence to a Select Committee on the policies or actions of his Department, he does so as the representative of the Minister in charge of the Department and is accountable to the Minister . But the Minister remains responsible for the conduct of his Department.

    Thirdly there is the employment relationship between the civil service as an employer and Peter Priestley as an employee, with ample means of redress for employees.

    The point is quite simply Peter Priestley chose to wear his second hat in the court of the first hat. He knows that, the PAC knows that, the ex Minister knows that, we know that, everybody knows that. Yet the Minister is responsible for the conduct of his Department, and is it sustainable to punish one without the other when it all could come out in the wash (a very public wash).

    We should not be surprised then that a First Division civil servant with a grievance, an ego and an agile mind can run a ring round his employer and insist on re-instatement. The only surprise is that he was demoted. This was presumably a political call, it can only be temporary and at no financial loss; otherwise all of the Humphreys would be threatening to replace their Rolls Royce service to Ministers with a Skoda downgrade.

  • The accounts of what the rules are now, do not touch on what they should be. The Guardian once published a civil service chart the right way up. At the top were the citizens, below them those whose job was to directly help us (nurses, firemen, dustmen, librarians, water engineers, …). Below them came the administrators whose job was to make it possible for the front line staff to serve the people. And so on, down to permanent secretaries, ministers and at the bottom the Prime Minister, with the whole world on his shoulder, the ultimate servant of everyone.

    But unfortunately, the ultimate servants become so used to giving order they think they rule us. They do not see themselves as disciples of Mohatma Gandhi or Jayaprakash Narayan, humbly serving the poor.

    So what can we do to make them properly servile?

  • Pigeon Toes

    John Dallat touched on the fact that Stormont is about to go into recess.

    Fortuitous timing for Sir Bruce and Mr Priestly? (In addition to the Minister being now an ex minister)

    I think the public deserve answers on the Shortridge report inordinate delay between the conclusion of this (which we don’t know, yet paid for) and the disciplinary process?

    Some food for thought
    http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/

    “Breaches of duty
    Some of the most difficult cases involve breaches of public duty that do not involve dishonesty or corruption.

    In all cases, however, the following matters should be addressed:

    Was there a breach of a duty owed to the public (not merely an employment duty or a general duty of care)?
    Was the breach more than merely negligent or attributable to incompetence or a mistake (even a serious one)?
    Did the defendant have a subjective awareness of a duty to act or subjective recklessness as to the existence of a duty?
    Did the defendant have a subjective awareness that the action or omission might be unlawful?
    Did the defendant have a subjective awareness of the likely consequences of the action or omission.
    Did the officer realise (subjective test) that there was a risk not only that his or her conduct was unlawful but also a risk that the consequences of that behaviour would occur?
    Were those consequences ‘likely’ as viewed subjectively by the defendant?
    Did the officer realise that those consequences were ‘likely’ and yet went on to take the risk?
    Regard must be had to motive.”

  • Comrade Stalin

    Agreed with Mr Fitz, undoubtedly Robinson has handled this by the book, as is necessary – if he had not done so then Priestly would have hauled him in front of a tribunal. And – I am sure Lionel Hutz could confirm this – to my knowledge, employment tribunals find by default against the employer if the correct legally-mandated procedures are not properly followed, irrespective of the merit of the employer’s case.

    In terms of whether or not, as has been suggested, the punishment may not have fit the crime, I think it is clear enough that it does not. The nearest example I can think of in the private sector would be if a senior employee made contact with a customer or a supplier and assisted them with obtaining some sort of extra strategic leverage in a negotiation. That would unquestionably be acting to subvert the employer’s interest and accordingly couldn’t be described as anything other than gross misconduct. If I did it I would expect summary dismissal.

  • I dont see anything odd in the Timing.
    The example Comrade Stalin uses is accurate ……but I think that there might be some deliberately constructed “fog” in this kinda civil service case about the actual employer or the interests of an employer.
    Is the “Employer” you and me with an absolute right, the Minister, the civil service.

  • Pigeon Toes

    “undoubtedly Robinson has handled this by the book, as is necessary – if he had not done so then Priestly would have hauled him in front of a tribunal”

    But why can’t the Shortridge report be made available? It looks very much like his intervention was unnecessary with that whole “board of inquiry” set up. Would there be an onus to report any suspected criminal aspect to the appropriate authority?

  • Pigeon Toes

    Sir Jon Shortridge’s Report on NI Water

    Mr McGlone asked the First Minister and deputy First Minister when Sir Jon Shortridge’s report on NI Water will be published.

    (AQW 805/11-15)

    Mr P Robinson and Mr M McGuinness: Sir Jon Shortridge was not reporting on NI Water.

    http://www.niassembly.gov.uk/qanda/2011mandate/writtenans/2011/110624.htm#1