Political activities by States employees

STATES OF JERSEY

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POLITICAL ACTIVITIES BY STATES EMPLOYEES

Lodged au Greffe on 24th February 2006 by the Council of Ministers

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

(a ) to agree that the present restrictions on the ability of public sector employees and office-holders to

engage in political activities, including standing for election to the States, should be amended and that –

( i) p u b lic sector employees and office-holders should be categorised as either politically

eligible' or politically ineligible' as set out in Appendix 2 to the report of the Chief Minister dated 24th February 2006;

(i i ) t h o s e employees who are categorised as politically eligible' should be able to participate

in political activities in accordance with the conditions set out in paragraphs 5.1 – 5.6 ("Proposed Standards of Conduct for Public Sector Employees engaging in Political Activities") of the said report;

(i i i) t h o s e employees and office-holders who are categorised as politically ineligible' should

be able to stand for election for the States in accordance with the conditions set out in the said paragraphs 5.6 – 5.10 and 6.1 – 6.3;

(b ) to charge the Chief Minister, after consultation as necessary with the States Employment Board, to

bring forward for approval the necessary legislation to give effect to the proposals.

COUNCIL OF MINISTERS

REPORT

1. I n t roduction

1. Is s ues surrounding entitlement of public sector employeesto stand fortheStates came to the fore atthe time of the debate on thetermsof the States ofJerseyLaw.Subsequently, the Policy andResources Committee presented a Reportto the States (R.C.18/2005)in connection with these matters.However,not only did this Report address issues relating to seeking election to the States, but it alsoextended the topic to coverother issues relatingto States employeesbeing entitled to play a publicpart in political matters.
2. A number of commentswerereceived following presentation of this Report. Thesecomments,together with further consideration of these mattersby the Councilof Ministers, haveformed the basisof the approach that is now placed before the States for its consideration and approval.

2. C  u rrent position

1. A t present, a numberofgroupsof public sector employees are prevented from standing for the States or taking a public part in political matters.Forexample,under the termsof civil servants' contracts and Article 17 of the Civil Service Administration (General) (Jersey) Rules 1949 –

"No officer shall take a public part in any political matter"

S i m i lar approaches have been taken in respect of a number of other groups such as police and prison

officers.

2. T h ose who are currently prevented from standing for election and those who do not have similar restrictions applied to them are identified in Appendix1.
3. O ther jurisdictions have taken a different approach. They have tended to adopt a more selective philosophy by discriminating betweenthosewho have a policy-makingrole,provide advice to elected membersor have a law enforcement role and thosewhodo not. Forexample,the United Kingdomhave identified that a numberof categories ofcivil servants in the industrial and non-office grades should be designated as "politically free" and havegiven them entitlement to take part in all political activities. Others, including thosein the Senior Civil Service and civilservants at levels immediately below the Senior Civil Service,have been placed in a "politically restricted" category and are thereby prevented from taking part innational political activities.
4. S im ilarapproacheshavebeentakenbysmaller jurisdictions. Forexample,theIsleofMan, Malta and Gibraltar have all provided for certain categories of their employees to be free to pursue political activities.

3 E u r opean Convention on Human Rights

1. A r ticle  10 of the EuropeanConventiononHumanRights provides certainprotections in connection with freedom ofexpression. Article  10 reads as follows –

" (1 ) E veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2 ) T h e exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in

a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of the judiciary."

2. I t will be noted that the right ofexpression is a qualified right. Action can, therefore, betakento circumscribe this freedom, provided that any restrictions are prescribed by law, pursue a legitimate aim and are proportionate to the objectives to beachieved.Such restrictions have been tested inCourt.For example, in the case of Ahmed and Others -v- United Kingdom, the European Court ofHuman Rights found that itwas reasonable on the part of the British governmentto restrict the freedom of expression of certain senior membersoflocalgovernment.
3. A t present,however, a view could be taken that a blanket restriction ofthetype that is applied in Jersey, whichstops all political activity byevery civil servant,is disproportionate and is in contravention of the European ConventiononHuman Rights.
   4. P r o posedwayforward

1. In light of theabove, it is now proposed to introduce legislation which frees upcertain public sector employees to take a public part in political matters. It is considered that, in comingto decisions onthose who should be provided with such freedoms, there is a need to balance two potentially opposing principles: that is that in a democratic society it is desirable that asmany citizens aspossible play an active part in the public affairs of thecommunity;balancedbythe notion that public interest demands that confidence be maintained in a politically impartial publicservice.
2. T h e criteria that have been used in determining the wayforward are those that have been applied by the other jurisdictions referred to above. Thus, eligibility to take part in political matters has been influenced by whether an employeeis involved inpolicy-making,providing advice directly to electedmembers, speakingonbehalfoftheStatestothemediaor involved in law enforcement.In seeking toapply this across the States workforce, certain judgements have had to be made. However,itis considered that the designations proposed and identified in Appendix 2 achieve anappropriate balance betweenthosewho will bedesignatedas "politically eligible" and thosewho will be designated as "politically ineligible".
3. N e vertheless, it is recognised that itispossible that such designationsmayprove incorrect in the lightof the specific responsibilities of particular employees. Certain employeeswho fall withinthe "politically ineligible" category might consider that they should be designated as "politically eligible" and management might consider that certainroles that have been designated as "politically eligible" should be recognised as "politically ineligible". It is, therefore, proposed that existing States grievance procedures should be applied toreview any decisionsasto eligibility.

5. P r o posedStandards of ConductofPublicSectorEmployees

1. W h ere an employee is designated as "politically eligible", it will mean that such an employee will be free to engage in any political activity, whichincludesstanding for election to the States or as a Connétable , publicly supporting someonewho is standingfor election orplaying a public part in any political matter.
2. In the caseofstandingfor election, employees will be obliged to do so on the following terms –

• T h e y should inform their managers as early as possible of their intention to stand for election in order that practical steps can be taken to deal with the consequential effect of their subsequent absence from work.

• T  h e y will be deemed to be on unpaid special leave with effect from the date of their formal nomination as a candidate for the States or as a Connétable .

• T h e y  will  be  entitled  to maintain  their  contributions to  the Public Employees  Contributory

Retirement Scheme during the period of unpaid leave. However, if they elect to do so, they will be responsible for paying both elements (employer and employee) of those contributions.

3. If e mployeesaresuccessful in being elected –

• T h e i r employment with the States shall be deemed to have terminated on the day preceding that on

which they are sworn in as members of the States or as a Connétable . In the period between the election results and the effective termination date they will not be entitled to return to work.

4. If e mployeesareunsuccessful –

• I f t h ey wish to continue working for the States, they will be entitled to reinstatement in the same

duties and be entitled to the same terms and conditions of service that applied to them immediately prior to the commencement of their unpaid leave, provided that they notify their employing Department of this within a week of the date on which the election results were known.

• T  h e y must return to work within a period not exceeding 4  weeks after the date on which the election results were known.

5. In a similar manner, all "eligible"employees will be entitled to take a public part in political matters, such as canvassing at elections, writing to the news media to express opinions, etc.
6. H o wever,it is considered that such political freedoms should not beentirelyunfettered.Ifemployees behave in a waywhichdestroys the confidence and trust that restswith them by engaging incommenton existing States policiesinanimmoderatemannerorengaging in personal attacks onelectedmembersor utilising information that has been obtained by virtueof their position then consideration will begivento whether it is appropriate for them to return to work.Suchbehaviour would bedeemed to be considered as "gross misconduct" and, if the employeewishes to beacceptedback into theirformer position, then States disciplinary processes would be applied. If, after the application of these procedures, it was confirmed that thematter constituted grossmisconduct then anemployee's request for reinstatement would be rejected. A similar approachwould be applied where an employeetakes a public part in a political manner and behavesin a similar mannerto that described above.
7. I f employees who are categorised as "politically ineligible" wish to stand for election, they will be obliged to follow the following procedure –

• T  h ey should inform their manager as early as possible of their intention to stand in order that consideration can be given to their current duties and whether it is appropriate to continue with them in the light of their intention to stand and in order that practical steps can be taken to deal with the consequential effects of their subsequent absence from work.

• T h e y will be deemed to have resigned with effect from the day prior to that on which they publicly commence campaigning or from their formal nomination, whichever is the earlier.

8. If a politically ineligible employee isunsuccessfulin an election –

• T h e y will be free to apply for positions within the Public Service. However, this must occur in open competition, in accordance with the Recruitment Code specified by the Jersey

Appointments Commission.

9. A g ain, the mannerinwhich such employeesbehave in the electioncouldbetaken into account when considering them forre-employment.If they behave inappropriately – in the manner set outabove – then this would prejudice their application towork for the States.
10. S imilarly, all politically ineligible employeeswouldbe unable to take a public part inanyother political matter.

0. P o sition of Police
1. It i s important to note that the foregoing paragraphs relate specifically to employees of the States, that is to say, those groups of employees which come within the remit of the States Employment Board. There is, however, another significant group, members of the Jersey Police Service, who are, from a legal standpoint, recognised as office-holders and not as employees. Nevertheless, notwithstanding this distinction, it is important that the States identifies how this significant group should be categorised from the point of view of engaging in political activities.
2. It is considered that, in view of the vital role that police officers should play in upholding the Law in a totally impartial fashion, it is appropriate that all police officers should be designated as "politically ineligible".
3. A s a result of the legal standing of police officers, it is envisaged that legal provision will need to be made in order to secure their political ineligibility in future.

0. F i nancialandmanpowerconsequences
1. In view of the fact that eligible employees will be provided with unpaid special leave whilst they are seeking election to the States, it is considered that the financial implications of these proposals are minimal. During the period of unpaid special leave, there might be a requirement to employ additional temporary staff in order to ensure continuity of service. However, this short-term arrangement will be resolved following the outcome of the elections and identification of whether the employee will return to work or not.

0. C o nclusions
1. It i s recognised that the proposed changes that have been set out above are not without potential difficulty. At present the position is clear and maintains a politically neutral public service within certain employee groups – particularly the civil service. The situation will undoubtedly be quite different if the above proposals are adopted and, in a comparatively small community, this might lead to problems and tensions. However, these potential risks must be weighed against employees' entitlement to participate in the normal democratic processes in which other members of the community can engage.
2. It i s suggested that, on the whole, the balance in respect of the proposed way forward is correct. However, the mechanism to enable employees and managers to have a particular designation reviewed through the grievance processes is considered to be an important outlet for those who believe that an incorrect designation has been made in a particular case.
3. T h e States are therefore commended to approve the principles that have been described above in order that action can be taken to bring forward the appropriate legislative changes to put these measures into effect.

STATES EMPLOYEES CURRENTLY ENTITLED TO STAND FOR ELECTION

Airport Electricians

Airport Rescue and Fire-fighting Service Education, Technical and Support Staff Head-Teachers and Deputy Head-Teachers Highlands College Lecturers

Highlands College Managers

Manual Workers

Medical Staff

Postal Workers

Teachers

Youth Workers

STATES EMPLOYEES/OFFICE-HOLDERS WHO ARE CURRENTLY NOT ALLOWED TO STAND FOR ELECTION

Civil Servants

Emergency Ambulance Service Family Support Workers

Fire and Rescue Service Nurses and Midwives

Police Officers

Prison Officers

Prison Managers

Residential Child Care Officers

EMPLOYEES CATEGORISED AS "POLITICALLY ELIGIBLE"

Airport Electricians

Airport Rescue and Fire-fighting Service

Civil Servants graded 11 or below

Educational, Technical and Support Staff graded 11 or below Emergency Ambulance Service

Family Support Workers

Fire and Rescue Service

Highlands College Lecturers

Manual workers

Medical Staff

Nurses and Midwives

Postal Workers

Prison Officers

Prison Managers

Residential Child Care Officers

Teachers

Youth Workers

EMPLOYEES/OFFICE-HOLDERS CATEGORISED AS "POLITICALLY INELIGIBLE"

Civil Servants graded 12 or above

Educational, Technical and Support Officers graded 12 or above Head-Teachers

Police Officers

Chief Officer and Area Managers of the Fire Service

Prison Governor and Deputy Prison Governor