Jenny Manderson
 

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Jenny Manderson

24th May 2008

Mrs. Suzanne Bothwell,
Director,
Constitutional Review Secretariat
Elizabethan Square Phase 3, 2nd Floor
George Town, Grand Cayman

Dear Madam,

I attended the Chamber’s Constitutional Forum on Thursday and was pleased to hear both political leaders reaffirm their conviction that the civil service must be independent of political interference. I am disappointed that  none of their proposals for constitutional modernization provide modern constitutional protection for the service.

You will remember that the FCO’s Constitutional Modernisation checklist required that consideration be given to whether the Governor’s powers were adequate in respect of his responsibilities under the constitution and the appointment to public offices.   The White Paper on Constitutional Modernisation also stated that future action would focus on improving the effectiveness, efficiency and impartiality of the public service.

Under the Westminster model, the FCO’s desire to improve the impartiality of the civil service could have been achieved efficiently, and with confidence, by preserving and modernizing the already well established mechanism that was created for that specific purpose, that is, the Public Service Commission (PSC).  In fact, the report of the 2002 Constitutional Commissioners documented public support for the PSC to be entrenched in the Constitution. The PSC was included in the 2003 draft Constitution. No mention of the PSC is made in the new proposals. However, the crucial point I wish to emphasize is that whatever modern protective measures are agreed upon they must be enshrined in the constitution.

Assurances from present politicians that they will respect the traditional practice of non-interference are not enough.  The service must also be insulated in the longer term from other influences including future politicians, pressures from special interest groups, nepotism, and victimization.   Unless this protection is included in the constitution there is no guarantee that it will be maintained.

I offer the following points for your future consideration:

    Is it likely that the FCO will insist on constitutional provisions to meet its objectives of ensuring that the Governor’s powers in respect of the civil service are adequate and of improving the impartiality of the civil service?

    Were any of the recently ‘modernized’ constitutions approved without protection for the impartiality of the service?

    Is there empirical evidence from British Territories (or other small states) that have abolished their Commissions that the efficiency, effectiveness and impartiality of civil services have been enhanced by the absence of the Commission?

    Members of the judiciary and legal service were exempt from consideration by the Public Service Commission. In light of the decision to abolish the Public Service Commission, what is the rationale for creating  a Judicial and Legal Service Commission?

    If  there has been a delegation of the Governor’s reserve powers for appointments etc. to the civil service and if there is wide-spread support for delegation of some or all of the other reserve powers, can the other powers also be delegated without constitutional change?  On the other hand, if the public supports the retention of these reserve power, what new provisions are necessary to ensure that there can be no further delegations without constitutional change?

    In the absence of a Public Service Commission, what are the options for shielding the civil service from political influence when the country gains independence?  At independence who will be constitutionally responsible for the civil service?

Independence might be a long way off but the responsible approach to constitutional modernisation is to prepare for it.

Thank you for your consideration.

Yours sincerely,

 

Jenny Manderson