Practice Advice on Human Resource Management
Civil Service Regulation and Administrative Guidance (OECD)
Description: The OECD advises that a careful mix of secondary legislation (regulation) and administrative guidance is needed to govern a civil service created through primary legislation. Secondary legislation can be used to set the principles and standards in common terms applicable to all civil servants. The exact procedures, and normative principles about the expected behavior and administrative standards required in the implementation of civil service duties in particular departments can be defined more specifically in administrative directions and guidelines.
Commentary: Although secondary legislation is used to ensure detailed implementation of the Civil Services Act, a number of OECD countries have used administrative directions to implement primary legislation relating to the Civil Service. Often, in order to be used in legal enforcement, such legislation is drafted too imprecisely. Not all regulations need to be in the form of secondary legislation, and, in some cases, informal directions, such as administrative guidelines, can be used to complement the rules defined through secondary legislation. The OECD has identified cases in which secondary legislation was necessary, and cases where provision could be made through administrative directions.
Secondary legislation is necessary for the following provisions not elaborated upon extensively in the Civil Service Act:
- provisions that confer and/or impose legally enforceable rights or elaborate an aspect of a legally enforceable right
- provisions prescribing circumstances in which civil servants are excluded or exempted from a right or duty
- provisions creating essential elements of the civil service structure not spelled out by the Act
- provisions which have financial implications for the central budget
- provisions that confer additional functions upon persons who otherwise have no authority to perform them
- procedures setting out the essential steps that guarantee due process in cases where civil servant’s statutory rights may be terminated or adversely affected
- procedures that are intended to be mandatory and legally enforceable
- provisions that stipulate penalties or remedies where a provision of civil service legislation is not complied with
The following are cases in which secondary legislation is not necessary and can be made in the form of administrative guidelines/directions:
- procedural rules, determining the steps that civil servants are expected to follow in relation to a particular administrative process
- instructions indicating by whom or how particular powers are to be exercised, to ensure consistency in decision-making and to allow decisions to be taken at a particular level in the administration without recourse to a higher level of direction
- interpretative guidance, indicating to persons how powers and discretion should be used
- recommendations providing advisory guidance as to expected actions or behavior in order to achieve specific objectives, for example safety and emergency code of conduct, guidelines for engaging in external financial activities and employment
- rules of practice, laying down the practices that will be followed in order to make statutory rules operative and effective
In suggesting that governments should not rely on secondary legislation in guiding the behavior of civil serviants, the OECD perceives normative principles as to expected civil servant behavior and standards required in the performance of assigned functions to be the preferrential regulatory instruments. Governments are cautioned to avoid detailed prescriptions as to behavior of civil servants in the Civil Service Act and also seek to strike a balance between uniformity and flexibility in drafting both the secondary legislation and administrative guidelines. Regulatory instruments pertaining to the civil service should be clearly defined in the Civil Service Act, and the power to make secondary legislation may be conferred either through the Act or derived from other primary legislation, such as the Labour Code. A government body needs to be responsible for the coordination and effective implementation of regulatory instruments within the civil service. The Ministry most closely concerned wth particular civil service activities may be empowered to provide and oversee the rules that govern civil service conduct. Governments should also allow for regular consultation with representatives of the civil service and trade unions about the content of the secondary legislation and administrative guidelines.
Source: OECD (1997). "Civil Service Legislation: Checklist on Secondary Legislation" in Sigma Papers Nr 14 at: http://www.oecd-ilibrary.org/governance/civil-service-legislation_5kml6g4zxd9w-en (accessed 12 November 2012).
Page Created By: Khilola Zakhidova on 1 December 2012. Updated by Ian Clark on 2 January 2013. The content presented on this page is drawn directly from the source(s) cited above, and consists of direct quotations or close paraphrases. This material does not necessarily reflect the official view of the publishing organization.