Governance and Accountability of Independent Bodies and Office Holders – A Thinkpiece

Background

The States of Jersey have established several entities which operate, to varying degrees, on an independent arm’s-length basis.  In some instances, the establishment of these entities on an arm’s-length basis is a matter of policy choice.  In other instances, the activities undertaken by the entity include those of a regulatory, audit, oversight or challenge nature.  These, by their nature, need to operate with an element of independence from the Government of Jersey.

The particular arrangements for the governance and accountability of individual independent bodies and office holders have arisen through both policy choices reflected in legislation and through the operating models adopted by different entities. The nature of the arrangements and the extent of the independence from Government reflect:

• relevant international standards, for example the Paris Principles for human rights bodies in the case of the Children’s Commissioner for Jersey
• the frameworks in place in other jurisdictions.  In many cases Jersey legislation is based on corresponding UK legislation
• the particular challenges involved where an independent body or office holder regulates, oversees or challenges an activity of a branch of Government. For example, the Jersey Care Commission regulates services delivered by the Government of Jersey as well those delivered by third parties; and
• the extent of independence required.  For example, the Official Analyst (Jersey) Law 2022 reflects a requirement for professional independence in conducting scientific analysis but not a requirement for structural independence.

I recognise that the approach to the governance and accountability of independent bodies and office holders is subject to continuing development.  For example, recently there has been:

• consultation on the establishment of a Public Services Ombudsman
• consultation on amendments to the Statistics and Census (Jersey) Law 2018; and
• proposed amendments to the Employment of States of Jersey Employees (Jersey) Law 2005 to provide for a Public Appointments Commission.

In this Thinkpiece I have considered the governance and accountability arrangements of 16 independent entities (independent bodies and office holders) established by the States of Jersey.  In doing so, I intend to stimulate thought and debate through:

• setting out the key differences in arrangements for the governance and accountability of independent bodies and office holders
• determining the extent to which there is evidence of clear justification for such differences; and
• considering the extent to which it might be possible to establish an overarching framework for the governance and accountability of independent bodies and office holders.

Scope

The Thinkpiece has evaluated:

• the differences in arrangements for governance and accountability of independent bodies and office holders
• the extent to which there is evidence of clear justification for such differences; and
• the extent to which it might be possible to establish an overarching framework for the governance and accountability of independent bodies and office holders.

I have considered differences in arrangements for governance and accountability including in relation to:

• establishment and appointment
• funding, including maintenance of reserves
• financial control, including the application of the PFM
• employment of staff
• use of Government of Jersey support services, including for finance, IT, estates and human resources
• oversight by an Audit Committee or equivalent
• the content and publication of annual reports and accounts; and
• internal and external audit.

My consideration has extended to independent bodies and office holders established by the States of Jersey that undertake activities, including those of a regulatory, audit, oversight and challenge nature but excluding those undertaking judicial activities or otherwise involved in the administration of justice.

The review does not extend to States controlled companies or external bodies in receipt of grant funding.

A list of the independent bodies and office holders covered by the review is included at Appendix One of the Thinkpiece.

Conclusions

Current arrangements for the governance and accountability of independent bodies and office holders are fragmented.  In some instances there are identifiable weaknesses in arrangements that compromise the governance and accountability of independent bodies and office holders.  As many of the elements of good governance and accountability are common to all or most independent bodies and office holders, there is scope for development of arrangements that would apply to all independent bodies and office holders or to groups of them, except where there are compelling reasons that they should not apply.

I strongly encourage the States of Jersey to take forward the areas for consideration that I have outlined, in order to provide greater assurance as to the protection of the independence of the bodies and office holders reviewed as part of this Thinkpiece.  At the same time, there are opportunities for independent bodies and office holders to drive greater efficiency in arrangements through shared support services.