Research project AM/03/009 (Research action AM)
In Belgium, efforts to produce a modern administration were boosted by the federal policy declaration of 12 October 1999, the Bouillon and Copernicus memoranda and the organising of the present research programme running for several years. This will bring Belgium into line with the OECD countries who, inspired by the theory of New Public Management, have implemented major administrative reforms recently.
The federal reform proposals are aimed at making administration more productive and efficient. One of the cornerstones of the proposed reforms will be the introduction of consistent human resources management, the main objective of which will be the transition from a culture bound up in rules to one geared to performance. Development of such management within the federal administration almost unavoidably will lead to adaptations to the statute of public administrators. In order to evolve from the idea of employment to that of employability, as a result of which public administrators will witness the imposition of upward and downward mobility and continuous additional training, and whereby public administrators will no longer be tied for life to a single department, their statute will require simplification or deregulation.
However, this simplifying and improving of the statute must comply with the requirements of another cornerstone of the proposed reforms: regulatory management. This is aimed at adjusting the rules and rule-making procedure with the intention of improving economic performance, creating rules of a high standard, increasing the efficiency of government action and curbing the effects of over-regulation.
The key judicial question in all of this is: how should the above-mentioned management requirements of a decisive and modern authority be reconciled with imperatives regarding the key legal safeguards and legal certainties offered by the federal public administrator’s statute?
The aim of the present study project is to plot the judicial effects of human resources and regulatory management reforms with regard to the legal safeguards enshrined in the federal public administrator’s statute. These reforms, together with the results of the study conducted by Antwerp university (see AM/06/011), will be incorporated within and tested against a model statute for federal public administrators designed by the study team as the basis for a public administrator’s legal safeguards and legal certainties.
Thus, the project will aim to offer judicial support for reform of the legal safeguards enshrined in the public administrator’s statute. This will be necessary owing to changes made in the management approach and to rule-making techniques and will neutralise the causes of previous reform project failures.
It goes without saying that a study involving such mobile subject matter should be flexible in its design. The study team therefore will be sure to make allowance for the reforms achieved by the government and the schools of thought impressed upon it during the course of the study project in order to avoid unnecessary study work and produce targeted research. External factors with a fundamental impact on the study will also need to be assimilated with the same objective in mind. For these reasons, consultations will be organised at regular intervals with project public administrators from the Civil Service Ministry.
OBJECTIVES
During stage one, the project, by analysing thoroughly assorted existing public administrator statutes, will set out to achieve the separation of rules in today’s federal statute that directly affect the legal position of the individual public administrator, and which are indispensable for the public administrator’s minimum and uniform legal safeguards, from the administrative and organisational rules. In other words, to split the existing rules into two categories. The first category will contain the rules that concern the management of a government organisation and which might be carried out by the various departments. The second category will encompass rules that supply legal safeguards for the public administrator and which should be guaranteed in the actual, centrally-controlled and universally-binding public administrator’s statute sensu stricto.
The ultimate aim of this first stage is to develop a theoretical model for the statute of federal public administrators (instrumentum), in an attempt at providing answers to the following questions:
- Where in today’s federal rules are those that refer to the legal safeguards and legal certainties of the public administrator? Do they involve centrally-devised rules or not?
- What are, allowing for the requirements of human resources and regulatory management, the essential rules that should be accommodated in the revised statute? In other words, what should definitely be regulated in the statute to ensure optimal legal safeguards and legal certainties for the federal public administrator, and what might be left to the various departments?
- How should the revised, simplified composition and structure of the statute (instrumentum) appear in order to offer the administration the chance to comply with the requirements of mobility, flexibility, etc. without denying public administrators the necessary legal safeguards and certainties? What design should there be for a scientifically-based, theoretical model as regards adjusting the government/public administrator relationship?
In answering these questions, the administration itself has requested that attention should be paid particularly and above all to the influence of reforms (planned or already implemented) on changeover, opt-out and transfer possibilities for public administrators and the repercussions of these reforms on their statute and legal safeguards. The desired upward and downward mobility will thus be given a framework within the judicial legal safeguards of statutory personnel.
The answer to these questions will be outlined in a theoretical and comparative legal report on legal safeguards and certainties within the federal public administrator statutes and in a limited ‘sample’ statute. The model and know-how drawn from the report will then be applied during stage two.
In the second and final stage, the theoretical model will be tested against the findings of the study project proposed by Antwerp university (Professor Ria Janvier) on the culture of federal organisation and mutual expectations of government and public administrator as regards how their relationship is interpreted. The intention is to take account of the prevailing and desired personnel organisation within the administration (the ‘psychological contract’) and investigate to what extent and on what points the minimum legal safeguards of the public administrator (either a legal contract or statute) enshrined in the theoretical model should be adapted (negotium). Moreover, the findings and experiences acquired during this project will be incorporated into this final text. Finally, questions and observations from assorted government bodies, with which dialogue will have been developed during the study project, will be assimilated. Thus, project objectives in stage two will be to convert study results from project stage one into actual proposals for bringing about the required minimum adjustment - but, at the same time, one that is effective for the public administrator - of statutory legal safeguards within the new management culture and, in particular, within the ‘psychological contract’.
In other words, the reformed statutory legal safeguards will thus be reconciled with the requirements of human resource and regulatory management, as highlighted by the actual study, the study by Antwerp university, the authorities involved and public administrators themselves.
Proeve tot een geïntegreerd en hervormd statuut voor het federaal openbaar ambt : onderzoek naar de essentiele elementen inzake de rechtsbescherming en het functioneren van de ambtenaar in een gemoderniseerde administratie
Leus, Kaat - Bergs, An - De Becker, Alexander ... et al Gent : Academia Press, 2004 (PB6089)
De hervorming van het federale ambtenarenstatuut. Onderzoek naar de essentiële elementen inzaken de rechtsbescherming en het functioneren van de ambtenaar in een gemoderniseerde administratie : samenvatting
Brussel : Federaal Wetenschapsbeleid, 2004 (SP1367)
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