WCS0007 - Evidence on The work of the Civil Service

Written evidence from Chartered Institute of Arbitrators (WCS 07)

Public Administration and Constitutional Affairs Committee

The work of the Civil Service inquiry

Introduction

The Chartered Institute of Arbitrators (CIArb) is the world's leading professional membership body for arbitration and alternative dispute resolution (ADR). CIArb promotes the use of ADR internationally through 14,000 professionally qualified members in 133 countries.

CIArb has under its Royal Charter a duty in the public interest to promote and facilitate worldwide the determination of disputes by arbitration and alternative means of private dispute resolution other than resolution by the court (collectively called “private dispute resolution”).

ADR mechanisms are a range of procedures that serve to resolve disputes generally involving the intercessions and assistance of a neutral third party to promote a binding settlement or decision. ADR mechanisms include:

arbitration,
mediation,
adjudication,
expert determination,
Dispute Boards (DBs) also known as Conflict Avoidance Boards and
online dispute resolution (ODR).

CIArb promotes and facilitates ADR through the provision of education and training leading to a globally recognised qualification via its flagship Pathways Programme, the widely recognised qualification route to professional status, and its role as a Learned Society.1

This response focuses on the collective capabilities of the Civil Service and civil servant’s individual skills. With the development of a Public Service Ombudsman (PSO), the increasing use of ADR across Government, and proposals for a significant programme of civil courts reform it is important that staff are motivated and have the right skills. The focus of this response is therefore on the disputes and complaints handling staff who will deliver the services in this changing environment.

Government Dispute Resolution

The previous Coalition Government made a Dispute Resolution Commitment (DRC) in 2011 to encourage the increased use of flexible, creative and constructive approaches to dispute resolution by Government departments and their agencies.2 This included educating employees and officials in appropriate dispute resolution techniques in order to enable the best chance of success when using them. ADR is increasingly being used by the UK Government as a key tool in order to manage disputes, including the establishment of a HMRC Dispute Resolution Unit and Groceries Code Adjudicator. The new Government continues to support the development of ADR; the reform of public sector ombudsmen and the inclusion of a Small Business Commissioner that will direct late payment disputes to ADR in the Enterprise Bill are examples of its continued commitment.

The DRC included educating public service employees and officials in appropriate dispute resolution techniques in order to enable the best possible chance of success when using them. CIArb remains concerned that the Government’s approach to the Civil Service skills and capabilities in the area of complaints handling and dispute resolution has not fully fulfilled the stated aims of the DRC. Whilst progress has been made, there is still not a dedicated Government Dispute Resolution Professional Network for the Civil Service to educate employees and officials in ADR. These concerns were raised in CIArb’s response to the 2014 inquiry into Civil Service Skills by the then Public Administration Select Committee.

These concerns remain relevant at the time of the development of a PSO leading on from Robert Gordon’s proposals to restructure, reform, renew and reinvigorate public services ombudsmen.3 There are also radical proposals for reform of the civil courts which will rely on significant development of existing courts staff. The goal of integrating services to construct an agile and efficient system that delivers rapid, effective redress for the citizen at a time of significant public service reform is admirable. If a single PSO is developed to meet the needs of consumers in terms of what a modern Ombudsman service should/can provide, with the civil courts also transformed as part of the wider redress environment, it is essential that the training and quality of staff is not ignored.

The PSO and its staff

CIArb supports the Government’s objective that a PSO should be well quipped to play a wider and enhanced role in dispute resolution and effective complaints handling to simplify access to redress. The creation of a single PSO provides an opportunity for the Government to develop and promulgate best practice in disputes and complaints handling across the public sector. CIArb continues to be concerned about the lack of a common framework for the skills and capabilities of Government ADR practitioners. It would stress that dispute resolution is a profession not a function. The creation of a single PSO is the right time to launch a Disputes and Complaints Professional Network to complement the renewed clusters of the Civil Service Competency Framework at a time of growing complexity in public service delivery.4

The PSO could become the champion of best practice, and taking a lead in supporting a shift in the culture of complaint handling within the public sector. The level of knowledge, as well as the skills and capabilities, required to handle complaints and be an effective dispute resolution practitioner should not be underestimated by the Government – particularly as the use of ADR by Government departments and agencies increases. CIArb would stress again that Dispute resolution is a profession, not a function, as reflected by the renewed focus on the quality of ADR practice at a European and national level.

Civil courts reform and staff

The Judiciary of England and Wales have conducted a Civil Courts Structure Review (CCSR) which recommends the development of an Online Courts (OC) to deal with claims under £25,000. A key aspect of the proposals is the upskilling of courts staff to enable them to become Delegated Judicial Officers (DJOs), playing a more active role in case management and in assisting parties to reach a resolution.5

CIArb has welcomed the work of the Judiciary of England and Wales in conducting a review of the structure of the civil courts to complement and inform the HM Courts and Tribunal Service (HMCTS) Reform Programme which is taking place in parallel. It particularly endorses establishing ADR as a culturally normal part of the civil court process.

It is essential that the staff who will play such a fundamental part in this new vision are trained effectively to ensure that the public have confidence in the way their disputes are being dealt with in a changing environment.

CIArb

ADR is not a regulated profession. It is an accredited rather than a licensed profession within the framework adopted by the UK as an EU Member State (the Chartered Institute model) provided by the Mutual Recognition of Professional Qualifications Directive (2005/36/EC) as amended by Directive (2013/55/EU).6 7 CIArb is listed as a professional association or organisation fulfilling the conditions of Article 3(2):

i. A profession practised by the members of an association or organisation listed in Annex I shall be treated as a regulated profession.

ii. The purpose of the associations or organisations referred to in the first subparagraph is, in particular, to promote and maintain a high standard in the professional field concerned. To that end they are recognised in a special form by a Member State and award evidence of formal qualifications to their members, ensure that their members respect the rules of professional conduct which they prescribe, and confer on them the right to use a title or designatory letters or to benefit from a status corresponding to those formal qualifications.

iii. On each occasion that a Member State grants recognition to an association or organisation referred to in the first subparagraph, it shall inform the Commission, which shall publish an appropriate notification in the Official Journal of the European Union

CIArb is therefore a Competent Authority as per the terms set out in the Professional Qualifications Directive in respect of the professional titles it awards under its Royal Charter.8 It provides gold standard qualifications and has a rigorous professional standards system to guarantee the quality of practice of professionals.

CIArb is willing to work with Government and consider how the wider ADR community can work with public sector practitioners, including the Advisory, Conciliation and Arbitration Service (ACAS), the HMRC Dispute Resolution Unit, HMCTS, and the Groceries Code Adjudicator to support their employees and develop the skills and capacities of the Civil Service in relation to ADR. A single PSO should be at the heart of this initiative as a centre of excellence, with another centre of excellence based within HMCTS. This includes supporting the Cabinet Office to develop the clusters of Civil Service Competency Framework in order to (1) set direction, (2) engage people and (3) deliver results in the area of Disputes and Complaints Handling.9

CIArb believes there is a need to motivate public service Disputes and Complaints Handling practitioners and ensure that they can benchmark their development against industry standards. This would reflect the leading work being carried out by the Chartered Institute of Purchasing and Supply (CIPS) in relation to assisting in the development of the skills and capabilities of government procurement professionals. For example, Government Procurement works in partnership with CIPS to support the understanding and further development of the procurement profession.10 There is much to be said for the pride, sense of ownership and desire to engage that can be instilled within employees when they truly feel they belong to a profession. CIPS has demonstrated how a professional body can effectively support the Civil Service to develop skills and capabilities of staff whilst promoting best practice, fostering a collaborative culture between the public and private sectors.

Conclusion

CIArb believes there is an urgent need to ensure that the Civil Service has the skills required to meet the challenges posed by both reform of public sector ombudsmen and the civil courts. It believes a Disputes and Complaints Handling Professional Framework should be established to support the work of the Civil Service. A PSO and a reformed Civil Courts Service would not just become centres of excellence as champion of effective disputes and complaints handling across the public sector; at a time when the implementation of the EU Consumer Alternative Dispute Resolution (Directive) is leading to reform of the wider ADR environment, they could set standards of best practice and provide challenge to the sector as a whole.11

References

June 2016