ISE16/14-15

• On 2 March 2015, the Chief Executive announced the appointment of Mr Nicholas Yang as Adviser to the Chief Executive on Innovation and Technology.^{1Legend symbol denoting The terms of reference of the position are as follows: (a) to collect views of various sectors in Hong Kong, in particular the innovation and technology sector, on matters related to innovation and technology; (b) to analyse the information collected; and (c) to provide advice to the Chief Executive and the Government on the development strategy for innovation and technology, with a focus on how Hong Kong can make the best use of its advantages and how to strengthen coordination between the Government, industry, academia and research sectors. For details, see Information Services Department (2015).}  In addition to this unpaid position, Mr Yang was appointed as a Non-official Member of the Executive Council and chairman of the Advisory Committee on Innovation and Technology.^{2Legend symbol denoting In his capacity as a Non-official Member of the Executive Council, Mr Yang is subject to the declaration requirement under the System of Declaration of Interests adopted by the Executive Council. He is also bound by the rules of confidentiality and collective responsibility, which form parts of the oath Executive Council Members have to take before assuming office. As chairman of an advisory body, Mr Yang is subject to declaration of interests requirements issued by the Home Affairs Bureau.}  As a person of extensive experience in innovation and technology, Mr Yang was appointed to provide direct assistance and advice to the Chief Executive on this specific policy area, which is considered by the Chief Executive as having a pressing need for development. The duration of his appointment is specific, which lasts until the establishment of a new Innovation and Technology Bureau.
• Although there have been only two special advisers to the Chief Executive since 1997^{3Legend symbol denoting In Hong Kong, former Chief Executive Tung Chee-hwa appointed Mr Paul Yip as his Special Adviser between 1997 and 2005. His duties included providing advice to the Chief Executive on various issues, including those relating to policy research and the handling of Taiwan matters. He did not belong to the Chief Executive's Office, was unpaid and did not have any contractual relationship with the Government. The Special Adviser did not maintain any formal working relationship with Government bureaus. As the Special Adviser was not a Government officer, he was excluded from provisions of the Prevention of Bribery Ordinance (Cap. 201) regulating public officers, although the legislation applied to him as an ordinary citizen. For details of Mr Yip's role, see the oral question raised at the Legislative Council meeting of 5 January 2000.,4Legend symbol denoting Apart from special advisers, the Chief Executive also receives advice and support from the Executive Council and other non-civil service contract staff in the Chief Executive's Office. The Central Policy Unit, and other advisory bodies appointed from time to time, also provide advice to the Chief Executive.}, it is not uncommon for heads of governments and international institutions elsewhere to appoint such persons. This issue of Essentials studies the overseas experiences on the roles played by special advisers, how they are appointed and the rules of conduct relating to their activities. References are taken from appointments made by the Prime Minister in the United Kingdom ("UK"); the President of the United States ("US"); the Prime Minister of Canada; and the President of the European Commission ("EC"). These special advisers are appointed by their respective Prime Ministers or Presidents to provide personal, specialist advice in addition to those provided by cabinet ministers or permanent civil servants, and to perform specific tasks of assistance.

Key roles of special advisers

• The roles and functions of special advisers differ greatly from one place to another, and there is no standard definition for such positions. In fact, even the titles for such positions vary from place to place. In the UK and the EC, they are called special advisers. In Canada, they are called exempt staff or ministerial staff^{5Legend symbol denoting In Canada, under the Public Service Employment Act, there are two kinds of advisers who may be appointed to provide the Prime Minister with advice and support. The first are exempt staff (or ministerial staff), who are appointed by the Prime Minister to provide him with advice and assistance in his office. The others are special advisers to ministers, who are appointed by the Governor-in-Council on recommendation by the Prime Minister. These are usually independent persons who perform specific functions such as leading an independent inquiry or acting as an ombudsman. Due to differences in the nature of their appointments, only exempt staff are covered in this paper.}. In the US, they are called assistants to the President. Although special advisers can either be paid or unpaid, working alone or supported by an office with staff, in general, they share some similar characteristics. The following are some key roles played by special advisers:
• Political adviser: Special advisers may be persons who perform tasks that the politically-impartial civil servants are unable to do so. In the UK and Canada, they provide advice and assistance to the Prime Minister from a standpoint that is more politically committed and politically aware than those provided by permanent civil servants. Their work include research, speech writing and policy planning; providing expert advice as a specialist in a particular field; and liaising with different sectors on behalf of the heads of government. For example, the UK Prime Ministers have appointed media professionals as directors of communications in the Prime Minister's Office. There are also occasions when individuals are appointed as unpaid strategists to provide out-of-the-box advice.^{6Legend symbol denoting One example was the appointment of Lord Birt, former director-general of British Broadcasting Corporation, by former Prime Minister Tony Blair as his unpaid special adviser in the Cabinet Office between 2001 and 2006. Lord Birt was known as Mr Blair's "blue sky thinker" who provided confidential advice on a range of issues, and including reports on London, drugs, health, education, transport and crime.}
• Independent expert: Special advisers may be persons of exceptional qualifications and professional experience. In the EC, these experts provide direct advice and assistance to Members of EC, including the President. They provide skills which the civil servants in the EC do not normally possess. Sometimes, former senior officials of the EC are appointed as unpaid special advisers in order to ensure that their experience and expertise remain available to the President and other EC Members. For example, the President of the EC Jean-Claude Juncker has appointed two special advisers, both are experts in the relevant fields: one providing specialist advice on regulation matters, and the other on European defence policy.
• Honest broker: Another unique aspect special advisers may contribute to decision-making is their ability to make candid advice, supposedly free from departmental concerns sometimes held by cabinet ministers and civil servants. In the US, the Assistant to the President for National Security Affairs (commonly known as the National Security Advisor) is traditionally an "honest broker" who is expected to present to the President policy options proposed by different departments in a fair and balanced manner, and to monitor the implementation of policies in the same manner.

Appointment of special advisers

Sources of authority

• It is a common feature among the places studied that the appointments of special advisers are provided for under legislation and established rules and practices. For example in the US, Sections 105 to 107 of Title 3 of the United States Code authorize the President to hire close assistants in the White House Office. In the UK, the appointments of special advisers are provided under Civil Service Order in Council 1995, as well as the Constitutional Reform and Governance Act 2010. Appointments of exempt staff in Canada are governed by legislation, while the system of appointing special advisers in the EC is governed by a formal decision of the EC. The relevant legislation and related rules often lay out the powers and procedures for the appointing authorities to make the appointments, how the special advisers are to be held accountable to the persons who have appointed them, and set out the roles and duties of special advisers and their relationship with the civil service.

Relationship with the appointing authorities

• Due to the fact that special advisers are often chosen personally by the heads of governments or heads of institutions to provide assistance and advice, it is a common feature among the places studied that they are only answerable to the appointing authorities who have appointed them. Special advisers in the UK, assistants to the President in the US and exempt staff in Canada hold office at the pleasure of the appointing authority, or until the end of the administration unless the duration of their offices are specified. In the EC, special advisers are normally appointed for renewable terms not exceeding two years. In general, the appointing authorities are responsible for the management and conduct of their special advisers, who report to them directly in carrying out their duties.

Relationship with the civil service

• Since the work of special advisers is distinct from those performed by civil servants, the ways they are appointed are in general different. In all of the places studied, special advisers do not have to go through the merit-based competitive civil service selection process. Although special advisers in the UK have the status of temporary civil servants, they are exempted from the civil service requirement of impartiality because they are expected to provide advice from a political angle. In order to distinguish the different roles they play, in the UK and Canada, there are explicit rules forbidding special advisers and exempt staff to exercise authority in managing civil servants, although in the US, some assistants to the President have executive powers due to their roles in other public offices. The relationship between permanent civil servants and special advisers in the EC has not been specified.

Disclosure of the appointments

• In order to increase public knowledge of the appointments as a way to address the need for transparency, in the UK, there is a legal requirement for information to be provided to the House of Commons on an annual basis detailing the names, expertise, pay range, number and total salaries cost of all special advisers, paid or unpaid. In the EC, once their appointments have been made, a list of special advisers, together with their sworn statements and curriculum vitae, are posted on the EC's official website. In the US, there are legislative requirements for the President to submit on an annual basis the position details and cost of White House staff to the Congress. There is no such requirement in Canada.

Rules and restrictions governing special advisers

Conflicts of interests

• Being close aides to the heads of government, special advisers are seen to wield considerable powers because of their ability to influence policy through their advice, and their insider knowledge of government thinking. Hence, there are legislation and binding rules such as codes of conduct which govern the conduct of special advisers and to prevent any conflicts of interests.
• In Canada, the Conflict of Interest Act requires all exempt staff to avoid any conflicts of interests between their private affairs and official business, and mandates them to submit confidential reports to the Conflict of Interests and Ethics Commissioner detailing their financial and related activities. In the US, it is a statutory requirement under the Ethics in Government Act for assistants to the President to make public declarations of their financial and other interests to the White House. In the UK, the declarations of interests are required under the Code of Conduct for Special Advisers which forms part of their employment contracts. In the EC, the Rules on Special Advisers to the Commission, which govern the appointment of special advisers, require the President to personally vouch for the integrity of his special advisers who must also declare that they have no conflicts of interests before accepting the appointments. One special feature of the rules regarding conduct of special advisers in the UK^{7Legend symbol denoting In the UK before 2007, unpaid special advisers were not bound by the Code of Conduct for Special Advisers or the Civil Service Code. The UK government updated the relevant rules in 2007 following recommendations of the Committee on Standards in Public Life to broaden the coverage of the rules. Since 2007, rules regarding appointment and conduct of unpaid special advisers have been brought into line with paid special advisers under the Ministerial Code. The current Ministerial Code ensures that all special advisers, whether paid or unpaid, are appointed under the terms and conditions set out in the Model Contract for Special Advisers and the Code of Conduct for Special Advisers.} and the EC is that in both places, the relevant rules apply to unpaid special advisers as well as those who are under public payroll.

Confidentiality

• Among the places studied, it is common that special advisers are bound by the rule of confidentiality as part of their contractual obligations. For example in the UK, special advisers are bound by the Civil Service Code to keep information related to their tasks confidential, and must continue to observe this duty after completing their tenures. In the EC, special advisers are required under the Conditions of Employment of Other Servants of the European Community to refrain from unauthorized disclosure of information received in the line of duty. Assistants to the President in the US and exempt staff in Canada are also subject to similar contractual obligations.

Outside activities and post-employment activities

• Paid employment and outside activities of special advisers are usually regulated due to the sensitive nature of their duties. For example in the UK, special advisers must seek permission before taking part in such activities where information or experience gained in the course of the work is likely to be relevant. In Canada, exempt staff are not allowed to engage in outside employment. In the US, assistants to the President may not receive any income outside of his or her office. Outside activities of special advisers in the EC are not restricted except the requirement that they do not take instructions from any government or organization in relation to their duties. As regards to restrictions on post-employment activities, in Canada, exempt staff are prohibited under the Conflict of Interest Act to enter into contracts or accept employments with an entity that they had significant official dealings with for a period of one year after leaving their positions. The restricted period in the UK is two years. In the US, assistants to the President may not conduct lobbying to the government on behalf of another person within two years after leaving office. In the EC, it is a contractual obligation for special advisers to behave with integrity and discretion as regards the acceptance of relevant appointments or benefits after leaving service.

Prepared by Ambrose LEUNG
Research Office
Information Services Division
Legislative Council Secretariat
14 July 2015