Ethics and corruption
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Ethics and corruption |
THE MANAGEMENT OF ETHICS AND CONDUCT IN THE PUBLIC SERVICE
By Andrew Whetnall, Cabinet Office,
Office of Public Service, United Kingdom
(This Case Study reflects the situation in December 1995)
A. The Public Service Environment
Is there a perception of a decline in confidence in government and its institutions, and/or a feeling that standards of behaviour of public servants are slipping?
1. There is public perception of a decline of this sort. This is exemplified by growing levels of recorded public dissatisfaction with the behaviour of key elements of government and its institutions. For example, in 1994, 64% of people in a survey2 agreed that "Most MPs make a lot of money by using public office improperly", while only 28% agreed that most MPs have a high personal moral code"; in 1985 the proportions had been 46% and 42% respectively.
2. Such perceptions derive in part from reports of particular scandals and incidents of one sort or another which sharpen public uneasiness about the standards of behaviour in public life, and may create a generalised concern which is ill-related to the extent or specific sectors in which problems have been exposed. It is therefore very difficult to be clear on the extent to which this concern is justified. The existence of the Committee on Standards in Public Life, which was set up by the Prime Minister in 1994 (see paragraphs 3 and 12 below), is indicative in itself of increasing concerns about standards. The introduction to the Committee’s First Report sets out the concerns felt by many:
"We cannot say conclusively that standards of behaviour in public life have declined. We can say that conduct in public life is more rigorously scrutinised than it was in the past, that the standards which the public demands remain high, and that the great majority of people in public life meet those high standards. But there are weaknesses in the procedures for maintaining and enforcing those standards. As a result people in public life are not always as clear as they should be about where the boundaries of acceptable conduct lie. This we regard as the principal reason for public disquiet3."
What general forces are impacting on the environment in which public servants operate that have implications for ethics and standards of conduct?
3. There are many such forces, including all the examples listed in the framework outline prepared by PUMA/OECD, such as the increasing privatisation and contracting-out of public sector functions; devolvement of responsibility - including financial responsibility - within public service organisations; greater pressures for openness and more intensive media scrutiny of the public sector; and increased assertiveness and willingness to complain on the part of users of public services. Another pressure impacting on the conduct of public servants is the increasing tendency of the public service to scrutinise and report on itself, for, example, through the Committee on Standards in Public Life ("the Nolan Committee"); the Enquiry into Arms Sales to Iraq ("the Scott Enquiry"); increased powers of investigation of the Parliamentary Ombudsman; increased willingness of the judiciary to grant judicial review of administrative decisions; value for money reviews by the National Audit Office (central government) and Audit Commission (local government and National Health Service); and publications of performance results for local service providers like schools, hospitals and local authorities.
4. The overall position is very complex and it is not possible in a paper of this sort to give a clear indication of the relative impact of each of these. However, their cumulative impact has been substantial.
What initiatives or developments related to ethics or the conduct of public servants have been implemented recently in your country? What were the motivations behind those initiatives?
5. A number of significant initiatives have been implemented during the last five years. These include:
- The Citizen’s Charter4 (1991)
6. This is a key element in the Government’s desire to make the public service more accountable to its customers and to improve the levels of that service as part of its overall programme of public sector reform. The Charter sets out six key principles - standards; information and openness; choice and consultation; courtesy and helpfulness; putting things right; and value for money - and a number of these are intended to have a direct impact on the conduct of public servants. Moreover, raised public expectations as a result of the Charter (through, for example, a willingness to complain under the "putting things right" principle) have had knock-on effects in terms of the requirements on government officials.
- Open Government5 (1993 onwards)
7. The Government’s policy in this area was set out in the Open Government White Paper, published in July 1993, which developed the Citizen’s Charter principle of openness. The White Paper contained proposals for a non-statutory Code of Practice on Access to Government Information and statutory rights of access to personal and health and safety information. To date, there has been no legislative opportunity to introduce the statutory measures. However, the Code of Practice came into effect in April 1994. It aims to improve policy making and the democratic process by increasing accountability and transparency and it therefore affects the conduct of public servants.
8. Under the Code, the Government is committed to publish the facts and analysis of the facts relevant to major policy proposals and decisions, and to give reasons for administrative decisions to those affected. It is also committed to release official information in response to specific requests, subject to exemptions covering information which it is judged should remain confidential. The Code is enforced by the Parliamentary Ombudsman. A similar Code has been introduced in the NHS.
- Treasury Code of Best Practice for Board Members of Public Bodies (1994)
9. This Code is aimed at non-departmental public bodies (NDPBs), particularly larger, executive bodies which have substantial spending responsibilities but are at arm’s length from Government. It is intended to reflect the 1992 Cadbury Report on the Financial Aspects of Corporate Governance in the private sector. The Treasury Code was prepared in the light of criticism by the Committee of Public Accounts about the lack of general guidance on the responsibility of board members of executive NDPBs and similar bodies, and recognition that the accountability of public bodies should be improved. The Treasury Code covers the duties and responsibilities of board members, and includes guidance on, amongst other things, audit arrangements, openness and accountability, and the registering of interests.
- Civil Service Code (1995)
10. This is intended to set out, more clearly and concisely than existing documentation, the respective duties of Ministers and civil servants, and the steps that civil servants can take if they feel they are being asked to act improperly by a Minister or a more senior official. The Code establishes an appeals mechanism - to the independent Civil Service Commissioners who are responsible for recruitment procedures - in cases where a complaint by a civil servant cannot be settled within the relevant department in a way which he can accept (formerly, the appeals role was performed by the Head of the Home Civil Service). In response to a recommendation of the Nolan Committee (see paragraph 12 below), the Code also enables civil servants who become aware of wrong-doing or maladministration in their department to use this appeals mechanism, even though they are not themselves directly affected. It is also available to civil servants whose instructions raise a fundamental issue of conscience for them. The Code has been modelled by Government on a draft from the Parliamentary Treasury & Civil Service Committee6. Its origins lie in concern, not least from Civil Service Trades Unions, that Civil Service standards and values needed to be reinforced because of a number of factors, including fragmentation of the Civil Service through devolution of responsibilities, including to Next Steps Agencies, and embracing of some private sector qualities. There was also concern in some quarters about the effects of a single party remaining in Government continuously for 16 years, although there is as yet no general view that the Civil Service has become politicised. The possibility of appeal to the Head of the Home Civil Service (hardly ever used in practice) lacked independent credibility with some. A copy of the Code is attached.
- Public Appointments Unit Review of Guidance on Public Appointments (1995)
11. An inter-departmental review team was set up in response to concern about the lack of defined procedures and accountability in some public appointments. Its Report - copy attached - which recommended wider use of advertising appointments and greater transparency throughout the appointments process, was a key element in the Government’s evidence to the First Nolan Committee Enquiry (see paragraph 12 below).
- Committee into Standards of Public Life ["Nolan Committee"] (1994)
12. The Nolan Committee was set up by the Prime Minister in November 1994 in response to a number of well-publicised scandals in public life, particularly in Parliament, and culminating with two Members of Parliament being accused of accepting payment for tabling Parliamentary Questions (the "cash for questions" scandal). The Committee’s terms of reference are:
"To examine current concerns about standards of conduct of all holders of public office, including arrangements relating to financial and commercial activities, and make recommendations as to any changes in present arrangements which might be required to ensure the highest standards of propriety in public life.
For these purposes, public life should include Ministers, civil servants and advisers, Members of Parliament and UK Members of the European Parliament, members and senior officers of all non-departmental public bodies and of national health service bodies, non-ministerial office holders, members and other senior officers of other bodies discharging publicly funded functions, and elected members and senior officers of local authorities7."
13. The Committee is a "Standing Committee", which means that it will continue to work pending a specific decision of cessation by the Government, and is not limited for example to a single report. As a result, it has the ability to return in later years to see if earlier recommendations have been implemented, which is likely to make it particularly important. The Committee’s First Report was published in May 1995 and covered MPs, Ministers, Civil Servants and "Quangos" (NDPBs). Its recommendations on MPs -including a declaration of amounts earned in a Member’s Parliamentary capacity representing outside interests - have been particularly controversial, but have been broadly accepted by Parliament8.
14. The Committee’s Second Enquiry covers the House of Lords and Local Public Spending Bodies (grant-maintained schools, further and higher education institutions, housing associations and certain other bodies on the fringes of the public sector). The Committee’s Report arising from this enquiry is expected to be published in Spring 1996. Future work is likely to include local government, although earlier reports by the Salmon and Widdecomb Inquiries had covered this area in some depth. There is pressure from some quarters for the Committee to look at the funding of political parties, but the Committee has said it will not do so before the next General Election.
- The Scott Inquiry (1992)
15. This is a judicial enquiry set up under Lord Justice Scott by the Prime Minister following the collapse of the prosecution in the Matrix Churchill case following the decision of the trial judge to disclose to the defence some material and reports of which Ministers had signed Public Interest Immunity Certificates. The Inquiry is looking at a range of issues concerning arms sales to Iraq during the 1980s. The Inquiry has taken evidence from senior Ministers and officials, including the Prime Minister and his predecessor and the Cabinet Secretary. Although the remit of the enquiry is narrower and more specific than that of the Nolan Committee, press commentators have seen its proceedings as an important element in the current debate about standards in public life. The Inquiry’s report is expected early in 1996.
To what extent, if at all, do practices in other countries influence initiatives or attitudes in your country?
16. Direct comparisons are easiest to make with those countries which have Westminster styles of government, such as Australia and New Zealand.
17. The Government’s continuing programme of public service reform has meant that similar programmes in other countries have long been of particular interest to us, especially those in New Zealand, Australia and, since the launch by Al Gore of the initiative Making a Government that works better and costs less, the USA. Other European countries often have sufficiently different legal and administrative structures as to make detailed comparison unrewarding.
Who, if anyone, has overall responsibility for ensuring that the ethics infrastructure functions correctly and that ethical standards in the public service are respected?
18. Compliance with ethical standards is required of every civil servant as part of his or her terms and conditions of employment. For example, the new Civil Service Code (see paragraph 10 above) will form part of these terms and conditions. In addition, civil servants’ employment is conditional on continuing compliance with rules on matters such as acceptance of gifts and hospitality, restriction of political activities, and so on.
19. There is no one person with clear overall responsibility. However, the very wide-ranging remit of the Nolan Committee, and its direct commission by the Prime Minister to act as an "ethics workshop", effectively ensure that the Committee has a general role in determining ethical standards in the public service, and for monitoring that these are being maintained. Others have narrower, specific functions in their own areas: of most importance are the Parliamentary Commissioner for Standards and the Commissioner for Public Appointments (both appointed in response to Nolan recommendations to oversee certain aspects of the behaviour of MPs and procedures for public appointments respectively); the Parliamentary Ombudsman and his equivalents in the NHS and Local Government; and the Comptroller and Auditor General, who is in charge of the National Audit Office. Two Select Committees - the Public Accounts Committee and the Committee on the Parliamentary Commissioner for Administration - also have a role to play.
Has there been any change in the balance of tools used to manage standards of behaviour of public servants, for example a move away from legislation or detailed regulation of behaviour to broad guidelines/mission statements, etc.? If so, what are the costs and benefits of this change in terms of enforcement, the ability of public servants to determine how to behave in given situations?
20. Against the background of an unwritten constitution, and the more practical difficulties associated with getting legislation successfully passed by Parliament, successive governments have consistently preferred a non-statutory approach to determine the behaviour of public servants. Exceptions to this are the House of Commons Disqualification Acts (see paragraph 25 below); provisions contained in certain individual Acts governing, for example, the releasing or withholding of information; and the ordinary criminal law. Recently, this non-statutory approach has become more controversial due to the greater number of codes, "best practice guides" and the like. This has resulted in pressure for legislation to define the relationship between civil servants and Ministers (see paragraph 23 below).
From the totality of the ethics infrastructure, can some general values/principles be defined that reflect the value climate sought for public affairs today and in the future? E.g. political neutrality; fairness and impartiality; confidentiality; transparency; service to the citizen; loyalty to the Government, etc.
21. While the key principles on which the Civil Service is based - integrity, political impartiality objectivity, selection and promotion on merit and accountability through Ministers to Parliament - are long established, such general ethical values and principles have not been concisely defined. However, the six key principles of the Citizen’s Charter (see paragraph 6 above) were an attempt to define the key principles seen as essential to ensuring improvements in public services. More recently, and more relevantly in this particular context, the Nolan Committee’s First Report set out "Seven Principles of Public Life" which the Committee considers should apply to all aspects of public life. These are selflessness; integrity; objectivity; accountability; openness; honesty and leadership. A fuller description of these principles is set out at page 14 of the Committee’s First Report enclosed with this paper.
To what extent are the boundaries of relationships between public servants and ministers; public servants and Parliament; public servants and citizens/clients, etc. clearly defined?
22. The absence of a written constitution, or of any defined body of law governing public sector employment, means that there is virtually no statutory basis defining these relationships. The different relationships mentioned are not seen in similar terms, but from a specific background in each case.
- Relationship between public servants and ministers
23. On the whole, civil servants are accountable to Ministers, who alone account to Parliament. (There are limited exceptions to this: Accounting Officers are accountable to the Committee of Public Accounts for the stewardship of public money, some departments staffed by Civil Servants are headed by boards or statistics office holders rather than Ministers, and some NDPBs which have been set up by statute have a direct relationship to Parliament, as well as through Ministers). There is accordingly no separate external source of authority on the Minister/civil servant relationship to make claims on civil servants’ allegiances (other than those which apply to all citizens). However, the relationship exists within the framework of constitutional conventions and these have been elaborated in guidance documentation for Ministers and civil servants such as Questions of Procedure for Ministers and the Armstrong Memorandum (the forerunner of the Civil Service Code). There is an extensive Civil Service Management Code, the prescriptive parts of which are made part of the terms and conditions of service through departmental handbooks and guides. It deals with such matters as political activities, acceptance of hospitality and gifts, and financial propriety in various contexts (see also paragraph 30). There is much additional specific guidance and prescription on the duties of those involved in financial accounting, contracts, purchasing and appointments processes and so on. There is standing or occasional guidance on such matters as conduct during local election campaigns and who does what if the administration of the day wishes to calculate the cost of Opposition policy proposals.
24. There has, however, been growing concern that the boundaries of the relationship between public servants and Ministers are becoming blurred and that civil servants are, for the reasons stated earlier in the paper (creation of Next Steps Agencies, devolution of responsibility, etc.), being asked to undertake duties which are more properly political than administrative, or at least ill at ease with the convention that civil servants have no separate constitutional identity or direct relationship with Parliament. There has been some pressure to redefine the relationship through a Civil Service Act. In response, the Government has promulgated the Civil Service Code (see paragraph 10 above), which is intended to act as the definitive statement of the relationship and to establish the boundaries of what is and is not acceptable in terms of that relationship.
- Relationship between public servants and Parliament
25. As stated above, subject to the specific exceptions, civil servants have no direct relationship with Parliament or separate duty to it. If, for example, they give evidence to Parliamentary Committees they do so on behalf of Ministers and subject to their instructions. The House of Commons Disqualification Acts prohibit servants of the Crown from becoming Members of Parliament. In addition public servants, particularly those at more senior levels, are prohibited by staff rules and employment contracts from taking an active part in political life. There have been numerous examples of individuals who, during the course of their careers, have been both senior public officials and MPs, but they have not been able, in modern times, to pursue both aspects of their careers simultaneously.
- Relationships between public servants and citizens/clients
26. At its most fundamental level, this relationship is governed by laws making the giving and accepting of bribes in an official capacity a criminal offence. These are overlaid by detailed rules in terms and conditions of employment which contain not only prohibitions (on, for example, acceptance of gifts) but also positive instructions (for example, the requirement in the Civil Service Code to deal efficiently with the public). At a more sophisticated level, the relationship is primarily seen in terms of the obligations of the public service towards the citizen. Although there is no "Citizen’s Charter Act" or anything similar to it, a small number of statutory obligations have been introduced, for example, education and local government Acts which require the publication of performance information. In general, however, the relationship is defined in non-statutory terms, through the Citizen’s Charter and a large number of documents setting out standards of service which individual parts of the public sector aim to provide. There are, inevitably, quite frequent complaints about the lack of statutory underpinning for most of this. In response, the Government points to the extreme difficulty and inflexibility of trying to codify in statutory form the huge numbers of individual public service commitments towards the citizen.
What provisions are there for: whistle-blowing, disciplinary procedures, refusal to carry out some tasks considered inappropriate/excessive/unreasonable?
- Whistle-blowing
27. "Whistle-blowing" is a difficult term to define. As first used, it suggested public disclosure of an employer’s affairs, often involving the press, with the intention of exposing doing in the workplace or airing other grievances. Employers have frequently adopted wrong internal reporting procedures to allow staff to voice concerns without resorting to "whistle-blowing". Confusion arises because the proper exercise of those reporting channels, although the antithesis of disclosure, is sometimes styled "whistle-blowing". In general the public service has discouraged "whistle-blowing" in the form of unauthorised disclosure without proper use of internal channels, which is seen as destructive of the obligation of mutual trust and confidence which in the United Kingdom arises as a matter of common law between employer and employee.
28. The duty owed by civil servants to their Minister and to the government of the day, reinforced by the requirements of the Official Secrets Acts (although now considerably reduced in scope) have traditionally ensured that successive governments have opposed provisions, whether statutory or non-statutory, which would permit or encourage disclosure outside government.
29. Although committed to a policy of openness, the Government considers it essential to protect the confidence of, for example, advice given by officials to Ministers, in order to preserve the impartiality of the Civil Service and to avoid accusations of politicisation. However, in response to the Nolan Committee’s First Report, the new Civil Service Code places a duty on a civil servant to "report to the appropriate authorities evidence of criminal or unlawful activity by others" and enables him or her "to also report in accordance with departmental procedures if he or she becomes aware of other breaches of this Code..." As regards reporting criminal behaviour the Code simply restates a duty which already exists. As regards other breaches of the Code, it does encourage civil servants more explicitly than before to report any inappropriate activity of which they become aware, even if they are not directly involved, or have not been instructed to take part in such activity. The procedure to report concerns which it has not been possible to resolve within departments to the Civil Service Commissioners, who in turn may report to Parliament if their recommendations to departments are rejected, provides a mechanism for exposing justifiable concerns. In response to another Nolan recommendation, equivalent: provisions are to be introduced covering staff in Non-Departmental Public Bodies, who are public service employees but not civil servants.
- Disciplinary procedures
30. The Civil Service Order in Council gives responsibility for setting standards of conduct and discipline in the service to the Minister for the Civil Service. Central rules of conduct are laid down in the Civil Service Management Code which came into effect in February 1993. At that time the rules were re-ordered and simplified to clarify the key principles, but did not change in substance. The Code covers:
31. Adherence to the rules is a condition of service; breaches are subject to disciplinary action with penalties up to and including dismissal. In addition to conduct rules, civil servants are subject to the criminal law like anyone else. Legal sanctions which apply specifically to people in the public service are uncommon in the United Kingdom. Examples of legislation which may be relevant on the part of civil servants include:
32. The Code contains only those rules governing the behaviour of all civil servants. It is not a comprehensive code of conduct. Departments add to the central rules to meet their own needs, but they must not take away from them.
33. UK civil servants are subject to the same employment law as other civilian employees. With very limited exceptions, they have the same right of appeal to Industrial Tribunals against unfair dismissal as other workers, as well as internal appeal procedures. The Code gives departments scope to devise their own disciplinary procedures within laid down principles which cover:
34. The Code does not lay down penalties to be applied, which are a matter for each department in the light of the circumstances of each case. Penalties available to departments include warnings or reprimands, short periods of suspension without pay, a bar on promotion, down-grading and dismissal. Because disciplinary action is an employment matter, there can be no disciplinary penalty greater than dismissal, and it does not reach people who have left employment. Action in those circumstances can be pursued only in respect of misconduct which is in breach of the criminal law, or, exceptionally, by action in the civil courts.
35. Basically disciplinary procedures are an inquisitorial process designed to establish facts, rather than an adversarial system, as used in UK criminal trials. Formal interviews take place under much the same rules of evidence as used by the British police. The suspect has the right to be accompanied by a "friend", for example a trade union officer, a colleague or even a solicitor. Unlike criminal proceedings in a Court of Law the right of silence would not apply, given that the employer/employee relationship still applies in disciplinary proceedings and employees owe a duty of loyalty to the employer which extends to co-operating in proceedings against them.
36. Unlike criminal proceedings, which are public, disciplinary action is a private matter between employer and employee and, as in other personnel management matters, the affairs of a civil servant are treated in confidence.
- Refusal to carry out some tasks considered inappropriate/excessive/unreasonable
37. Procedures for dealing with this sort of problem vary from one sector of the public service to -another. The Civil Service Code sets out provisions for reporting, both within a department and thereafter to the Civil Service Commissioners, concerns that a civil servant may have that he or she is being required to act in a way which is illegal, improper or unethical or which raises a fundamental issue of conscience for him or her. However, the Code also makes it clear that civil servants should not "seek to frustrate the policies, decisions or actions of Government, by declining to take, or abstaining from, action which flows from ministerial decisions". In such circumstances the civil servant is therefore required to carry out his or her instructions, subject only to actions resulting from the reporting of the matter that he or she has made. A straightforward refusal to carry out instructions is not allowed, and in the last resort, the civil servant must choose between carrying out those instructions or resignation.
Level of centralisation: are ethics and behavioural standards managed on a public service-wide basis or devolved to individual agencies, or does some mixture of approaches apply? Is the notion of "public service ethos" an outdated concept? Are there different standards for different types of public officials (civil servants; politicians; quango employees, etc.)?
38. Although the Nolan "Seven Principles", and one or two Government initiatives (the Citizen’s Charter in particular), apply throughout the public service, most codes, regulations and (where these exist) statutes governing behaviour are at the level of the individual sector. This derives from the fact that there is no clearly defined concept of "public service" in British employment law. Thus, for example, the requirements for teachers are significantly different from those for staff of residual nationalised industries, or civil servants. In recent years, devolution of detailed control - for example, delegation by the Treasury of control over pay and conditions of service to individual departments, who in turn delegate to their Executive Agencies - has created some potential for standards to differ on a local basis. To some extent current developments, in particular the very wide remit of the Nolan Committee, are an attempt to check this tendency by the imposition of an ethical framework across large areas of the public sector.
In your country, what are the important process questions to be dealt with when implementing any new ethics initiative. E.g. what level of consultation and communication (with public servants and other stakeholders including the general public) is used in introducing any new ethics initiative?
39. Important process issues are generally the same for "ethics initiatives" as for other personnel policies, except that such initiatives normally develop as a result of pressure, and/or in response to specific circumstances, rather than being forward-looking. Typical questions to be considered include:
Notes
1. The public sector in the United Kingdom consists of central government (all government departments and their executive agencies, the NHS and NDPBs); local authorities (which includes local councils, police and fire authorities, magistrates courts and probation services); and public corporations (including nationalised industries). It does not include privatised industries such as water, electricity and telecoms.
2. Gallup Survey quoted by Professor Ivor Crewe, Professor of Government, University of Essex to the Nolan Committee on Standards in Public Life (Vol. 2, p 2). Professor Crewe said: "I myself do not believe that for one moment. I think that kind of behaviour is confined to a small - I would say tiny - minority of MPs. But the fact is that the public agree, by a ratio of three to one, with a blunt statement of that kind. I think that is something that should alarm the Committee; it certainly alarms me." Professor Crewe also noted. that although widespread, concern about public standards in the UK could not yet be described as a burning issue, and does not figure in poll responses when people are asked to say what they consider to be the most important problems facing the country.
3. Page 3, paragraph 2, First Report of the Committee on Standards in Public Life (Cm 2850) HMSO May 1995
4. The Citizen’s Charter (Cm 1599) HMSO July 1991
5. Open Government (Cm 2290) HMSO July 1993
6. Fifth Report from the Treasury and Civil Service Committee, The Role of the Civil Service, House of Commons (Session 1993-94)
7. Statement by the Prime Minister in the House of Commons on Tuesday 25 October 1995, Hansard 25 October 1994, col 759
8. The Government’s Response to the First Report from the Committee on Standards in Public Life (Cm 2931) HMSO July 1995
1. Code of Practice on Access to Government Information (1994)
2. Treasury Code of Best Practice for Board Members of Public Bodies (1994)
3. Civil Service Code (1995)
4. Review of Guidance on Public Appointments (1995)
5. First Report of the Committee on Standards in Public Life (Cm 2850) HMSO May 1995
6. The Government’s Response to the First Report from the Committee on Standards in Public
Life (Cm 2931) HMSO July 1995
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