The authors of the paper provide an overview of the existing requirements for the conduct of public officials in the following areas:
1. The seven principles of public life
The report stresses that the implementation of the Seven Principles of Public Life adopted by the Committee back in 1994, including selflessness, integrity, objectivity, accountability, openness, honesty and leadership and applicable to all public officials (civil servants, public office holders at the national or local level, people appointed to work in the police, courts, in the health and education services etc.) is inevitably hindered by new circumstances, which brings about a number of additional challenges:
- Improvements in transparency of the activities of public officials generate a climate where even inadvertent or technical breaches of codes of ethics can lead to significant media coverage and public criticism;
- Increased use of social media requires that the scope of the application of the principles of good behaviour should be expanded (for instance, there should be a rebuttable presumption that all public behaviour, including comments made on publicly accessible social media, should be considered as made in an official capacity;
- Extensive use of intimidation as a tool for achieving political goals undermines the principles etc.
- Additionally, polling and focus group research shows that the public thinks the existing mechanisms to monitor the compliance with the ethical standards are ineffective also because of a virtually non-existent responsibility for the failure to comply with them.
The Committee suggests potential solutions to the abovementioned challenges in its report. In particular, the authors of the paper believe it is appropriate to change the language of one of the principles of public life, i.e. leadership which implies that holders of public office should exhibit the indicated principles in their own behaviour, actively promote them and challenge poor behaviour wherever it occurs, proposing to include in it the obligation of officials to treat different categories of citizens with respect also in delivering public services.
2. Standards of conduct
The Committee highlights that despite an extensive system of standards enshrined in UK’s codes, rules etc. these documents are often poorly implemented. At the same time, certain characteristics are inherent in the relevant system and hamper an efficient compliance with the established standards:
- The implementation of the requirements of the Ministerial, Civil Service and Special Advisers’codes through the use of conventions and norms that have developed around each code instead of the compliance with formal rules and procedures (for example, the investigation into infringements of the Ministerial Code can be initiated by the Prime Minister who can independently decide whether a report of a violation is sufficient for launching the verification procedure);
- Insufficient independence of the oversight institutions that monitor the compliance with the ethical standards in the public sector and lack of the legislation regulating their functioning;
- Complex nature of the system of standards that complicates its understanding by the public.
In order to address these challenges the authors of the report recommend:
- creating a stricter and more consistent system of ethical norms in the civil service in line with the Boardman Report;
- adopting a legal act regulating the activities of the Independent Adviser on Ministers’ Interests, the Public Appointments Commissioner and the Advisory Committee on Business Appointments (ACOBA)*.
Additionally, in order to make the regulatory system more consistent and comprehensible, some members of the Committee suggested establishing a single ethics commission to regulate the rules governing ethical conduct of public officials that would include the Independent Adviser on Ministers’ Interests, ACOBA, the Public Appointments Commissioner, the Civil Service Commission, the House of Lords Appointments Commission and the Registrar of Consultant Lobbyists. The establishment of such a commission has an undeniable advantage, i.e. simplified control over the compliance with the rules incorporated into different codes by creating a single regulatory body. At the same time, the concentration of power in the hands of a non-elective body that has no checks and balances and accountability obligations will create additional risks of abuse and violations also of corrupt nature. Consequently, the idea to establish a single consolidated commission was declined by the Committee.
3. The Ministerial Code and the Independent Adviser on Ministers’ Interests
The assessment of implementation of the Ministerial Code and of the activities of the Independent Adviser on Ministers’ Interests allowed detecting a number of flaws too. The authors of the report make the following recommendations in this regard:
- exclude from the Ministerial Code the provisions on cabinet governance, leaving only the norms concerning ethical requirements and standards of conduct;
- enshrine in legislation the obligation of the Prime Minister to independently, with no role of Parliament, to publish a code of conduct for ministers;
- oblige the Prime Minister to consult with the Independent Adviser on Ministers’ Interests throughout the revision or reprinting of the Ministerial Code;
- include in the Ministerial Code the provisions on the sanctions that the Prime Minister can impose on the persons violating the standards of conduct, including, but not limited to, apologies, fines and asking for a minister’s resignation;
- extend the authority of the Independent Adviser on Ministers’ Interests by granting him the right to independently initiate investigations into the violations of the Ministerial Code and decide on the imposition of relevant sanctions;
- publish the report of the Independent Adviser on Ministers’ Interests within eight weeks after it has been submitted to the Prime Minister.
4. The regulation of public appointments
According to the report the procedure for appointing to public offices and to positions in the civil service has a number of shortcomings, in particular:
- extensive use of informal appointment mechanisms;
- right of ministers to appoint a candidate who is deemed unappointable by an assessment panel under the Governance Code for Public Appointments.
The authors of the report put forward the following recommendations to address these challenges:
- ministers should not appoint a candidate who is deemed unappointable by an assessment panel, but if they do so in exceptional cases, they must justify their decision;
- ministers must consult with the Commissioner for Public Appointments on the composition of all panel members for competitions for significant appointments;
- senior Independent Panel Members should have a specific duty to report to the Commissioner for Public Appointments on the conduct of significant competitions;
- the chairs of ACOBA and the House of Lords Appointments Commission, the Registrar of Consultant Lobbyists, the Commissioner for Public Appointments and the Independent Adviser on Ministers’ Interests should all be appointed through the process for significant public appointments, and the assessment panel for each should have a majority of independent members;
- government departments should publish a list of all unregulated and regulated appointments;
- the appointments process for Non-Executive Directors of government departments should be regulated under the Governance Code for Public Appointments.
5. The business appointment rules and ACOBA
The report stresses that the existing restrictions concerning the appointment of former ministers, civil servants and special advisors in the private sector (the Business Appointment Rules) are insufficient, in particular, they concern only the cases where an official influenced directly the organisation where he/she sought employment when holding an office and do not include possible sanctions for the violation of the post-employment restrictions. Furthermore, the procedure for the movement of officials to the private sector is not enshrined in legislation and is just a part of codes of conduct.
Additionally, the authors state that the structures responsible for dealing with the requests of employment in the private sector are not sufficiently autonomous, in particular, the regulatory powers of ACOBA are not enshrined in legislation.
In order to address these shortcomings the Committee recommends:
- increasing the waiting periods for the employment of former ministers, civil servants and special advisers in the organisation with respect to which the person exercised public functions from the current either one or two years after leaving public office, depending on the seniority of the applicant to a two-year ban for any official;
- formalising the right of ACOBA and government departments in exceptional cases, for instance, if a public official held a particularly high-ranking position to issue a lobbying ban for a period of up to five years (currently, the maximum term is two years);
- extending the definition of lobbying by including in it any activities in favour of a lobbying organisation for the period defined by the competent authorities;
- enshrining in the legislation the employment restrictions in the private sector for former ministers, civil servants and special advisers as well as liability measures for their violation (such as an injunction prohibiting the uptake of a certain business appointment, or the recouping of the pension or severance payment etc.);
- adopt the legislation that would make the rulings of ACOBA binding;
- expanding the authority of ACOBA by granting it the power to undertake investigations into breaches of the Business Appointment Rules, the cases of non-compliance with its rulings and its ignoring of requests for a decision;
- obliging departments to publish more information on how anonymised and aggregated data on how many applications under the rules are submitted, approved, or rejected every year;
- ensuring that the application of the rules is consistent across all government departments and promoting cooperation between the Cabinet Office and ACOBA in sharing best practice and raising awareness of the rules across government departments.
According to the report, lobbying lacks real transparency in the UK. In particular, it is difficult to find out who is lobbying government, information is often released too late, descriptions of the content of government meetings are ambiguous and lack necessary detail, and information in the public interest is often excluded from data releases completely.
In order to enhance transparency in this area, the authors suggest introducing a number of changes:
- oblige the Cabinet Office to collate all departmental transparency releases and publish them in an accessible, centrally managed and searchable database;
- provide guidelines on standards for the descriptions of meetings and ensure compliance by government departments;
- oblige the government to publish transparency returns monthly, rather than quarterly, in line with the MPs’ and peers’ registers of interests;
- oblige the government to include meetings held between external organisations and senior civil servants below permanent secretary, special advisers in transparency releases;
- update guidance provided by the Ministerial Code concerning lobbying to make clear that informal lobbying, and lobbying via alternative forms of communication such as WhatsApp or Zoom, should be reported to officials;
- revise the categories of published information on the interactions between officials and lobbyists to counter informal lobbying, in particular, broaden the “meetings” category by including in it representations made by messaging applications, emails, phone calls etc. or by adding a new category that would encompass all means of communication previously uncovered;
- oblige consultant lobbyists to register on the basis of any communications with special advisers and senior civil servants below permanent secretary level and to declare the date, recipient, and subject matter of their lobbying.
* The Independent Adviser on Ministers’ Interests is responsible, in particular, for maintaining the List of Ministers’ Interests, conducting consultations at the request of ministers and investigating ministers’ misconduct at the request of the Prime Minister.
ACOBA is in charge of considering the employment applications of former ministers, senior civil servants and special advisers in the private sector.