Select Committee on Public Administration Appendices to the Minutes of Evidence

Memorandum by Professor Gillian Morris, Professor of Law, Brunel University (PSR 31)

  1.   Is the concept of a public service an anachronism?

  In order to address this question, it is necessary first to define the concept of a `public service'. There is no universally accepted definition. The traditional approach was to confine the term to services provided by or under the authority of the State. A more modern, and more helpful, approach is to define public services by reference to the function they perform.

  On this basis, public services can be defined as those which are regarded as indispensable to the general public. Important consequences flow from this. Public services must be available on a universal and continuous basis; provision cannot be withdrawn, even temporarily. In addition the public must have equal access to them, with access to scarce resources, such as health care, being governed by appropriate criteria. These characteristics do not necessitate provision of the service by the State; public services may also be provided by private sector operators subject to conditions imposed by contract, statute, or some other means of regulation or control. However they do mean that the provision of the service, and the terms of that provision, cannot be left purely to the operation of market forces.

  The `functional' approach to defining public services does not produce an answer to the question which services should be classified as public; this will vary between societies and within individual societies over time. However it is clear that in contemporary societies a range of services are generally regarded as indispensable, the police, education and health services to name but a few.[12] That being so, the concept of a `public service' is very far from being an anachronism.

  2.   Is there a public service ethos and how can it be defined?

  `Public service ethos' is a term that is much used but that commonly lacks precision. I consider that such a concept can usefully be employed to indicate that those who are involved in the provision of public services have special responsibilities and, as a result, may be entitled to special guarantees. However, the nature of those responsibilities may vary according to the particular service and the position of the individual within it.

  In my view, a `public service ethos' that fits contemporary circumstances can best be defined by reference to the characteristics of public services specified in the answer to question 1 above: those of continuity, universality and equality of access. These characteristics demand that those who furnish public services conduct themselves in ways that go beyond what is required of those in the `market' private sector. I give examples of what this may entail in practice for those who work in public services in the paragraph that follows. However it should be emphasised at the outset that, because compliance with the public service ethos may necessitate restrictions on individual freedoms that exceed those applied to other workers, it is crucial that these are tightly targeted. Thus, the aim of a restriction should be explicitly identified, the need for it explained and it should extend no more widely than is strictly necessary to achieve that aim. Moreover, an integral element of this process should be the provision of reciprocal guarantees that properly protect the interests of those subject to constraint. This is particularly important because the variety of arrangements under which public services are now provided mean that it is no longer sufficient (if it ever was) to rely upon cultural forces to secure compliance with the requirements of a public service ethos; rather, this needs to be secured by some form of regulation.

  The first characteristic of public services is that of continuity. In the past this was often secured by a form of self-denying ordinance by workers that they would not take industrial action that would jeopardise essential services. Where this cannot be relied upon, continuity may justify limiting the freedom of specific groups to take industrial action or requiring conditions such as the maintenance of a minimum level of service to be met. However whether such measures are in reality justified in any particular case will depend upon a range of factors, including whether the provider is in a monopoly or quasi-monopoly position; the ease with which alternative sources of supply can be reached; the duration and extent of the action; and the precise role which individual workers play in the provision of the service. In relation to the second and third characteristics of public services, those of universality and equality of access, the seven principles of public life identified by the Nolan Committee—selflessness, integrity, objectivity, accountability, openness, honesty and leadership—constitute a useful starting point. Here again, however, it is important to flesh out what each principle will entail in practice. Thus, the requirement of objectivity may, in certain circumstances, justify constraints on workers' basic rights of freedom of association and expression. At its most extreme this may mean banning membership of certain organisations altogether; on this basis, the police have been prohibited from being members of trade unions since 1919. Lesser restrictions include prohibiting public demonstrations of support for particular organisations, such as political parties, or, conversely requiring affiliation to specific bodies (such as the Freemasons) to be declared. Ensuring integrity may require extensive pre-employment vetting, according to an individual's degree of access to sensitive information or vulnerable individuals. Together with selflessness and objectivity, integrity may justify restrictions on the acceptance of gifts and hospitality, and the declaration of financial, familial and other associations, matters which are usually left to the discretion of employers. These principles may also justify constraints on activities after termination of employment to ensure that decisions are not influenced by the prospect of subsequent advancement, a need which is particularly pressing in the light of increased movement between the public and the private sectors. Finally, the values of integrity and leadership may require a legal obligation on certain groups, such as members of the police force or medical profession, to disclose wrongdoing by fellow workers, an obligation which currently has no such extensive counterpart in the general law. As emphasised above, restrictions of this nature are not a one-way traffic; the public service ethos also necessitates the provision of reciprocal guarantees by employers. Thus, if workers are subject to constraints on their capacity to take industrial action this should be accompanied by a mechanism, such as arbitration or index-linking, which ensures that their interests are not thereby prejudiced. An obligation to `blow the whistle' calls for enhanced protection against detriment for those who do so. Stringent post-employment constraints must be balanced by provision for detailed examination by an independent body of each individual's case.

  These examples should serve to demonstrate that there are a number of respects in which those who work in public services may need to be subjected to distinctive treatment as compared with their `market' private sector counterparts. The concept of a `public service ethos' is a useful way of signifying that special responsibilities and special guarantees may accompany employment in public services, and the Nolan principles of public life constitute a basic explanation of what the public service ethos means. However it is important that the implications of these principles as they apply in particular contexts are meticulously examined.

  3.   Would the creation of a single public service help a public service ethos?

  I do not consider that the creation of a single public service is necessary in order to assist the development of a public service ethos. However there is an overwhelming argument for a more coherent and principled approach than operates at present, particularly in the light of the variety of arrangements under which public services may now be delivered. Where the State is the employer it has the capacity to provide that the distinctive features of public services are reflected in the terms on which the service is provided and the employment conditions of its staff. At present it does the latter only on an inconsistent basis; historically restrictions have been imposed ad hoc on individual groups, and decentralised management structures in areas like the NHS and civil service have created further fragmentation.[13] This incoherence has been magnified when services have been contracted out; to date there has been no `template' of employment practices that contractors must apply. Contracting out has also highlighted anomalies in the public sector. For example, how can restrictions on the political activities of many local authority staff be justified when such restrictions do not apply to private sector workers engaged to do identical jobs?

  In order to develop and maintain a strong public service ethos there is a strong case for the establishment of an independent Public Services Commission. Its first task should be to review the principles that govern employment in public services. It should also have the permanent role of supervising all public service providers in their conduct as employers. In addition, its remit should extend to advising the Office of Government Commerce and other public sector contractors on model terms relating to employment that are not considered appropriate for legislation. Finally, it could act as a sounding board and disseminator of good practice for those involved in furnishing public services in both the public and the private sectors, and possibly also act as an advisor in internal grievance and disciplinary procedures where public service standards are at issue. In this way a coherent and sophisticated notion of what a public service ethos means in practice could be developed without the administrative difficulties that the creation of a single public service would raise.

  4.   Is it possible for profit-orientated organisations to maintain the public service ethos?

  I consider it possible for profit-orientated organisations to maintain the public service ethos if it is spelt out in detail what this entails. In addition, careful consideration needs to be given to the mechanisms for securing that the relevant provisions are enforced in practice. This memorandum is primarily concerned with compliance with the public service ethos by workers. In this connection, organisations may undertake as a term of their commercial contract to insert terms in staff contracts of employment, such as those designed to secure confidentiality and impartial delivery of the service, but the enforcement of such terms may nevertheless be difficult for the State to monitor, especially in situations where a breach by an employee may also entail a concurrent breach by the employer. In this context the terms upon which the operation of certain prisons is contracted out provides an interesting model, both for the very high degree of central regulation which it embodies and for the range of legal mechanisms used to secure it. Thus, only persons certified as suitable by the Secretary of State may act as private sector `prisoner custody officers'; it is a term of the commercial contract that all staff, regardless of their level and function, must be security vetted by a unit within the Prison Service before they are employed; and the contractor undertakes to withdraw any individual from working in the prison if required to do so. Other aspects of the relationship are also regarded as too important to be left to the discretion of individual employers; thus, it is a criminal offence, not merely a breach of contract, for private sector prison staff to disclose information acquired in the course of employment about individual prisoners, and the Secretary of State may seek an order to halt industrial action. This degree of regulation is unlikely to be seen as necessary in every case. However it offers a useful point of departure for consideration of the appropriate measures which should be adopted in other services.

  5.   Do private sector people working in and around government, including secondees, task force members and others, undermine the public sector ethos? Are special measures needed to regulate their activities and prevent possible conflicts of interest?

  I do not consider that the presence of private sector people as such undermines the public sector ethos. However it is important that they are subject to the same constraints as those of their public sector counterparts and that measures are taken to ensure that they do not obtain an improper advantage as a result of their activities. In that respect the application of the Business Appointment Rules to special advisers is to be welcomed. However, these Rules are currently confined to Crown servants. These and other measures designed to prevent conflicts of interest (such as those requiring disclosure of financial, familial or other associations) should be applied throughout public services on a much more systematic basis. A Public Services Commission, if established, could provide advice on this.

12   In 1996 the European Commission proposed the development of a European Union concept of a `universal service', characterised by the principles of equality, universality, continuity, and adaptability to which all citizens of the Union would have guaranteed access at affordable prices: Services of General Interest in Europe, COM (96) 443 Final of 11 September 1996, paras 27-32. The Communication identifies telecommunications, postal services, transport, electricity, and broadcasting as having a `general interest' dimension: paras 33 and 51. The functional approach need not be confined to the `economic' services to which the Commission's competence extends; rather it should be applied more comprehensively to all public services, including those concerned with the administration of the State. Back

13   See generally Gillian S. Morris, `Fragmenting the State: Implications for Accountability for Employment Practices in Public Services' [1999] Public Law 64; `Employment in Public Services: the Case for Special Treatment' (2000) 20 Oxford Journal of Legal Studies 167. Back

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