Written evidence from the Committee on Standards in Public Life (ACB 07)
Public Administration and Constitutional Affairs Committee
The role and effectiveness of ACoBA and the Independent Adviser on Minister’s interests
1. Introduction
This paper sets out the evidence from the Committee on Standards in Public Life (CSPL)[1] to the current PACAC Inquiry into the role of ACoBA and the Independent Adviser on Ministers’ Interests.
What follows is a brief outline of the Committee’s views on the role of ACoBA, the Business Appointment Rules and the revolving door, prior to Lord Bew’s appearance before your Committee on 25 October 2016.
Also included at annex A is the response of the Chair of the Committee’s Research Advisory Board, Professor Mark Philp.
2. ACoBA
In its first report[2] CSPL recommended the extension of the previous system of Business Appointment Rules to cover Ministers and for ACoBA and we continue to make the case for such a body.
We believe the principle of having an independent body to advise individuals and Government on appropriate and proportionate restrictions for senior public figures in line with Rules laid down by the Government, remains essentially sound.
However, that does not mean that there are not areas in which the current structure can be improved or that risks do not still exist[3]. A fundamental risk is around post-employment. The nature of that risk is generally agreed to be using a public office to favour a (potentially) future employer, improperly lobbying and influencing former colleagues and using commercially-sensitive knowledge acquired while in office to secure a post-employment personal and/or employer benefit[4]. The issues around ‘the revolving door’ are complex (see 4, below) but having a system in place to mitigate against these risks on a case by case basis is essential to upholding the principles of public life while acting within the law on restraint of trade, and whilst arguably the current system is not perfect, it has clear benefits:
● the ability of the Committee to assess the merits of each individual application and seek information from Departments and competitors is important;
● the provision of tailored advice to individuals within the law in this area - and to make that advice public - forms an essential role in allowing the movement between the public and private sectors to be as appropriate and transparent as possible.
Whilst by no means a definitive measure of success, we noted that in 2015/16 ACoBA had doubled its recommendations for waiting periods between appointments[5] and was generally providing more specific advice, tailored to the risks of a particular application.
As noted above, no system is perfect and the above comments should not detract from the possibility that there are legitimate questions regarding some elements of the current system.
The question of who owns the risk remains pertinent. Should this be a government department, or should responsibility be disseminated further still, down the organisational chain?
Also we would argue that there remains a degree of inconsistency around the bodies currently covered by the Committee[6]. In addition, currently ACoBA covers only senior appointments. The Committee believes that it is sometimes necessary for business rules to cover individuals further down the organisation. Our recent report Striking the Balance, Upholding the Seven Principles of Public Life in Regulation, recommended that the process for departing board members and senior executives of regulatory bodies should be in line with arrangements for ministers and senior civil servants as determined by ACoBA to ensure that moves are conducted with integrity and to promote trust.
The present system has its critics, but whilst this system may need improving as the context evolves (indeed this was Lord Nolan’s own view), it is worth noting that any change will inevitably carry its own risks and possible costs. Whether this means a broader, statutory framework - something this Committee does not oppose in principle - or other measures, we remain steadfast in our belief that a process for actively managing the movement of individuals between government and other sectors is absolutely essential.
2.1 Trust
As Professor Mark Philp states in his submission[7]much of this Committee's (and others) research suggests a falling level of public trust in government, particularly politicians. Whilst recent studies suggest this trend may be changing[8] overall levels of trust (and trustworthiness) remain low. This is a complex and challenging terrain in which to consider questions about how ACoBA can ensure public trust in its decisions.
One of the biggest challenges, highlighted by Professor Philp, lies in bridging the public’s partial knowledge of the process with their desire for trust that appointments are made in line with the correct principles.
The clear paradox is that greater visibility can result in greater awareness of when thing go wrong (this forming the majority of the media’s coverage of these issues) and therefore greater dissatisfaction. Nolan’s view was that transparency itself would provide a level of reassurance for the public.
And we welcome ACoBA’s publication of their advice given to individuals when once post has been taken up and would argue that the that timing of announcements needs to be kept under review. This provides the required visibility that individuals have followed the government’s Rules. Nolan thought the ‘free press’ would ‘police’ the system. And it is certainly true that ACoBA is subject to great deal of media attention and scrutiny. It does not, however, provide greater public reassurance as Nolan had hoped. ACoBA’s current
approach relies on transparency and the prospect of reputational damage to discourage people from ignoring ACoBA’s advice[9].
Perhaps more could be done to ensure ACoBA commands public confidence, however, we believe the principle of transparency remains fundamental to help cultivate public trust in this system. The public want responsive, effective, impartial institutions but the public need to be able to see that institutions are acting in this way.
3. Revolving Door
There is balance to be struck between people having the right to continue to earn a living after public service and making sure that the public interest is protected. Baroness Browning made this point regarding the revolving door at PACAC’s evidence session on 19 April this year[10] and we share this view.
Our Committee has a body of work to its name[11] that explores this interplay (in particular Chapter 5 of Strengthening Transparency Around Lobbying (2013)), Indeed, the title of the Committee’s latest report on regulators Striking the Balance[12] reflects our understanding that the path through these issues requires a degree of equanimity:
‘The Committee’s evidence is clear that completely banning the movement of individuals between the regulator and the regulated sector is both unachievable and undesirable for the working relationship between regulators and those they regulate’[13].
As our report suggests, there are benefits to recognising and allowing the growing degree of fluidity between the public and private sector. The context may have changed considerably since the system was first devised and will continue to do so – for example, civil servants may be employed on short term contracts, there are a new types of opportunities for post-public sector careers. Such an evolving context needs to be acknowledged and the government’s Rules need to be able to respond to changes quickly and appropriately.
September 2016
Annex A
Background to Committee
The Committee on Standards in Public Life is an advisory Non-Departmental Public Body (NDPB). The Committee was established in October 1994, by the then Prime Minister, with the following terms of reference:
“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”.
The Committee on Standards in Public Life is defined by its Seven Principles of Standards in Public Life, which are Selflessness, Objectivity, Integrity, Accountability, Openness, Honesty and Leadership.
The Committee’s terms of reference were updated in 2013: “...the Committee’s remit to examine ‘standards of conduct of all holders of public office’ [encompasses] all those involved in the delivery of public services, not solely those appointed or elected to public office” (Hansard (HC) 5 February 2013, col. 7WS).
The Committee’s terms of reference were further clarified in a House of Lords written Parliamentary Question on 28th February 2013 to explain that the Committee’s remit means it “can examine issues relating to the ethical standards of the delivery of public services by private and voluntary sector organisations, paid for by public funds, even where those delivering the services have not been appointed or elected to public office” (Hansard Column WA347).
The Committee’s work is supported by a Research Advisory Board, chaired by Professor Mark Philp, University of Warwick.
Annex B
Mark Philp, Professor of Politics and History, University of Warwick
- Personal Statement
I am writing as an academic with a long-standing interest in issues of political ethics and in public attitudes on standards issues. I have served on the Committee on Standards in Public Life’s Research Advisory Board since its inception, and I have chaired that Board since 2008.
- The Questions Addressed
2.1: The PACAC’s invitation raises a number of different issues concerning ACoBA. Many of these are better responded to by the CSPL or by my former colleagues Professors Hine and Peele at the University of Oxford, who have considerable expertise in this area. I wish to comment largely with respect to three questions raised:
i. how the membership of ACoBA can ‘command public trust and confidence in its decisions’;
ii. why there ‘is still a prevalent negative public perception of former Ministers taking advantage of their previous positions?’; and
iii ‘How can public confidence be maintained with regard to the ‘independence ‘ of the Advisor on Minister’s Interests?’
2.2: These three questions concern levels of public trust or confidence and my comments are directed largely to the difficulty of achieving substantial progress in this context. The comments draw on work on levels of public trust from the past few years, which, while not targeted specifically to refer to aspects of ACoBA’s brief, do deal with questions of the drivers of levels of trust in relation to the political sphere more broadly.
3. The Research Findings
3:1 To summarize the findings of much public opinion research - in the UK, most people do not have confidence that high standards are maintained in public institutions, and they are sceptical about the efficacy of measures that are in place to enforce standards. The less direct citizens’ contact is with the individuals or groups in question, the less likely they are to trust them. However it should be noted that some professions, particularly those related to the non-partisan activities of government such as the judiciary, seem to fare well despite this lack of contact. Trust in senior civil servants (8 and 10 years ago) used to be higher than in political figures, but there has, to my knowledge been no more recent comparative testing off their standing. In the first and second CSPL surveys of public attitudes, family doctors were rated as trusted to tell the truth by over 90% of the public, television news journalists by nearly half, top civil servants by 37% and government ministers by 24%. (CSPL 2004, Box 3, p. 5; and 2006, Fig. 2, p. 13) There was also evidence of variations in expectations for national politicians and senior appointed officials. (See Appendix fig 1)
3.2: The CSPL’s discussion of comparative levels of trust (using data from the Eurobarometer, European Values survey and the European Social Survey), Public Perceptions of Standards in Public Life in the UK and Europe (2014) concluded that levels of trust in the UK are not abnormally low for Europe. In the UK, however, there are lower levels of confidence in Parliament (which tends to score consistently higher than government ministers) than in Civil Servants, This was far from uniformly true across Europe. (See Appendix, fig 2).
3.3: Over the full series of CSPL surveys, supported by other data sources, the trend has been falling levels of trust and confidence in government, and in particular in politicians. Even where people think that the public services that they receive are good, there is little positive effect on their assessment of government as a whole, or those in power.
3.4: As some have pointed out, there seems to be an element of paradox in the continuing decline in public trust given the levels of investment in regulatory and advisory mechanisms in relation to public standards. But some distinctions are necessary. Although evidence of perceptions of corruption can vary rather dramatically, depending on how questions are asked, in general it seems to be that the UK public do not believe that there are high levels of corruption. They do think there is some, but UK residents are very unlikely to report having been asked or expected to bribe public officials themselves. However, they do think that politicians are not trustworthy – meaning by this that they do not put the interests of the public and standards of probity at the centre of their work. (See Appendix Fig 3).
3.5: As with many attitudes, there is a tendency for people’s views to be confirmed by information about bad behaviour, but not to be changed by information about or experience of good behaviour. There is, however, some evidence that the detection of wrong-doing may not increase negative views, if there is a speedy and proportionate response of the part of regulatory institutions (as in response to the Conway scandal).
4. ACoBA specific implications
4.1: This complex and rather negative state of affairs in relation to public attitudes makes the Committee’s questions relating to improving or meeting public expectations rather difficult to give clear answers to. In general, regulatory changes probably do not have a direct impact on public attitudes. Nor do reports saying that all is well. What matters is that the institutions are seen to respond quickly, proportionately and effectively, and that institutions responsible for enforcing regulation or advisory codes and standards are seen to act impartially on principles that the public can understand and that they think reasonable. Do these conditions apply in the case of ACoBA, the Business Appointment rules, and the Independent Advisor on Ministerial Interests
4.2: An added complication concerning ACoBA is that the principles concerning regulation of appointments after a period of office are multiple, and the public probably do not understand them in quite the same way as those responsible for their regulation. There are at least four possible principles:
i. decisions on matters of public interest should be made objectively ,
ii. They should not be influenced by asymmetries in information, and
iii. they should be made in a transparent process.
The public certainly accepts these principles. But they also seem to believe,
iv. that people in public office should not be seeking to gain personally by using their office, or information accumulated in the course of their time in office, when they leave office to their personal profit. (If this falls under the Nolan principles it does so under selflessness).
This latter concern is much more sweeping, and seems to stand to at least some degree independent from concerns about influencing the process of policy making. And, while there is little evidence on this, my sense of the focus groups I have observed, is that people tend to read many post-political careers as evidence of inappropriate gain, where this judgment mixes concerns about what motive businesses would have for employing politicians were it not in expectation of informational gain or lobbying leverage, and concerns about people using the profile they develop purportedly in the public service, subsequently to generate incomes that are seen as immodest.
4.3 If this is right – and I should emphasise that there is little detailed evidence on such matters (although it would not be impossible to collect) - then it is likely that the regulation of post-career appointments will be seen by the public as consistently falling short. At the same time, those in Westminster will see such expectations as excessively demanding and restrictive. In these conditions it will be still more difficult for these regulatory institutions to have positive effects on public attitudes. (One dimension of this problem is that the public, lacking detailed knowledge, will operate with a more exacting ‘appearance standard’ (that it looks like inappropriate gain), than will those making a more fully informed judgment about whether there is a conflict of interests involved in a particular case. As a result, transparency in dealing with cases might exacerbate mistrust unless the public can convinced of the legitimacy of the grounds on which judgments have been made.
4.4: There is little public knowledge of the existing system, but there is also probably little public confidence in it, with its authority being undermined by critical evaluations by Parliamentary reports and with the issues being fanned by various ‘sting’ operations by newspapers. Moreover, the institutions operate within a context of a much larger problem of regulating the lobby, on which a good deal of effort has been expended in the last few years, without, one suspects, much impact on public confidence. And the information available in the media, given its understandable focus on negative rather than positive stories, rarely encourages confidence (see John Harris, Guardian 3/9/2016; and Private Eye 2 September 2016)
5. Addressing the problem of public attitudes:
5.1: In these circumstances, the principles for regulation need to be clear and transparent, and they need to consider a wider range of public concerns about appointments than the ‘insider’ view naturally would – not inevitably to bow to these, but so as to make a case for its practices that addresses the concerns of an increasingly sceptical, and in many cases openly hostile public.
5.2: Appointments to ACoBA and to the post of Independent Advisor must be public, through an open and transparent process, and should seek to recruit at least some people from outside Westminster circles.
5.3: A wholly advisory system subject to government review will not command public confidence; and if judgments are to be open to review there seems no basis for this lying with the government and thereby with those who will be seen as acting on cases that might have implications for their own future interests.
5.4: These measures certainly do not guarantee success. But if the Committee is serious about improving public confidence it has to recognise that the current system does not have a high public profile, is most likely seen by many as another case of insiders regulating themselves on the basis of gentlemanly advice, on the basis of principles that do not mesh with their sense of what those in the public domain should be dedicated to doing, further fuelling public discontent and a feeling of distance from Westminster. Of course, the public’s expectations are in some respects unreasonable, and are often ill-informed, and contradictory – but identifying clear, carefully articulated principles and publicly defending them, should play a role in informing expectations and public debate. It is not clear that the institutions with which the Committee is concerned have been very successful in doing this.
Appendix:
Fig 1 Taken from Survey of Public Attitudes to Conduct in Public Life (CSPL ,2004) Box 4, p. 6
Fig 2: Taken from Public Perceptions of Standards in Public Life in the UK and Europe (CSPL, 2014)
Fig 3 Taken from Public Perceptions of Standards in Public Life in the UK and Europe (CSPL, 2014)