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be withdrawn, even temporarily.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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