Public Administration Select CommitteeWritten evidence submitted by David Hine and Gillian Peele (CSPL 04)

1. We are Oxford political scientists with research interests in ethics and standards in public life. We are currently completing a book which focuses on the broad topic of integrity issues in the United Kingdom and explores the role of the Committee on Standards in Public Life and a number of regulatory bodies in the field of public ethics.

2. Last year we separately submitted evidence to the Cabinet Office Triennial Review of the CSPL and although we differed from each other slightly on details we were both convinced that there remained a major role for the CSPL in the maintenance of standards. We see the CSPL as having an important strategic role in the identification, analysis and amelioration of ethical problems in British public life and in the institutional arrangements for improving standards in many discrete sectors of government.

3. We are in broad agreement with the majority of the Triennial Review’s findings and we are sure that the Review is correct to say that the there is a continuing role for the CSPL. We are also in agreement with the Review’s opinion that there should be some significant reforms in the operation of the CSPL in order to maintain its relevance and effectiveness in a changing public sector climate. In particular the Review recommended a streamlining of the CSPL’s ways of working and a broadening of its agenda as well as some rebalancing of priorities. The CSPL has in fact long combined three dimensions of the task of monitoring standards. It has prompted the creation of appropriate machinery where there was an agreed need for regulation. It has reviewed the way that machinery has been working. And it has tried to anticipate future ethical vulnerabilities. It is the third of these aspects of its work which we see as being increasingly important. This element of the CSPL’s work is presumably what the review had in mind when it urged a bolder more proactive approach. And the CSPL in its 2013 Annual Plan anticipates such a change in priorities. We would however emphasise two points.

4. First, the main conclusion that emerges from two decades of building clearer rules and procedures for underpinning standards in public life is that it is difficult ever to establish absolute standards. Standards can readily be expressed as principles and codes of conduct with which, in the abstract, few will disagree. But they often lack purchase in real-world circumstances. Neither codes of conduct nor principles can cover every eventuality; nor should they, or public office-holders will abdicate moral judgement in favour of rule-books. New economic and political arrangements—especially changing boundaries between public and private—will give rise to new ethical risks not previously foreseen. Public and media tolerance of behaviour will change over time. These factors can be seen in the evolution of the Committee’s work since 1994. Its Seven Principles remain largely unaltered except for some of the attached descriptors; but its conclusions about what works, and what sorts of arrangements are needed to safeguard ethics, have evolved very significantly. It would be hard to argue that this is always, or even mostly, because the Committee has misjudged its conclusions. The Committee works within the boundaries of what is acceptable and practical to public-office holders as well as to the press and public. It is bound to make recommendations that may turn out to be inadequate, and its judgments about what is proportional and appropriate can never be exact. Moreover, when it makes recommendations it inevitably draws public attention to the areas affected, and implicitly increases the risk of future controversy in those areas. What makes an ethics controversy a serious one depends to a significant extent on how far the public has already been sensitised to the issues. We believe that in order to avoid public cynicism about the possibilities for addressing ethical problems, it is important that attention be given to the political and public understanding of these broad contextual constraints, which, we believe, will always be present.

5. Secondly, and arising out of the previous paragraph, we are convinced that the Committee needs to rise above individual controversies and to be capable of placing them in the context of an informed appraisal of trends and developments. The key points are that the Committee is seen to be unquestionably authoritative and non-partisan, and that it should retain institutional memory and continuity.

6. The first of these is not straightforward. It is vital that the Committee refrains from comment on cases of current political controversy, however central to public concern about ethics. This is not easy because the media naturally turn to the Committee for comment at such moments and ignore it at other times. But it is a vital requirement if the Committee is to retain the respect of government, political parties and Parliament, and in consequence if the Committee’s recommendations are to command the broad political buy-in, without which regulatory solutions to ethics problems will never work.

7. In relation to institutional memory and continuity we think it is important that the CSPL maximise its understanding of both specific problem areas and public reactions to and understanding of the issues which arise and of the attempts made to provide solutions to them. In this context it is essential in our opinion that the Committee on Standards in Public Life continues to generate its own survey research and maintains its capacity to analyse the data . The four in depth surveys which have taken place since 2003 (together with the fifth which is about to appear) constitute a unique and high quality seam of information about public opinion on what constitutes acceptable behaviour and the methods for holding public office holders accountable. What is important about this survey research is its ability both to probe the structure of public opinion and to elucidate its complexity and the continuity of the research over time. Other surveys often provide a useful snapshot view of public reaction to questions; but they are always liable to be shaped by contemporary issues, especially when something as sensational as a lobbying or expenses scandal hits the headlines. Moreover, the repetition of a core set of questions over a long period enables a greater degree of confidence that the research is tracking public beliefs, because of the stability of certain views across time, and the consistency of responses between different sets of questions, both within and between surveys. The result is a much more robust sense of the way in which public attitudes cohere and respond to events. Different surveys constructed by different organizations at different times do not have the opportunity to track changes in the same way as a time series such as that conducted under the aegis of the Research Advisory Board.

8. We understand the pressures for budgetary reduction but we think it would be a very unfortunate and a short sighted economy if the research underpinning the work of the CSPL were to be abandoned. Of course some research can be conducted in conjunction with commercial companies. Indeed the CSPL itself conducted all the surveys in conjunction with research companies, although for the last two it has undertaken the analysis through its Research Board so as both to add depth to the analysis and to reduce costs. But the utility of the surveys is deeply aided by the ability to construct subtle survey questions and to place the interpretation of the data in the context of a dedicated understanding of the field of standards regulation and to deploy a very high level of social science expertise. We believe that the move from a stand-alone survey, which was important to establish a firm basis for comparison and for ensuring that the questions were fully tapping attitudes, and the development of in-house analysis (using the Research Advisory Board’s expertise) produced substantial savings in costs. These savings were achieved we believe without jeopardising quality. The collection and interpretation of data at the highest possible level of sophistication remains a core component for understanding the impact of the work of the CSPL and of all those bodies concerned with standards regulation and for understanding the public’s evaluation of the quality of democracy and public life in this country.

9. It might be objected that academics have a different agenda from the general public and indeed that even a conflict of interest exists since academics will benefit from the research contracts managed by the CSPL. An alternative to the present arrangement which would maintain the quality of the current research might be through devising some kind of joint funding between the CSPL and a funding body such as the ESRC or other interested parties such as the Hansard Society . Such joint working would have the merit of preserving the continuity of the studies while relieving the CSPL of the funding burden. Indeed if the CSPL is as we assume and welcome going to move into a range of new subject areas we see scope for a good deal of joint working and partnerships between it , outside bodies and university departments and/or individual academics.

Additional Note

1. This note is an annexe to the note we submitted on 21 June 2013. It explains in greater detail some points alluded to in the earlier submission. It focuses particularly on the call by the Cabinet Office Triennial Review for the Committee to make significant changes to its working methods. We think this comment is very important, and one which the PASC might wish to explore in detail. We suggest some directions for change that flesh out the Review proposal, though we qualify our comment with the obvious point that since neither of us has served on the CSPL itself, those who have will be more familiar than we are with the difficulties in making such changes. We have, however, periodically interacted with the Committee, giving evidence and cooperating in other ways and recently, one of us, David Hine, assisted in the final stages of drafting the 14th Report (Standards Matter), and saw at first hand the resource constraints the Committee faces.

2. We believe that the Committee’s most valuable role in the last decade has become that of a long-term public institutional memory for handling standards issues across all areas of public life. This distinguishes it from ethics bodies that deal with particular areas of public life, and from agencies in other countries which also have a broad remit, but where the approach towards ethics is generally focused on the detection and suppression of corruption in a narrow sense generally defined by criminal law. As the public salience of standards issues in the UK has grown, this characteristic of the Committee, as opposed to its role in generating the ground-breaking proposals of its first decade, has become more important, and should become its central task. This is so both because the Committee has done a good, (and thus largely completed) job in certain areas, and because in those many areas where new ethical pressures have arisen, or reconsideration is needed, the ensuing public debate is likely to be a more and more crowded one. There is today much more expertise in circulation among sectoral ethics regulators, web-based activists, free-lance ethics umpires, whistle-blowers, and the media. Parliament too, through some Select Committees, shows a closer interest in ethics and ethics regulation than in the past. However, the objectivity of some of these sources is questionable. Ethics controversy has generated a world of ethics professionals who have an interest in driving demands for more ethics regulation. The risk of over-regulation and lack of proportionality is therefore present in the standards world as in several other areas of regulation. The greater objectivity expected of the official actors (mostly the sectoral regulators) can only deliver expertise in that regulator’s own area. Parliament’s emerging interest is a little different. Select Committees can clearly claim to speak with greater public-interest objectivity, but Select Committees play multiple roles and may not have the time or resources to fulfil the institutional-memory role and assemble the expertise that has become important for the Committee. In short, an authoritative public body, but one independent of government and Parliament, is all the more necessary.

3. However, this raises the issue of how the CSPL itself develops and sustains its own expertise, and how it deploys it. The Triennial Review calls for more use of seminars and workshops, but if they are focused solely on current urgent Inquiries they still leave a heavy burden on the Chair in drawing up conclusions and trying to find common ground towards the end of an Inquiry, and under time pressure. The small secretariat and tight budget, with, according to the CSPL Annual Plan 2013–14, only three (down-graded) posts and an apparently high staff turnover, make this a tough challenge. This reflects the broader problem of the model established in the CSPL’s early years—esteemed men and women asked to capture ethical intuitions and turn them with easy facility into codes and procedures—and as we suggested in our previous note, allows the impression to persist today that there is one incontestably “right” (and knowable) way of looking at a problem and that it can be found by fast, objective, low-cost investigation.

4. In fact, arriving at proposals that have a good chance of success involves not only an investigative dimension (fact-finding about interests and how they may affect public decisions, fact-finding about the behaviour of public office-holders, cross-national comparisons, feasibility assessments for new rules and machinery etc). It also depends on what can be described as “negotiational” and educational dimensions. The negotiational element involves working out what is acceptable to current public-office holders (especially those that bear the legitimacy of direct election) but also working out what is likely to be acceptable to all office-holders and not just those who happen currently to be in a majority. Enduring partisan arguments about, for example, the mission and resources of a new regulator will otherwise be detrimental to its effectiveness. Top-quality public servants will not commit to an organisation that may have a limited life. Recruitment and retention of staff, poor morale, and endemic arguments over priorities and procedures are the almost certain consequences. So we believe all important new departures seem to need a settled understanding of mission, purposes, resources, and duration. If there is more work to be done on these questions after the regulator has started work, the risk of drawing it into unhealthy political controversy is significant. We believe that these problems have been evident in several of the institutional innovations in ethics regulation in which the CSPL has played a role. This includes the Standards Board for England, where the most fundamental failure was the inability of central government to follow up primary legislation with timely secondary legislation so that the Board lost the support of many key stake-holders in Parliament (not just the Conservative opposition) and in local government itself. It includes the Electoral Commission, where the founding legislation was clearly over-optimistic on what a brand new multi-purpose regulator could achieve. And it includes IPSA, where the failure to build a broad and supportive consensus was not so much a matter of partisan dispute but of more general haste and muddle over role and status.

5. We are not of course arguing that these weaknesses, and others we could cite, are the consequence of failures on the part of the CSPL itself. Far from it. The Committee warned from the outset of the risks of excessive centralisation of ethics regulation in local government. It was responsible for an important inquiry into the over-extended mission of the Electoral Commission, and it was helpful in pointing the way towards solutions when the Parliamentary Standards Act 2009 (in the design of which it played no role) needed very rapid revision. Our point is different. We believe the history of building ethics regulators since the mid-1990s in the UK has a creditable but not unblemished record, and that the blemishes are due to broad failures of vision and preparation which have led to enduring controversy, sometimes to the disadvantage of standards in public life generally. No one party or institution is to blame. What the record shows, however is that it is as important to get regulatory design right for the long term, as it is to respond to immediate public pressure for action, although of course the latter frequently dominates over the former.

6. This seems particularly likely to apply to the areas the CSPL is destined to visit in the future: lobbying, and the role of essentially private suppliers in public provision in health, education and other fields. It is very easy, in the light of past difficulties, to imagine how ethics regulation in these areas could be ill-designed and mismanaged, and could become subject to enduring partisan controversy. In these areas of great complexity, where it is far from clear how much regulation is needed, or feasible, and where good-quality objective scientific evidence determines only part of the success or failure of the project, an operational model based on a body with as few resources as the CSPL can only be a catalyst towards the broad understandings that are necessary for success. Many others elements have to fall in place, even though, given the reluctance of parties and governments to involve themselves in ethics issues until crises erupt, it is vital that a body like the CSPL initiates debate.

7. This is what we mean by the “negotiational” dimension of building ethics regulation. The educational dimension is not far removed from it. If government, Parliament, and parties need to recognise that it is the interests of all political actors to have broad agreement on the mission, resources, and lines of accountability of what are in effect quasi-constitutional agents, similarly the public and the media need to be helped towards that understanding. And this is where there should be some adjustment in what is expected of the Committee on Standards in Public Life. The expectation should be both more modest and more ambitious. Governments should no longer expect the Committee to come up with immediate, clear and lasting solutions to any urgent problem thrown at it. The authority, experience and judgement of the CSPL membership alone cannot be enough to solve problems that are highly complex and sometimes inherently political. (To its credit, in March 2008, when asked to do so in relation to parliamentary expenses, the Committee said it could not in the time being made available). But the Committee can also, even on its current modest resources, be expected to play a more central role if its mission is reworked towards a more iterative one.

8. We anticipate that this would involve more emphasis on, from one side, research, discussion-documents, commissioned critiquing and the use of vignettes and role-playing for robustness-testing; and from the other, the facilitation of dialogue between existing regulators, and regular inter-action between itself and a wide range of participants in public life. The Committee might well respond that it does as much of this as possible, that its web-site already provides an important record of reports and other achievements that is widely used, and that its resources are too limited to do more. We would suggest that there more help is available than that which comes from the official budget-line alone. Firstly, the growth of ethics expertise we mentioned in paragraph 2 above includes a good number of academics who are today required to show engagement with, and where possible impact upon, the real world beyond academia. Henceforth, they are likely to be willing low-cost or even zero-cost contributors in increasing numbers. A number of not-for-profit organisations are in a similar position, and need to show similar engagement to potential funders. Secondly, we believe that the growth of sectoral ethics regulators has created a community of potential permanent interlocutors for the Committee which (as recognised above) is not necessarily disinterested in regulatory growth, but which nevertheless has considerable experience to contribute. We understand that the previous Chairman of the CSPL did assemble an informal periodic meeting of many of the heads of these bodies, though not, as we understand it, quite all of them. We think these agencies have a strong appetite for involvement in research and the understanding of quality-assessment, and we recently observed this ourselves in helping organise a set of short seminars at the Institute for Government examining aspects of the work of the IPSA, where we encountered a strong interest in other regulators to be involved in discussions. There are many others involved in public-sector governance quality we did not approach, whose interests overlap with those of sectoral ethics regulators themselves, whom we believe could also be drawn into the CSPL’s ambit more effectively. Thirdly, with the 2013 change to the Committee’s terms of reference (“[to no longer] inquire into matters relating to the devolved legislatures and governments....”) the basis now exists for a more equal and fruitful partnership with those involved in ethics regulation in the devolved regions. Fourthly, the commitment of the CSPL to various forms of more intensified cooperation with the PASC and the Lords Constitution Committee suggests a welcome avenue for furthering the negotiational aspect of ethics building which we see as important to its success, and which has hitherto been under-emphasised. We think the change to ethics regulation in local government provides a similar need and opportunity for ongoing engagement at that level and that local government organisations will welcome it. Finally, there are clearly parallels with debates about corporate governance in the private sector, and we believe the private sector has a strong interest in understanding standards, problems and solutions in the public sphere. It too may have resources which could assist.

9. We recognise that turning this diffuse range of contacts and potential contributors of knowledge and help-in-kind into something substantial and organised is a formidable challenge for an organisation with a secretariat of three and an annual budget of £400,000. It clearly cannot be done if the budget remains at that level in the long term, and if that happens the Committee will not be able to transform itself from a producer of periodic reaction-mode reports into the repository of knowledge, research, networking and institutional memory that will sustain its real value in the medium and long term. We believe that the Committee has to earn added public resources, and that it can best do so by designing am operational model that makes the best, albeit limited immediate use, of partnerships and cooperation it can devise, and does so in the context of a long-term development plan which shows its Cabinet Office paymasters and its parliamentary interlocutors that it has real potential. If it does so, the leverage that can come from modest increments to its budget could become formidable. The PASC could have an important role in ensuring that the Committee has a coherent and viable programme to meet these objectives.

July 2013

Prepared 12th September 2013