Following a set of scandals the previous Conservative Government was entangled in, Labour promised to introduce an integrity and ethics commission. In light of recent revelations around gifts to the Prime Minister and other Labour MPs, calls for higher standards in public life are more urgent. But how do concepts like “standards” and “integrity” translate into public policy? Nikolas Kirby argues that there can be no strict definition of such values, and ultimately public officials have to be able to exercise their judgement about what they think is best for the public.
In the wake of various scandals – PPE, Partygate, Pincher to name just a few starting with “P” – the recent Conservative Government whet the public’s appetite for “ethics” reform within British government. Unfortunately, the “presents” scandal now facing the new Labour Prime Minster only seems to reinforce the need. Currently, a range of reforms are on the table: the Committee for Standards in Public Life has set out its case for an empowered Independent Adviser on Ministerial Standards; the Labour Party placed a “integrity and ethics commission” in its election policy platform; and the House of Lords introduced the Public Service (Integrity and Ethics) Bill in the last Parliament. But what ought to be the aim of such reforms? “Ethics”, “standards” and “integrity” are laudable but inherently vague concepts. What is their proper meaning in the context of public life?
One answer proposed by Bo Rothstein is particularly prominent within political science. On his view, impartiality is the “basic normative standard for how people entrusted to provide public services ought to behave”. Indeed, it defines what Rothstein terms “Quality of Government“. Rothstein has built a truly impressive research programme into Quality of Government so understood, including its intimate causal relationships with trust, democracy and inequality.
Impartiality, so defined, would be an incredibly constraining norm.
In recent work, Jonathan Wolff and I have sought to critique Rothstein’s account of “impartiality”. Canonically, Rothstein states:
“[The] definition of impartiality in the exercise of public power is the following: When implementing laws and policies, government officials shall not take into consideration anything about the citizen/case that is not beforehand stipulated in the policy or the law.”
Impartiality, so defined, would be an incredibly constraining norm. When exercising public power, a public official is restricted in their decision making only to reasons stipulated within the relevant law, or government policy. The only discretion left by such a norm lies in one’s choice between these reasons, and in how they might be balanced and/or prioritised.
The problem with this idea of “impartiality”, however, is twofold. First, it simply makes no sense as an account of how public officials ought to reason when making, proposing or lobbying for new laws or policy. Yet, this is one of the most important functions of government, and indeed the central concern of its most powerful members. What then, if anything, does impartiality mean for them?
Second, even for those lower down the bureaucratic ladder, policy implementation inevitably requires a wider degree of discretion. Laws and policies are always prone to be abstract, vague, ambiguous and conflicting. Bureaucrats need to fill the “gaps” somehow to resolve these indeterminacies. As Michael Lipsky famously pointed out such bureaucrats also tend to face constant operational constraints, with limited sources, time and information. They are, therefore, required to choose between various imperfect implementation options not contemplated by the laws and policies themselves. Further, as Bernardo Zacka has recently argued, implementation options tend to come with different associated risks unintended by law and policy. Hence, officials often need to look elsewhere for a basis to choose between them.
To act impartially is to act on the basis of reasons required by law and policy, and where they leave discretion to not act on partial reasons.
In short, contrary to Rothstein’s definition, “taking into consideration reasons not stipulated within the regulating law and/or policy” is an unavoidable and, indeed, seemingly desirable feature of government decision-making. Yet if this true, then what reasons should be considered? Any reason that the official wishes? Elsewhere, Rothstein actually offers another gloss on “impartiality” that might be thought to help:
“To act impartially is to be unmoved by certain sorts of considerations—such as special relationships and personal preferences. It is to treat people alike irrespective of personal relationships and personal likes and dislikes.”
This is quite a different definition of impartiality. It does not constrain government decision-making to just those reasons included within relevant law and policy. Instead, it aims to identify reasons that are to be excluded: exercising public power to serve either oneself, or one’s family, friends or tribe. In effect, it is a prohibition on partiality. By itself, this definition is also inadequate: since it would permit any reason for public action, so long as it were not partial. After all, illegal decisions can be perfectly impartial. However, we might take the license of synthesising this second definition of impartiality with the first:
To act impartially is to act on the basis of reasons required by law and policy, and where they leave discretion to not act on partial reasons. Is this a workable plausible conceptualisation of impartiality to serve as an account of “Quality of Government”?
For an official to act impartially when law and policy leave discretion is for the official to act on their own view of what is best for the public at large.
Some would argue that it is necessary but insufficient. Yes, we need impartiality so defined in government, but we also need efficiency, trustworthiness, public participation, accountability and legitimacy. On this view, impartiality might be at the core of Quality of Government, but it must be buttressed by other institutional norms. This may lead to a messy pluralism of values, but perhaps that is just ethical reality.
Another critique, however, is perhaps more of a challenge for Rothstein. On this view, Rothstein fails to say the quiet part out loud. By excluding partial reasons from discretionary decision-making, what must be left by implication are what the official believes – him or herself – to be in the public interest. For an official to act impartially when law and policy leave discretion is for the official to act on their own view of what is best for the public at large.
Once this is clarified, then the most plausible interpretation of Rothstein’s account of Quality of Government is far closer to a “fiduciary” theory rather than one of seemingly uncontroversial “impartiality”. On this view, public officials, of all levels and rank, are ultimately entrusted with public power that, when they are left with discretion, places them under a duty to do what they think is best for the public, even if what they think might be wrong, or controversial. Of course, this may alarm critics of both left and right concerned about the democratic bona fides of unelected bureaucrats wielding such power in the administrative state. But it is the most plausible account of Quality of Government as “impartiality”.
All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science.
Image credit: Gil C on Shutterstock
