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Regulating the Behaviour of Ministers, Special Advisers and Civil Servants by Simon King June 2003
Regulating the Behaviour ofMinisters, Special Advisers and
Civil Servantsby Simon King
June 2003
ISBN: 1 903903 21 1
First Published June 2003
Copyright © The Constitution Unit
Published by The Constitution UnitSchool of Public Policy, UCL29–30 Tavistock SquareLondonWC1H 9QU
Phone: 020 7679 4977Fax: 020 7679 4978
[email protected]/constitution-unit/
This report is sold subject to the condition that is shall not, by way of trade or otherwise, be lent, hired out or otherwisecirculated without the publisher’s prior consent in any form of binding or cover other than that in which it is published andwithout a similar condition including this condition being imposed on the subsequent purchaser.
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ContentsSummary of Issues Explored 4
Recommendations on the Regulation of Special Advisers 7
The Accountability of Ministers, Civil Servants and Special Advisers 9Lessons for the UK 15Conclusion 18
Australia 21I. Ministerial Regulation 22II. The Australian Civil Service 23III. Special Advisers 27Conclusions 30
Canada 32I. Ministerial Accountability 33II. Civil Service Accountability - Overview 35III. Special Advisers 40Conclusion 42
New Zealand 44I. Ministerial Accountability 46II. The New Zealand Civil Service 46III. Special Advisers 51Conclusions 53
Ireland 55I. Ministerial Regulation 55II. The Irish Civil Service 56III. Special Advisers 59Conclusions 61
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The growth of the bureaucracy in the UK hasraised questions on how to promote andmaintain ethical standards of conduct. There is aconsensus that ministers and civil servantsshould be publicly accountable, yet opinion isdivided over what precise mechanisms workbest in maintaining ethical standards.Furthermore, the insertion into the bureaucracyof political or ‘special’ advisers—persons directlyappointed by ministers to provide both politicaland policy advice—has complicated theenforcement of ethical guidelines. This reportcompares accountability measures in fourWestminster style countries, Australia, Canada,Ireland and New Zealand. The principal issuesexplored are:
The changing structure of ministerial and civilservice relationships
• How has the relationship betweenministers and civil servants changed ineach comparator country?
Ministerial, Civil Service and Special Adviseraccountability
• How accountable are ministers, civilservants and special advisers in eachcountry?
• What mechanisms does each country useto promote accountability?
• How effective are such mechanisms?The balance between statutory specification orlooser advisory codes
• What is the optimal balance betweenstatutory regulation and unenforceablecodes of conduct in establishingaccountability?
• Which countries combine the twoapproaches most successfully?
Communicating ethical guidelines
• What are the best methods ofcommunicating ethical guidelines toministers, civil servants and specialadvisers?
• How is misconduct reported andinvestigated in each country?
Training on ethical issues
• Which countries provide training forministers, civil servants and specialadvisers on ethical issues?
• What are the best training mechanisms?Lessons for the UK
• Each chapter concludes with lessons thatthe UK can draw from practices peculiar tothe country under review
The conclusion of the examination of the fourcountries is that a combination of statutoryregulation and codes of conduct work best inmaintaining executive ethical accountability.Countries such as New Zealand and Ireland thatpromote dialogue between ministers, civilservants and special advisers through regularcommunication and training programmes tend toexperience few problems. The biggest challengeis in managing the growing number of privatesector personnel entering the civil service. Thisis particularly the case in Australia and NewZealand, which have broadened civil servicerecruitment.
Ethical rules tend to emerge from negotiationsbetween interested parties rather thandeductions from a set of principles. They need tobe sustainable and difficult to reverse. Whilewritten rules make the management of ethicsmore efficient, voluntary compliance is the key tomaking a regime work over time.
Summary of Issues Explored
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Recommendations on the Regulation of SpecialAdvisers• Under New Labour the number of special advisers in Whitehall has doubled, from 38 under
John Major to 81 under Tony Blair. In the Prime Minister’s Office the numbers have trebled.Special advisers have a power and influence not felt before.
• The UK is not alone in this respect. Other countries which adopted the British model of apermanent, non-partisan, impartial civil service have felt the need for political advisers, andhave seen steady increases in their numbers. Australia, Canada, New Zealand and Irelandhave all introduced political advisers. Australia and Canada now have twice the numbers ofpolitical advisers of the UK.
• Recent years have seen increasing concern in all these countries about declining standards ofbehaviour amongst ministers, advisers and officials. This has led to increasing regulation,through statute, codes of conduct and commissioners to police them. All five countries haveextended and updated their codes in the last five years.
• Legal regulation on its own is not enough. The promotion of virtue is as important as thecontrol of vice. Codes of conduct need to be developed in dialogue with civil servants, andethical behaviour needs to be promoted in a variety of different ways, through inductiontraining, seminars and human resources management.
• Political advisers are less regulated than ministers or civil servants. The UK is the only countryto have introduced a Code of Conduct for political advisers, and before that a model contract.But there remain difficulties in its enforcement. The government insists that political adviserscan only be disciplined by the minister who appointed them, and not by the head of theirdepartment.
• There are also difficulties of enforcement in relation to the Ministerial Code of Conduct, whichhas no external enforcement agency to investigate allegations of misconduct. In Ireland thishas now been given to the Standards in Public Offices Commission which supervises compliancewith Ireland’s Ethics Acts insofar as they apply to office holders, ministerial special advisers,senior civil servants and directors and executives of specified public bodies.
• There is no panacea for ensuring high standards of civil service behaviour. The most effectivelong term measure is to combine the existing codes with legislation and training to reinforceeach other in promoting a strong institutional culture of ethical awareness and behaviour.
• A Civil Service Act would help give statutory backing to the civil service Code of Conduct. But itneeds to be supplemented by regular training sessions in ethical conduct. It will also takemore time to properly assess the impact of this legislation on public service accountability.
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The Accountability of Ministers, Civil ServantsThe Scope of the Report
The research for this report was commissionedby the Committee on Standards in Public Life asa comparative study of accountability regimesfor ministers, civil servants and special advisers.
The countries selected for this study areAustralia, Canada, Ireland and New Zealand.This is because all operate Westminster stylesystems of government and have recently beeninvolved in modifying their regulatory codes andpractices.
Table 1 gives an overview of the size of thepublic service in each comparator country. Allcountries have a similar size civil service whentaken as a percentage of overall population withthe UK and New Zealand having the largest. Thenumber of cabinet ministers tends to rangebetween 20 and 30 with Canada having themost and Ireland the least.6 In terms of specialadvisers, Australia has the most per ministry,followed by New Zealand and Canada. The UKand Ireland have roughly similar amounts. Thedistribution of special advisers varies. In the UKone-third are concentrated in the PrimeMinister’s office as they tend to be in the othercountries. In all three public service categories,the UK does not appear unusual.7
Institutions promoting ethical conduct
All four countries in this study have institutionsand procedures committed to maintaining ethicalstandards of conduct in public life. There is aconsensus that there should be a measure ofpublic accountability among politicians and civilservants. Yet the problem lies in whatmechanisms work best in maintaining ethicalstandards. For example, it is not sufficient toassume that a mere awareness of ethicalmatters by the parties concerned is goodenough to guarantee ethical conduct.Furthermore, it is difficult to determine theprecise methods that should be used in mostcountries to regulate ethical behaviour.Initiatives have concentrated on formulatingguidelines and amending legislation. Yet theseare but two ways of tackling ethics issues in thepublic service. Other methods range fromeducation-based strategies to quasi-judicial
regulation, constitutional rules and criminallegislation.
In short, the main procedures for regulatingethical conduct in our comparator countriescomprise:
• Westminster conventions of ministerialresponsibility
• A written code, known to all and policed bythe executive (Australia)
• A combination of a code of conduct and acivil service commissioner (UK)
• Parliamentary legislated code underwhich a commissioner is appointed toadvise MPs and recommend courses ofaction (Canada)
• A statutory authority which may initiate itsown investigations, independent ofgovernment (Ireland)
The main conclusion of this study is that thereare no simple institutional solutions. A variety ofapproaches for the regulation of ethics shouldbe adopted rather than relying completely onlegislation or the capabilities of an ethicscounsellor. Furthermore, it is suggested that ifpractical measures can be combined withinitiatives to promote a long-term culture ofethical responsibility, a low level of corruptionwill ensue.
Ministerial Accountability
In all four comparator countries it could beargued that ministers are not accountable toparliament in the way they were once meant tobe. It is possible that breaches of ministerialresponsibility have been ignored and individualministers have not been answerable to anyregulatory authority. This is helped by theprotective power of cabinet convention sincedecisions are protected by cabinet secrecy. If so,it shows that a great deal of evidence onpotential ethical malpractice may be out of thepublic domain. Furthermore, ministers have ahigh level of authority over junior officials. Thisfactor presents them with unique opportunitiesand powers of patronage which can potentiallyplace pressure on the civil service to behaveunethically.
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Table 1. Comparative Public Service Overview
Country Population Size of CivilService
Size as % ofpopulation
No ofCabinetMinisters
No. PoliticalAdvisers
Advisers perMinister
UK 59.7m 463,000 0.8% 23 831 3.6
Australia 19m 121,300 0.6% 30 1522 5.0
Canada 31m 186,314 0.6% 36 1613 4.4
Ireland 3.5m 27,000 0.7% 15 334 2.2
NewZealand
3.8m 30,600 0.8% 23 1065 4.6
The individual country chapters indicate that theinstitutions that countries use to regulateministers have a limited set of powers. InAustralia the Auditor General has provedreluctant to investigate ministers. In NewZealand there are only a limited set of rulesgoverning ministerial conduct. In Canada theConflict of Interest Code and the Office of the EthicsCounsellor although useful, have failed tocompletely deter ministerial scandals. TheCanadian Auditor-General suggests that theminister is accountable to parliament for themanagement of a federal department or agency.But he also suggests that government shouldbegin a process of consulting parliament and thepublic on how to reconcile new governancearrangements with accountability to parliament.
A problem is that there are often divergentopinions about appropriate standards. This isbecause there may have been differences in theperception of ethics from cit izens andrepresentatives. Several studies have found thatthe ethical standards of elected representativeswere both lower and more diverse than those ofvoters.8 It is possible that this is becauseparliamentary and ministerial life creates a set ofethical choices not faced by ordinary citizens. Ifthis is the case, it could give rise to inappropriateand inflexible guidelines being approved byparliament.
Specific legislation appears to be effective inpreventing ministerial unaccountability. HereIreland leads the way with its Standards in Public
Office Act, 2001. The legislation established along-term committee of politicians, civil servantsand judges to review ethical conduct and toapply sanctions to ministers through parliament.So far, one successful prosecution has takenplace.
Civil Service Accountability
Two doctrines have traditionally underpinned thenotion of a politically impartial, neutral civilservice.9 The first emphasises thedistinctiveness of the civil service and makes aclear division between it and the private sector.The second implies that a number of proceduralregulations should restrict the discretionarypower of senior civil servants.10 These doctrineshave been challenged in all four comparatorsunder review, as well as in the UK. Reforms inthese countries have envisaged a civil serviceorganised along more private sector lines wheretraditional style bureaucrats are transformed intomore enterprising managers.
In this new world of enterprising government, thecivil servant is expected to honour his officialmandate while at the same time moving outsidethe hierarchical world of government in search ofquasi-market relationships with contractors andcompetitors.11 This has made the life of the civilservant more complex since parliaments andcourts seek detailed, descriptive reports, thestatute honoured and due process followed. Incontrast, the world outside the civil service is
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more fluid and adheres less to a common set ofstandards.
The Rise of Special Advisers
An important new source of support for Ministersis the political or ‘special’ adviser. Known asministerial advisers in Australia and NewZealand, executive assistants in Canada anddirecteurs de cabinet in France, political advisersdiffer from civil servants in being appointeddirectly by ministers. They have close and directaccess, their tenure depends on that of theminister, and they are exempt from therequirement to be impartial and non-partisan.The number of political advisers is increasing inWestminster systems but very little is knownabout their recruitment, roles, duties, interactionwith the permanent civil service and effect onpolicy making.
Special advisers first emerged as a significantphenomenon in the 1970s. Australia, NewZealand and Ireland have seen a large increasein their numbers. A similar and dramatic increasehas occurred under the Blair government in theUK. Since Labour’s election in 1997, the totalnumber of political advisers has grown from 38to 83, while government expenditure onpersonal staff has increased from £1.5m to£3.8m. Most government departments have twospecial advisers working alongside thepermanent civil servants.
The role of a special adviser is complex andvaried. For example, some special advisers areprimarily political and seek to add a politicaldimension to the advice available to ministers.Others are more policy focused and concentrateon providing a minister with expert advice in aparticular field. Others still are unpaid andprovide general advice to ministers. The numberof unpaid advisers has also increased in the UK,particularly with the formation of the ForwardStrategy Unit in the Prime Minister’s Office.Before the 2001 general election, the PrimeMinister was served by a private off ice(consisting largely of civil servants) and a policyunit (consisting largely of special advisers). Nowthe office, known as the Policy Directorate, bringsboth civil servants and special advisers togetherin a single unit. These varying categories ofadviser seem to have placed a strain on theability of regulatory rules to provide clear ethicalguidelines.12
In 2001, the UK drew up a Code of Conduct forSpecial Advisers which consolidated appropriateelements of the existing Civil Service Codesetting out the duty of special advisers to upholdthe political impartiality of the civil service. It alsoincludes a section on the direct media contactsof special advisers, making clear the nature ofthe role they play in relation to the work of thecivil service information staff. The Code ofConduct is issued to all special advisers oncommencing employment. The Code of Conductonly applies to paid special advisers. Unpaidadvisers are not required to comply with thecode and their terms of employment are set outin a letter indicating the subjects with which theymay deal. In the case of paid special advisers,their contractual posit ion complicatesaccountability measures. Since special advisersare appointed directly by ministers,responsibility for their behaviour rests ultimatelywith the Prime Minister. Complaints from civilservants have to be made via departmentalpermanent secretaries who in turn have toapproach individual ministers. This isconsidered a cumbersome way of achieving theaccountability of special advisers.
Procedures in Place to Regulate Ethics
All of the countries in the study have formalprocedures in place to govern the conduct ofcivil servants. These are expressed as rules invarious pieces of legislation or asrecommendations in codes and guidelines.Furthermore, most countries have updatedthese core values and guidelines over the pastfive years. Their major challenge is how toensure consistent standards of behaviour whileat the same time allowing for unforeseensituations and specif ic departmentalcharacteristics. None has yet discovered apanacea for such regulation. New Zealand, withits range of documents stating expectedstandards of behaviour has, perhaps, comeclosest. For example, the country has a generalcode stating minimum standards, guidancematerial for different departments, statements ofexpected performance from departments,individual department codes and otherdocuments such as the Cabinet Office Manual,which includes advice for those working at thepolitical/administrative interface (in this case,special advisers).
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Furthermore, government departments in eachcountry possess internal control mechanisms,which incorporate annual reviews of ethicalpractice. Similarly, each parliament undertakesreviews of civi l service activit ies. Theempowerment of an independent commission(as in Ireland) to scrutinise poor administrationhas also become a popular tool of control.
Getting the balance right
The challenge is to get the balance rightbetween statutory specification of conduct andadvisory codes. This is known as the ‘vice andvirtue’ argument. Focusing on vice tends to leadto proposed solutions that involve strict forms oflegal regulation to better detect and therebydeter civil service misconduct.13 On the otherhand, analysts of ‘virtue’ seek to devisemotivational institutions and incentives that canrestore a commitment to ethical values amongcivil servants.14 This tends to manifest itself inthe issuing of codes of conduct coupled withindividual departmental awareness programmesand training initiatives.
The general view is that the best systemcombines the two. In attempting to legislate forunrealistically high standards of public virtue oneruns the risk of creating unworkable solutionsand public cynicism. On the contrary, no onewould wish to have a regime where standards ofcorruption were high, tolerated and unnoticed. Atpresent, virtue-ethics are in vogue, as can beseen from the plethora of codes of ethics thatour four comparators have developed. They area product of the search for something moresubstantial than the austere conflict-avoidanceapproach found in the self-regulatory regimesusually devised by political executives.15
All countries in this study make an effort tobalance the two approaches. All have PublicService Acts, which are frequently updated to takeethical values into account. For example, in1998, the Australian government updated itsPublic Service Values to take into account newregulations requiring departmental heads touphold and promote the revised Australian PublicService Values. In Ireland, a draft code ofconduct—which incorporates core public servicevalues—is under consideration by thegovernment. Both countries sought to involvethe existing civil service in helping draft therevisions through a method of consultation. Staff
took part in focus groups with ethics experts.This is not unlike the current consultativeprocess being undertaken by the WicksCommittee in the UK.
Communicating ethical guidelines
Surveys of civil servants often reveal that theyare unaware of ethical guidelines. Therefore, it isparticularly important that governments have aneffective method of communicating core valuesand changes in legislation. Some countries dobetter than others. Australia, Canada andIreland communicate core civil service values toemployees as soon as they take upemployment. This is done through the circulationof leaflets (Ireland) or via the internet (Australia).In Canada and New Zealand individualdepartments have ongoing training programmesto communicate and reinforce core values.Furthermore, human resource sections ofgovernment departments in Canada runimpromptu seminars on the latest ethicaldevelopments. While this is a productivedevelopment, it is essential that all countrieshave several channels of communication to civilservants so that ethical values can be absorbedin a clear and relevant way.
Statements of core values
Most statements of core values cover the sameissues. Conflict of interest prevention featureshighly, with sections on receiving gifts, benefitsand the use of official information. The issue ofworking outside the civil service is also widelycovered. Australia gives particular attention towhistleblowing while Canada has a lengthysection on political work. All countries make useof criminal codes to sanction corrupt behaviourby civil servants. These codes cover activecorruption, passive corruption, attemptedcorruption and partiality in decision making. InIreland, dedicated anti-corruption laws specifymore stringent standards for civil servants(Public Bodies Corrupt Practices Act, Prevention ofCorruption (Amendment) Act, Ethics in Public OfficeAct). This is more up to date than parallel UKlegislation (Public Bodies Corrupt Practices Act1889, Prevention of Corruption Act, 1916).
Role of human resources
All four countries emphasise that sound humanresources management plays a key role in
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promoting an ethical environment. This rangesfrom recruitment and promotion practices basedon merit to the employment of skilled humanresource officers who can communicate corevalues on a regular basis. For example, inAustralia, an evaluation of candidates’ ethicalstandards during interviews is carried out.Furthermore, pre-posting briefings are given bythe Australian Department of Foreign Affairs andTrade to raise awareness of ethics. Irish human-resources officers have a policy of payingspecial attention to civil servants working insectors particularly susceptible to corruptionsuch as the customs services and procurementdivisions. Here, staff are regularly rotated andare required to disclose financial interests.
Training on ethical issues
All countries in the study provide training to civilservants on ethical issues. Some differ onwhether training is voluntary or compulsory. InAustralia, training is mostly voluntary but can bemade compulsory if a department identifies aspecific need. The UK operates a similarsystem. Here, ethics is included in the inductiontraining for all new senior civil servants. InCanada and New Zealand training is voluntarybut defined by ministries and agencies. This isalso the case in Ireland where differentdepartments hold [irregular] training courses.
Canada, like the UK is keen on using newtechnology to assist in the training programme.The homepage run by the Office of the EthicsCounsellor in Canada gives access to the ruleson conflict of interest and post-employment forcivil servants. This is akin to the Cabinet Officewebsite in the UK, which gives specific ethics-related information. The Canadian versionallows civil servants as well as citizens to sendcomments and suggestions on current issues.Australia and New Zealand are also exploringhow new technology can help promote valuesand ethics. Both use interactive CD-ROMs fortraining purposes.
Reporting mechanisms
Since secrecy can lead to an environment ofcorruption, all four countries require civilservants to report misconduct and suspectedcorruption. This is known as ‘whistleblowing.’Australia and New Zealand, for example, use acombination of laws and internal rules. This is
much like the UK where departmental rulesdefine procedure while the Civil Service Codedetermines the specific matters that should bereported by public servants. All countries affordprotection to whistleblowers. In New Zealand,employment law guarantees protection. InAustralia legal provisions guarantee protectionbut only when the person concerned uses thecorrect reporting procedure and does notdisclose any information to the media. Thecountry also has a dedicated website forwhistleblowers. However none of theseprovisions match the force of the UK’s PublicInterest Disclosure Act which provides a widerange of protection for different circumstances.In Ireland a Whistleblowers Protection Bill was putbefore the Dáil in 1999 but was defeated.
In the UK there are a number of ways by which acivil servant can raise concerns about thebehaviour of special advisers. They can raisematters with their individual line managers, thenominated “appeals” officers within individualdepartments, or with the Permanent Secretary oftheir Department. The Permanent Secretary canraise the matter with the Cabinet Secretary whocan take complaints direct to the Prime Minister.
Investigating misconduct
Misconduct tends to be investigated byindividual ministries in the comparator countries.In some countries, such as Australia, theministry is required by law to hold an inquiry. InCanada, the Office of the Ethics Counsellor hasjurisdiction over civil servants and, whenrequested by the Prime Minister, may investigateethics related disputes. In Ireland, the Standardsin Public Office Commission, established underthe Standards in Public Office Act, 2001, has theright to investigate allegations of corrupt activity.The Commission is independent of government.If the Commission thinks that the individualunder investigation has committed an offence,he may be referred to the Director of PublicProsecutions. In cases where there is a possiblebreach of criminal law the police are brought in.This is also true of Australia and Canada.
Ireland is unusual in having a national ethicsstrategy that is included in the programme forgovernment. This gives priority for ensuring anenhanced policing mechanism for ethical issuesand is intended to strengthen public confidencein government. In the UK there is no national
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ethics plan due to the fact that individualagencies have developed their own internalarrangements.
Assessing ethical measures
The countries in this study have a variety ofmethods for assessing ethics measures. InAustralia, the Public Service Commissioner isrequired to report annually to Parliament on theextent to which the civil service is upholding thelegislated public values. In Ireland, the PublicOffices Commission provides an annual report onits activities to the Oireachtas (Parliament) andthe government. In New Zealand, the StateServices Commission makes assessments ofexpectations and standards of departmentalperformance. In Canada, assessment isundertaken by the Office of the Auditor Generalwhich reviews the various elements of the ethicsinfrastructure in individual ministries. In addition,the Office of the Ethics Counsellor provides adviceto public office holders.
Effective measures that promote accountability
The conclusion of the examination of the fourcomparator countries is that a combination of‘vice and virtue’ measures work best.Pragmatism is key. Countries such as NewZealand and Ireland which engage in extensivedialogue with civi l servants and whocommunicate ethical values in a variety of waystend to experience fewer problems.
It is clear that an enforceable set of standards ofconduct is one of the most powerful ways ofensuring ethical behaviour. Furthermore, aregular set of training programmes is necessaryin order to keep ethical issues prominent.
Regular updating of the existing legal frameworkis also an effective measure as is the drafting ofdifferent codes for different circumstances. Anexample is Canada’s Criminal Code and Conflictof Interest and Post-Employment Code.
Enhancing accountability and preventingmalpractice comes down to innovative andadaptive management techniques across thebody of the civil service. Management shouldeliminate detailed restrictions and take intoaccount the numerous variations and sideeffects that can occur in the daily round.
The biggest challenge is in managing thechanging interface between the public andprivate sectors. This is particularly the case inAustralia and New Zealand which, like the UK,have brought into the civil service more andmore private sector expertise. The experience ofboth these countries indicates that the greaterinvolvement of the private sector causesproblems. This is due to greater flexibility indecision-making as well as greaterdecentralisation.
Regulations covering special advisers
It is sometimes thought that ministers turn tospecial advisers because of suspicion of the civilservice or because ministers feel the need ofindependent policy advice to be able to directthe bureaucracy. Ministers need staff whounderstand their party and manifestocommitments and who are perceived to be moreresponsive to government demands than thecivil service. An alternative view about thegrowth of special advisers is that it has protectedthe civil service from governments that wish topoliticise its upper echelons.16 This is particularlythe case in Australia and New Zealand wheremore and more civil servants are being drafted infrom the private sector on short-term contracts.By giving ministers more staff to deal withpartisan issues it reduces the pressure ondepartment heads to be politically responsive.
There is little regulation of special advisers in allof our comparator countries despite the fact thattheir numbers are on the increase.
However, all countries are exploring ways toregulate special advisers and polit icalappointees. The New Zealand governmentissues a Cabinet Handbook for its members withsections on responsibility, ethics and conflict ofinterest issues. In Canada, the prime ministergives additional guidelines to ministers on theirappointment to cabinet covering ministers’relationship with the civil service and specialadvisers. There is also the Conflict of Interest andPost-Employment Code for Public Office Holderswhich set out conflict of interest guidelines forspecial advisers. The Code is backed by theadvice and reporting of the Office of the EthicsCounsellor.
In Ireland, special adviser conduct is legislatedfor in two separate pieces of legislation, the
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Ethics in Public Office Act, 1995 and the Standardsin Public Office Act, 2001. In addition theStandards Commission receives and considersthe annual statements of interests of theAttorney General, Ministerial special advisersand persons who hold designated directorshipsin the semi-state sector.17 Yet none of thecomparators have a Code of Conduct for SpecialAdvisers as exists in the UK which coversmatters such as the tasks which special adviserscan do, prevention of the use of resources forpolitical party purposes, contact with the mediaand the holding by advisers of political partyoffices. It also establishes a complaintsstructure.
Yet even prior to the Code’s introductionministerial staff were not unregulated. Thereexisted a Ministerial Code and a Model Contractfor Special Advisers, which, together with otherpolicies covered issues now consolidated intothe Code of Conduct.18 No other country issues amodel contract for special advisers.
In Canada, Ireland and New Zealand there is nohard evidence of special advisers frustrating thework of permanent civi l servants orcompromising their authority. Perhaps this is dueto the success of special advisers in thesecountries in differentiating their role from that ofthe civil service. In Australia though, recentscandals indicate evidence of tension withspecial advisers being accused of providinginappropriate ministerial advice. This could be afunction of the large number of special advisersemployed by Australian ministers compared withother countries. It could also be due to the poorregulatory regime. Australia has practically nocodes of conduct, legislation or guidancematerial to cover special advisers.
The recruitment of special advisers remains acontentious issue. In Australia and Canadaspecial adviser positions are publicly advertised.In the UK, Ireland and New Zealand specialadvisers are appointed personally by ministers.The UK government has recently concluded thatrequirement that special adviser posts beadvertised would deprive any incominggovernment of support from special advisers ata crucial time.19
The UK has also seen the introduction of trainingfor new special advisers in November 2002. Theprogramme covered the roles and
responsibil i t ies of special advisers andMinisterial codes, their relationships withindepartments and with the Prime Minister’s officeand their balancing of their political role. Specialadvisers are also being invited to attend theUK’s Engaging with Government programme. Thisis a programme designed for new senior-levelentrants to the civil service. It aims to give abroad understanding of the civil service andgovernment.
Lessons for the UKThe Changing Structure of Ministerial andCivil Service Relationships in the UK
The UK, like all Westminster systems hastraditionally had very close relationshipsbetween ministers and civil servants.20 The ideawas that a civil servant should be the ‘reciprocal’of the minister and that ministers and civilservants should be an organic unity for thepurposes of ministerial decision making.21 Civilservants had a duty to provide impartial adviceas well as instruct ministers on the legitimacy ofwhat they did. The criteria, though informal, weresimilar to more formal legal criteria for legitimacyin decision making.22 As long as theindependence of civil servants was coupled witha close ministerial relationship, neither statutenor formal regulations were required to definerelations between ministers and civil servants.
By the 1970s ministers became conscious offulfilling manifesto commitments and protectingthem from civil service negativism.23 Regularmeetings of ministers on their own started andpolitical advisers were recruited to review policyoutputs in the light of party policy. In the 1980sthe traditional relationship between ministersand civil servants altered even further. MargaretThatcher instinctively distrusted civil servantsand saw them as undermining the process ofgetting things done. Many ministers wereindifferent to statistics, research and analysisand the consequence was that civil servantsbecame less deliberative. Many of the brightestcivil servants left the profession, discouraged bydisparagement of the public sector and the lureof more money elsewhere.
The 1990s saw more changes. Senior civilservice numbers were reduced by 20-25 percentunder the Major administration. Ministers spentmore time courting the media and made an
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increased number of policy announcementsoutside parliament. Political advisers began toplay a different role in oiling the wheels ofgovernment. Ministers began to rely more onoutside opinion and analysis and civil servantswere increasingly left outside the loop.
The coming to power of the Blair administrationin 1997 brought about further change. Eighteenyears of opposition meant that almost nominister had prior experience. Many ministerscame in with a suspicion of civil servants. Mediarelations became even more important andLabour ministers spent more time than theirpredecessors with special advisers and lobbies.Therefore, many ministers and their advisers feltthey did not need the civil service as much astheir predecessors had done. Issues began tobe settled after elaboration in policy networks inwhich the prime minister, ministers and specialadvisers played leading roles with varyingweight. Yet the civil service’s role in co-ordinating these networks declined. The numberof special advisers doubled and their position ingovernment was enhanced. Parliament becameless of a consideration for ministers in policy anddecision making. Ministers still needed and gotcivil service help with the unexpected but theywere less inclined to rely on it in their dealingswith the Prime Minister ’s office, cabinet,parliament, the media and outside interests.Some civil servants joined special advisers andothers in a formal cabinet style relation withministers but were expected to agree with andnot challenge policies.
This has had an undoubted effect on the qualityof legislation and has made the structure ofimplementing policies haphazard. Civil servantshave certainly lost out, especially those thatwere closest to ministers. One consequence ofthis has been a decline in the attractions of civilservice employment. It can be argued thatministers have also lost out in that they find itmore difficult to ensure that contrary points ofview are considered in policy making and thatlegislation entering parliament is well drafted.
The Committee on Standards in Public Life
The Committee on Standards in Public Life wasset up in 1995 as a response to perceivedunethical behaviour in government. It drew upseven principles of public l i fe namelyselflessness, integrity, objectivity, accountability,
openness, honesty and leadership. Theseprinciples emphasise that there is a moralthreshold between representation andresponsibility and that public office holders havea higher set of responsibilities than others. TheCommittee has recently released its 9th reportwhich discusses the regulation of ministers,special advisers and the permanent civilservice.24
The difficulty with the seven principles is thatthey are not legally binding but for guidanceonly. It was thought that if ethical principles wereset out in law it would involve both complexdrafting and instances of lawyers attempting tofind loopholes in the regulations. There is acertain overlap between the principles and someare vague, but public office holders do seem tounderstand them and do their best to adhere tothem. The principles do not distinguish betweenpoliticians and civil servants.
Ministerial Accountability
The UK has a ministerial code covering variousaspects of ethical conduct. It is regularly revisedto take into account new provisions. While othercountries have similar guidelines they tend to beless extensive and less subject to revision. Inorder to take account of changes in ministerialresponsibility and relationships with the civilservice and special advisers, best practice is tocontinue the regular review and updating of thecode. However it may be that appropriatelegislative weight should be attached to the codein order to avoid a Canadian-type scenariowhere unethical behaviour might occur due tothe limited enforcement powers of the EthicsCounsellor. An alternative measure might be tocreate an independent policing agent to overseecodes of conduct which would not need statutoryauthority to be effective. Moreover, thecombination of statutory authority andparliamentary monitoring of breaches inministerial conduct is currently proving effectivein Ireland as evidenced by the recentprosecution of a minister in the Dáil through thepowers of the Standards in Public Office Act, 2001.
The Committee on Standards in Public Life in its9th report, issued in April 2003, suggested thatthe current UK ministerial code is unclear andthat it is not forceful enough in promoting ethicalconduct. The Committee recommended that thesubstantive material on issues of conduct should
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Table 2. Legal Prohibitions and Restrictions for Public Officials24
Australia Canada Ireland New Zealand UK
Violation of confidentiality; unauthoriseduse of confidential information
Exercising influence in return forinducements
Prohibition of accepting gifts/benefits
Restriction on political activity
Making false statements to misleadofficials; falsifying public documents
form a new ministerial code. The Committeealso recommended that the Civil ServiceCommission appoint an adviser on ministerialinterests, for a fixed term. Such a person wouldadvise an incoming minister on the prevention ofconflict of interest as well as having the power toconsult the minister’s permanent secretaryabout departmental business to ascertainwhether a conflict of interest may exist. Theadviser would then refer any breach orallegation of a breach to the Prime Minister. TheCommittee also suggested that at the beginningof each Parliament the Prime Minister, inconsultation with opposition parties, shouldnominate two or three individuals of seniorstanding to carry out an investigation into anyallegation of ministerial misconduct.
Legal Regulation of the Civil Service
Table 2 (above) gives a summary of the statutoryprohibitions imposed on civil servants. We seethat the UK has legal provision against theviolation of confidentiality and the acceptance ofgifts. The other provisions are contained withinthe civil service code but are not legislated for.This could be achieved if a Civil Service Act wereto be passed in the UK. Since the comparatorstudy showed that effective measures combinea selection of guidelines, departmental briefings,legislation and human resource management,statutory regulation would need to beaccompanied by such measures. The UK couldfollow the example of Australia and NewZealand by establishing regular trainingsessions on ethical conduct. It could also makefull use of new technology such as departmentalintranets to communicate values. There is nopanacea for ensuring high standards of civilservice accountability. Perhaps the most
effective long-term measure is to combinecodes, legislation and training to promote aninstitutional culture of ethical awareness. Whilethis takes time and patience it is difficult toidentify an alternative short-term solution.
A selection of recommendations have recentlybeen put forward by the Government.26 Forinstance it has recommended that it should beeasier for civil servants to raise their concernsand that the process should be refined to make itless intimidating. The Committee on Standardsin Public l i fe has also made a set ofrecommendations on how to promote civilservice accountability. It believes that the civilservice should be established in statute under aCivil Service Act which would define the status ofthe civil service, set out core values and definethe status of special advisers as a category ofgovernment servant distinct from the civilservice. The report also recommends that thegovernment should establish a register ofdepartmental nominated officers to whom anycivil servant may go if he or she believes that heor she is being required to act in a way which isinconsistent with the Civil Service Code.
Special Advisers
The present Labour government in the UK hashad attention drawn to special advisers. Thelatest round started with the leaking of an emailfrom Jo Moore, special adviser to StephenByers, in which she suggested that the 11September disaster might be a good day to ‘burybad news.’ It was added to with the publicationof emails by her fellow special adviser, DanCorry which were seeking information about themotives of the leaders of the Paddington railcrash survivors group.
18
The UK’s Code of Conduct for Special Advisers is adetailed document setting out the jobspecification, status, political responsibilities andrelations with government of special advisers.As such it intends to provide as comprehensivea set of guidelines as possible without recourseto legislation. In this respect the UK is far inadvance of other countries, none of which haveas extensive a code or set of guidelines. In orderto tighten up adherence to the code the UKshould, indeed, have it included as part of arevised Civil Service Act. Other than that, it couldfollow the Irish example and draft a specificEthics in Public Office Act with parliamentaryoversight and sections covering the specificconduct of special advisers.
The government has recently recommendedthat the system for handling disputes betweenministers, special advisers and civil servantsshould be reviewed. It believes that the ultimateresponsibility for disciplining an individualspecial adviser should fall to the minister whomade the appointment. There are also proposalsfor parliamentary regulation of the numbers ofadvisers and that these should be set byparliament at the beginning of each newparliament.27
The Committee on Standards in Public Life intheir 9th report also recommended measures toimprove special adviser accountability. TheCommittee suggested that special advisersshould be defined as a category of governmentservant distinct from the civil service. This wouldhelp reflect the fact that their role is to serveministers in a more personal and politicalcapacity than members of the permanent civilservice. The Committee also recommended thata clear statement of what special adviserscannot do should be set out in primarylegislation. In addition, it suggests that the totalnumber of advisers be limited by statute, with anupper limit subject to alteration by resolutionapproved by both Houses of Parliament. Thisrecommendation was prompted by the largeincrease in special advisers over the years. TheCommittee proposed that the management ofspecial advisers in Number 10 should beadministered by the most senior adviser in thePrime Minister’s Office and that this personshould ensure that special advisers appointedby the Prime Minister comply with the Code ofConduct for Special Advisers. Also, those specialadvisers in the Prime Minister’s Office holding
executive powers should only have a limited rolein the line management of civil servants.
It is difficult to know whether special advisers arealways as influential as is sometimes suggestedor whether they merely enjoy a privilegedposition. The evidence suggests that someindividuals exercise a considerable amount ofinfluence on political leaders. In the UK, theconcentration of special advisers in the Office ofthe Prime Minister provides them with aconsiderable amount of influence. It is up toindividual Prime Ministers how they wish tostructure their offices and a future incumbentmay wish to reduce the role of special advisers.However, given their steady rise over the yearscoupled with a weakening of the role of civilservants it seems likely that special advisers willremain influential.
ConclusionEthical codes need to be sustainable anddifficult to reverse. This requires proponentsfrom both inside and outside the system to helpbolster support for new ethics-relatedinstitutions. Ethical guidelines should not simplybe reactions to particular scandals, instead thereneeds to be a long-term process of ethicaleducation. Voluntary compliance is the key tomaking the regime work in the long term.
It might be thought that a Civil Service Act wouldmake codes of conduct enforceable and ensurethat they were paid more than a passingobservance. So far there is little evidence on theefficacy of codes enshrined in legislation. Irelandhas recently passed laws relating to standards inpublic office encompassing ministers, civilservants and special advisers. It is also draftinga set of codes of conduct applicable to each. Yetit will take more time to properly assess theimpact of this legislation on public serviceaccountability.
Promoting the accountability of special advisersis more difficult. Special advisers are notsocialised by training into an ethical culture inthe manner of permanent civil servants. Thesuggestion by the Wicks Committee in their 9thReport that the role of special advisers be moreclearly defined is a sensible one. Although it isimpossible to compile an exhaustive list of whatspecial advisers do, they should be subject toterms of service which preserve the relevant
19
1 Hansard (HC) 22 January 2001, col 469W and 21 November 2001, col 340W2 Maley, M. 2000. “Too Many of Too Few? The Increase in Federal Ministerial Advisers 1972-1999” Australian
Journal of Public Administration 59(4): pp.48-533 Source: Information obtained from Canadian ministries4 Source: Institute of Public Administration, Dublin5 Source: The Dominion, Wellington, 25 April 20026 In Ireland the number of cabinet ministers is constitutionally limited to 157 Measuring the precise number of special advisers in different countries can be problematic. In part this
derives from different definitions of special advisers. For example, Australia counts special advisers (knownas ministerial staff) as policy advisers, media advisers, consultants and electorate staff. In contrast the UKcategorises as special advisers those political appointees whose purpose is providing advice to a Minister.
8 Fleming and Holland. 2001. p.2069 Dunleavy, P. and C. Hood. 1994. “From old public organisation to new public management.” Public Money
and Management July-Sept. pp.9-1610 Laegreid, P. 2000. “Top Civil Servants Under Contract.” Public Administration, Vol. 78 No. 4 pp.879-89611 Considine, M. 2002. “The End of the Line? Accountable Governance in the Age of Networks, Partnerships
and Joined-Up Services” Governance 15 (1) pp.21-4012 Committee on Standards in Public Life. 2002. Defining the Boundaries within the Executive: Ministers, Special
Advisers and the Permanent Civil Service. Issues and Questions Paper.13 Uhr, J. 2001. “Moderating Ministerial Ethics: Putting Political Ethics in its Place” in Fleming, J and I.
Holland. (eds.) Motivating Ministers to Morality Dartmouth: Ashgate14 Chapman, J. and Galston, W. 1992. Virtue: Nomos 34. New York: NY University Press.15 Uhr, J. 2001. p. 5116 Weller, P. 2001. Australia’s Mandarins: The Frank and the Fearless? St Leonards: Allen and Unwin17 See the Standards Commission Website: http://www.sipo.gov.ie/227e_246.htm18 Daintith, T. 2002. ‘A very good day to get out anything we want to bury’ Public Law, Spring 2002, pp.13-2119 Cabinet Office. 2003. ‘Government Response to the Public Administration Select Committee’s Eighth
Report of the 2001-02 Season “These Unfortunate Events” [HC 303]20 Haldane of Clone, Viscount. 1918. Report on the Machinery of Government Committee.21 Hennessy, P. 1989. Whitehall. London: Free Press22 Foster, C.D. 2000. ‘The encroachment of law on politics’, Parliamentary Affairs, Vol. 53, No. 223 Foster, C.D. 2001. ‘The Civil Service Under Stress: The Fall in Civil Service Power and Authority’ Public
Administration 79, No.3, pp.725-74924 Committee on Standards in Public Life. 2003. Defining the Boundaries within the Executive: Ministers, Special
Advisers and the permanent Civil Service. London: The Stationary Office25 OECD. 2000. Trust in Government: Ethics Measures in OECD Countries. Paris: OECD Publications. p.4226 Cabinet Office. 2003. ‘Government Response to the Public Administration Select Committee’s Eighth
Report of the 2001-02 Season “These Unfortunate Events” [HC 303]27 UK Cabinet Office, Portrait of a Profession Revisited, Speech by Sir Richard Wilson, 26 March 2002, http://
www.cabinet-office.gov.uk/2002/senior/speech.htm
elements from civil service codes of conduct.Other countries might emulate the UK in draftinga separate code of conduct for special advisers.It should not be forgotten that responsibility forthe conduct of special advisers lies withindividual ministers. Ministers choose specialadvisers and direct their work. In accordance
with the recommendations of the Wickscommittee, ministerial codes of conduct shouldclarify this responsibility. Special advisers shouldalso be given regular training.
20
21
This section sets out the accountabil i tyregulations for ministers, civil servants andspecial advisers. It discusses the advantagesand disadvantages of each. In generalAustralian ministerial regulation is not asdetailed as some others due to a loosely wordedMinisterial Code. Civil service ethics are wellprovided for while it may be necessary toimprove accountability measures for specialadvisers.
The Structure of a Ministerial Office
All ministerial offices are located in Canberra, inone section of the Parliament House building. Ministers are also entitled to a small office intheir constituency where they can work onministerial business. Civil servants and specialadvisers frequently travel to the minister’sconstituency office for consultations on portfoliobusiness.
The only non-political appointees in minister’soffices are Departmental Liaison Officers (DLOs),who are few in number and are not understood
Australia
Table 1: Regulatory Milestones
1922 Public Service Act Initial legislation covering civil serviceaccountability
1981 Cabinet Handbook Issued Set out guidelines for ministers
1984 Public Service Reform Act; MeritProtection Act
Allows for the investigation of grievanceslodged by public servants
1984 Members of Parliament (Staff) Act Enables ministers to employ special advisers
1995 The Public Service Commission and theMerit Protection Review Agency are joinedto form the Public Service and MeritProtection Commission (PSMPC)
1995 Guidelines on Official Conduct for theAustralian Public Service
Published by the Australian Public ServiceCommission, set out rights andresponsibilities of civil servants.
1996 Workplace Relations Act
1996 Code of Conduct for Ministers Introduced by Prime Minister, John Howard totighten ministerial conduct
1997 Financial Management and AccountabilityAct, Commonwealth Authorities andCompanies Act, Auditor General Act
Variety of legislation that indirectly promotescivil service accountability
1999 Public Service Act Large scale revision of 1922 Act. Sets outcivil service structure
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to be ministerial staff - they are departmentalofficials placed in the minister ’s office foradministrative/liaison purposes under thedirection of the minister. DLO’s are neverincluded when compiling numbers of ministerialstaff.
A typical junior minister would have between 4and 7 ministerial staff (plus 1 DLO), while atypical senior minister would have between 7-13ministerial staff, (plus 2 DLOs).
In 2001, for example, a junior minister with 4staff had a chief of staff, media adviser, generaladviser and office manager (plus 1 DLO). Asenior minister with 8 staff had a chief of staff,media adviser, 3 advisers, 1 assistant adviser, 1personal secretary, 1 receptionist (plus 2DLOs). The only “permanent civil servants” arethe DLOs.
I. Ministerial RegulationThe first set of codified rules for Australianministers was issued in 1981. The CabinetHandbook was a loose-leaf folder containing astatement of cabinet principles, procedures forsubmissions and guidelines for dealing with thepress. The only reference to personal behaviourwas the requirement for declarations of interestsfrom ministers and their immediate families ifthese interests were thought to conflict withpublic duty.1 The handbook was a confidentialdocument but was published in the May 1982edition of the Australian Journal of PoliticalScience. It was then published officially by thegovernment in 1983 and revised in 1988.
The 1988 edition expanded the section ondeclaration of interests. Ministers were nowrequired to give the Prime Minister an annualreturn of their private interests and, as far asthey were aware of them, the interests of theirimmediate family. The onus was on the PrimeMinister to be the judge of ethical irregularity butthe document made clear that the onus was onindividual ministers to report any potentialproblem.
In 1996 the then prime minister, John Howard,implemented a Code of Conduct for Ministers aspart of a manifesto commitment to cleaning upgovernment. The Code has two parts. The firstpart represents an interpretation of Westminsterconventions of government and discusses
Cabinet, the Ministry and the Executive Council.The second part sets out guidelines forministerial conduct, ministerial staff conduct,facilities and services for ministers and so on.The emphasis of the section on ministerialconduct is on preventing situations of conflict ofinterest. In cases of doubt, the minister is told toconsult the Prime Minister.2
However, the issue of the Code did not preventissues of unethical behaviour arising. Between1996 and 1998 eight ministers either resigned orwere sacked.3 In response to this, Howardsought to defuse the situation by altering theway the Code was applied and by relaxingrestrictions on share ownership andinvestments.4 However this was criticised sinceit put ethical questions surrounding ministers atthe discretion of the prime minister. Evidenceelsewhere suggests that discretion can causean ethical problem in itself and can increase theincentive to undertake corrupt behaviour.5 Thishas the potential to create a situation whereministers might bend the rules, knowing thatthey can influence the Prime Minister to use hispowers of discretion.
The Australian government also employs anAuditor General to scrutinise the ethicalbehaviour of ministers. He has wide inquisitorialpowers to summon officials and inspect records.However, the officer is appointed by the Prime-Minister through the Governor-General and hasnever been advertised. Furthermore, Auditors-General tend not to investigate issues ofministerial ethics.6 This is because their powerstend to be limited, even under the recentlyrevived Auditor General Act, 1997.7 For example,while the Auditor General can extend aninvestigation to include certain aspects ofministerial behaviour, the matter must bereferred by the prime minister with the ministersthen agreeing to co-operate with theinvestigation.
In the Australian parliamentary system theSenate committee system is responsible for thegreatest scrutiny of government actions.8 This isbecause the Senate often grants its committeesconsiderable powers to obtain documents andcall witnesses. Furthermore the governmentseldom has a majority of Senators on selectcommittees established to inquire intocontroversial matters.
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II. The Australian Civil ServiceThe Australian civil service dates from theformation of the federation in 1901. Formerly, sixseparate colonial systems operatedindependently. Since then, it has gone throughseveral periods of reform. This has resulted inthe widespread adoption of private sectorprinciples. For example, contractualappointments and secondees from the privatesector are now common in the civil servicealthough many feel that the transition away fromtraditional administrative practices is provingslow.9
Traditionally, the Australian civil service prideditself on its neutrality and willingness to serveregardless of partisan considerations. However,since the 1970s this model has been eroded andthe influence of politicians has expanded.10 TheHawke Labor government of 1983 installed acomprehensive set of political mechanisms atcabinet and ministerial level.11 These reformsrefocused the cabinet system in that ministerialstaff took over some roles previously undertakenby senior public servants. Similarly, ministerialstaff increasingly replaced civil servants aspolicy advisers. It is possible that this had theeffect of limiting the role of the senior civilservant.
Further reform touched upon the job security ofthe civil service. Greater competition wasengendered by increasing the opportunities forexternal entry. Tenure was reduced and morecivi l servants were given contractualappointments. In 1994, the Public Service Act,1922, was amended to provide for fixed-termstatutory appointments for permanentsecretaries. This measure met with strongopposition from senior civil servants, despite thesalary increases brought in by the new system.One of the strongest concerns was that fixed-term contracts would unduly politicise the civilservice.12
The most recent change has been the repeal ofthe 1922 Act in 1999. This was primarilyamended due to the 1922 Act having becomeboth complex and fragmented as well as notproviding for the ‘managerial’ style of civilservice that had evolved since the 1980’s.
Accountability within the civil service
In Australia as in the UK, there are frequentassertions that the civil service is becomingpoliticised. The assumption is that there isevidence of partisan alignment in appointmentsand promotions and that the link betweenpolitical and administrative life is growing.13
However, direct evidence of this is hard to comeby. For instance, senior civil servants are onlyappointed and promoted with the agreement ofthe Public Service Commissioner who isstatutorily independent and is himself involved inthe selection process.14 Similarly, the PublicService Act, 1999 contains a prohibition againstministers seeking to influence appointments. Yetministers are involved in the selection ofdepartment secretaries who themselves are onfixed-term 5 year appointments. However it issuggested that it is impossible to expect the civilservice to be completely apolitical since they arerequired to remain up-to-date with the politicalenvironment and the objectives of thegovernment of the day in order to providecomprehensive advice.
Successive Australian government have beenkeen to increase the accountability of senior civilservants. In response to this the ManagementAdvisory Board of the Australian Public Servicehas suggested that:
‘In deciding whether a particular action is ethical,public servants should consider whether theimpact of the decision will be fair, whether theaction is guided by responsiveness to the needsof the community and the government, whetherthey would be happy to have the action madepublic, and whether they could easily justify theaction if called on to do so.’15
Despite being bound to act ethically, the difficultyfor civil servants is that the situation is often notclear-cut. The requirements of variousprogrammes can be interpreted in different waysand there are many occasions when publicservants and ministers differ in theirinterpretation of legal requirements. It would bedifficult to legislate in this area. For instance it isnot clear what exactly would legitimise a seniorcivil servant’s view of the common good againstthat of the democratically elected governmentwhich is then held accountable for itsdecisions.16
24
Statutory Regulation of Australian CivilService
In 1995, the Australian Public ServiceCommission (APS) published Guidelines onOfficial Conduct of Commonwealth Public Services.This gives an overview of the rights andresponsibilities of civil servants when dealingwith the public, ministers and Parliament. TheGuidelines admit that they do not have theanswer to every ethical problem that may arisebut that they provide a set of principles that atleast point the way towards an answer.
Much of the material contained within theguidelines is based on legislation. The mostimportant pieces of legislation touching on civilservice regulation are the Public Service Act,1922; the Public Service Act, 1999; Public ServiceRegulations, 1999 and the Crimes Act, 1914. Staffof ministers, including ministerial consultants areemployed under the Members of Parliament (Staff)Act 1984 administered by the Department ofAdministrative Services.
The Public Service Act 199917
In many respects, the Public Service Act 1999represents the culmination of the changes thathad already occurred over the previous 20years. Most powers under the old Act hadalready been devolved, but the new Actconfirmed explicitly that heads of departmentsare responsible for their juniors. The Act alsoestablished the Australian Public Service (APS)Values, (see below) with minor modifications fromearlier work, and the APS Code of Conduct, againdrawing on existing regulations setting out the“duties of officers”.
The Public Service Act 1999 sets out:
• the important values and culture theParliament wants in the APS (see Act Part3);
• the role and powers of Agency Heads, andtheir relationship to Ministers, in a clearand public way;
• a clear statement to those within the APS,and to the Australian people, of theconduct that is expected of public servants(see Act cl.13);
• significant new inquiry, evaluation andreporting powers for the Public ServiceCommissioner (see Act Part 5 Division 1);
• an independent mechanism for review ofemployment actions affecting theemployment of an APS employee (see Actcl.33 and Act Part 6); and
• a mechanism by which Governmentdecisions on administrative arrangementsand re-organizations can be implemented(see Act Part 10).
Other Legislative Items
The Ombudsman Act 197618
• Allows for investigation into complaints,generally made by the public, about pooradministration in Commonwealthagencies
The Merit Protection (Australian GovernmentEmployees Act) 198419
• Allows for the investigation of grievanceslodged by public servants and appealsagainst certain employment relateddecisions
Administrative Decisions (Judicial Review) Act197720
• Provides for the investigation ofcomplaints against processes used inmaking decisions in Commonwealthagencies
Financial Management and Accountability Act199721
• Requires Agency Heads to manage theirorganisations in ways that promote theefficient, effective and ethical use ofresources
Freedom of Information Act1982 22
• Allows individuals to apply for access toinformation held by commonwealthagencies
Privacy Act 200123
• Requires Commonwealth agencies toprotect the confidentiality of individuals’personal information subject to certainexpectations
The Australian Public Services Commission(APS)24
The Public Service and Merit ProtectionCommission (PSMPC) changed its name in June2002 to the Australian Public ServicesCommission (APS). It provides advice and
25
guidance to agencies rather than laying downprescriptive rules. It seeks to work in partnershipwith agencies to identify, develop, pilot andpromote good practices in public administration.
In summary, the PSMPC’s role involves:
• Providing advice to the government on theAustralian civil service;
• Administering, and facil i tatingunderstanding of, relevant legislation,particularly the PS Act 1999 andsubordinate legislation made under thatAct;
• Providing advice to departmental headsand managers on strategic peoplemanagement and organisationalperformance;
• Supporting the implementation ofgovernment policy on the APS in matterssuch as the APS Values, the Code ofConduct, and workplace diversity;
• Monitoring and analysing issues, trendsand innovations in people management;
• Contributing to effective leadership in theAPS, and facil i tating and providingService-wide development and training tomeet current and emerging needs;
• Reviewing actions affecting APSemployees in their employment;
• Evaluating and reporting on theperformance of the APS through thePublic Service Commissioner’s State ofthe Service Report; and
• Making information on the nature andcomposition of the APS accessible to thecommunity.
Guidelines Issued to Improve Civil ServiceConduct
In 1993 the APS Management Advisory Board(MAB) published “Building a Better Public Service”which articulated for the first time a set of corevalues for the Australian civil service.25 Thesesupplemented previous sets of values byemphasising responsiveness to government, aclose focus on results and continuousimprovement in performance through individualsand teams.
The Guidelines also advise on merit as the basisfor staffing, how to achieve accountability,serving the government and public ethically,public comment on political and social issues,
conflict of interest and outside employment whileworking in the public service.
Other key civil service guidelines include:
• Performance Management in the APS: AStrategic Framework, 2001. Provides ameans to recognise and reward goodperformance and to manage under-performance.
• Managing Breaches of the APS Code ofConduct, 2002. Provides advice andguidance to Agency Heads and humanresources practitioners on developingprocedures for determining whether anAPS employee has breached the Code ofConduct.26
• Outsourcing Principles, Guidelines and GoodPractice, 1998. This includes a requirementfor probity standards to be adhered to.
• Ethical Standards and Values in the APS,1996. This document provides guidanceon expected ethical standards for publicservants supported by specific casestudies. It illustrates the complexity of thedecisions that civil servants have to make.
The APS Values and Code of Conduct27
These values are designed to maintain theAustralian civil service as an apolitical impartial,professional organisation that is responsive tothe elected government as well as openlyaccountable within the framework of Ministerialresponsibility.
Other provisions that define the APS relationshipwith the government include the obligation tomaintain appropriate confidentiality with anyminister or minister’s member of staff and therequirement to use Commonwealth resources ina proper manner.
Relationships with the public emphasiseachieving results, adding value and managingperformance, as well as the need to be fair,impartial and courteous.
In terms of personal behaviour, the APS isobliged to have the “highest ethical standards”.In addition, the code emphasises the need toexercise care and encourages familiarity withthe procedures for identifying and addressingethical dilemmas. The Public ServicesCommissioner is required to conduct an annualevaluation for Parliament of the extent to which
26
agencies incorporate the APS values and theadequacy of systems to maintain standards.
Although the range of sanctions, includingtermination of employment, form an integral partof any misconduct process, imposing sanctionsis not primarily about ‘punishing’ an employeewho has failed to meet the required standards ofconduct.
Sanctions are intended to be proportionate tothe nature of the breach and in some cases willsignify that the agency no longer has confidencethat the employee has the appropriate qualitiesto perform certain duties. Sanctions also operateas a deterrent to others and confirm thatmisconduct is not tolerated in the agency.
Not all breaches of the Code are the subject offormal action. Depending on the seriousness ofthe conduct, the employee’s employment historyand an assessment of whether the incident islikely to be an isolated one, a manager has thediscretion to consider counselling or a warningto be more appropriate. Other actions, such asspecific training, varying the employee’s dutiesor line of reporting, may also be considered.
Communicating Ethics to Civil Servants28
• Core values are automatically provided tonew employees in the public service;
• Induction programmes and performancemanagement arrangements are organisedon a departmental basis;
• The statement of core values is usuallypart of the employment contract/document.
• APS values are stated in staff newsletters
Training is the responsibility of each department.Most training is voluntary although sometimes itbecomes compulsory when a departmentidentifies a particular need. The content oftraining varies, depending on the audience. Itcan range from raising awareness of ethicsprinciples to fraud investigation training andtraining on handling breaches of the Code.
For the 2001 State of the Service Report, thePSMPC asked agencies to conduct surveys totest staff understanding of the Values and Code ofConduct. This revealed that staff understoodmost of the values, but that there were someworrying levels of unease about the application
of the merit principle and fairness in thetreatment of staff. The suspicion is that manyemployees are not yet familiar with the fact thatthe application of the Values and Code of Conductis through departmental systems andprocedures. Similarly, staff concerns about theapplication of the values focus on those clausesthat affect them directly and not enough onclauses that are more central to responsibilitiestowards government, parliament and the public.
Human Resource Departments
Human resource sections in different governmentdepartments have a variety of mechanisms topromote ethical behaviour. These include:• Providing rules/guidelines/policies for
recruitment and promotion procedures;
• Taking ethical considerations into accountin the recruitment process;
• Considering ethical behaviour in theperformance appraisal.
Disclosure Policy
All civil servants are required, by the Code ofConduct, to disclose to their managers actual orpotential conflicts of interest and then to takereasonable steps to remove the conflict.Members of the Senior Executive Service (SES)are required to complete a ‘Return of PrivateInterests’ and lodge it with their department. Thiscovers assets, gifts, outside pensions,investments, real estate, shares and sponsoredtravel.
Whistleblowing
There is a whistleblowing scheme in placewhereby civil servants may disclose to theirdepartments alleged breaches of the Code ofConduct. Except where the allegations areconsidered frivolous or vexatious, agencies arerequired to investigate the disclosure and toensure that the findings are dealt with as soonas practicable.29
Annual Reports
The Public Service Commissioner provides areport to Parliament on the state of ethics in thepublic service at the end of each financial year.The report details the extent to which publicservice agencies are upholding the APS values
27
and the adequacy of their procedures forensuring compliance with the Code of Conduct.
III. Special AdvisersMost summaries of Australian government viewthe role of the ministerial adviser as offeringalternative, politically orientated advice andstrategy to ministers.30 In 1976, the RoyalCommission on Government Administration(RCAGA) commissioned research on ministerialadvisers and their activities in governmentdepartments. The report was based on theresults of two main research papers thatsurveyed advisers and analysed their roles.31
There have been several reviews of the topicsince.32
History
The Royal Commission recognised that until the1970s, ministerial offices had traditionally beenstaffed by seconded, non-partisan civil servants.The Whitlam administration in 1972 began tointroduce partisans into ministries largely toprovide advice of a political nature. Graduallythe advisers became more institutionalised andwere regarded as a route into parliament by theambitious.33 Many civil servants interviewed bythe RCAGA saw this as a sinister developmentthat could potentially undermine the authority ofthe senior civil servant.
In response, the RCAGA stressed that specialadvisers should focus on liaison rather thanpolicy advising. It did not generally favour policyadvisers in ministers’ offices and recommendedthat ministers should make use of thepermanent civil service when seeking policyadvice.34 The civil service itself went further andsuggested that the new system of advisers beabandoned.
This advice was largely heeded when Frasercame to power in 1975. He reduced the numberof special advisers and replaced them withseconded civil servants. Ironically, the numbersof special advisers were increased in Fraser’sown office, which served to keep the conceptalive.35 By the time the Hawke government waselected in 1983, special advisers were back onthe agenda. The administration sought to boostpolitical influence in policy making and therebysought to increase the number of ministerialadvisers.36
In the 12 years between the Hawke and Keatinggovernments, the number of special advisersgrew by 63 percent. During this time, theybecame more and more important in policymaking, becoming pivotal actors betweenministers and the executive.37 While the firstHoward administration in 1996 initially reducedthe number of special advisers, the presentadministration has once again seen theirnumbers grow.
Geography plays a major part in accounting forthe increase in Australian special advisers.38 InCanberra ministers almost never work out oftheir departments, unlike their Brit ishcounterparts. If departmental secretaries want tosee ministers they have to travel acrossCanberra to Parliament House. In contrast,special advisers have their offices outside theministers’. Proximity provides the immediatecapacity to exercise influence and makes itharder for the departmental secretary to developa close relationship with the minister andmaintain control over policy advice.
Background of Australian Special Advisers
In 1995-96 a major study was undertaken ofministerial advisers working for the Keatinggovernment. The study aimed to track thegrowth and development in the role that advisersplayed generally in government over the Labourperiod 1983-96.39
About half tend to be seconded from the publicservice while around 60 percent tend to bemembers of the governing party. In 20 years thepercentage of female advisers has doubled, ashas the average age. In the 1970s most adviserswere in their 20s, now most are in their 40s.40
Furthermore, advisers today tend to be moreexperienced. Around half have previouslyworked as an adviser to a state or federalminister whereas only 20 percent of the Whitlamadvisers had any previous advisory experience.
Australia differs from the UK in that it isacceptable for public servants to go to work inclearly partisan roles in minister’s offices andreturn to work in the public service. In fact,special advisers coming from the public serviceare highly prized since they are deemed to bringvalued expertise. Prime-Minister John Howard,for example, recently described public servantsas the ‘ideal’ ministerial advisers.
28
Roles of Special Advisers
Most Australian special advisers see their jobsas essentially short-term although a small cohorthave made longer careers out of the position.41
Many move in and out of adviser jobs over along period, combining it with work in the publicservice, the private sector and academia. Mostspecial advisers see themselves as workingclosely with the civil service in generating policyideas and implementation. Yet the 1995-96study also identified five separate roles wherespecial advisers thought they had unique skills.These were:42
• Agenda setting—Helping ministers set outfuture policy directions and liasing directlywith interest groups;
• Linking ideas, interests andopportunities—Recognising and creatingpolicy opportunities in government andmaintaining strategic contacts;
• Mobilising—Making sure proposals get offthe ground, acquiring political support forproposals, lobbying the most powerfuladvisers in PM office, Finance Minister’soffice and Treasurer’s office;
• Bargaining—Ministers solve most policydisputes outside of Cabinet. Advisershave become executive level negotiatorswithin government in order to freeministers for higher-level negotiations;
• Delivering—Making sure that governmentagenda gets implemented, making surepolicy proposals make it all the waythrough the legislative process.
Ministerial advisers have had their statusincreased over the years. They are gradedhigher than civil servants and receive better pay.The proportion of ministerial advisers occupyingthe top two classifications has risen from 12.7percent in 1988 to 18.7 percent in 1999.43
Thus, in Australia, advisers cannot be viewed asperipheral actors in policy making. Their policyroles are determined by their location withingovernment but since they are involved in theirministers’ overlapping relationships with variousactors, advisers are extremely important. Theydeal with different information, agendas andpolicy goals from permanent civil servants andthey can enhance ministers’ capacity toinfluence policy actors in different organisations.
Numbers
As in most other countries, the number ofspecial advisers in Australia has increased overthe years. Yet there are various problems withmeasuring their exact number. Some analysishas focussed specifically on the use of ‘advisers’while others have looked at all staff, includingsecretaries and constituency staff that arguablyhave nothing to do with ministers’ executiveresponsibilities.44 Table 2 (below) shows thenumber of staff described as ministerial advisers1972 and 1999. These figures do not includemedia advisers or administrative support staff.
The table shows an increase in advisory staff of81 percent between the early days of the Hawkegovernment and the Keating government. If thenumber of ministers is taken into account, theproportionate increase is lower at 63 percent.Although the number of advisers has increased,growth has also come in other areas includingadministrative staff and constituency personnel.The large increase in the number of advisersfrom the Keating period onwards is primarily dueto the creation of parliamentary secretaries whoare allowed to recruit their own staff.46
Parliamentary secretaries undertake tasksdelegated by a minister and are able to take therole of the minister in parliament.47 In 1990 onlyone parliamentary secretary had any additionalstaff at all but in October 1991 a pattern was
Table 2. No. of Special Advisers and Government Ministers 1972-199945
McMahon1972
Whitlam1974
Fraser1976
Fraser1981
Hawke1983
Keating1995
Howard1996
Howard1999
Howard2001
No.Ministers
27 27 24 26 27 30 28 30 30
No.Advisers
29 68 55 96 95 172 131 152 155
29
established whereby each parliamentarysecretary’s office would have two advisers.
Ministerial Press Officers
In Australia press-officers, known as “mediaadvisers” are political appointees as are allministerial staff by definition due to theiremployment under the Member of Parliament StaffAct (MOPS).
Media advisers are not counted in the tableabove. In the ‘traditional’ minister’s office (pre1972 changes) there was often a politicallyappointed press secretary, so having nondepartmental people do the media liaison isnothing new and accepted by all. The number ofmedia advisers has also grown. The Keatingministry in 1994 had 32 media advisers while theHoward ministry in 1999 had 34 media advisers,plus a media unit within the Prime Minister’soffice with six staff.48
Special Advisers and Ethical Behaviour
Are special advisers ‘part of the problem’ or ‘partof the solution’ in motivating ministers to behaveethically?49 Since special advisers operate in anunclear regulatory arena, it has been askedwhether this creates the potential for unethicalbehaviour to occur. The following case studiesillustrate this.
Case Study 1 : The Travel Expenses Affair
In 1997, Administrative Services Minister, DavidJull was forced to resign due to political use ofthe official travel allowance report. He hadturned a blind eye to irregularities in travelexpenses from members of his own party whileat the same time drawing attention to anomaliesin the submissions of opposition Labour partymembers. Two others, the National PartyMinister for Transport and RegionalDevelopment and the Minister for Science andTechnology were also forced to resign overmisleading the House on travel expenses.50 Yet,the evidence indicated that Jull was influencedby his special advisers to act unethically. Theadvisers suggested that Jull use the travelallowance report as a way of achieving politicalcapital over Labour.
The problem was also that the minister reliedupon his personal advisers to provide
administrative as well as political advice. Byignoring the warnings of public servants aboutthe political risks of travel allowance reportingthe minister lost his portfolio. In short, theminister acted too quickly in accepting theadvice of his special advisers who had usurpedthe traditional roles of public servants.
Paradoxically, the Travel Expenses case hasmade Australian ministers even more reliant onspecial advisers. Since the leaks that sparkedthe affair came from civil service officials this hasled ministers to mistrust the reliability of the civilservice personnel.51
Case Study 2: The Children Overboard Affair
An inquiry currently being conducted by theSenate, the upper house of the federalParliament, is looking into whether thegovernment fabricated claims days before theNovember 2001 election that asylum-seekers ona boat off the north-west coast had threatened tothrow their children overboard unless Australiatook them in.
Government ministers released selectedpictures from a Navy video to support theirclaims at the time, and Mr Howard himself toldvoters such people should not be allowed intoAustralia. The full video released since then,backed up by evidence from navy officers,shows that no such threats were made and thatthe boat was actually sinking.
Yet it transpires that the adviser to the Minister ofDefence, Ross Hampton became aware of theexistence of photographs of people in the waterand ordered their release with explanatory texts.The Senate enquiry is currently attempting toestablish the degree to which Hamptonfabricated the photographic evidence for politicalpurposes.
Regulatory Suggestions
At present ministerial advisers are notaccountable to government. The only regulationis in the Members of Parliament Staff (MOPS) Act1984, which enables ministers to seek specialistadvice through the use of consultants.
It has been suggested that the AustralianParliament could amend the Members ofParliament Staff (MOPS) Act to distinguish the
30
advisory function from the executive function,and explicitly withdraw the protection presentlyprovided to those carrying out executivefunctions. In other words, staff in a ministerialoffice carrying out executive functions would besubject to the same accountability requirementsas bureaucrats. An easier route might be for theSenate to spell out the parameters of executiveprivilege, outline its limits and then exercise itspowers to call witnesses.52
In the absence of clear guidelines there aresome guiding principles that can be followed inattempting to clarify the relationship betweencivil servants and special advisers53:
• There is no doubt a relationship of trust isessential, where the differentresponsibilities of the two groups areacknowledged, along with the commoncommitment to serve the minister;
• Trust is best formed when the workingarrangements between advisers and APSemployees are articulated clearly byagreement between the Minister andAgency Head;
• Advisers need to appreciate the legalresponsibilities of APS employees to theAPS Values and Code of Conduct;
• they also need to appreciate the formallines of authority from the Minister to theSecretary, and from the Secretary toAgency staff;
• public servants similarly need tounderstand that close and ongoingcommunication with advisers is essential,but that advisers do not have the power todirect;
• all public servants need to understand thatconfidentiality is critical to a relationship oftrust between the Agency and its Minister;
• Values along with a Code of Conductshould be articulated for ministerialadvisers in a similar way to thearrangements now in place not only for theAPS but also for the ParliamentaryService.
ConclusionsThe maintenance of ministerial ethics inAustralia is potentially compromised by thenature of the Ministerial Code which gives thePrime Minister discretionary powers overwhether to charge ministers with misconduct.Similarly, the auditor-general is appointed by thePrime Minister and tends not to investigatecases of ministerial ethics. As in other countries,the Australian government could appoint anindependent ethics commissioner, answerableto parliament.
Civil service ethics, on the other hand, are wellprovided for with a clear and broad range ofguidelines, statutory regulation in the PublicService Act, an advisory body in the PublicServices Merit Commissioner and departmentaltraining programmes. These different channelsfor controlling ethics suggest that a variety ofsimultaneous measures are necessary inhelping to keep a high level of conduct. In asense, these ethical controls are a response tothe changes in the civil service that haveoccurred over the past 10 years with its influx ofprivate-sector personnel and contractualism. Asthe structure of the Australian civil servicechanges, so will the ethical pressure points.
Australian ministers regard special advisers asimportant sources of information, facilitation andstrategy advice. Yet the ‘Travel Expenses Affair’and ‘Children Overboard Scandal’ demonstratethat advisers do not always behave ethically.Without institutional and regulatoryarrangements to control the conduct ofAustralian special advisers it is highly probablethat further ministerial scandals will emerge.Australia has a great number of special adviserscompared to other countries (see table inintroduction). This may prompt the governmentto consider the introduction of detailedregulation covering their conduct.
1 Weller, P. 2001. “Ministerial Codes, Cabinet Rules and the Power of Prime Ministers” in J. Fleming and I.Holland. (eds.) Motivating Ministers to Morality. Aldershot: Dartmouth
2 Fleming, J and Holland. I. 2000. p.63 Uhr. J. 1998. “Democracy and the Ethics of Representation.” in N. Preston and C. Sampford (eds.) Ethics
and Political Practice: Perspectives on Legislative Ethics. London: Routledge p.7
31
4 Evans, H. 2000. “The Howard Government and the Parliament.” in G. Singleton (ed.) The HowardGovernment: Australian Commonwealth Administration, 1996-1998. Sydney: University of NSW Press. p. 32
5 della Porta, D. and A. Vannucci. 1999. Corrupt Exchanges. Actors, Resources and Mechanisms of PoliticalCorruption. New York: Aldine de Gruyter
6 Wanna, J., and A. Gash. 2001. “The Role of the Auditor-General in Scrutinizing Ministerial Ethics” in J.Fleming and I. Holland. (eds.) Motivating Ministers to Morality. Aldershot: Dartmouth
7 http://scaleplus.law.gov.au/html/pasteact/2/3066/top.htm8 Holland, I. 2002. p.139 Halligan, J. 1997. “The Australian Civil Service System” Paper presented at Civil Service Systems in
Comparative Perspective, School of Public and Environmental Affairs, Indiana University, 5-8 April 1997.10 See the White Paper on Reforming the Australian Public Service, 1983 for further details11 Campbell, C and John Halligan. 1993. Political Leadership in an Age of Constraint: The Australian Experience.
Pittsburgh: University of Pittsburgh Press12 Halligan, J. 1997 p.1313 Weller, P. 1989. “Politicisation and the Australian Public Service” Australian Journal of Public Administration
48 (4) pp.369-37814 Keating, M. 1999. “The Public Service: Independence, Responsibility and Responsiveness” Australian
Journal of Public Administration 58 (1) pp.39-4715 MAB/MIAC [Management Advisery Board and Management Improvement Advisery Committee] 1996.
Ethical Standards and Values in the Australian Public Service, Report No. 19, AGPS, Canberra.16 Keating, M. 1990. “Managing for Results in the Public Interest” Australian Journal of Public Administration 57
(1) pp.3-1117 Available from: http://www.psmpc.gov.au/psact/18 Available from http://www.austlii.edu.au/au/legis/cth/consol_act/oa1976114/19 Available from http://www.austlii.edu.au/au/legis/cth/consol_act/mpgea1984541/20 Available from http://scaleplus.law.gov.au/html/pasteact/0/65/top.htm21 Available from www.finance.gov.au/publications/financecirculars/ 2001/fc_2001_02.html22 Available from http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/23 http://www.privacy.gov.au/privacy_rights/index.html#npr24 http://www.psmpc.gov.au/about/role.htm25 http://www.psmpc.gov.au/publications96/conductguide.htm26 This was an update from a document first issued in 2000 http://www.apsc.gov.au/publications02/
breaches.htm27 http://www.psmpc.gov.au/publications/conduct.htm28 OECD. 2000. Trust in Government: Ethics Measures in OECD Countries. Paris: OECD Publications p.8629 OECD. 2000. p.8930 Bridgman, P. and G. Davis. 1998. Australian Policy Handbook. St Leonards: Allen and Unwin; Davis, G., J.
Wanna, J. Warhurst and P. Weller. 1993. Public Policy in Australia, 2nd ed. St Leonards: Allen and Unwin31 Smith, RFI. 1976 “Appendix 1. Ministerial Advisers” RCAGA Appendix Volume One, AGPS Canberra;
Forward, R. 1977. “Ministerial Staff under Whitlam and Fraser.” Australian Journal of Public Administration 36(2)
32 See Maley, M. 2000. “Conceptualising Advisers’ Policy Work: The Distinctive Policy Roles of MinisterialAdvisers in the Keating Government, 1991-96” Australian Journal of Political Science, 35, 3 pp.449-470;Maley, M. 2002. “Australian Ministerial Advisers and the Royal Commission on Government Administration”Australian Journal of Public Administration 61 (1) pp.103-107; Weller, P. 2001. Australia’s Mandarins: TheFrank and the Fearless. Crow’s Nest NSW: Allen and Unwin; Holland, I. 2002. ‘Accountability of MinisterialStaff?’ Research Paper No.19 2001-02, Canberra: Department of the Parliamentary Library
33 Weller, P. 2001. p.10134 Maley, M. 2001. p.10435 Walter, J. 1986. The Ministers’ Minders: Personal Advisers in National Government. Melbourne: Oxford
University Press36 Maley. M. 2001. p.10537 Campbell, C. and J. Halligan. 1992. Political Leadership in an Age of Constraint: Bureaucratic Politics under
Hawke and Keating. St. Leonards: Allen and Unwin p.20438 Weller, 2001. p.10139 Maley, M. 2002.40 Maley, M. 2000. p. 10541 Maley, M. 2000. p.10642 Maley, M. 2002. p.45543 Australian House of Representatives Debates 17 February 2000.44 Maley, 2000.
32
45 Maley, M. 2000. “Too many or too few? The Increase in Federal Ministerial Advisers 1972-1999” AustralianJournal of Public Administration 59 (4) pp.48-53
46 Holland, I. 2002. p.847 House of Representatives Practice, 4th edition, Department of the House of Representatives, Canberra, 2001,
p.6948 Holland, I. 2002. p.949 see Tiernan, A. 2001. “Problem or Solution? The Role of Ministerial Staff” in J. Fleming and I. Holland
(eds.) Motivating Ministers to Morality Dartmouth: Ashgate50 Tiernan, A. 2001. p.9551 Tiernan, A. 2001. p.9752 Murray, A. 2002. ‘Ministers must be accountable for their actions’ Canberra Times 04 April.53 Adapted from Podger, A.S. 2002. “Beyond Westminster : Defining an Australian Approach to the Roles
And Values of the Public Service in The 21st Century” Address to IPAA Seminar, May 2nd 2002
33
This section examines accountability initiativesfor ministers, civil servants and special advisersin Canada. In general ministerial accountabilitydoes not feature due to a lack of parliamentaryscrutiny and an Ethics Counsellor with limitedpowers. Civil service standards are enforced bya detailed code of conduct but there is littlelegislation and low public awareness. Specialadvisers are lightly regulated and increasing innumbers.
A Typical Ministerial Office
The budget for political staff is set by the TreasuryBoard but can be spent on as many personnel asthe minister sees fit. There are usually 5 to 8politically appointed staff depending on how
many responsibilities the minister has and about2-6 permanent civil servants of various ranks.
Ministers have offices around central Ottawa butalso in their constituencies. The constituencyoffices are ‘political’ staffers only. They deal withconstituents and also with the local permanentcivil servants.
I. Ministerial AccountabilityThe first set of ministerial guidelines emerged in1964 under the Lester Pearson government.1 By1972, formal guidelines were being issued toCabinet. However, these guidelines were notbacked up by legislative sanctions and could beconsideredambiguous. Moreover, there were no
Canada
Table 1: Milestones
1882 Civil Service Act Established Canadian Civil Service
1908 Act to Amend the Civil ServiceAct
Created permanent Civil Service
1961 Civil Service Act Protected the independence of the Civil ServiceCommission and the fundamental principles of the merit-based system
1962 Glassco Royal Commission Recommended, among other things, the transfer ofresponsibility for human resources management to thedepartments
1989 Public Service 2000 (PS 2000) An initiative to renew the Public Service. This documentcovered staffing, staff relations, classification,compensation and benefits, remuneration and stafftraining, among other things. It was designed to facilitatethe work of managers and avoid any undesirable effects.
1992 Public Service Reform Act(PSRA)
Amended the Public Service Staff Relations Act (PSSRA)and the Public Service Employment Act (PSEA). Thesechanges represent the first major changes to theemployment legislation since 1967
1994 Conflict of Interest and Post-Employment Code
Set certain guidelines on conflict of interest within the civilservice
1994 Office of Ethics Counsellorcreated
Advisory role relating to application of Code of Conduct
1995 Tait Report Issued Large scale report on values and ethics in the civilservice
2002 Guide for Ministers andSecretaries of State
Outlines responsibilities and standards of conducts forMinisters
34
mechanisms in place to determine whetherunethical behaviour was occurring. In 1985,Prime Minister Mulroney introduced new conflictof interest guidelines for ministers. These weremore detailed than their predecessors butstopped short of full, mandatory disclosure ofprivate interests.
In 1986, ethical issues were back on the agendaafter an accusation that a cabinet minister wasengaged in insider-dealing. Mulroney decidedthat the existing guidelines were not sufficient. In1988 he introduced confl ict of interestlegislation. The Bill attempted to limit the amountof disclosure required in order not to deter highlyqualified individuals from entering politics.However, the proposed legislation died on theOrder Paper when the 1988 election was called.Further attempts to introduce conflict of interestlegislation also failed.
Since 1988 legislation on ministerialaccountability has been piecemeal and reactive.Scandals provoke a frenzy of media and publiccrit icism of ministers in the search forscapegoats but rarely result in concretelegislative proposals. The Criminal Code, theParliament Act and the Standing Orders of theHouse of Commons and Rules of the Senate apply toany minister involved in fraud or breach of trust.The Parliament Act in particular, forbids MPs fromholding government contracts. However gapscontinue to exist in the legislation potentiallyincreasing the likelihood of unethical conduct.
Different provinces also have differentministerial rules, some of which are morestringent than those at federal level. Ontario hashad both an Integrity Commissioner and anIntegrity Act since 1988. British Columbialegislated for a Conflict of Interest Commissionerin 1990. In contrast, the federal government hasnever accepted that ministerial ethics should belegislated.2
On assuming office in 1993, the current PrimeMinister, Jean Chretien declared that he wantedto set up an ‘integrity regime’ and to make thePrime Minister responsible for ministerialbehaviour. He argued though, that highstandards of ethical behaviour would not beachieved through legislative measures but byindividuals maintaining high personal standards.In 1994 he unveiled a Conflict of Interest and Post-Employment code for senior officials. The code
covers all members of cabinet, parliamentarysecretaries, members of the ministers’ staff andover 1,200 officials in the federal public service.The wives and dependants of ministers are alsocovered and must disclose their activities.Ministers are prohibited by the code fromengaging in a profession, managing a business,holding office in a union or acting as a paidconsultant.
Chretien also arranged for prospective cabinetministers to be interviewed by the newlyappointed Ethics Adviser, Mitchell Sharp, toidentify potential ethical conflicts before theirappointment. They were asked, among otherthings, whether they could live with conflict ofinterest guidelines and whether they had taxarrears. The results of the survey kept twoindividuals out of cabinet.3
In June 1994 the Office of Ethics Counsellor wascreated as an advisory body.4 The EthicsCounsellor is responsible only to the PrimeMinister.5 This is a cause for concern since theEthics Counsellor is not responsible toparliament and reports back to the PrimeMinister privately without any record of theirconversations or decisions.6 This lack ofreporting gives an air of secrecy to the EthicsCounsellor which is unusual for an office createdto improve transparency.
At the same time The Conflict of Interest and Post-Employment Code administered by the EthicsCounsellor has a lengthy and structured systemfor administering ministerial accountability. Theminister is first issued with a letter requesting thereturn of a personal information statement forhimself and his family covering assets,investments, loans, business interests, income,liabilities, gifts and any other activities whichmight lead to a conflict of interest. The EthicsCounsellor then reviews the statement in detailand returns a commentary to the minister. Theminister then has to sign a series of documentsconfirming his interests. If the Ethics Counselloris satisfied, a letter is sent to the Prime Ministerindicating that the minister concerned hascomplied with the Code. The minister is thenobliged to inform the Ethics Counsellor of anychanges that take place in assets and any giftsor hospitality received in excess of CAN$200.
Since 1995, almost every government ministerinvestigated by the Ethics Counsellor has been
35
cleared of wrongdoing. Irrespective of theoutcome, the public demanded to know moredetails of the investigative process. Mostcommentators are critical of the discretionarypowers of Ethics Counsellor in deciding whetheror not an incident comes within Prime Ministerialguidelines.7
The rules surrounding judgements by the EthicsCounsellor are ad hoc. Each Prime Minister canchange them at will. This adds to the uncertaintyand lack of credibility of the Ethics Counsellor. Ithas been suggested that position of the EthicsCounsellor is regulated by parliament. In 1994,Chretien announced that there would be aHouse of Commons debate on the developmentof ethical guidelines surrounding cabinetministers. No such debate has ever occurred.8
Lately, controversies over the awarding ofcertain government contracts has rekindled thedebate on ethical regulation. . The media andopposition parties have raised issues withrespect to ministerial judgement, thetransparency of ethics guidelines, and thecredibility of the prime minister in defending theconduct of his ministers. Allegations of unethicalconduct led to the removal in January 2002 ofAlphonso Gagliano as public works minister(Gagliano was appointed ambassador toDenmark), and to the dismissal in May 2002 ofArt Eggleton as defence minister when anewspaper revealed that he had secured aC$36,000 (£16,000) contract for a formergirlfriend to write a 14 page report.
In June 2002 a Guide for Ministers and Secretariesof State was issued by the Prime Minister. It givesan overview of the conduct expected onministers and emphasises their accountability toParliament. Although, there is nothing in theguide that is not contained in documents issuedby the Ethics Counsellor, it is a useful andaccessible overview.
II. Civil Service Accountability -OverviewSince the 1970s, successive Canadiangovernments have been concerned with makingcivil servants more accountable. This was partlydue to fiscal pressures encouraging downsizing,privatisation and wage freezes in the publicservice. These factors helped produce a changein expectations regarding public service
behaviour with a renewed focus on values andethics.9 For example, in 1987, a committee ofdeputy ministers (i.e. permanent secretaries)was established to examine the fundamentalvalues governing the Public Service. In 1995,when the Clerk of the Privy Council decided tocreate task forces led by deputy ministers toexamine various issues identified through theprogram review process, one of those taskforces was on Public Service Values and Ethics. Atthe completion of its work, the Task Forcereleased a report entitled “A Strong Foundation”.During the past decade, most public sectororganisations have spent time defining theirmissions and their visions. Others have evendeveloped guides promoting values or a code ofconduct.
Therefore, the number of accountability devicesin Canada has increased. Broadly, theyencompass:
• A more prominent role for centralagencies;
• New budgetary systems to merge policydetermination with expenditure allocation;
• Mandatory requirements for the periodicand systematic evaluation of programs;
• Greater scrutiny of the bureaucracy byparliamentary committees throughestimates, the review of order-in-councilappointments and general investigations;
• A strengthened role for the auditor generalto practise comprehensive auditing;
• The passage of access-to-information andprivacy laws;
• The passage of confl ict-of-interestguidelines, codes of conduct, and theappointment of an ethics commissioner;
• The development of numerousconsultative mechanisms: discussionpapers, task forces and partnerships;
• The extension of judicial review as a formof supervision over the exercise ofdiscretionary authority.
However, despite these rules, Jacksoncomments that, Canada has found it difficult tomotivate ministers and senior public servants toadhere to standards of honesty and ethicalbehaviour.10
36
Regulatory Bodies
There is no central agency responsible formanaging ethics policies in the Public Service ofCanada. Deputy heads of departments haveresponsibility for administering the Conflict ofInterest Code for the Public Service. TheTreasury Board Secretariat’s Office of Valuesand Ethics provides support to and assistancewith implementation of the government’s policyon ethics and values. Human resourcesbranches in the various departments administermatters related to conflicts of interests. TheOffice of the Ethics Counsellor administers theConflict of Interest Code for Public OfficeHolders.
There are no structures in place to ensure theregular evaluation of the effectiveness of publicservice policies on values and ethics. However,proactive administration, the work of various adhoc committees, Auditor General reports and thereview of government policies contribute toimproving management systems, and thoserelated to ethics, in particular.
Office of the Ethics Counsellor
The Office of the Ethics Counsellor was createdin 1994 and has responsibility for the Conflict ofInterest and Post-Employment Code for PublicOffice Holders, the Lobbyists Registration Act, andthe Lobbyists’ Code of Conduct. The EthicsCounsellor provides advice to ministers andreceives disclosure of asset statements fromthem. The Office also provides advice on ethicalissues to federal and provincial departments.11
The Ethics Counsellor reports to the PrimeMinister and not to Parliament. This causessome disquiet in the Canadian press since it isfelt that reporting to the PM compromises theimpartiality of the Ethics counsellor.
Treasury Board Secretariat
Through its Office of Values and Ethics (OVE), theTreasury Board Secretariat acts as the centre forpolicy and expertise responsible for promotingpublic service management based on valuesand ethics. The OVE publishes documentsrelating to ethics including Guide on theApplication of the Conflict of Interest and Post-Employment Code for the Public Service 2002-03and Policy on the Internal Disclosure of InformationConcerning Wrongdoing in the Workplace, 2001.12 It
also works in partnership with various agenciesin an effort to maximise the impact of itsinterventions and ensure an acceptable degreeof uniformity in the implementation of itsoutreach activities on the importance of valuesand ethics in decision-making.
The Canadian Centre for ManagementDevelopment
The CCMD contributes to the promotion ofvalues and ethics though training courses forpublic-service managers. In February 2000 itestablishes a series of “armchair discussions”on values and ethics. However, the CCMDtraining courses are not mandatory and therehas been a low up-take among public servants.
Privy Council Office (PCO)
Headed by the Clerk of the Privy Council, PCOprovides advice, information and services to thePrime Minister, to ministers, and to their sub-committees. The Clerk takes a leadership role insetting the overall direction and vision for thePublic Service and, in particular, with respect tothe role values and ethics play in the overallmanagement of the Public Service. PCO alsosupports the Treasury Board Secretariat’svalues and ethics initiatives, by providingstrategic advice and ensuring follow-up todecisions made by the Prime Minister, Cabinetand the Clerk in the area of values and ethicswithin the Public Service.
Public Service Commission (PSC)
The PSC, an independent administrativeauthority, is responsible for establishing generalstaffing principles for the public service inaccordance with the Public Service EmploymentAct. These principles reflect traditional valuessuch as merit, absence of patronage, andrepresentativeness. The PSC is alsoresponsible for providing effective training anddevelopment programs to public servants andfor promoting a leadership based on values andethics in training offered to Public Servicemanagers.
Promotion of Values
Although there are no service-wide ethicstraining programs for government employees,some government departments and agencies
37
have their own training programs for staff.Executive training programs cover values andethics and training modules are provided onthese topics to individuals who require suchinformation and advice. Consultations on ethicalissues enable affected employees to understandmore fully the fundamental values of the publicservice. Human resources branches andmanagers have responsibility for making newemployees aware of the values of the federaladministration.
Other provisions also facilitate the promotion ofvalues within the public service: the confidentialdeclaration by public office holders of theirproperty and interests, the confidentialdeclaration by government employees ofpossible conflicts of interests, the identificationof more vulnerable sectors and riskassessments, sanctions for non-compliance withthe regulations, recourse against administrativedecisions, and internal and external controlmechanisms.
Major Guidelines
The Canadian Public Service Commission (CPSC)has developed a set of guidelines on civil serviceaccountability.
They believe that the federal government needsto set a reasonable time frame for thedevelopment of a set of values and ethicsprinciples for the public sector. The UnitedKingdom’s Seven Principles of Public Life and CivilService Code are regarded as starting points fordiscussion.
As part of a longer-term effort, the CPSCproposes that the federal government needs toensure that senior managers discuss, share,and promote a common set of values and ethics.To this end, the Privy Council Office, the TreasuryBoard Secretariat, and the Canadian Centre forManagement Development need to designmandatory training on core values and ethics forall senior managers. This training could beexpanded to include all civil service managers.The Secretariat would need to ensure that thistraining is also given to all public servants.
The Conflict of Interest and Post-EmploymentCode
The Conflict of Interest and Post-EmploymentCode (1994) sets certain guidelines for conflictof interest. This Code is a regulation passedpursuant to the Financial Administration Act and ismade available to all public servants at the timeof their appointment.13
Provisions of the code include:
• Employees shall not have privateinterests, other than those permittedpursuant to this Code, that would beaffected particularly or significantly bygovernment actions in which theyparticipate. (Section 6)
• Employees shall not step out of theirofficial roles to assist private entities orpersons in their dealing with thegovernment where this would result inpreferential treatment to any person.(Section 5)
• Employees shall not act, after they leavepublic office, in such a manner as to takeimproper advantage of their previousoffice. (Section 6)
The Conflict of Interest and Post-Employment Codefor the Public Service needs to be updated. TheAuditor General of Canada recommended in itsMay 1995 report that explanatory guidelines andillustrative cases be developed. In June 2000the Treasury Board Secretariat published aguide on the application of the Code.
The Tait Report
The most comprehensive report to date onpublic sector ethics was issued in 1996 by theCanadian Centre for ManagementDevelopment. This is formally titled A StrongFoundation: Report of the Task Force on PublicService Values and Ethics, but is known as the TaitReport after its chairman.14
The Tait Report identified 45 different valuesgrouped into five overlapping categories of corepublic service values: democratic values, ethicalvalues, “traditional” professional values, “new”professional values, and people values Thereport assigned primacy to the values of respectfor law and the public interest. However, it did
38
not provide guidance on how to resolve conflictsbetween competing and overlapping values.
Major Values and Ethics InitiativesRecommended in the Tait Report
• Init iate a wide-ranging and honestdialogue on values and ethics
• Re-focus the character of public serviceas a public trust
• Adopt a statement of principles for thepublic service
• Adopt comprehensive ethics regimesgovernment –wide and in public serviceorganisations
• Clarify for both the political and publicservice levels the principles of reasonablegovernment, the concept of ministerialresponsibility and the role the publicservice is expected to play
• Acknowledge the confusion, tension andconflicts between “traditional” and “new”public service values, and establish anappropriate balance between thesevalues giving primacy to the public interestand respect for law
• Reaffirm that speaking truth to power is apublic service value
• Establish suitable recourse mechanismsfor public servants who feel that they areunder pressure or have been asked toperform actions that are unethical orcontrary to public service values and tothe public interest
• Align systems, policies and processes toensure that they support a sound publicservice culture and values
• Hold deputy ministers and managersaccountable for leading by example andensuring that core public service valuesare understood and respected
• Establish an independent body for non-partisan appointments so that patronageappointments do not threaten the integrityof the public service
The report was followed up with the preparationand detailed analysis of guidelines relating to theacceptance of gifts, benefits and other forms ofhospitality. This work has been circulated todeputy ministers who are responsible forensuring that the appropriate steps are taken intheir departments to deal with such matters.15
The Canadian Centre for ManagementDevelopment (CCMD) reissued the Tait report inJanuary 2000 to help re-invigorate dialogue.However, it was found that most public servantshad not even heard of the Tait report and had notparticipated in any discussions relating to it.16
Similar surveys by the Treasury board alsoindicate that there are vulnerabilities in the areaof values and ethics. This is mainly due to theinconsistent application of policy by differentdepartments.
Steps to reinforce ethical decision-making
Training
At present, there is no broad-based mandatorytraining given to public servants on ethicalmatters although some departments run optionaltraining programmes for staff. The release of thereport of the deputy ministers task force onvalues and ethics began a period ofconsultation, which included the preparation offormal workshops on values and ethics.17
Disclosure policy
Public servants are required to makeconfidential disclosures when they have assets,activities and investments which have somerelationship with the exercise of their duties andresponsibilities. This information is protected bythe Privacy Act, and used for recommendingmeasures to prevent real or potential conflicts ofinterest from arising.18
Procedures to report misconduct or suspectedcorruption
There are no procedures or obligations for publicservants to report misconduct committed bypublic servants. The Privacy Act guaranteesprotection to public servants who exposewrongdoing. For the public, no specialprocedures are available to expose wrongdoingcommitted by public servants.
Scrutinising Misconduct in the Canadian PublicService
There are several institutions in place toinvestigate misconduct. These include:
39
• Departmental officials who examinedepartmental practices and operations onan ongoing basis
• The Comptroller General (who examinesoverall public service practices)
• Central agencies (who advise seniorgovernment officials on misconduct)
• The Auditor General (who audits thefinances of all government operations)
• The Royal Canadian Mounted Police (whoinvestigate breaches of the law)
• The Ethics Counsellor (who, when askedby the Prime Minister, may undertakeinvestigations on ethics related matters)
Regulation of Public Service Values
Although there is still no formal statement ofpublic service values, a number of documentsdescribe the fundamental values of the publicadministration, including the Constitution, theCanadian Charter of Rights and Freedoms, theCriminal Code, certain acts (Public ServiceEmployment Act, Financial Administration Act,Official Secrets Act, Official Languages Act, PublicService Staff Relations Act, etc.) and regulations,numerous policies, two conflict of interest codesgoverning respectively public office holders andpublic service employees, as well as otherdocuments (especially the A Strong Foundationreport).
Criminal legislation covers the following kinds ofspecific misconduct for public officials:
• Active, passive, direct or indirectcorruption of public officials/corruptioncommitted by public officials
• Breach of trust by public officials• Fraud perpetuated by the government• To protect from detection or punishment a
person who has committed or intends tocommit an offence
Because of the nature of their duties, someofficials are also covered by specific provisions.This is the case for employees of NationalDefence, Revenue Canada, Industry Canada, supplyofficers at Public Works and Government ServicesCanada, lawyers, physicians, engineers,accountants and actuaries.
The policy on the Internal Disclosure ofInformation Concerning Wrongdoing in theWorkplace was issued in June 2001 and cameinto effect in November of the same year. It sets
out the procedures for disclosure of wrongdoingand the protection of those making suchdisclosure.
Recently, the Canadian parliament passed theCorruption of Foreign Public Officials Act whichgave effect to Canada’s commitment to ratifyboth the OECD and OAS anti-corruptionconventions.
It could be argued that these of laws, rules andregulations designed to promote ethical conductamong ministers and public servants haveemerged haphazardly and with little coherence.A result is that there is little enthusiasm today todraw up more rules and regulations.19 Thisproblem has been recognised by the Canadiangovernment and there is an active campaign topromote dialogue within the public service onethical issues. The Public Service Values andEthics Office is the main body co-ordinatingsuch dialogue.
Provincial Regulation
In 1998 Nova Scotia adopted a WhistleblowersAct that allows employees to discloseinformation about government wrongdoing to theProvince’s ombudsman and protects those whodo so. The March 1999 Canadian EnvironmentalProtection Act, the August 1999 amendments tothe federal Competition Act, and the April 2000Personal Information Protection and ElectronicDocuments Act provide authority and protectionfor employees who report alleged violations ofthe Acts to designated officials. Since 1980,members of Parliament have introduced severalprivate members’ bil ls to provide similarauthority to federal public servants.
Current developments
According to Jackson, public servants tend tofind the application of the Conflict of Interestguidelines both bureaucratic and rigid. Theimpression is that the rules are too narrow andthat they are not applied with muchthoughtfulness. Public servants expressfrustration that the guidelines do not makeallowances for the highly particular situationsencountered by public servants.
Because a wide-ranging dialogue is required,the development of a set of core principles istime consuming. Federal entities can take
40
immediate steps to establish elements of theinfrastructure needed to help staff manage anddeliver programs ethically. The establishment ofthis infrastructure would indicate to staff thatsenior management is taking seriously currentvalues and ethics initiatives.
The initial step is to acknowledge the difficultvalue and ethical judgements that may have tobe made in delivering programs. Employeeswho have been told to make judgements need tohave the necessary guidance and support.Judgement involves consciously asking ifdecisions and the reasons for the decisions arefair, honest, and reputable and would bear closepublic scrutiny if the media disclosed them.
To help make judgements, the Canadian AuditorGeneral proposes that departments could adopta decision-making model to help managers andstaff manage ethically. They also could establishprogram support centres, which would offerobjective guidance to staff and complement therole of superiors. As well, they could use theirrisk management programs to assist staff inpredicting and planning for difficult situations.Without them, it believes that asking staff to takerisks and apply ethical values “will be seencynically as an attempt by management todownload its responsibilities on staff.”
On May 23 2002, the Canadian Prime Minister,Jean Chretien, made a speech to parliamentoutlining new steps to be taking in reinforcing aculture of ethical behaviour among ministers,civil servants and special advisers. He promisedthat the following measures would be enacted:
• The Guide for Ministers and Secretaries ofState, which outlines the standards ofethical conduct that should guide them willbe made public (see earlier section onMinisterial Accountability).
• Revised rules for ministerial dealings withCrown corporations are to be issued. Theywill clarify the relationship betweenministers and Crown corporation whendealing with constituency matters.
• Guidelines to govern ministerialfundraising for personal political purposeswill be published. These will establishrules and procedures that will ensure thatsuch fundraising causes no real orapparent conflict of interest.
• In September 2002, the first annual reportof the Ethics Counsellor to Parliament on therange of his duties and activities will betabled. The Ethics Counsellor will also beavailable to a parliamentary committee tobe examined on his report.
• A stand-alone Code of Conduct for Membersof Parliament and Senators will be drawn upby October 2002.
• Measures will be introduced to strengthenthe ability and responsibility of seniorpublic servants to exercise propriety anddue diligence in the management of publicfunds.
On May 27, 2002, the Prime Minister announcedthat a new parliamentary committee would becreated to scrutinise the spending ofindependent bodies including the Public ServiceCommission.
III. Special AdvisersCanada, like the other countries in this study,has seen very little published research on thesubject of special advisers. In fact, over the past20 years there has been only onecomprehensive study, dating from 1994, dealingwith the topic.20
Special advisers in Canada used to be called‘Ministerial Chiefs of Staff.’ They were politicalappointments in the sense that the minister hasthe discretion to appoint anybody he likes to thepost.21 They were first set up in 1984 under theProgressive-Conservative government. Thesepartisan advisers are not judged to playsignificant policy roles due to a lack of policyexpertise and focus on short-term politicalobjectives.22 Their role in giving policy advice isalso hampered by the traditional strength of the(non-partisan) Privy Council Office in providingpolicy advice.23 Upon coming to power in 1993,Chretien aboloished the chief of staff position inall ministerial offices except his own. This was inorder to promote a better working relationshipbetween his ministers and the civil service.Ministers continued to employ special advisers,now called ‘executive assistants.’ However, theexecutive assistant is a realtively junior positionand enjoys neither the salary nor the status thatthe chief of staff position enjoyed in theMulroney years.24
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Numbers and Background
In 1990 it was found that 145 persons held‘political’ (i.e. special adviser) positions inMinisters’ offices in the federal government ofCanada.25 This number includes the staff of theoffices of the Prime Minister, Deputy PrimeMinister, The Ministers of State, the TreasuryBoard President, the Leader of the Governmentin the House of Commons and the Leader of theGovernment in the Senate. Most hadbackgrounds in political science (as academics),law or journalism.26 The majority have also somework experience in the public administrationfield. The average age was 38. Present dayexecutive assistants are similar. They are welleductated but often have limited governmentexperience. Their average age is about 30.
Selection and Regulation
The political staff of ministers’ offices belongs ina category known as ‘exempt staff.’ In legalterms, it is Article 39 of the Public ServiceEmployment Act which states that the minister is‘permitted to nominate the staff of his or her office, inparticular the chief of staff.’ Most of these advisersare known personally to the minister before theirappointment, and a small proportion have heldsimilar posts in other ministerial offices. Nearlyall are partisan. Under the Mulroneyadministration the Prime Minister insisted onapproving all chief of staff appointments,primarily to ensure that francophones andwomen were adequately represented. There isless prime-ministerial scrutiny under the presentChretien administration.
Each minister receives a budget from thegovernment for the employment of exempt staff.The size of the budget depends on the particularministry and is set by the Treasury Board, astatutory committee of Cabinet. Within thebudget ceiling, a minister may hire as manyspecial advisers as required although there is arestriction on how many can be at the mostsenior pay-levels.
Canadian ministries have their fair share ofprofessional civil servants seconded to work inministers’ offices on non-partisan matters.Typically this would include tasks such aspreparing parliamentary questions or scanningcorrespondence. There is no restriction on thenumber of seconded public servants and this
has become a popular method of providing extramanpower to ministers. In practice, a great dealof care is taken to ensure that seconded publicservants do not attend meetings of a partisanpolitical nature.
Ministerial assistants are sent the Conflict ofInterest Guidelines and given 60 days to declarethat they have read and understood thedocument and report their assets. They have120 days in all to become compliant.Immediately after a general election, the ethicscounsellor gives a presentation to groups ofministerial staff. Advisers are then free to contactthe director with any queries on ethicalbehaviour.
The present prime minister, Jean Chretien hasappointed Howard Wilson, a highly respectedformer senior bureaucrat and minister to be hispersonal adviser on ethics and conflict ofinterest.
Role and Duties
The majority of execuitve assistants is toparticipate in all their ministers meetings. Theyalso participate in meetings of the department’sexecutive committee. These meetings arelikened to seminars where policies andobjectives are discussed between the minister,his chiefs of staff and permanent bureaucrats.
The 5 most cited duties of ministerial executiveassistants in Canada are:
• Advise the minister;• Manage the office;• Ensure l iaison with strategic
organisations;• Review departmental policies/
suggestions;• Work with minister in developing a political
slant to policies.
Interviews with former Canadian chiefs of staffand present day executive assistants reveal thatthey do not feel that senior civil servants aremarginalised by their presence. Most feel thatthey work well with them developing policies andpushing through the ministers’ policy agenda.This good relationship is partly due to the factthat executive assistants are too busy tointervene in the strictly administrative sphere ofactivities. Nevertheless, certain ministries differ
42
and interviews show that in the higher ministries(finance, regional government) there is oftenmore tension. Certain senior public servantsresent that chiefs of staff, in addition to theirpolitical duties take over responsibilities thatbelonged to them. In many instances thistension is due primarily to simple personalityconflicts between chiefs of staff and seniorpublic servants.
In the 1994 survey of chiefs of staff, the followingfactors were mentioned as being key to workingwell with the public service:27
• Ensure mutual communication of aconstant and direct nature
• Create a transparent atmosphere offrankness, confidence and honesty
• Ensure mutual respect of roles,responsibilities and authority
• Agree on goals, objectives, co-operationand ground rules.
Finally, some Canadian chiefs of staff saw theirrole as bringing to the attention of the ministeraspects of policy that concern the variousregions of Canada. In short, they often act as acounterbalance to the bureaucracy with at timesis overly preoccupied with the interests of centralCanada.28
Above all though, the role of the chief of staff/executive assistant and the nature of his/herinteraction with the civil service is a reflection ofthe minister and his operating framework.
Press Officers
Generally one Press Officer in a ministerial officeis a political appointee and one is a senior civilservant reporting through the permanentsecretary on communications issues. The co-ordination of these two streams varies fromminister to minister. Interestingly, the minister’sdriver is also a political appointee.
ConclusionCanada, like many other countries, has anethics framework that enables it to promotevalues and ethics in the civil service. Thisframework includes statutory documents,policies, mechanisms for the promotion ofvalues and ethics, and internal and externalmonitoring authorities. Recently, the PrimeMinister has begun to issue official statements ofvalues or principles for the civil service, likethose in Australia, the United Kingdom and NewZealand. These principles are designed toeventually replace the overly wide range ofvalues found in various documents and providea common set of basic values and principles forthe whole of the civil service.
However, Canada does not yet have a centralagency responsible for co-ordinating, managingand periodically reviewing policies on ethics andvalues for the government as a whole. TheValues and Ethics Office of the Treasury BoardSecretariat, established in 1999, acts as a centreof expertise, policy, leadership and services inthe values and ethics field in the federal civilservice, but deputy heads are responsible forthe accountability framework.
In some countries, codes of conduct, disclosureof wrongdoing in the workplace, values andprinciples of government and sanctions havebeen entrenched in legislation. The Canadiantradition is to deal with these matters throughpolicy. A useful start is the recent publication of AGuide for Ministers and Secretaries of State.
As far as special advisers are concerned,Canada mirrors other countries in that they areplaying an ever-increasing role in government.They are lightly regulated although they areissued with guidelines on their appointment.
1 Jackson, R. 2001. “Honesty and Corruption in the Canadian Federal Government: Regulating Ethics.” In J.Fleming and I. Holland (eds.) Motivating Ministers to Morality. Dartmouth: Ashgate
2 Greene and Shugarman, 1997.3 Jackson, R. 2001.4 Office of the Ethics Counsellor, Canada: http://strategis.ic.gc.ca/SSG/oe00001e.html5 Wilson, H.R. 1998. Ethics Counsellor to the Government: The Canadian Experience in N. Preston and C.
Sampford (eds.) Ethics and Political Practice: Perspectives on Legislative6 Fleming, J. and I. Holland. 2000. ‘Motivating ethical conduct in government ministers’ Paper presented at
the International Institute for Public Ethics Conference, Ottawa, September 2000
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7 Thomas, Paul G., 1998. “The Changing Nature of Accountability” in B. Guy Peters and D. Savoie (eds.)Taking Stock: Assessing Public Sector Reforms. Montreal: Canadian Centre for Management Development,p.349
8 Jackson R. 2001. p.1159 OECD. 2000. Trust in Government: Ethics Measures in OECD Countries. Paris: OECD Publications. p.11710 Jackson, R. 2001. “Honesty and Corruption in the Canadian Federal Government: Regulating Ethics.” In
J. Fleming and I. Holland (eds.) Motivating Ministers to Morality. Dartmouth: Ashgate p.10011 Office of the Ethics Counsellor, Canada: http://strategis.ic.gc.ca/SSG/oe00001e.html12 http://www.tbs-sct.gc.ca/Pubs_pol/hrpubs/TB_851/sigliste.html13 The Code can be found at http://strategis.ic.gc.ca/pics/oe/coiencod.pdf14 The Tait Report can be found at http://strategis.ic.gc.ca/SSI/oe/tait_e.pdf15 OECD. 2000. p.11816 2000 Report of the Auditor General of Canada, Chapter 12. p.4 http://www.oag.bvg.gc.ca/domino/
reports.nsf/html/00menu_e.html17 OECD. 2000. p.12218 OECD. 2000. p.12319 Jackson, R. 2001. p.10120 Plasse, M. 1994. Ministerial Chiefs of Staff in the Federal Government in 1990: Profiles, Recruitment, Duties and
Relations with Senior Public Servants. Ottawa: Canadian Centre for Management Development21 Savoie, D. 1999. Governing from the Centre. Toronto: University of Toronto Press22 Bakvis, H. 1997. “Advising the Executive: Think Tanks, Consultants, Political Staff and Kitchen Cabinets.”
in P. Weller, H. Bakvis and R.A.W Rhodes. The Hollow Crown: Countervailing Trends in Core Executives. NewYork: St. Martins Press p.114
23 Aucoin, P. 1991. “Cabinet Government in Canada: Corporate Management of a Confederal Executive.” InC. Campbell and M. Wyszomirski (eds) Executive Leadership in Anglo-American Systems. Pittsburgh:University of Pittsburgh Press
24 Savoie, D. 1999. p.25025 Bakvis, H. 1997. p.326 Bourgault, J and S. Dion. 1989. “Gouvernements antibureaucratiques face à la haute administration: une
comparaison Québec-Canada.” Politiques et management public 7:2 pp.97-11827 Plasse, M. 1994. p.6028 Plasse. M. 1994 p.39
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This section sets out the accountabil i tyregulations for ministers, civil servants andspecial advisers in New Zealand. In general,New Zealand has a high level of ministerialaccountability that is hampered by a lack ofregulation. Civil service ethics are also wellprovided for especially in the light of the newmanagement practices in the New Zealandpublic sector.
Special advisers are playing an ever moreimportant part in government and this may invite
a more detailed code of conduct to be drawn upto govern their behaviour.
The Structure of a Ministerial Office
All ministers are located in the parliamentbuildings in Wellington separate from theirdepartments. Table 2 (below) gives a breakdownof personnel employed in a typical ministerialoffice.
With the exception of the departmental privatesecretary, all the staff in ministerial offices are
New Zealand
Table 1: Regulatory Milestones
1912 Public Sector Management Act Set out the structure of the civil-service
1986 State-Owned Enterprises Act 'De-coupling' the governments commercial activities fromdirect ministerial control
1988 State Sector Act Direct ministerial involvement in process of appointingdepartmental heads. Introduction of fixed-term contractsand performance based remuneration
1989 Public Finance Act Redefined the roles of ministers and officials
1994 Fiscal Responsibility Act Provided greater accountability in the public-sector
1995 Public Service Principles,Conventions and Practice
Issued by the State Services Commission (SSC) as acode-of-conduct for the public-service
1997 Responsibility andAccountability: StandardsExpected of Public ServiceChief Executives
Issued by the SSC in an attempt to clarify the role ofchief executives (department heads) in the wake of theCave Creek tragedy (see below)
2000 Protected Disclosures Act Gives protection to whistleblower
Table 2: A Typical New Zealand Ministerial Office
Position No
Departmental private secretary' per substantiveministerial appointment (but some offices have no deptperson permanently as there tends not to be enoughwork)
1
Receptionist 1
Senior Private Secretary 1
Secretaries to handle correspondence etc. 1-3
Press Secretaries 1-2 (2 if senior ministers, 0 if junior)
Political advisers 0-5 (depending on seniority)
Total 6-10
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appointed by the minister. They are ontemporary contracts, which terminate with thedeparture of the minister.
Parliamentary under-secretaries tend to have 2advisers, junior ministers 3 or 4, the PrimeMinister has 24 (plus the entire department ofPrime Minister and cabinet), The deputy Prime-Minister has 18 and the Minister of Finance has10.
I. Ministerial AccountabilityNew Zealand has relatively few rules governingthe ethical conduct of members of parliamentand cabinet ministers. Ministers are required todeclare their financial interests on a register thatis made public from time to time. They aresubject to investigation by Commissions of Inquiryshould allegations of impropriety be tabled.1 Inpractice, there have been few Commissions ofInquiry and ministers have generally beenacquitted of ethical misconduct.
Ministers are subject to specific Cabinet OfficeGuidelines. These require ministers to place onthe record personal interests that might be seento influence decision making and to avoidconflicts of interest. If a minister feels he has aconflict of interest he must hand over relevantobligations to a different minister or department.Ministers must not play a part in an externalbusiness and must resign from all companyboards. All overseas travel must be declared aswell as all gifts received valued in excess ofNZ$500 (£166).2
II. The New Zealand Civil ServicePrior to 1988, New Zealand had a unified publicservice career system with regulations laid downby the Public Service Act of 1912. The StateServices Commission (SSC) managed a detailedarray of occupational classes, each of which hadits own pay scale and promotion system.3 TheNew Zealand civil service was tightly controlled,appointments were made centrally and therewas little ministerial influence in the recruitmentprocedure and appointment decisions.4
By the 1980’s, the New Zealand bureaucracybegan to come under heavy criticism forinefficiency and rigidity.5 Reforms of the NewZealand Public Service were put in place by theState Sector Act, 1988 and the Public Finance Act,
1989 and were largely driven by a small networkof entrepreneurial cabinet ministers, governmentofficials and external consultants.6 These set inplace an emphasis on managementempowerment, output measurement,deregulation of central personnel controls, thegreater use of contracts for senior managersand the introduction of performance pay.7
Essentially, the New Zealand reforms sought toseparate the commercial from the non-commercial activities of government. Many ofthe commercial activities were transferred tostate-owned enterprises and many of thesewere subsequently privatised.8
The New Zealand reforms can be outlined asfollows:
• Senior civil servants were placed on termcontracts;
• Senior civil servants were required to signperformance agreements to deliverspecified outputs in return for resourcesgranted;
• Internal accountability to ministers wasstrengthened through the use ofagreements, plans, budgets, financialreports, and after 1994 a system of keyresult areas indicators;
• External accountability to parliament wasto be based upon the presentation ofbudgets, estimates, plans and annualreports.
Implementation and Assessment of Reforms
Most assessments of the New Zealand reformsjudge them as being successful. There seems tobe no evidence of politicisation of the publicservice and the system is transparent, allowingparliamentary committees and agencies to holdministers and civil servants accountable forresults. There has, however, been a noticeableshift towards a more technocratic style ofgovernment, and the previously egalitarianpublic service has adopted a more managerialethos.9 This is seen as having displaced the oldservice ethic of trust and responsibility withaccountability for the results from each chiefexecutive.
The New Zealand reforms introduced a bonussystem for senior civi l servants whereperformance exceeds expectations. It also setsout formal reprimand and dismissal procedures
47
where performance falls below expectations.The annual lump-sum bonus can be up to 15percent of base salary. This was to bring civilservice salaries in line with the private sector.10
The introduction of these annual performancereviews has had mixed success. On the onehand, chief executives use them as a device formonitoring departments’ work and for measuringprogress. On the other hand, it has proveddiff icult and time-consuming to specifyperformance standards and there is a constantdanger of inflexibility and rigidity.11 Furthermore,many civil servants have spoken of a loss ofprofessional ethics and a commitment to doone’s best when responsibility is reduced to aset of contract-like documents.12 Similarly,annual agreements tend to focus unduly onshort-term priorit ies and the excessivespecification of activities. In short, there hasbeen a need to ‘reinvent’ standards andbehaviour in the New Zealand public service.13
There is also the view that contractualismgenerates a subtle form of politicisation in thecivil service system.14 This manifests itself in theform of increased demands for policycongruence as a necessary component of atrusting relationship between ministers andsenior civil servants. Ministers increasinglyexpress intolerance of advice that they wouldprefer not to hear and senior civil servants haveless incentive to be as frank with advice asunder the pre-reform system.15 The guidance forsenior officials from the State Services Commissionis straightforward on this matter:
“Free and frank advice is not always advice theMinister may wish to hear. Advice to a Ministerthat has been watered down may not meet thetest of being frank and free. It is inappropriate,for instance, for departmental advice to bealtered, or influenced unduly, by a third party(say by ministerial staff) before it reaches theMinister.”
The passing of the State Sector Act, 1988 enabledministers to have more of a say in theappointment of departmental heads. A fearexpressed at the time was that this wouldcontaminate the New Zealand civil service withpolitical bias.16 Yet there is no evidence thatpartisan considerations have played a part inpublic service staffing.
Ethics in the New Zealand Public Service
The New-Zealand reforms were primarilyconcerned with improving efficiency. They werenot motivated by a concern with a loss in ethicalstandards.17 There is no centralised generalpolicy to ensure promotion of values and nomandatory training programs on ethical issues.The State Services Commission is asked for adviceand direction from time to time. However, certainprovisions and procedures draw attention to andstrengthen the ethical culture within the publicservice, such as the publication of the Code ofConduct and policy and leadership documents,the sharing of responsibilities, the declaration ofreal or potential conflicts of interest, conflict ofinterest reporting, various annual reports and theobligation to justify administrative decisions.
Ethical standards can be summarised as beingmaintained in New Zealand through:
• Pre-emptive controls—codes of conduct,communication of standards expectations.Example: NZ Public Service Code of Conduct
• Integrative controls—circulation of guidancematerial, incorporation of standards intoperformance management instruments.Example: Standards Expected of PublicService Chief Executives, 1997
• Diagnostic controls—evaluation of chiefexecutive performance, departmentalperformance and occasional audits.Example: Chief Executive Credit CardExpenditure
• Interactive controls—incorporation ofethics-related content into conferencesand encouragement of dialogue acrossdepartmental boundaries.
New Zealand considers itself to have anintegrity-based approach to civil service ethics.18
This means that departments are encouraged tofocus on actions and effects that can beachieved rather than the behaviour that shouldbe avoided. As a result, documents issued bydepartments and by the State ServicesCommission tend to be strong on aspirationalvalues, tacitly admitting that a watertight ethicsregime is impossible to enforce.
At first glance this would seem to suggest a lackof ethical control in the New Zealand civilservice. Yet the rationale is to increasemanagement autonomy and institutional
48
responsiveness to local conditions. This is, inpart, a product of the new public managementreforms of the public service, which aim to instilprivate sector practices within the civil service. Itis thought that ethical accountability in theprivate sector is loose and reactive and that thiscould have an impact on the reformed civilservice.
Whether an integrity based approach to ethicsworks is difficult to tell. True, New Zealand ranksnear the bottom on worldwide indices ofcorruption.19 Yet the weakness of the ethicalculture in the civil service is evidenced by themuch-documented tragedy at Cave Creek.
The Tragedy at Cave Creek
According to Mulgan, the New Zealandgovernment has a reputation for blaming publicofficials when the cause of the problem is oftenministerial oversight.20 This was shown up in theaftermath to the Cave Creek tragedy in 1995.The tragedy occurred when a viewing platformbuilt by the Department of Conservation (DOC)collapsed killing 14 people.21 Although publicaccountability requirements were fulfilled, therewas considerable dissatisfaction over politicalaccountability. This was because standards ofbuilding practice and maintenancewereoverlooked. Yet although the commission ofinquiry into the disaster identif ied thatresponsibility lay with the department, noprosecutions were made and no minister wasbrought to account. This led to considerablepublic disquiet.
There was a lack of clarity following thecommission’s report about the role that the DOCminister should have played. On the one hand,under the State Sector Act and the Public FinanceAct, the job of ensuring DOC safety standardshad been handed over to the chief executive,who should have ensured that no such deathtrap was built, regardless of poor departmentalfunding. On the other hand under a literalinterpretation of the Public Finance Act, theminister of finance should have been heldresponsible on the grounds that he should havebeen trusted to ‘purchase’ a safe viewingplatform.22
The overall public impression was that ministerswere unaccountable and civil servants werebeyond their control. Since both the minister and
chief executive (head of department) failed toresign promptly, the impression was given thatfragmented accountability had become noaccountability and that the system was beyondcaring.
In the light of Cave Creek, the State ServiceCommission has sought to clarify the roles ofministers and department heads. It hassuggested that they could opt to resign in casesof ‘performance failure,’ even though theythemselves were not at fault. However thissuggestion has not met with approval from somequarters who argue that it does not placesufficient weight on ministerial accountability.23
Core Values for the Public Service
There is no single document containing acomprehensive outline of core public servicevalues. In most cases these are implied orexpressed through principles. The most widelyused is the State Service Commission’s Code ofConduct, issued in 1995 (see below). Chiefexecutives of government departments areresponsible for setting standards for their ownemployees, discipline and issuing specificdepartmental codes of conduct.
The State Services Commission
The SSC plays a pivotal role in providing ethicalleadership in the public service. It derives itsmandate from the State Sector Act, 1988. It issuesa Code of Conduct ‘covering the minimumstandards of integrity and conduct that are toapply in the public service.’ It elaborates theexpectations set out in the Code in a seriesentitled Principles, Conventions and PracticeGuidance Series. The SSC has also a role inrecommending appointments to CE positionsand ensuring integrity at the top of the publicservice.
Despite the code, the SSC’s role in relation toethics remains unclear. While it must beconsulted on any code of conduct issued by theSecretary of Education and other statutorybodies, it still lacks a decisive mandate. This isbecause the State Sector Act, 1988 provides anexplicit framework for human resourcespractices that are mandatory for the core Statesector. This has reduced the need in NewZealand for a central body charged withguarding ethical behaviour. Furthermore, while
49
the SSC has an overarching responsibility forinfluencing ethics, its jurisdiction is limited to thecore civil service and does not extend to thewider state sector.
Thus, the SSC has played down ethics,regarding it as an issue to the tackled only whensomething has gone wrong. It is a reactiveinstitution that seeks to convert lessons learntinto rules and guidance material. An alternativeapproach is the recently issued State ServicesCommission Statement of Intent for 2002, which hascommitted the organisation to a more thoroughmonitoring of ethics related issues.24
Details of the Code of Conduct
The Public Service Code of Conduct sets out threeprinciples of conduct all public servants areexpected to observe:
• Civil servants should fulfil their lawfulobligations to Government withprofessionalism and integrity;
• Civil servants should perform their officialduties honestly, faithfully and efficiently,respecting the rights of the public and theircolleagues;
• Civil servants should not bring the PublicService into disrepute through their privateactivities.
The code is written at the level of generalguiding principles. It is deliberately written thisway to establish minimum requirements, asstated in the State Sector Act, 1988. Departmentsmay add additional or more specif icrequirements to fit their own circumstances.While the code is written for the Public Service,organisations in the wider state sector may usethe code to inform their own codes of conduct.
The values contained in the code are notcommunicated in any systematic way.25
Departments do not have induction programmesthat explain or outline core values. Neither dothey have ongoing education or trainingprogrammes to reiterate the Code.
The Code of Conduct covers the followingareas:
First Principle
• Obligations to Government
• Political Neutrality• Public Comment on Government Policy• Individual Comment• Private Communications with Ministers
and Members of Parliament• Political Participation• Participation in Public Bodies or Voluntary
Associations• Standing as a Member of Parliament• Release of Official Information• Protected DisclosuresSecond Principle
• Performance of Duties• Respect for the Rights of Others• Integrity and Avoidance of Conflicts of
Interest• Offers of Gifts or GratuitiesThird Principle
• Personal Behaviour
The Public Service Code of Conduct does not,and cannot, specify every conflict or difficultythat public servants may experience in thecourse of their duties. There are other majorsources of advice, support and information thatpublic servants can go to for help in applying theprinciples of the Code of Conduct:
Departments
Departmental codes of conduct build on theprinciples of the Public Service Code of Conductwhen designing their own Codes. Departmentalcodes are usually available on departmentalintranets or through managers or the HumanResources unit.
The State Services Commissioner and the StateServices Commission
The State Services Commissioner issues thePublic Service Code of Conduct and otherguidance material under the Commissioner’sstatutory responsibilities to prescribe minimumstandards of integrity and conduct for the PublicService.
The State Services Commission providesadvice, guidance and publications on variousmatters to do with the Code of Conduct andwider standards of behaviour, including PublicServants and Select Committees and PublicServants, Political Parties and Elections. Much of
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this guidance is applicable to the wider Statesector.
Standards for Senior Civil Servants
In 1998, the State Services Commission first issueda document setting out the ethical standardsexpected of senior civil servants.26 It is updatedperiodically. The document sets out a series ofguidelines for departmental heads and othersenior civil servants and is intended to instructthose on secondment from the private sector onthe traditions and practices of the civil service. Itencourages senior civil servants to be flexibleand improve efficiency and gives advice on howto maintain high standards. Ethical standards, itmaintains, are upheld if the civil servant is ableto know when to change a decision or course ofaction if the objective is no longer tenable.Furthermore, a senior civil servant should beable to handle mistakes constructively and treatsall subordinates equally. The document is athoughtful one and provides useful guidance onleadership in a changing civil service.
The Cabinet Manual and Cabinet OfficeCirculars
The Cabinet Manual includes importantinformation on how the Public Service interactswith the Government and Parliament, althoughits main purpose is as a guide to centralgovernment decision-making. It is available inelectronic form from the Cabinet Office’s websiteor in book format from the Cabinet Office.27
The Communication of Public Service Values
There is no systematic method forcommunicating values to the New Zealand civilservice. Departments do not hold regularinduction programmes or undergo regulartraining sessions to reinforce core ethicalvalues.28 There are various guidance measuresavailable to civil servants to help them resolveethical issues. These mainly take place throughhuman resource sections in individualgovernment departments. There is considerablevariation in the method and approach to thesemeasures.
Regulation
General Legislation
The State Sector Act, 1988 and the Public FinanceAct, 1989 underlie the main areas of civil serviceregulation. The combined effect of these Actshas been to put the onus on individual chiefexecutives for the activit ies of theirdepartments.29 The main result of these Acts isthat they have made public servants morevisible. In many cases this is because issues ofmanagement attract public attention.
Legislation covering unacceptable conduct
The Crimes Act, 1961 contains offences thatapply specifically to all public officials. Theseare:
• Judicial corruption (s. 100)• Bribery of a judicial officer (s. 101)• Corruption and bribery of a minister of the
Crown (s. 102)• Corruption and bribery of a member of
Parliament (s. 103)• Corruption and bribery of a law
enforcement officer (s.104)• Corruption and bribery of an official (s.
105)• Corrupt use of official information (s.
105a)• Use or disclosure of personal information
disclosed in breach of s.105a (s. 105b)
In addition the Public Finance Act, 1989 (s.76) andthe Public Finance Act, 1977 (s. 109) containoffence provisions in relation to public money.
Legislation covering whistleblowers
The Protected Disclosures Act, 2001, providesprotection to whistleblowers who reportwrongdoing in the civil service. Disclosures maybe made to the Ombudsman and must follow thecorrect procedures. The Act is required to bereviewed every two years by the appropriateminister who must then report to the House ofRepresentatives.
The Protected Disclosure Act, 2001 also containsprocedures enabling the public to disclosemisappropriation of funds and other wrongdoingcommitted by officers of the state, primarily
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through complaints (specific procedure for eachministry), and a telephone helpline.
III. Special Advisers30
History
‘Non Public Service’ advisers in ministerialoffices are a relatively recent phenomenon.While Sir Robert Muldoon as Prime Minister1975-84, had press officers from the privatesector, ‘policy advisers’ from ‘outside’ arrivedwith the fourth Labour (Lange) Government in1984. There had been ministerial ‘think tanks’ inthe 1930s but in the post-war period ministerialoffices were serviced by a private secretary fromthe ‘corps’ of secretaries funded by theDepartment of Internal Affairs (in some respectsthe NZ Home Office). These officers werepassed on from minister to minister irrespectiveof changes of government. This was a careerservice with the pinnacle being the PrimeMinister’s office (followed by the office of theMinister of Finance).
While these secretaries built up a largeinstitutional memory in the portfolio they werescrupulously apolitical and careful not to appearto be usurping the role of the public service asthe minister’s principal source of advice.
The corps of private secretaries was augmentedin the larger portfolios by officers seconded fromthe principal agencies for which the minister wasresponsible (bearing in mind that NZ ministershave more than one portfolio). The Treasury, forexample, always had an officer in the minister’soffice usually on a three-year term. Typicallythese were young ‘high-fliers’; but they werethere to assist liaison between the minister andthe department and not as policy advisers.
In 1984, the new Labour government broughtso-called ‘advisers’ to most portfolios. Forexample, the Minister of Health employed ayoung psychiatric registrar as an adviser. Yet,according to Martin, there was not a universalwelcome in the ministry for this innovation,particularly among senior medical colleagues. In the event though, officials came to value thebridge this person made between thedepartment and the minister.
By the late 1980’s, the State Services Commissionwas developing a template to clarify the role of
these new arrivals in ministers’ offices. Nothingemerged — it was too difficult — and thesituation simply evolved. These ‘advisers’ werethere because they were compatible with theminister rather than because of party allegiance.There was also a feeling on the part of Labour(out of office for the past 9 years and ingovernment in only 6 of the past 45 years) thatthey needed a trusted source to ‘keep the publicservice honest’. In some cases, including in theoffice of the then Minister of Health (Helen Clark)in the last years of the Fourth LabourGovernment, there were clear signs that theprivate office was developing a policy capacityseparate from the department.
In 1990, the National government led by JimBolger also brought advisers into private officesbut not to the same extent as Labour. This was areflection of the traditional wariness of Labour ofthe civil service.
Under the present coalition government led byHelen Clark, ministerial support is from a sub-group in the Department of Internal Affairs, knownas Ministerial Services. They are responsible foremployment and contracting, but take advicefrom the Minister on actual people. Once aformal ‘chief of staff’ or ‘senior private secretary’or such other person is appointed and has theconfidence of the minister to work out staffingmatters, Ministerial Services tend to work throughthat person.
All contracts in ministerial offices (apart fromordinary departmental staff temporari lyseconded as “private secretaries” to adepartment) are ‘event-based’ - meaning theyterminate when the minister loses the warrant. That applies to press staff, policy advisers, andthe secretaries. In this sense, many specialadvisers are essentially civil servants on event-based contracts. In some cases, appointmentsto these posts come from the ranks of peoplewho have worked before for a range of othergovernments. This is especially the case forsenior private secretaries and the othersecretarial staff. In the more advisory andpolit ically sensit ive appointments (presssecretaries, policy advisers, and the odd chief ofstaff), these appointments are from people whohave the minister’s complete confidence. Therefore, there is provision for the contracts tobe terminated if the relationships break down.
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Regulation
There is no particular guidance for ministerialadvisers. Such individuals are expected to referto the Cabinet Office Manual and the Principles,Conventions and Practice Guidance Series. But it isa fairly vague reference and there is noadditional code. The conduct of special adviserstends to be managed by the government chiefsof staff. Each minister would also takeresponsibility individually, if something wentwrong. In the end, the legal requirements ofaccountability govern as regards finance andformalities, but the political accountabilities alsoapply given the confidence required by theminister.
The Cabinet Office Manual contains a sectionentitled ‘Non-Departmental Advisers’ in which itsets out several principles applying to specialadvisers.
These state that:
• A clear understanding must beestablished between the Minister and thechief executive so that departmentalofficials know the extent of the authority onwhich these advisers are speaking;
• Staff in Ministers’ offices must take care toensure that they do not improperlyinfluence matters that are theresponsibility of others;
• Ministers have a responsibility to ensurethat their staff consider potential conflictsand take appropriate steps to avoid them;
• Where there is a possible conflict ofinterest the staff member should notify hisor her Minister immediately so that theissue can be dealt with.
Political appointees are formally employed bythe ministerial services branch of the Departmentof Internal Affairs under the State Sector Act 1988.But they work for the minister—not to theSecretary of Internal Affairs or the portfoliodepartments’ chief executives.
They do not seem to be regarded as subject tothe Public Service Code of Conduct issued by theState Services Commissioner in accordancewith statute. This brings about certainanomalies, and the potential for problems inthese arrangements. However, polit icalappointees are now an established part of the
system; but there does not seem to be any effortunderway to t idy up and formalise in aconstitutional sense the present arrangements.
Problems of Accountability
There has been practically no empirical analysisof the positive and negative aspects of the NewZealand reforms on public sector performanceand accountability. The statutory listing ofresponsibilities for outputs and outcomes hasfailed to clarify polit ical as distinct frommanagerial responsibilities, irrespective of theintroduction of contractualism.31
Discussion continues about the role of specialadvisers in New Zealand. The following listsummarises the main points being made:
• That there might be a case for explicitlydesignating staff in ministerial offices asbetween public servants and ministerialappointees (who came and went with theminister) so that it was crystal clear thatthe conventions applying to the publicservice clearly accompanied thesecondees to ministerial offices.
• Explicitly ‘brand’ secondees for the timethat they were seconded as subject to aseparate code of behaviour during theperiod of secondment.
• A code of behaviour covering suchmatters as the status of directions from theminister ’s office and the role of thedepartmental chief executive should beput in place.
• Explore the concept of a ‘chef de cabinet.’
However, in another sense, the role of advisersin a coalition government can help publicservants to preserve their neutrality. Prior to theintroduction of proportional representation inNew Zealand, it was feared that public servantsmight be placed in an invidious position if thesituation arose where they supported a proposalthat only had the support of one of the parties incoalition. This may have left them exposed topotential accusations of partisan bias from thedissenting party. Advisers have insteadassumed the role of brokers on political issuesalthough it seems that both the parliamentaryand extra-parliamentary parties have lostinfluence as a result.
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Numbers
Table 3 (below) shows that the number ofspecial advisers (listed here under the term‘contract staff’) is large. However, ‘contract staff’would not be solely ministerial advisers butwould include drafted civil servants from theprivate sector as part of the ‘New PublicManagement’ init iative and temporaryadministrative personnel. A more likely estimateis that the number of actual special advisersnumbers between 82 and 106.
ConclusionsThe ethos of the NZ public service waschallenged by the reforms of the 80’s and 90’s.As a result, it has had to adapt to new structuresand expectations. Due to this it has been mindfulof threats to ethical principles. The passing ofthe State Sector Act and the establishment of theSSC helped institutionalise ethical behaviourand there is no evidence of a breakdown instandards. However, the turnover of staff hasincreased and the flattening of middlemanagement has led to the development of astrong agency culture not dissimilar to that of theUS Civil Service.33
Yet it is possible that public serviceaccountability may be diminished due to the newcontractual nature of the civil service.34 This isbecause the officials concerned, aware of theboundaries of their contracts, will only be held
accountable for what is directly in their control.Furthermore, a contractual management stylemay reduce the cultural elements that are soimportant in maintaining ethical standards. Thisincludes the trust that comes from serving othersover a period of time, the sense of obligation thatoverrides personal interest and the pride inestablishing a stake in a long-standing andrespectable institution.
The New Zealand civil service has a low level ofreported corruption. It is not possible though toascertain what influences are the most effectivein maintaining the relatively high rates ofresponsibility. Some have suggested that theincreased autonomy of departments, greaterdecentralisation and devolution and the influx ofprivate sector employees into the civil servicedecreases awareness of core-values and ethicalpractice. So far there is not much evidence forthis. However, although New Zealand has avariety of mechanisms and guidelines promotingethical behaviour in the civil service it still lackscomprehensive training programmes and amandatory distribution of the State Service Code.
Special advisers, as in other countries, areplaying a wider role in New Zealand. While theyare regulated by the Cabinet Office Manual theremay be need for a more detailed code ofconduct and possibly the establishment of a chefde cabinet to monitor their conduct.
1 Hicks, C. 1998. “The Ethics Regime in New Zealand” in N. Preston and C. Sampford (eds.) Ethics andPolitical Practice: Perspectives on Legislative Ethics. London: Routledge p.112
2 As of August 2002
Table 3. Private staff in ministerial offices32
Date Administration Executive Size Contract Staff Annual cost ($) Average rate ($)
Jun 1989 Labour 26 45 2.1m 46,072
Oct 1990 Labour 26 58 2.7m 46,813
Apr 1991 National 25 56 2.8m 49,792
Mar 1994 National 27 77 4.4m 57,030
Sep 1997 National-NZ First 24 129 7.3m 57,214
Jun 1999 National (minority) 23 106 6.4m 60,989
Feb 2002 Labour 23 179 10.3m 68,118
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3 Boston, J. 1991. “Chief executives and the senior executive service.” In J. Boston et al., (eds.), Reshapingthe State. Auckland: Oxford University Press
4 Henderson, A. 1990. The Quest for Efficiency: The Origins of the State Services Commission. Wellington: StateServices Commission
5 Martin, J. 2001. “The Public Service” in R. Miller (ed.) New Zealand Government and Politics. Auckland:Oxford University Press. p.133
6 Goldfinch, S. 2000. Remaking New Zealand and Australian Economic Policy: Ideas, Institutions and PolicyCommunities. Wellington: Victoria University Press
7 Considine, M. 2000. “Contract Regimes and Reflexive Governance: Comparing Employment ServiceReforms in the UK, Netherlands, New Zealand and Australia.” Public Administration Vol. 78. No. 3. pp.613-618
8 Thomas, P. 1998. ‘The Changing Nature of Accountability’ in Peters, B. Guy and D. Savoie (eds.) TakingStock: Assessing Public Sector Reforms. Montreal: McGill-Queen’s University Press.
9 Gregory, R. 1998. “The Changing Face of the State in New Zealand: rolling back the public service?”Paper presented at the Annual Meeting of the American Political Science Association, Boston, 3-6September.
10 Laegreid, P. 2000. “Top Civil Servants Under Contract.” Public Administration, Vol. 78 No. 4 pp.879-89611 Boston, J. 1991. “Chief executives and the senior executive service.” In J. Boston et al., (eds.), Reshaping
the State. Auckland: Oxford University Press12 Schick, A. 1996. The spirit of reform: managing the New Zealand state sector in a time of change. Wellington:
State Service Commission13 Boston, J., J. Martin, J. Pallot and P. Walsh. 1996. Public Management: the New Zealand model. Auckland:
Oxford University Press p.33214 Christensen, J. 2001. “Contractualism and Politicisation in the Public Service: A Comparative View of
Denmark and New Zealand” Paper presented at the 97th Annual Meeting of the American Political ScienceAssociation, San-Francisco, 30 August –2 September.
15 Christensen, J. 2001. p.1716 Boston, J., J. Martin, J. Pallot and P. Walsh. 1996. Public Management: the New Zealand model. Auckland:
Oxford University Press p.32117 OECD. 2000. Trust in Government: Ethics Measures in OECD Countries. Paris: OECD Publications p.24118 State Services Commission. 1999. An Ethics Framework for the State Sector. Occasional Paper no. 1519 See the series of reports from Transparency International entitled Index of Corruption around the World20 Mulgan, R. 1997. “The Processes of Public Accountability” Australian Journal of Public Administration, 56 (1)
pp.25-3621 Gregory, R. 1998. “Political Responsibility for Bureaucratic Incompetence: Tragedy at Cave Creek” Public
Administration 76, pp.519-53822 Gregory, R. 1998. p.53123 Palmer, G. and Palmer, M. 1997. Bridled Power: New Zealand Government under MMP. Oxford: Oxford
University Press24 It can be found at http://www.ssc.govt.nz/siteset.htm25 OECD. 2000. Trust in Government: Ethics Measures in OECD Countries. Paris: OECD Publications p.24226 http://www.ssc.govt.nz/documents/cecompetencies.pdf27 http://www.dpmc.govt.nz/cabinet/manual28 OECD. 2000. p.24229 Boston, J., J. Martin, J. Pallot and P. Walsh. 1996. Public Management: the New Zealand model. Auckland:
Oxford University Press p.32130 A great deal of this section is derived from an interview with John Martin, former senior public servant with
the NZ Ministry of Health and a professor of public policy at Victoria University Wellington.31 Gregory, R. 1998. “Political Responsibility for Bureaucratic Incompetence: Tragedy at Cave Creek.” Public
Administration, 76 pp.519-53832 Shaw, R. 2001. “Advisers and Consultants” in Raymond Miller (ed.) New Zealand Government and Politics.
Auckland: Oxford University Press33 Boston, J., J. Martin, J. Pallot and P. Walsh. 1996. Public Management: the New Zealand model. Auckland:
Oxford University Press p.33234 Shaw, R. 2001
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This section sets out the regulatory regime in theRepublic of Ireland for ministers, civil servantsand special advisers. The country has seen agreat deal of legislation enacted recently, mainlyas a response to high profile ministerialscandals. Now, ministers are subject toinvestigation by an independent commissionand sanction by the Oireachtas (Parliament).Civil service accountability is provided for in aCivil Service Act and a new code of conduct iscurrently being drawn up. Recently, legislationhas been drafted to cover special advisers.
I. Ministerial RegulationIn recent years, Irish ministers have beensubject to a considerable degree of scrutiny. In1996, the Minister for Energy andCommunications, Michael Lowry was forced toresign over financial impropriety. In 1997another minister, Ray Burke resigned overbribery allegations. These resignations led to the
establishment of the Flood Tribunal on Ethics inPublic Office. At the same time, the MoriartyTribunal was assembled to investigate unethicalbehaviour while in office by former Taoiseach,Charles Haughey.
The outcome of these ministerial scandals wasthat the government paid close attention todrafting legislation and setting up institutionsthat would prevent further incidents of this kind.The result has been the passing of legislation,the Ethics in Public Office Act, 1995 and theStandards in Public Office Act, 2001 as well as thetightening up of the Standards in Public OfficsCommission, the regulatory body established toinvestigate public-service impropriety.
The Standards in Public Office Act, 2001established the Standards in Public OfficesCommission, which replaced the Public OfficesCommission set up in 1995.1 This commissionconsists of a High Court or Supreme Court
Ireland
Table 1: Milestones
1889 Public Bodies Corrupt PracticesAct
Contains criminal statutes applying to the civilservice
1916 Prevention of Corruption Act Set out conflict of interest specifications for civilservants
1924-95 Ministers and Secretaries Acts Established legal basis for accountability in civilservice
1956 Civil Service Commissioners Act Established rules of entry into the civil service
1956 Civil Service Regulations Act Charged the Minister for Finance with fixing theterms and conditions for civil servants
1995 Ethics in Public Office Act Set out responsibilities of public-office holders andspecial advisers
1997 Committees of the Houses of theOireachtas Act
Confers power on Oireachtas to request papers andsummon civil servants
1997 Public Services Management Act Introduced a statutory basis for the creation of a newmanagement structure for the civil service
2001 Standards in Public Office Act Clarified responsibility of ministers
2001 Prevention of Corruption(Amendment) Act
Updates legislation on bribery, ministerial conflict ofinterest
2003 Guidelines for Public Servantsand Office Holders
Instructs public servants on compliance with theEthics in Public Office Acts, 1995 and 2001
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judge, the Comptroller and Auditor General, theClerks of the Dáil and the Senate and a memberappointed by the government. The membershave a term of six years. Its powers areanalogous to those of a tribunal of inquiry withthose put before it being represented by a seniorcounsel and with witnesses afforded the samerights as in a court of law.
The Commission undertook its first formalinvestigation into a minister (Ned O’Keefe) inDecember 2001 for failing to declare hisinterests. He was suspended for 10 daysfollowing a debate in the Dáil. The requirementsof the 2001 Act state that it is the responsibility ofthe Dáil to impose sanctions on one of itsmembers.
In December 2002, the Standards Commissionpublished guidelines for office holders (i.eMinisters, Ministers of State and CommitteeChairmen).2 These help ministers carry out theirobligations under the Ethics in Public Offices Actsand relate mainly to disclosure of interests.
A Typical Ministerial Office
In Ireland all government departments arelocated in different buildings in Dublin, as are UKministries in London. Ministers have their mainoffices in their departments.
Table 2 (below) gives an example of a typicalministerial off ice. In this case it is theDepartment of Education in 2002. There are two
special advisers, all the other staff are civilservants.
II. The Irish Civil ServiceThe structure of the Irish Civil Service mirrorsthat of the UK and other Westminster systems.In all, there are roughly 32,000 civil servants inIreland.4 This is less than the number of personsemployed in the local authorities, the healthservices and the state-sponsored bodies. Mostcivil servants are recruited as a result ofcompetit ions held by the Civil ServiceCommission under the Civil ServiceCommissioners Act, 1956.
The civil service is divided into three maincategories: general, departmental and technical.Those in general service perform general dutiesfrom routine clerical operations to higher policy,advisory and managerial work. Departmentalgrades are confined to a few departments oroffices, such as the Department of ForeignAffairs and the Houses of the Oireachtas(Parliament). Technical officers are recruited toperform specialised work and will have prior,specific qualifications. They tend to be solicitorsworking for the Office of the Chief State Solicitor ordoctors working for the Department of Health.
Civil Service Reform
In the mid-1990s, the Strategic ManagementInit iative Programme (SMI) set aboutrestructuring and reforming the Irish civil service.
Table 2: The Structure of a Ministerial Office3
Category Number
Minister 1
Ministers of State (Junior Ministers) 2
Higher Executive Offices (Private Secretaries) 2
Executive Officers 6
Staff Officers 2
Clerical Officers 1
Clerical Assistants 9
Special Advisers 2
Personal Secretaries 3
Civilian Drivers 2
Total 30
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The review identified a need for a civil servicecode of conduct to update and clarify rules ofethical behaviour. Furthermore, the sequence ofTribunals of Inquiry set up to review conflicts ofinterest between the public and the privatesector emphasised the need for reform.
Reform was prompted by a view that the Irishcivil service had become too hierarchical.Decisions tended to be taken at a high level andauthority had become unduly centralised. Thisresulted in structures that did not always ensureoptimal levels of efficiency and effectiveness.5
The Public Services Management Act, 1997 wasenacted in order to improve performance andaccountability.
Core Values
In January 2003 the Standards Commissiondrew up a set of guidelines to assist publicservants comply with the provisions of the Ethicsin Public Office Acts, 1995 ans 2001. These corevalues will be automatically provided to new civilservice recruits and will form part of the termsand conditions of their employment contract.
At the moment, Ministry of Finance circularsprovide guidance on the following areas:
• Impartiality;• Political neutrality;• Recruitment and promotion based on
merit;• Proper disclosure of information;• Sympathetic, efficient and courteous
dealings with the public;• Efficiency and diligence in work;• Avoidance of conflict of interest.New Code of Conduct
The Department of Finance is currently drawingup a new code of conduct. It should bepublished by September 2002. The new code islikely to cover some of the following areas:
• Receiving gifts or benefits;• Use of official information/facilit ies/
property;• Work outside the civil service;• Involvement in political work;• Official travel.
Regulatory Bodies
The Ethics in Public Office Act, which came intooperation on July 22nd, 1995, applies to eachmember of both Houses of the Oireachtas,including office holders, and to specifiedcategories in the civil service. In particular, theAct provided for the establishment of:
• A Dáil and a Seanad Select Committee onMembers’ Interests
• A Public Offices Commission.6
The remits of the select committees establishedunder the Act apply to members of the Houses ofthe Oireachtas (Parliament) who are not officeholders. The Commission’s remit extends tooffice holders and also to civil servants. Theprincipal function of the Commission is toprovide advice and guidance on compliance withthe legislation as well as investigating andreporting on alleged contraventions of the Act.
The Commission receives and considers annualstatements of the registrable interests of theAttorney General, ministerial special advisersand persons who hold designated directorshipsin the semi-state sector. It also receives annualstatements of the registrable interests of theirspouses or children which could materiallyinfluence them in the performance of their officialfunctions.
The annual statements of their own registrableinterests furnished by members of both Housesof the Oireachtas (including office holders) arelaid before the Dáil and the Seanad and arepublished in Iris Oifigiúil. The information is,therefore, in the public domain. Similarly, thestatements of Ministerial special advisers’ ownregistrable interests, and other informationrelating to the appointment of special advisers,which are laid by office holders before eachHouse of the Oireachtas, are in the publicdomain as are the statements made bymembers of the Oireachtas concerning amaterial interest in proceedings of the House(s)or a Committee of the House(s).
The legislation provides that the disclosure byany person of information obtained under theEthics in Public Office Act, or by being present ata sitting of the Commission constitutes anoffence.
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However, this does not apply to information thatis:
• Disclosed, in the public interest, by aMinister of the Government,
• Contained in certain statements anddisclosed, by the person to whom thestatements were furnished, to specifiedparties in circumstances where the persondisclosing is of the opinion that a conflictmay exist between an interest specified,or an undisclosed interest, and the publicinterest,
• Disclosed by a person in the course of theperformance of the person’s functions ordisclosed to a Minister of the Government,the Secretary General to the Government,a Select Committee on Members’Interests, the Commission or a relevantauthority where such disclosure is in thepublic interest or
• Disclosed to comply with an order of acourt for the purpose of proceedings inthat court.
Neither does the prohibition apply to disclosureby, or with the consent of, the person to whomthe information relates, of information containedin a report of an investigation by the Commissionor a Select Committee on Members’ Interestswhich has not been laid before either House.
Regulation
The statutory basis for the accountability of civilservants derives from the Ministers andSecretaries Acts, 1924-1995, the Civil ServiceRegulation Act, 1956, the Comptroller and AuditorGeneral (Amendment) Act, 1993 and some otherrelevant legislation.
The Minister for Finance is responsible for theregulation and control of the civil service, theirclassification, numbers and remuneration andterms of conditions and service, promotion anddiscipline. Only the government has had theauthority to dismiss established civil servants.
The Public Service Management Act, 1997introduced a statutory basis for the creation of anew management structure for the civil service.Its purpose was to enhance transparency and toput in place mechanisms for increasedaccountability of civil servants. For example,officers who have been assigned functions were
made accountable, in statute, to their secretarygeneral and to their line manager. Furthermore,all civil servants are required by the Act toappear before Oireachtas committees whenrequested to do so.
In all, the Public Service Management Act hasprovided a firm foundation for developing a moreresults-orientated and accountable civil service.
The Ethics in Public Office Act, 1995 goes furtherin defining the ethical framework for the civilservice, politicians and senior executives ofstate bodies.
Broadly it requires senior officials to disclose:
• Outside income, shares etc;• Directorships, consultancies;• Land holdings;• Public contracts;• Certain gifts, travel provided free or below
cost.
The Act contains a procedure whereby failure tocomply with the disclosure requirements canresult in referral to the Director of PublicProsecutions.
The Committees of the Houses of the Oireachtas(Compellability, Privileges and Immunity ofWitnesses) Act 1997 confers power on Oireachtascommittees to request papers and summon civilservants to attend meetings and respond toquestioning relevant to the terms of reference ofthe investigating Committee.
The Civil Service Regulations Act, 1956 (Section17), charges the Minister for Finance to fix theterms and conditions of civil servants. This isachieved through the publication and distributionof circular letters throughout the civil service.7
Relevant criminal statues are the Public BodiesCorrupt Practices Act, 1889; the Prevention ofCorruption Act, 1906, and the Prevention ofCorruption Act, 1916. All three have beenamended by the Ethics in Public Office Act, 2001.Responsibility for investigating suspectedcriminal offences such as bribery rests with thePolice. The decision on whether to prosecuterests with the Director of Public Prosecutions(DPP).
Criminal legislation covers:
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• Active, passive, direct, indirect orattempted corruption of public officials/corruption committed by public officials;
• Partiality in official decision making andabuse of office.
The Prevention of Corruption (Amendment) Act,2001 strengthened the law on corruption andbrought Ireland into line with internationalguidelines. These are:
• European Union Convention on the Fightagainst Corruption involving Officials ofthe European Communities (1997);
• Convention on Bribery of Foreign PublicOfficials in International BusinessTransactions (OECD: 1997)
• Criminal Law Convention on Corruption(Council of Europe, 1999)
Civil Service Involvement in Politics
In general, civil servants above clerical officerlevel, excluding personal assistants and specialadvisers whose terms of appointment arecoterminous with the appointing Minister, aretotally debarred from engaging in politics. Theexception is where a civil servant, who holds aposition which had been within the clericalofficer threshold, has been upgraded throughthe general restructuring of his or her grade andas a result of which such upgraded position nowcarries a salary maximum above that of clericalofficer.
III. Special AdvisersThe practice of appointing special advisersdates back to the government of 1954-57 whentwo appointments were made. Thereafter, therewere no further appointments till 1970.8 Thegovernments that took office in 1973 and 1977had four and six advisers respectively. Since the1980’s the number has grown and now nearlyevery minister has an adviser.
The role of the special adviser in Ireland consistsof:
• Discussing with the minister the politicaland electoral implications of the advicecoming from civil servants;
• Discussing organisational changes thatthe minister is thinking of proposing;
• Drawing attention to aspects of policy thatthe civil service may not have referred to;
• Researching matters for discussion atgovernment meetings;
• Dealing with constituency matters in abroader framework than the normalconstituency correspondence handled bythe private secretary demands;
• Writing speeches for the minister.
Advisers have access to departmental files andmay see all submissions to the minister.
The arrangement bears some resemblance tothat of the European ‘cabinet’ system. Underthat system a minister (or a member of theEuropean Commission) has a group of 8-10people known as a ‘cabinet’ whose work isbroadly akin to that of special advisers,described above. There are periodicsuggestions in Ireland to establish a ‘cabinet’system but the matter has not been consideredin any detail. As Dooney and O’Toole comment,it would necessitate radical changes to thepublic service to an extent that could bepolitically unacceptable.9
A new development introduced by the 1993-4Fianna Fáil/Labour government was theappointment of programme managers to act asgo-betweens between the coalition partners.Some of these were civil servants and somewere appointed from outside the service. Thispractice continued under the 1994 Fine Gael/Labour coalition but has ceased with the presentFianna Fáil/Progressive Democratgovernment.10
Programme managers were assigned thespecific function of providing administrativesupport to ministers in progressing the coalitiongovernment programme, the PartnershipProgramme for Government. They would meetformally every week to discuss the programme.They would also meet bilaterally, where theysought solutions to interdepartmentalagreements and so saved ministers’ time.
Many special advisers are veterans of previousgovernments. The most celebrated is Dr. MartinMansergh who has served as a salaried adviserin Fianna Fáil headquarters when the party wasin opposition and as special adviser on NorthernIreland to successive Fianna Fáil Taoisigh. He isnow a member of the Senate but continues toact as a special adviser. This type of revolvingdoor appointment has become the norm now
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that Irish political parties receive state fundingwhich provides an assured level of finance forparty work.
Numbers
It is difficult to attain precise numbers of thenumber of special advisers employed by Irishministers. However, table 3 (above) gives anindication based on information drawn fromquestions put to Ministers in the Dáil. Until the1990’s it was customary for every Minister tohave one special adviser. The Fianna Fáil ledReynolds government of 1994 was the first toincrease numbers, with every minister and everyjunior minister having a special adviser. TheFine Gael led Bruton administration of 1994-1997 marked the pinnacle of special adviserproliferation in Irish government with 49 specialadvisers spread through 15 departments. Thepresent Fianna Fáil government led by BertieAhern reduced the number of advisers.However, the role of special adviser has beenblurred by the use of politically appointed presssecretaries and party interns who are notincluded in these figures.
The Department of the Taoiseach has alwayshad the largest number of special advisers.Ahern, for example, employs eight while Brutonemployed five.
Salaries
When the Fianna Fáil—Progressive Democratcoalition government came into office in June1997, the Minister for Finance laid down certainrules governing the salaries of special advisers,since the Public Service Management Act, 1997made no reference to salaries.
The Minister for Finance established anattraction allowance of 10% on top of theprevious salaries of appointees. The offices ofthe Taoiseach and Tánaiste are excluded fromthese regulations and the Minister for Financeand the Taoiseach were given authority to
sanction the appointments and salaries ofadvisers in these Departments.
Legislation governing Special Advisers
Ireland is well provided for in legislation coveringthe role and conduct of special advisers. Therelevant Acts are:
• Public Service Management Act, 1997(section 11);
• Ethics in Public Office Act, 1995;• Prevention of Corruption Act, 2001.
Section 19 of the Ethics in Public Office Act, 1995and section 11 of the Public Service ManagementAct, 1997 have regulated the position of specialadvisers to Ministers and Ministers of State.They are set out in the appendix.
In brief, the Public Service Management Act, 1997specifies:
• That a minister or minister of state (otherthan the Taoiseach or Táiniste) cannothave more than two special advisers;
• That special advisers are accountable tothe minister;
• That the terms and conditions of theemployment of special advisers beperiodically reviewed by the Minister forFinance.
The Ethics in Public Offices Act, 1995, Section 19specifies:
• That special advisers are not part of thecore civil service but are appointedpersonally by an office holder;
• The contract of a special adviser isterminated upon the relevant office holderleaving his position;
• The special adviser must submit to thePublic Offices Commission a statement ofpersonal interests and family interests;
Table 3. Special Advisers in Irish Governments 1981-200211
Fitzgerald1982-1986
Haughey1989-1992
Reynolds1992-1994
Bruton1994-1997
Ahern 1997-2002
Ministries 15 15 15 15 15
Advisers 13 15 30 49 28
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• The special adviser must inform the PublicOffices Commission immediately of anyconflict of interest scenario.
Failure to comply with the legislation results ininvestigation from the Public OfficesCommission and potentially, dismissal or thebringing of criminal charges.
In performing their duties special advisers arenot excluded, as are civil servants, fromproviding advice to an office holder in his or herrole as a member of the Oireachtas or a politicalparty.
Codes of Conduct for Special Advisers
At present there is no code of conduct forspecial advisers. However, the new code ofconduct currently being devised to outline corepublic service values will be issued to specialadvisers.
Special advisers are included in Minister ofFinance circulars covering standards ofbehaviour (see above). For example, Circular 37/95 (E109/56/86) issued by the Department ofFinance on 14th December, 1995 indicates thatall Personal Advisers and Programme Managersare required to comply with the requirements setout in the Ethics in Public Office Act.
The Standards Commission has issued a set ofguidelines for Public Servants to help themcomply with the terms of the Ethics in PublicOffice Act. Section 5 of this covers specialadvisers. The guidelines state, among otherthings, that special advisers are required:
• to submit each year to the Public OfficesCommission a statement of registrableinterests
• to submit, on leaving the post, a copy ofthe contract l ist ing the terms andconditions under which one acted asspecial adviser
Special advisers are also required to provide astatement of the facts to his or her minister aswell as to the Standards Commission if a specificfunction fails to be performed and if the specialadviser has a material interest in the matter towhich the function relates. This is designed toeliminate collusion with lobby groups or thewitholding of information.12
Relationship between special advisers and civilservice
Civil servants in Ireland have a close workingrelationship with special advisers. Prior to 1981advisers who wished to remain in office at thetermination of a government were oftenappointed established civil servants ‘in the publicinterest’, as provided for in the Civil ServiceCommissioners Act, 1956. This has now beenrepealed partly as a response to dissatisfactionfrom existing civil servants who saw the rule asinterfering with promotion arrangements.13
In general , informal interviews with civil servantsacknowledge that the political connections ofspecial advisers are an asset because theyunderstand the political consequences of policyand have an instinctive sense of what theirminister can achieve.
Another explanation for the good workingrelationship between permanent civil servantsand special advisers in Ireland is that manyspecial advisers tend to be in place for a longtime. Ireland’s largest party, Fianna Fáil, hasbeen in power for 14 out of the last 16 years.Ministers tend to retain their special advisersand the same adviser often works for differentministries. In this respect, special advisers canget to know permanent civil servants well andbuild up long-term working relationships withthem.
ConclusionsIreland has recently passed legislation onministerial ethics. The Ethics in Public Office Act¸1995 and its successor the Standards in PublicOffice Act, 2001 have laid down strict guidelinesfor ministerial conduct.
There have been several recent developmentsin civil service regulation. The Public ServicesManagement Act introduced a statutory basis forcivil service conduct in 1997. The Department ofFinance is also preparing a new code of conduct,which will be issued by September 2002. Irelandhas also made advances in ethical awarenesswith individual departments circulatingpamphlets on different ethical issues and humanresource departments organising periodictraining sessions.
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The current system of special advisers in Irelandis acknowledged by civil servants as being non-contentious.14 It prepares ministers fordiscussions in government in areas outside theirdepartments’ responsibilities. It also providesspecialist advice to ministers on certain policyareas, providing a different perspective to expertcivil service advice. Special advisers alsoprovide advice on the political implications ofpublic policy helping both the minister to keep ahigh profile and enabling the civil service to keepout of political matters. In turn, civil servantsrecognise that advisers are politically focused.
1 http://www.ucc.ie/law/irlii/statutes/2001_31.htm2 http://www.sipo.gov.ie/2796_246.htm3 Source: author interviews with relevant civil servants4 Based on answers given from ministers in the relevant issue of the Dáil Report5 Boyle, R. and T. McNamara. 1997. Governance and Accountability: Power and Responsibility in the Public
Service. Dublin: Institute of Public Administration. p.876 http://www.irlgov.ie/poc/7 OECD. 2000. Trust in Government: Ethics Measures in OECD Countries. Paris: OECD Publications. p.1868 Dooney, S. and J. O’Toole. 1998. Irish Government Today 2nd ed. Dublin: Gill and Macmillan.9 Dooney, S. and J. O’Toole. 1998. p.4110 O’Halpin, E. 1997. “Partnership programme managers in the Reynolds/Spring coalition, 1993-4: an
assessment” Irish Political Studies, 12, pp.78-9211 Compiled from ministerial declarations contained in the relevant issue of the Dáil Report12 See the Guidelines on Compliance with the Provisions of the Ethics in Public Office Acts, 1995 and 2001,
Appendix 5 for further details. http://www.sipo.gov.ie/2796_246.htm13 Dooney, S. and J. O’Toole. 1998. p.4214 Dooney, S and J. O’Toole. 1998 p.44
It can be argued that a great deal of the recentlegislation on public service ethics wasprompted by concern over ministerial conduct ofthe mid-1990’s and the public nature of thevarious tribunals of inquiry that weresubsequently set up. However, Ireland’s reactionhas been a thorough appraisal of the variousmeasures needed to promote public serviceaccountability.
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