ethics and public administration
the case study about this question :
To whom should public servants be primarily accountable? (you may use a case study to illustrate your answer)
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1. To whom should public servants be primarily accountable? (you may use a case study to illustrate your answer)
PUBLIC SECTOR ETHICS: accountability and politicization
A second key issue in public sector ethics is that of accountability. The core issue here is to who are public servants accountable?
The paper by Richard Mulgan ‘The processes of public accountability’ provides a good overview of the issues that are raised when studying accountability. He notes that in the traditional view of the Westminster system the accountability of officials was hierarchical in the sense that they were accountable to ministers who were in turn accountable to parliament which in turn was accountable to the public.
In contrast to this traditional view, most writers now emphasise the variety of channels of public accountability. These include parliament, the Auditor General, the Ombudsman and the courts. Public servants may also be accountable to the public and to their own consciences.
Notwithstanding these ideas, the traditional notion of hierarchical accountability has recently been reasserted by the public service. Mulgan argues though that the diversity of ‘government’ and of the ‘public’ requires more than a single channel of accountability via ministerial responsibility.
He notes that accountability can be defined as a situation in which one person is held to account by another for their actions. It normally forms part of a relationship of authority in which those who are accountable are subordinate to those to whom they must give account.
A broader notion is that of ‘responsibility’ in which a person is entrusted with a duty by someone else. Those who have such duties or obligations may be held to account for their failure to fulfill their duties by that other person. Such relational responsibilities are also known as ‘accountability’
What processes are associated with accountability?
First, that of giving an account to those to whom one is responsible or accountable and whose authority gives them the right to demand such an account
This is essentially a reporting or informing function in which you provide information on how your responsibilities have been performed
The paradigm case is financial accounting in which information is meant to indicate whether funds have been properly spent on designated purposes. Such accounting may also involve explanation and justification of actions that have been taken. If those accountable have a duty to give an account, then those to whom they are accountable have a corresponding right to demand such an account.
Thus the process of reporting is matched by a complementary process of information seeking and investigation on the part of those in authority.
Those who are accountable are usually subject to oversight by hierarchical superiors who seek to improve performance by means of assessment. The superior commonly uses the results of such audits and assessments as a basis for issuing instructions.
This latter function is sometimes identified with ‘control’. This means evaluating the way in which responsibilities have been discharged to see if they have been performed adequately.
Four processes of control can be identified: reporting, information seeking, assessment or verification and direction.
CHANNELS OF ACCOUNTABILITY
To whom are public servants accountable?
The official view is that public servants are accountable to ministers, who are accountable to parliament and thence to the public. The term accountability is reserved for relationships in the hierarchical chain of command.
Accountability need not be owed exclusively to those who exercise hierarchical control though. In a wider sense public servants are accountable to the public since in a democracy the people are sovereign. They delegate this power to their representatives in parliament.
Other investigative agencies such as the Auditor General and the Ombudsman act on the publics’ behalf. The fact that such bodies do not exercise hierarchical control does not mean that they cannot be means of ensuring that the bureaucracy is held accountable.
Accountability can therefore exist outside the vertical chain of command.
It is therefore a mistake to associate the accountability of public servants exclusively with their duty to ministers and to their immediate superiors.
Paul Finn argues that there are three avenues of accountability:
? To members of the public directly
? To agencies such as the Auditor General, Ombudsman and Parliament which act on behalf of the public
? To official superiors and peers
This view is more pluralistic than that of the traditional Westminster view of a single chain of authority. It rules out as instances of public accountability where the ultimate of the public is not at stake. For example, being accountable to one’s public service peers or subordinates.
Where the public is treated as simply consumers or customers accountability is also not at stake. Accountability derives from ownership and legal authorization.
Private organisations are accountable to their owners and shareholders, not to their customers. Government agencies that are responsive to consumer demand may be more efficient and effective but they are not thereby more accountable to the public or to their customers.
We can therefore distinguish here between bureaucratic and market control. The notion of accountability is associated with the former of these. This is one reason why public sector management differs from that found in the private sector. The locus and channel of accountability is different in each case.
Governments are publicly accountable, private firms are accountable to their owners or shareholders.
The notion of ‘social responsibility’ has emerged though or the idea that business has various ‘stakeholders’ such as employees, public, consumers, unions, interest groups. These are those whose interests are affected by the company’s decisions. This idea runs counter to the notion that firms are accountable to shareholders and their primary goal is profit maximization.
Dealing with the public as clients limits their accountability to matters concerning their own individual cases. It does not entitle them to question an agency’s general procedures or policies.
For this broader type of accountability the public need to be able to seek redress as citizens, that is, as the ultimate owners. Viewing the public as clients, customers or ‘stakeholders’ may correspondingly diminish the extent to which public servants are accountable to the public.
Some argue that public servants owe an ‘inward’ accountability to their own professional consciences.
Mulgan argues that when public servants leak or whistleblow such action need not be regarded as accountability to an inner conscience. It can be seen as another instance of public accountability since it aims at making certain matters public knowledge
What distinguishes such accountability is not that it is owed to the individual rather than to the public but that public servants exercise such accountability on their own initiative rather than in accordance with departmental procedures and instructions.
Some argue that the notion that public servants owe a duty to some higher interest other than that defined by the Government of the Day (GOD) is dangerous, since it sets up unelected and therefore unaccountable public servants as arbiters of the public interest.
Given that public accountability is shared between a number of different avenues or channels, more attention needs to be paid to the ways in which they perform varying and complementary functions of accountability. For example, some channels may be more useful for discovering information whereas others may be more useful for seeking redress.
For instance, a citizen may approach his or her Member of Parliament for information about a decision and then appeal to the Ombudsman or the Administrative Appeals Tribunal for redress.
An interest group may use Freedom of Information (FOI) legislation to secure information about a decision and then use political processes such as lobbying ministers and using the media to seek to overturn the decision.
In such cases different channels of accountability are not alternative or mutually exclusive but complementary.
As we have seen, accountability can be construed narrowly to mean accountability solely to one’s hierarchical superiors or widely to mean accountability to the public as a whole. This can be either to the public at large or to the parliament as the representative body of the people. For example, public servants can be questioned by senate committees.
In the case of Clive Ponting in the UK – he passed on information to the press about the sinking of the Argentine ship the Belgrano during the Falklands War. It had been claimed by the government that the ship was inside the exclusion zone around the Falkland Islands when it had been torpedoed. Ponting claimed that the government had misled the public.
A jury accepted that he had a duty to Parliament as the institution representing the public rather than to the government of the day (GOD).
Others see public servants as being responsible to a professional code of ethics or to a higher morality. They talk here of a ‘public interest’ that public servants serve that is independent of the GOD.
Some reject this idea saying that public servants do not enjoy the legitimacy of democratic election and therefore do not have the right to determine public policy.
In the Westminster model, public servants can advise, warn and caution ministers but if the minister makes a decision they have to obey it.
On this view, public servants should disobey only if a command is illegal.
There are two moralities here: one of individual conscience and one of law or democratic legitimacy.
If you accept that everything that is legal is moral though then this could legitimise immoral actions such as genocide.
The Nuremberg trials in 1945 did not accept that obedience to orders constituted a legitimate excuse for ‘crimes against humanity’. On this view public servants have to pay heed to a superior morality to that of the law.
The alternative view is that if it is legal it is moral, that public servants have a duty of obedience to their superiors.
This is the official position in Australian government – that there is no right of disobedience to a lawful command. This is reflected in the finding that senior public servants overwhelmingly see themselves as being accountable to their hierarchical superiors, especially the minister, rather than to a professional ethic.
Some argue that public servants should be accountable to professional ethics. This idea is advanced by John Uhr in the article entitled ‘Ethics and Public Service’. Uhr argues that public servants inevitably exercise discretion in their work and that in exercising such discretion, they base their conduct upon a set of values or ethics. He argues that such values should be those of the profession of government rather than the personal morality of the individual or a simple obedience to the orders of one’s superiors.
This view of ethics corresponds to what is called ‘role morality’. The idea here is that an act is moral not if it conforms to one’s personal conscience but if it involves acting in ways that are consistent with the duties entrusted to one in a public or professional role.
If you accept the view that public servants are responsible only to their conscience then it would mean that they could disregard orders whenever they disagreed with government policy.
This could mean that democratically elected governments could find themselves unable to implement their policies. Many would consider that it would be immoral for an unelected minority of officials to thwart the will of the majority.
An alternative view seeks to reconcile these positions. It would argue that the obligation to act lawfully derives from a more profound obligation to support the democratic system of government.
Consequently, this role may at times require, in the public interest, the exposure of a minister who is deceiving the parliament and people (as in the Ponting case).
In Australia, the children overboard affair showed that public servants were reluctant to do this. Surveys show that public servants perceive their primary object of accountability to be the minister and their superiors rather than a professional ethic.
Jackson in his paper ‘The Eye of Doubt’ argues that public servants must exercise moral judgement in their work in order to maintain their political neutrality and thereby their professionalism. He notes that in response to the judicial decision in the Ponting case, the head of the British civil service had argued that civil servants has a duty to carry out whatever decision a minister takes. Jackson argues that civil servants have a duty to observe a higher morality than that of obedience to orders. If orders alone were the justification for action then this would allow superiors to use their power for personal or political gain. Others have likewise argued that civil servants owe a duty ultimately not to their political masters but to the public good. In most cases they will obey their political masters but in those instances where such obedience would jeopardise the public good then they can and should disobey.
To some extent such disobedience is legitimated by the norms of the Westminster system. In this system, the public service is politically neutral or non-partisan in the sense that it should be capable of serving with equal loyalty whatever government happens to be in power. This does not mean that public servants do not willingly serve their political masters and seek to guard their political interests. What it does mean is that the capacity of the public service to act in this way for whoever happens to be in power should not be compromised. For example, the head of Prime Minister and Cabinet once refused a request by Prime Minister Fraser to write and distribute political speeches that were to be delivered during an election campaign. He saw this task as being a ‘political’ one that was not the province of the public service. As he saw it, the task of the public service was to provide policy advice to the government and to administer its policies but not to seek the government’s re-election.
It is in this political neutrality or non-partisanship of the public service that many observers see the professionalism of the public service as residing. Since the 1980s politicians in Australia have gained greater control over the appointment of senior public servants and have greater power to terminate their appointments. As a result, many fear that the public service has been politicised. As many observers have noted, the public service in Australia remains non-partisan in the sense that promotion within it does not depend on membership of or overt sympathy with a political party. Many point however to the emergence of a new kind of bureaucrat who exhibits a degree of enthusiasm for their minister’s policies. They also note that bureaucrats are less willing than they once were to question the wisdom of ministerial policies. Rather than politicisation some writers talk of a ‘personalisation’ of the public service in which loyalty to a minister and to her or his policies become an important criterion of advancement. The old idea of a permanent or tenured departmental secretary has been replaced by secretaries appointed on five year contracts that may be terminated without notice. Ministers do not need to provide reasons for any such termination. The mere fact that a minister has lost confidence in a secretary is sufficient by itself.
Under these conditions, there is little incentive for public servants to disagree with ministers and to provide them with unpalatable advice, let alone to disobey orders. In the reading by Weller he addresses the issue of accountability in the wake of the children overboard affair that occurred just before the 2001 federal election. In this affair it was reported in the media that asylum seekers/illegal arrivals had thrown their children overboard from a boat in the sea between Australia and Indonesia. The government used this information to demonise asylum seekers in the election campaign. They used this information to great effect against the Labor opposition and eventually won the election. During the course of the election campaign though it became known within the Defence Department that the initial reports that children had been thrown overboard were unfounded. No one told the government that this was the case though. Or at any rate that is what the government maintained at the time. A Defence Department official has subsequently claimed that he informed the Prime Minister of the fact that no children had been thrown overboard. Weller explores the implications of the children overboard affair for public accountability. Other writers have focussed upon the issue of ‘truth in government’ claiming that the government had deliberately misled the public. Some have argued that we cannot expect governments to be completely truthful given that they are engaged in a political contest in which the opposition will seize upon inconsistencies or signs of weakness in order to discredit the government. Others argue that politicians should not lie to the public.
The readings by Smith and Corbett, Uhr and Keating explore the issues of accountability and politicisation in more detail.
In the 1980s the British civil servant Clive Ponting was charged with breaching the British Official Secrets Act. Ponting had given information to an opposition member of parliament which suggested that the Conservative government had lied to the public and to parliament over the circumstances surrounding the sinking of the Argentine cruiser General Belgrano during the 1982 Falklands War between Britain and Argentina. Ponting’s job was to draft parliamentary replies and answers on the sinking of the Belgrano. Whereas the government had argued that the Belgrano had been within the so-called ‘exclusion zone’ surrounding the Falkland Islands and had posed a threat to British lives when it was sunk, Ponting had an internal Ministry of Defence document which suggested that the Belgrano had been sailing out of the exclusion zone when it was attacked. 323 Argentine sailors lost their lives when the Belgrano was sunk. Ponting believed that the Government was deliberately misleading Parliament on this issue and acted out of a sense of professional conscience in giving the information to the Labour MP Tam Dalyell. The jury found that in giving information to the MP Ponting had not been ‘communicating information to an unauthorised person’ which is illegal. In so doing, they had gone against the advice of the judge who had recommended prosecution. The jury accepted the argument that Ponting had a duty not only to the government of the day but also to parliament as the representative of the public. Do you think that the jury was correct to acquit Ponting or was the judge right in arguing that he had been guilty of communicating official information to an unauthorised person? Consider the wider implications of the argument that officials have a duty to the public rather than the government of the day. Can officials define what is in the public interest? Or is this solely the preserve of governments?
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