Lord Evans discusses CSPL report, Leading in Practice

The Committee on Standards in Public Life

The Nolan Principles: Public Standards, the Public Interest and Public Service

Thirty years ago, following a series of scandals relating to buying access to political influence in the House of Commons, the Nolan Committee was established to report on standards in public life. In its first report, the Committee set out ‘The Seven Principles of Public Life’, describing them as a restatement of the ‘general principles of conduct which underpin public life’ and as intended ‘for the benefit of all who serve the public in any way.’ In research undertaken subsequently by the Committee, the principles have been shown to elicit wide support among the general public and to articulate much of their understanding of what they expect from the powers that govern them.1 The ‘descriptors’, that follow each principle, that provide a short statement of their intended meanings, were found in some instances to be slightly out of step with that understanding. In 2013, in the 14th Report, Standards Matter, and in 2021, in the Committee’s Upholding Standards in Public Life: Final Report of Standards Matter 2 Review (2021) slight amendments were made to them. In the 2021 report, the change responded to public concerns by including the explicit statement, under the principle of leadership, that those in public office should treat others with respect. It is plausible to claim that ‘respect’ was implicit under the original set of principles but making it explicit responds in part to wider changes in our public culture over the last thirty years. This also indicates that the principles have been, and need to be, responsive to changes in the wider public culture. Similarly, when public institutions develop codes of conduct for their staff, they should be spelling out the implications of the principles for their sector and their officials in a way that is responsive to the legitimate expectations that the public has of those exercising public authority in that domain.

The Nolan Principles have underpinned the Committee’s reports over the last thirty years and have contributed extensively to the development of the standards landscape in the United Kingdom. The principles are often described as high-level ethical principles. They set out a range of requirements of those holding public office, carrying out public business, making policies or deploying public resources in one way or another.2 Those in public office should take decisions solely in terms of the public interest; they should not put themselves under any obligation that might influence them in their official duties; they should be accountable to the public for their decisions and actions; they should declare any private interests that might relate to their public duties; and so on. In doing so the principles underline that it is an essential component of the responsibilities of those in public office that they serve the public interest. Ideas of what the public interest requires can vary; indeed, disagreement on that issue is very much a part of the everyday character of political argument. But it is also something that is given settled form by government decision and parliamentary statute and set out in policies and practices for those employed in the delivery of public services. Framed in this way, the requirement of those in public office is that they fulfil their responsibilities, both as formally laid down by statute and

1 The CSPL conducted a series of surveys between 2002 and 2013 exploring the public’s trust in the political system. See https://www.gov.uk/government/collections/cspl-surveys-of-public-attitudes (accessed 20/08/2024). See also the Hansard Society’s regular Audit of Public Engagement (https://www.hansardsociety.org.uk/projects/audit-of-political-engagement). The CSPL undertook further work on public attitudes in the course of its 2021 Upholding Standards in Public Life report, for which see ‘CSPL- Demographic and Political Breakdown of Attitudes, at https://www.gov.uk/government/publications/standards-matter-2-polling-and-focus-group-research. See also Alan Renwick et al, What Kind of Democracy do People Want, (UCL Constitution Unit, https://www.ucl.ac.uk/constitution-unit/research-areas/deliberative-democracy/democracy-uk-afterbrexit/what-kind-democracy-do-people-want). 2 Similarly, organizations claiming charitable status to serve certain public purposes, especially when they do so on behalf of the government, will also be bound by the Nolan Principles.

executive decision, and in keeping with the fact that, as members of bodies receiving their authority, funding and powers from the government they, like that government, occupy a position of delegated trust with associated responsibilities to the public at large. That context should frame their understanding of the public interest and of their responsibility to act in accordance with it. In this sense the principles and their descriptors articulate an account of the responsibilities that those in public office have in the conduct of those offices to the public that they serve.

Some have expressed concern about the apparent ‘over-demandingness’ of some of the principles – perhaps especially that of ‘selflessness’: ‘Holders of public office should act solely in terms of the public interest.’ But the core of that principle is that, whenever they are acting in their capacity as public office holders, they should set aside personal interests and should act in the public interest. This applies equally to those in administrative office and to those in political office – the latter may have more opportunity to define the public interest and to determine the policies that others will implement, but they should not be doing so in pursuit of their private or personal interests but should be acting on their judgment as to what best serves the interests of the public. That is intrinsic to the public trust that underpins the authority of the office they occupy.

The appeal to the public might seem tarnished given the range of views expressed about particular issues, each of which claims to represent what the ‘public’ thinks or wants, or what is in its interest. ‘Public’ was not a term that the original Nolan report spent much time analysing although it is referenced throughout the principles that the report set out. In the light of the 30th anniversary of the Committee it seems appropriate to devote a little attention to what the idea means in respect of standards of public life.

In his discussion of the concept of the public, Sir George Cornewall Lewis, writing in 1832, drew the following distinction:

“Public, as opposed to private, is that which has no immediate relation to any specified person or persons, but may directly concern any member or members of the community, without distinction. Thus the acts of a magistrate, or a member of a legislative assembly, done by them in those capacities, are called public; the acts done by the same persons towards their family or friends, or in their dealings with strangers for their own peculiar purposes, are called private. So a theatre, or a place of amusement, is said to be public, not because it is actually visited by every member of the community, but because it is open to all indifferently; and any person may, if he desire it, enter it.”3

It is public life because it is a domain of activity that is open to and may affect any member of the community. They are public services because they are designed to serve undifferentiated members of the public (Cornewall Lewis referred to them as ‘unassignable’ - that is, not individually identifiable in advance). A public amenity such as a public park may not benefit everyone but what makes it public is that it is open to all. What about the public interest? Members of the public have personal interests – things that they want or prefer. Those preferences may simply be individual. Or they may be shared with a wider group that may pursue those interests together, which we refer to sectional or special interests. Or they may be shared with everyone – when we refer to them as common interests. Although nomenclature is not always precise, we can also talk about interests that we have as members of the public. For example, it may be in the public interest that pollution is curtailed because everyone in their capacity as a member of the public will suffer its consequences, even if as a particular

3 Cited by Brian Barry, Political Argument (London, 1965), 190-1

individual someone might benefit more from being free to pollute. Curtailing pollution may be directly in an individual’s personal interest because they (or those they care about) have respiratory difficulties when pollution is high. But we also have an interest as members of the public because we don’t know what impact it may have on us or on those we care about in the future and the harms of pollution are indiscriminate (and many such harms are what economists refer to as negative externalities – costs associated with production that are borne by the wider public and are not reflected in the pricing of the good). Releasing untreated sewage into rivers is detrimental to the public interest because a whole range of people may be affected ‘indifferently’. We might, in addition, take the view that as members of the public we have a responsibility not to impose burdens on other members of that community that we would not want others to impose on us. For example, while we all have an interest in cleaner air, we may judge that our more direct personal interests outweigh that interest; but we also need to assess what we owe as members of the public to others who are part of that community. Similarly, public amenities should be open and accessible to all, so certain kinds of use of them, which inhibits or prevents the use of the amenity by others, may be justly prohibited. Members of the community are expected to recognize that they too have obligations as members of the public to their fellow members and to the system of rules and procedures that unite the community, and to those in public office when they act in the service of the public. For example, using a public park to engage in activities that are intentionally offensive to others effectively privatises that public space.4 In addition, members of the public are expected to act towards those in public office in ways that accord them appropriate respect and civility when they are themselves being treated in that way.

A range of arguments can be made as to exactly which policy is most in the public interest, since there are multiple and potentially competing dimensions in most policy environments. There are clearly cases where a claimed public interest may conflict with the interests of organizations made up of private individuals: using the military to run services during an industrial dispute, for example, ensures that members of the public (indeterminate users of public services) do not suffer, but diminishes the impact of strike action taken in the interests of union members. Many public amenities and services are provided by public bodies, whether these are government departments or arms-length public bodies, but they can also be delivered by private companies. In such cases one crucial element in identifying responsibilities (and designing appropriate contracts) is whether the private body is acting on behalf of the state and in fulfilment of its responsibilities and is therefore beholden to the same principles and has the same responsibilities to the public as those bodies, or whether this is a private service in a domain in which the state has determined that, for whatever reason, it does not acknowledge a responsibility to provide or commission a service for the public. The ethical structure of private bodies serving the public can be complex: the central purpose of a private hospital might be thought to be to reward their shareholders, but there is a public interest in health services of all types being required to follow certain general rules to protect the interests of the public, some of whom may come to use their services as private consumers. The company has responsibilities to shareholders; professional responsibilities as providers of medical care; and contractual responsibilities to patients who use their services.

More widely, governments impose many duties on individuals and companies that provide a wide range of private services so as to protect the interests of consumers as members of the public by ensuring that they are not subjected to fraud, bad practice, or other harms.

4 See Joel Feinberg, The Moral Limits of the Criminal Law, Vol 2: Offense to Others (Oxford University Press, 1985), and John Skorupski, Why Read Mill Today (Routledge, 2007), p. 62.

It is possible to distinguish two types of government action in the public interest5: negative, such as the passing of a range of measures (the criminal law or safety regulations) designed to ensure that members of the public are not harmed by the actions of other members of the public; and positive projects, such as the provision of a benefit for unassignable persons, such as national defence, policing, street lighting, or recreational facilities that if provided selectively by groups with particular interests would leave some parts of the community as a whole inadequately protected or provided for. In the protection of those public interests, we rely on government and its administration to accept that it acts as the trustee of the public and has a duty to promote and protect the public’s interest, rather than the interests of those in public office.

For example, the ‘wider public interest’ may be appealed to as a criterion for decisions. Under the original descriptor of ‘openness’, a holder of public office may ‘restrict information only when the wider public interest clearly demands.’ In the revised descriptor adopted in 2013 the wording is more direct: there is a duty to ‘act and take decisions in an open and transparent manner’; and an injunction that ‘Information should not be withheld from the public unless there are clear and lawful reasons for doing so’. Neither version warrants the restriction of information merely to protect the institution (or its members) from scrutiny, even though it is doubtless possible to make a case that some public interest might be served in that way, as in cases where acknowledging that there has been a major blunder might damage a service’s capacity to maintain public trust. But self-serving institutional self-protection is not a plausible interpretation of the fiduciary responsibilities that the institutions of government owe to the public and that the principles set out. Derelictions from openness must not be self-serving, and they must not be institution serving; they could only ever be a temporary expedient that calls for a special justification that is able to appeal to the wider public interest, and must, through accountability, be made to that wider public in a transparent way as soon as it is possible to do so. Understanding the principles in this way also enables us to navigate more surely when they might seem to be in tension with each other

An interest, as Brian Barry puts it, is essentially ‘want-regarding’ and concerned with the satisfaction of preferences. How reflective we are about such interests will vary – we may not think much about national defence, but it is there to protect our interests. But there are also ideal-regarding principles, which appeal not directly to individual interests but to goods that are not reducible to the preferences that people in the community have. For example, when we say that it is better that people in various ways are free to choose their own way of life, when we promote education or tolerance between rival communities, or when we devote resources to the arts, we are often appealing to judgments as to how best to enhance the quality of people’s lives in the community. These claims about qualitative values refer to public goods that have the dual property that, in their provision, they affect or are open to the public indifferently, and that the benefit is conceived of as rooted in a claim about the well-being, or other enhancement of the good of the community that stands in some degree independent from the immediate preferences of its members.6

Goods, in distinction to the preferences that individuals have, can be complex. We have a public health service, not because every individual necessarily needs it, but because numerous, ‘unassignable’ members of the public or the community do or will need it at some point in their

5 Barry 214-8 6 Economists refer to a different conception of ‘public goods’ which have the two properties of one person’s consumption not being in competition with another’s; and non-excludability’, meaning that any member of the public may access them. The sense of public good used above combines the component of nonexcludability (usually in the form that there is no intent to exclude potential beneficiaries) with a claim about the value of the good to the community.

lives. One component of this provision is simply that it is a form of insurance scheme for the future health of individuals, or a safety net that protects individuals’ interests in the foreseeable future. But we might also say this is a public good because its provision ensures the development of a healthier, more secure and more equal society and this is, in and of itself, a good independently from the interests that are served by treating the illnesses of particular individuals.

The Nolan principles identify a set of standards for good government that requires all parts of the public sector, and all organizations employed to serve objectives under the umbrella of the public sector, to act to ensure that public money and public power are used in ways that can command the trust and consent of the whole community. But the principles of public life do not just lay down the public interest as a standard of conduct for those in public office, they also implicitly see the principles, behaviour in accordance with them, and the relationship of trust between government and the public that the principles set out, as themselves constituting a public good. That is, they are a set of values that express the fundamental fiduciary relationship between members of the community and those in public office that is central to our collective well-being.

This sense, that a public domain that operates according to the principles should be understood as itself a public good, has several implications for those holding public office, two of which are especially worth underlining.

The principles embody the view that the practices and procedures by which members of the public are governed and by which decisions are made and compromises brokered, should command wide legitimacy among, and compliance from, those subject to and active in that order. In modern democratic orders this is achieved in large part through the rule of law and the development of standards, procedures, regulatory frameworks and systems of accountability, which both facilitate but also constrain the actions of those in office. The system facilitates their action by empowering and resourcing those in public office; it constrains them by setting out the regulations and principles in accordance with which those powers should be exercised and on the basis of which those in office can legitimately expect the trust and support of the public whom they serve. When the principles are not complied with, then government and administration, in their exercise of their delegated powers, break free of that relationship of trust. Embedding the principles is important because there is a persistent tension between the willingness of those in office to stick to procedures and to their designated responsibilities and their concern to achieve their desired outcomes irrespective of the formal political process. Similar tensions exist between putting the individual office holder’s interests first, whether in pursuit of his or her career or for more sinister purposes and committing to the over-riding priority of the public interest, as defined and limited by the responsibilities of their particular office. And a further set of tensions exists for members of the public between accepting the rules of engagement, procedures and the negotiated compromises that the political system requires of them and losing patience with the process and challenging the order itself. A polity in which politicians, public servants and the public share an understanding of the principles underlying the trust reposed in government and act in keeping with them is, on this account, in itself a public good – something we share as members of the community that enhances the well-being of the community.

For organisations in the public sector this sense of being a part of a common culture that is committed to the public good is a crucial part of their ethical compass. Individuals in public office and the organisations they work for should be able to understand their work in relation to the wider fiduciary relationship that they have with the public and should interpret their responsibilities in that light. An organisation in the public sector that lacks that sense of its responsibilities as a guiding light for its conduct is less likely to serve the public well, less likely to act with probity, and less likely to offer its members a community in which either they or the public can have confidence.

The second aspect of this sense of the principles as a public good is connected to the value of public service. It seems that the language we use to think about the responsibilities of those in the public sector in the last twenty years or so has lost some of its focus on the public. There is less commentary on the public sector, the public interest, and public services. And since 2010 we have been talking less about ‘public service’. Yet, without a conception of public service, it is unlikely that any of the public services will mobilize the commitment of its members to fulfil their offices in a way that puts the responsibilities of the organisation to the public first and foremost in their decisions and actions.

Even if we have a degree of scepticism about the robustness of Google n-grams we should nevertheless recognise that the language we use to describe the motives of those in public office is important. What seems clear is that the public does not have much trust in what is driving those in high political office and that cynicism, coupled with the emergence of new means of expressing that distrust in the form of social media, has further eroded the public’s confidence that the political system and government more widely is working effectively on its behalf. Trust in some public office holders and public services is higher, but the relationship between political and public institutions is complex, we do not wholly understand their relationship, and it is very difficult to know when a tipping point has been reached in which a critical collapse of public trust develops. What is clear is that without a language of public responsibility and service, the relationship between the people and those who govern them will become increasingly fragile.

The responsibilities of public bodies to those they serve must remain front and centre of their concerns and should direct the activities of the organization and its members to achieve those ends efficiently, in line with the Nolan principles, and with a due regard to its fiduciary responsibilities to the public. To this end, public bodies should be committed to fostering their accountability in respect of the implementation of the policies laid down for it by the government, against the background of its wider duty to serve the public. Where institutions (or individuals in them) become self-protecting against external (or internal) scrutiny, take steps to shift blame and responsibility, or attempt to cover up its activities, they are violating their responsibilities to act honestly, openly and in an accountable manner, and they are putting the interests of members of the organization before their responsibilities to serve the public.

The Nolan principles were developed in part to help steer those in public office in ways that would re-cement trust in public life. They clearly have the potential to do that, but we should understand that as a long-term project that requires ongoing investment in maintaining the quality of the wider public culture and that underlines for new generations the nature of the understanding between those in public office and the wider public they serve.