by Peter Joyce
PRIVATIZATION
A third direction which reform affecting the civil service frequently takes is for services to be delivered by private sector organizations. This is commonly referred to as privatization. These services may be contracted out (in which case the civil service is involved in drawing up contracts, which are subject to competitive tendering, and then in monitoring the performance of those to whom such contracts are awarded), or they may be divorced from government completely. Such reforms view competition as the main way to make services become responsive to public demand.
Post-1997 Labour governments replaced privatization with contestability. This approach emphasized the desirability of a mixed economy of service delivery that includes the state, the private sector and the third sector (which comprises voluntary organisations, charities, co-operatives and community groups).
Contracting out was pursued in America during the 1980s and the National Performance Review (1993) urged that increased use should be made of service provision by non-governmental bodies. During the 1990s, ‘market testing’ was introduced by the United Kingdom government. This sought to establish the advantages of government departments contracting out a range of services to the private sector.
PROBLEMS AFFECTING CIVIL SERVICE REFORM
There may be problems when public policy is discharged by the private sector. Contracting out illustrates some of the difficulties which are involved. A full evaluation first needs to be undertaken to ascertain if it is appropriate for a service to be delivered by the private sector. If a service is contracted out, it is essential that efficient monitoring procedures are put in place by departments to ensure that services are efficiently provided and to safeguard the interests of consumers. Such mechanisms involve cost but also may create tensions by seeking to evaluate the performance of those involved in commercial activities according to civil service standards.
Civil service inertia also needs to be overcome. Bureaucracies are often resistant to change, especially when organizations and jobs are threatened. Thus political will to implement reforms is important. The commitment of the Conservative government during the 1980s was crucial to bringing about alterations to the United Kingdom civil service.
Criticisms have been directed against the involvement of the private sector in administering public policy. It is alleged that the private sector’s main concern is profitability. The organizations which administer privatized services are said to be primarily motivated by a desire to make profits rather than to deliver a service to the public. This resulted in an emphasis being placed on consumerism in the United Kingdom. The Citizens’ Charter (1991) sought to make all providers of public services (including those administered by the private sector) aware of their duties to their clients and to establish standards of service which consumers had the right to expect.
Questions
Why has civil service reform been an important concern in a number of countries since the last decades of the twentieth century?
Outline the main directions that reform has taken.
Freedom of information and official secrecy
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Insight
The flow of information to the general public regarding the operations of government may be restricted by legislation that is justified by the argument that it is necessary to protect state secrecy.
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In a liberal democracy, members of the general public need to be in a position to evaluate the performance of a government in order to give or deny that government political support. To do so requires access to information by which public policy can be judged. In many liberal democracies this is provided by freedom of information legislation.
Freedom of information legislation requires public bodies or officials to make available to citizens a wide range of public documents. Public access was first granted in Sweden in 1766 but in other countries it has been a twentieth-century development. Freedom of information legislation exists in America and Germany, where it is a considerable aid to investigative journalism. In America, the 1966 and 1974 Freedom of Information Acts provided citizens and interest groups with the right to inspect most federal records. Although access to some information may be denied, an appeal to the courts may secure the production of the desired information. New Zealand also has an Official Information Act which permits public access to a wide range of information. In the United Kingdom the 2000 Freedom of Information Act gave the public access to information held on them by public authorities. The operations of the measure are overseen by an information commissioner.
The ‘right to know’ is viewed as an important civil right in liberal democratic countries, enabling citizens to hold their governments to account for the actions they have taken. There are, however, limits placed on the public’s ability to have access to official material. Typically, this is constrained by the desire to prevent unwarranted intrusion into an individual’s privacy and also to safeguard national security. Legislation exists in a number of liberal democracies to restrict the release of official information, which may be used to prevent the media from publishing material which is deemed to be contrary to state interests. This includes Ireland’s 1939 Offences Against the State Act and the UK’s Official Secrets legislation.
In the UK, the 1911 Official Secrets Act made any disclosure of official information a criminal offence. This posed dilemmas for some civil servants. They sometimes believed that politicians confused state interests with their own political considerations and sought to use the former grounds to suppress information which might have damaging political consequences. This gave rise to the phenomenon of whistle blowing, which involved a civil servant deliberately leaking information to bodies such as the media when he or she believed that the public’s right to know superseded the concern of a government to keep such material secret.
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Whistle blowing in the UK
One interesting example of whistle blowing occurred in the 1980s. Clive Ponting, a civil servant, leaked a document concerning the sinking during the Falklands War of the Argentinian cruiser, the General Belgrano, to a Labour member of parliament, Tam Dalyell. He justified his action by arguing that the government was misleading parliament and hence the country. He perceived that his duty to the nation as a public servant outweighed his loyalty to the government. Civil servants who engage in this activity run the risk of dismissal and imprisonment. Ponting was charged with breaking the Official Secrets Act but was acquitted in 1985 by a jury sympathetic to his arguments.
A danger posed by this activity is that it erodes the trust between ministers and civil servants. It might result in the politicization of the bureaucracy, whereby politicians appoint persons to its upper ranks whose trust and loyalty can be relied upon.
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In 1989, a new Official Secrets Act was enacted in the UK. The sanction of a criminal prosecution was limited to certain categories of official information, which were broadly associated with the interests of the state. Within these categories, an absolute ban was imposed on disclosure of some information (for example, by intelligence officers discussing the operations of the security services), while in other areas (such as defence) it would be necessary to demonstrate that the disclosure resulted in ‘harm’ or ‘jeopardy’ to state interests. The Act contained no public interest defence which might be used by civil servants or investigative journalists who publicized government activities in these restricted areas.
Question
Discuss the view that ‘It is hard to draw a precise line in a liberal democracy between the public’s right to know and the state’s requirement for secrecy.’
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THINGS TO REMEMBER
Bureaucrats are permanent officials working within the executive branch of government and are termed ‘civil servants’.
In the UK, public policy is implemented by machinery that includes government departments and quangos.
The social background and training of bureaucr
ats provides them with an influential role in the operations of government and the conduct of all aspects of national affairs.
In theory politicians determine policy and civil servants implement it. However, this division of responsibility is not rigidly adhered to and it is sometimes argued that civil servants dominate the policy-making process.
The legislative and executive branches of government exercise a number of controls over the bureaucracy which place limits on its freedom of action.
New public management has exercised considerable control over the performance culture of the bureaucracy in the UK.
Official secrecy legislation may be used to control the information provided to the public regarding the operations of government.
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11
The legislative branch of government
In this chapter you will learn:
the main functions carried out by legislatures
the operations of unicameral and bicameral legislative bodies
the contemporary problems affecting the conduct of legislatures.
The functions of legislatures
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Insight
The key role of the legislative branch of government is to approve laws which citizens are subsequently required to obey.
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Elected legislatures are viewed as the symbol of representative government: as it is not possible for all citizens to directly share in policy making, they elect persons who perform these duties on their behalf. These representatives convene in the country’s legislature (which is referred to as Congress in America, parliament in the United Kingdom or the Oireachtas in Ireland). This is thus the institution that links the government and the governed. In addition to this symbolic function, legislatures undertake a number of specific tasks which we consider now.
LAW MAKING
Legislatures constitute the law-making body within a country’s system of government. Thus making the law (or amending or repealing it) is a key function which they perform. A specific, although important, aspect of this role is approving the budget and granting authority for the collection of taxes.
A key issue concerns the extent to which legislatures themselves initiate law or respond to proposals put forward by the executive branch of government. Although there is a tendency for legislatures to respond to the initiatives of the executive branch in both presidential and parliamentary systems of government (thus transforming the legislature into a body which legitimizes decisions rather than one which initiates them), this is not invariably the case. The committee system of the German parliament is particularly influential in securing a policy-making role for this body. Much of the work of the Bundestag is carried out through specialized committees whose areas of activity correspond to the federal ministries. These committees provide a forum in which ministers, civil servants and members of parliament (including those of the opposition parties) jointly engage in the process of policy making.
Below we will consider the process of law making in the UK parliament and the American Congress.
Law making in the UK parliament
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Insight
Law making is a complex process that typically involves a number of stages through which a legislative proposal (termed ‘bill’ in the UK and USA) must proceed in order to be transformed into a law that is binding on a nation’s citizens.
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In the UK a difference exists between public and private legislation. The former constitutes the general law of the land, but the latter is limited in jurisdiction (often being promoted by public bodies such as local authorities to extend their powers). A number of stages are involved in translating a proposal into law. The following outline applies to public legislation. We are assuming that this legislation is first introduced into the House of Commons, which is generally (but not exclusively) the case. Money bills (which raise or spend public money) are required to originate in the House of Commons.
FIRST READING
This is merely the announcement of an intention to introduce legislation on a particular topic.
No debate occurs at this stage.
SECOND READING
This is a debate on the general principles embodied in the legislative proposal (which is termed a ‘bill’). If these principles are approved, the bill progresses to the next stage in the legislative process.
COMMITTEE STAGE
This involves a detailed examination of the contents of the bill. Amendments can be made provided that they do not destroy the bill’s fundamental principles which have been approved in the second reading. This stage usually takes place in a standing committee, which involves a relatively small number of MPs who are appointed by the Committee of Selection. However, a committee of the whole House or a special standing committee (which takes evidence in public) may be used instead.
REPORT STAGE
Here any changes to the bill proposed by the committee are considered by the full House of Commons and either approved or rejected.
THIRD READING
This is a consideration of the bill as amended in its progress through the House of Commons.
If the bill receives its third reading, it then goes through a similar process in the House of Lords, although the committee stage is usually a committee of the whole House.
If amendments are proposed by the House of Lords, these need to be separately considered by the House of Commons. By convention, the House of Lords will normally give way to the sentiments of the Commons if there is a dispute between the two chambers.
When such differences are reconciled, the bill is passed for Royal Assent. This is granted automatically (the last refusal being in 1707), but is the process by which the ‘bill’ becomes an ‘Act’.
It was formerly necessary for a bill to complete all of these stages in a single parliamentary session. If it failed to do this it could be reintroduced in the following session, commencing at the first reading stage. However, since 2002 it has been possible for government bills to be ‘carried over’ from one session of parliament to the next if all stages have not been completed in the session when the bill was introduced. The ‘carry over’ procedure allows for the discussion of a bill to be resumed in the second session of parliament where it was left off in the first session, although bills are usually required to complete all parliamentary stages within one year of the measure having obtained its first reading.
Law making in the American Congress
As with the UK, the legislative process in America involves a proposal being considered at a number of stages. Legislation may be introduced in either the Senate or the House of Representatives, although the Senate does not have the power to initiate bills imposing taxes and – in practice – also lacks the ability to put forward bills authorizing the expenditure of federal funds (termed ‘appropriation bills’). Below we briefly discuss the law-making procedure that is used in the House of Representatives, although the procedure used by the Senate is very similar.
Introduction
Legislation is commonly introduced in the form of a bill which may be put forward by any member of the House of Representatives. The law-making process may be initiated by a joint resolution (that can originate in either the House of Representatives or the Senate) which follows the same stages as a bill. Issues affecting the operations of both the House of Representatives and the Senate are put forward by a concurrent resolution (which must be approved by both bodies) and matters affecting the operation of either one of these bodies is introduced by a simple resolution. Concurrent and simple resolutions do not require the approval of the president before they are acted upon.
Following the introduction of a bill or joint resolution, the Speaker of the House of Representatives refers it to a committee.
Consideration by committee
Bills are usually initially considered at a public hearing, enabling members of the committee (or a sub-committee) to hear a range of opinions from those sup
portive or opposed to the measure. When the hearings are completed a ‘mark-up’ session takes place. Members of the committee (or sub-committee) consider the views put forward in the public hearings and may propose amendments to the bill. When these deliberations are concluded, the committee (or sub-committee) decides whether to report the bill to the House or to ‘table’ it (which has the effect of ending its progress). If a large number of amendments have been made to the original bill, the committee (or sub-committee) may determine to report a new (‘clean’) bill to the House. Bills that proceed from a committee or sub-committee are accompanied by a report that sets out the aim and scope of the measure and why the committee recommends that it be approved.
