Civil Service Reform in Europe

For debate in the Standing Committee — see Rule 15 of the Rules of Procedure

Doc. 9711

19 February 2003

Civil Service Reform in Europe

Report

Committee on Economic Affairs and Development

Rapporteur: Mr Giovanni Crema, Italy, Socialist Group

Summary

While it is not utopian to imagine that civil services in Europe might eventually be harmonised, not in such a way that they all conform to one model, but by developing standard organisational structures and adopting commonly shared guiding principles, it is nonetheless more reasonable and pragmatic to envisage their gradually developing convergent methods and mechanisms of human resources management, independently of the legal framework adopted by each country.

The political, economic and social events that affected Europe in the 1980s led states to modernise their civil services, which are now the subject of wide-ranging reform fluctuating between the flexibility of management styles and the ethics of the civil servants. The present report strives to emphasise the need to introduce measures designed to promote the values of probity and strengthen ethics in the public services so as to improve transparency and to combat corruption and various kinds of inappropriate behaviour on the part of civil servants. This new approach, placing human beings and common values at the heart of civil service reforms, would contribute to strengthening democracy and to serving better our rapidly changing societies.

I. Draft Recommendation

1. Mindful of the Council of Europe’s particular role in Europe’s new institutional architecture and the Laeken Declaration of December 2001 calling for greater democracy, transparency and efficiency on the part of European institutions, the Assembly asks the European Union’s Convention on the Future of Europe to include an article laying down fundamental principles for European and national public officials, such as universal and fair possibility access to such functions, equal opportunities for women, integrity, loyalty, objectivity and probity – in consideration of the fact that a high-quality civil service is a vital precondition for strong democracy and the rule of law.

2. The Assembly invites Council of Europe member states to engage, where necessary, on reforms to modernise and streamline public administrations, in particular by introducing ‘e-administration’ so as to give citizens easier access to information, eliminating obsolete or inefficient services, and introducing effective and clear administrative procedures that define the boundaries to unlawful behaviour and ensure compliance with principles of ethics. Such an approach would render European public administrations in need thereof more transparent, efficient and responsive both to changes in citizens’ concerns and to an evolving international environment characterised by rapid technological progress and growing economic interdependence.

3. The Assembly, recalling that the Council of Europe was established to foster pluralist democracy, the respect for human rights and the rule of law, invites its member states to place the interests of their citizens and Europe’s common values at the heart of administrative reform as outlined above. Such a move would, far from diminishing the essential qualities of public institutions, namely efficient operation and popular confidence, in fact achieve quite the opposite. These reforms, guided by the general public interest, should be based on commonly shared ethical principles and flexible human resources management methods.

4. In view of the unique role and contribution of public administrations to social cohesion and employment, the Assembly encourages Council of Europe member states to consider carefully all possible consequences before introducing new, private sector-oriented management methods.

5. Council of Europe member states should devolve wherever possible administrative responsibilities to local authorities so as to bring public institutions closer to citizens and to streamline organisational structures.

6. The Assembly considers it necessary to develop, where necessary, a clearer demarcation between the political sphere and public administration, for the purpose of ensuring the independence of national public officials and define better their tasks and responsibilities.

7. Member states should increase the financial resources devoted to the professional training of officials at national, European and international level in order to ensure that they possess the skills needed to perform their functions. National civil services should actively recruit in institutions of higher education to attract talented people for employment.

8. Finally, the Assembly asks Council of Europe member states to shape their civil service legislation in such a way as to facilitate exchanges between the public and the private sector of, in particular, highly talented and internationally experienced staff.

II. Explanatory Memorandum by the Rapporteur

Introduction

1. In all the Member States of the European Union and the countries of central and eastern Europe, including those applying for membership, the national framework is proving unable to respond to the increasing demand for regional autonomy and awareness of the need to form groups in order to act.

2. We are therefore seeing a redeployment of political action at two distinct levels: at supra-state level, Europe is an increasingly important in decision-making; at infra-state level, the authorities also have to take into account local particularities. From this point of view, “territories”, or looked at more broadly, “spaces”, seem particularly appropriate decision-making levels.

3. This spatial or territorial reformulation of public action leads us to an examination of the development of territoriality in Europe through the major reform movements in Member States. More than the particular experiences of each European country taken in isolation, it is the simultaneity of these reforms, the coincidence of a re-examination of the nature and means of government intervention, that should be stressed.

4. Decentralisation, which seeks to organise public action in such a way as to respond to local particularities should also result in better governance, in the sense of mechanisms for the management of a social system in order to attain common objectives (security, prosperity, coherence, order and continuity of the system). In this context, governance proceeds from a reforming philosophy that seeks to reorganise administrative relations between the centre and the periphery, be it regional or local.

5. The new spatial dimension of the reformulation of public action, which is a response to the growing need to strengthen local democracy on behalf of citizens, is without any doubt another challenge public and civil services in Europe have to meet now, in addition to the one still facing them by way of the modernising reforms resulting from a veritable culture of management and the new forms of public management based on the concept of flexibility.

6. The countries of Europe are not on an equal footing with respect to these new challenges and new paradigms of public action. It is quite obvious that the organisation of the public services in most countries of western Europe, particularly those which make up the European Union, is stable, and that civil servants, whatever the type of regulatory system, work in a protective civil service system with rights and guarantees, and also duties, notably in terms of neutrality, impartiality and probity.

7. This is not yet the case in most countries of central and eastern Europe which, after difficult periods of transition to democracy, only began the reform of their civil service a few years ago, a process which in fact often proved to be the creation of a civil service.

8. In their quest for the best possible system for their public servants, the obvious approach for these countries was to look at and draw lessons from older, foreign experience, especially that of the countries of western Europe.

9. By an entirely understandable swing-of-the-pendulum effect, they were initially attracted to models in the English-speaking world based on the employment system and a flexible, pragmatic style of management, as these seemed the most highly refined form of organisation, chosen by countries that had been applying parliamentary democracy for centuries, but, faced with the sometimes complete disintegration of their own civil services and an unprecedented mushrooming of corruption, they later turned to predominantly statutory models, inspired by the French model, able to give their civil servants, not only a regular, professional career, but also duties.

10. A number of eastern European countries, including Russia, therefore opted for a career civil service, believing it provided enough flexibility, particularly through the distinction between grade and post so long as, parallel to the statutory management of grades, optimal human resources management based on a functional approach to posts and professions, as well as great mobility was put in place.

11. Consequently, as it seems that in both West and East democracy, public services and civil service are developing at the same pace, the situation in the different European countries is bound to be different.

12. Thus, while some countries are looking for the best possible corpus of regulations to avoid the risk of corruption of their public servants, others are striving to modernise their management systems and make them more flexible by implementing a new form of public management.

13. This is why, at a time when a general movement to reformulate public action within each Member State is emerging in Europe, civil services both national and local are subject to wide-ranging reform fluctuating between flexibility of management style and the ethics of the civil servants of which they are composed and who give them life.

I. Civil services in Europe and the challenge of New Public Management

14. There is great diversity and specificity of civil services both national and local in all the countries of Europe.

15. All of them, however, fall into one of the following two organisational systems: the employment system or the career system.

16. It should be remembered that, in the employment system, posts are regarded in the same way as in the private sector. They are classified according to qualifications required, tasks involved and level of remuneration. Civil servants, who tend to be specialists rather than generalists, are recruited to specific posts and dependent on the existence of those posts and their development and have no guarantee or security of employment.

17. Conversely, the career system is based on the principle of the specificity of the public services, requiring staff with special abilities who normally devote their entire working lives to serving the community. In this system, the civil service is structured according to a hierarchical conception into corps, grades and posts.

18. Civil servants receive general training when they enter the service and then pursue their careers according to promotion mechanisms based on length of service and merit, mainly understood as an assessment of “professional value”. Their situation is regulated by a statutory framework and they enjoy stability of employment and are sheltered from any economic factors that might affect this.

19. This being the case, it is clear that the choice of an employment system expresses the will to maintain the civil service as close as possible to civil society, while the adoption of a career system expresses the will for a clearer separation, guided by the concept of general interest and public service.

20. However, an analysis of the various civil services in Europe immediately makes it clear that no country operates either of these two organisational systems fully or in its pure form, but that they present a wide range of mixed systems.

21. The diversity of civil services is principally the result of the following five factors:

- the unitary or federal nature of the state;

- the state’s conception of the notion of general interest and its role in the implementation of its public service missions;

- the impact of decentralisation movements and reforms;

- the cultural pluralism of local authorities;

- the degree to which the local civil service is differentiated from the national civil service.

22. Nevertheless, beyond this diversity, there does seem to be a certain north-south divide among the countries of the European Union.

23. The countries of northern Europe: the United Kingdom, Sweden, Denmark, the Netherlands and Germany are steeped in a monarchical tradition which initially meant that the civil servant directly served the person of the sovereign. Over time, this direct, personal relationship favoured the development of a culture of civil service management based on the principles of negotiation and contract and facilitated the adoption of predominantly employment systems with no special guarantees for public servants other than those they were able to negotiate, particularly through their union representation.

24. The countries of southern Europe: Italy, France, Spain, Portugal and Greece have all in the past been affected by many revolutionary movements, some of them only returning to the path of democracy very recently. They have felt the need to set out as statutory provisions the principles of neutral, impartial, egalitarian public services in order to guard against authoritarian political systems. The need to guarantee the fundamental principles of democracy led to the adoption of predominantly career systems.

25. As we have already seen, throughout the soviet period the countries of central and eastern Europe were accustomed to civil servants in the various public services being subject to ordinary labour law, though under the iron hand of a single party and a single union and, during democratic transition, at first organised their new civil services according to predominantly employment models, characterised by the private law contract, before going over to statutory mechanisms that are legal in character and provide greater protection against as yet unstable government and the risk of staff corruption.

26. It is consequently more reasonable and pragmatic to envisage the gradual emergence of common, or at least convergent, methods and mechanisms for managing the administrative situation of public servants, independently of the legal framework adopted by each country.

27. It is not, however, utopian to foresee an eventual harmonisation of European civil services which would seek, not a single model, but to develop standard organisational frameworks and adopt commonly shared guiding principles.

28. One of the factors of convergence is without any doubt the concept of flexibility and the modernising reforms to which it has given rise over the last ten years under the name of New Public Management or NPM.

29. It should, however, be emphasised that this convergence is not neutral with respect to the nature of the civil service models freely chosen by states and tends by its very conception to favour the deregulation of predominantly career systems to the benefit of predominantly employment systems.

30. We shall therefore now define the scope of the concept of flexibility and the reforms to which it has given rise through NPM, then analyse more closely the reform which completely transformed British public services on Margaret Thatcher’s initiative, and assess the impact this far-reaching movement has had on the civil services of other European countries.

I – 1 Definition and scope of the concept of flexibility and New Public Management

31. The concept of flexibility was born of the spectacular changes in the European political, economic and social scene in the last fifteen years, and all these changes have obviously had repercussions on the demands and challenges national and local government are now confronting.

32. We have witnessed:

- the economic opening-up of Europe through the Common Market, then the Single Market and Economic and Monetary Union (EMU),

- the political opening-up of central and eastern Europe following the collapse of the communist regimes.

33. All these events have been accompanied by economic recession and a rise in unemployment of unprecedented proportions resulting in social dysfunction and social unrest, and the resurgence of nationalism and ethnic conflict, all of which have had an extremely negative effect on society.

34. A new world economic order has emerged based on the idea that action by the state and the authorities is not indispensable and that public expenditure, because it is a brake on wealth creation, should no longer be automatic and should constantly be subjected to the imperatives of competition.

35. Consequently, the market forces and mechanisms principally embodied by privatisation and sub-contracting have had a considerable effect on national and local authorities and brought about a transformation of public services and civil services.

36. In many countries of the European Union this has resulted in policies to modernise and reform the structure of public services with flexibility as their watchword, all of them pursuing a common objective: the development of a genuine management culture, which is itself defined in terms of the key words competition, contract, assessment and performance.

37. A useful approach to the concept of flexibility can be found in the 1993 Organisation for Economic Co-operation and Development (OECD) report on Public Management Developments, which defines it as:

- all the measures implemented to improve the efficiency of public organisations and introduce a results-focused approach;

- and all the forms of human resources and financial management based on decentralisation of responsibilities and adaptation to market forces.

38. These policies to modernise public services that English-speakers have called “New Public Management” or “NPM” appeared between 1980 and1990.

39. The general idea is to model public management more closely on private business management by placing less emphasis on administrative and bureaucratic rules and procedures, instead favouring the search for profitability and commercial or contractual relationships, and emphasising the satisfaction of citizens seen as consumers of public services.

40. The countries of the European Union have thus put into practice the concept of flexibility as the logical outcome of the questioning to which any civil service reform gives rise.

41. To the question, What social model do we want?, most European Union countries replied that they wanted a consumer society broadly inspired by the American and British models based on individual welfare, in which the citizen is no longer a subject, but a user and then a consumer interested in the efficiency and quality of the services provided.

42. To the question, Which economic model is most appropriate for this model of society?, European Union countries fluctuate between two variants of the single western model of the market economy:

- the adjusted market model, in which the state is aware of its role in protecting social and territorial cohesion through its public service missions,

- and the ultra-libéral, laisser-faire, laisser-passer model.

43. This being the case, to the question, What form should the civil service take?, under the influence of the values conveyed by the concept of flexibility, they examine the virtues of predominantly employment civil service systems.

44. It is therefore clear that the concept of flexibility has over the years become the doctrinal justification of the validity of the employment system and its extension.

45. This shows how much influence models from the English-speaking world have had on civil service systems in other European countries.

I – 2 The transformation of British public services

46. From the beginning of the 1980s, the political will of the British government was to implement NPM within its own civil service at both national and local levels.

I - 2-1 In the civil service

47. The Next Steps reform was introduced into the civil service, which had previously been organised according to a hybrid system related to the career system, and led to the setting-up of a management style based on eight principles: the fragmentation of administrative units, the call for competition, the individualisation of responsibilities in the hands of administrators and managers, the introduction of instruments for measuring performance, monitoring results, a style of personnel management inspired by the private sector, parsimony in the allocation of resources, and serving users.

48. This resulted in the creation of “executive agencies” which are the embodiment of a public management organisational structure based on the distinction between “political” tasks, which remain in ministers’ hands, and day-to-day administrative and managerial tasks, which are entrusted to autonomous agencies with a budget and an agreement negotiated between the “sponsoring” ministry and the agency concerned.

49. This agreement, known as the “Framework Document”, sets out the scope of the executive agency’s responsibilities, the objectives it is to achieve in terms of both missions and finance, as well as its own performance criteria which will be the basis on which all its actions are assessed. Each agency is directed by a Chief Executive (a civil servant or someone recruited on a contractual basis) who has considerable power in managing the officials who come under him, who, however, maintain the status of civil servants. Nevertheless, every three years the agency’s work is thoroughly audited, after which it may be decided either to maintain the responsibilities devolved upon it in the public sector, or to privatise them and entrust them to a private company.

50. More important still is the market testing programme, which involves the constant evaluation of all activities carried out in the Civil Service, in order to determine whether they can be:

- either contracted out, i.e. whether ministers and their departments can buy better, cheaper services than those they provide themselves. Contracting out thus concerns a significant proportion of a department’s internal activities which it may purchase through invitations to tender,

- or completely privatised. (This, in fact, is essentially a question of industrial and commercial public services provided by publicly owned companies or industrial and commercial establishments.) This “Private Finance Initiative” began in 1992.

51. The creation of executive agencies, contracting out and the Private Finance Initiative are the cornerstones of New Public Management.

52. This political will was not reversed by the Labour Party’s return to power in 1997 and Tony Blair’s government has in no respect questioned the executive agency system. All the new government did was to stop the privatisation of the agencies.

I - 2-2 In local government service

53. In 1988, the Compulsory Competitive Tendering (CCT) system was made compulsory in the local government service which, organised on the basis of the employment system, already had all the components of flexibility in its personnel management.

54. CCT involves systematically putting local public services in competition with private companies through invitations to tender.

55. In order more accurately to compare the private sector offer and the cost of their own services, British local authorities have had to split their departments into several units called Direct Service Organizations, like the executive agencies for the civil service.

56. The system of compulsory invitations to tender at first concerned the manual tasks and work done by blue-collar workers – parks and gardens maintenance, domestic refuse collection, and maintenance of local authority vehicles –, but was later extended to the management of local authority-owned housing, then to town planning and, from 1997, local authority finance departments managed by white-collar workers.

57. Here, too, Tony Blair’s government stopped the extension of CCT without calling the principle into question.

I – 3: The impact of NPM on the civil services of other countries

58. The other European Union countries have also, by a sort of knock-on effect of the “neo-liberal” values conveyed by EU authorities, frequently been brutally confronted with the implementation of the concept of flexibility and the development of policies to reform and modernise their public services. They have thus made their civil services more efficient, more reactive, more adaptable and therefore more flexible.

59. This has generally first affected the national civil service of the central or unitary state, and then been reflected in the local civil services of federated or decentralised bodies more or less simultaneously, depending on the degree to which they resemble or differ from each other.

60. Countries whose civil service was already principally organised according to the employment system, such as Sweden, Denmark, Finland and the Netherlands, have been particularly affected.

61. The question of regulations then arose. In order to facilitate the introduction of management in a bureaucratic, hierarchical environment, would it not be appropriate to replace them with contractual mechanisms and collective agreements, even if they were public law ones? It was also clear that they would be more compatible with the restrictive, regalian definition of the concept of public service posts given over the years by the case-law of the European Court of Justice and by European Commission resolutions in interpreting the exemption from the principle of freedom of movement envisaged from the outset by Article 48, paragraph 4 of the Treaty of Rome.

62. Paradoxically, some central and eastern European countries, such as Poland, Hungary, Slovenia, Romania and the Baltic States, keen to affirm and demonstrate their return to democracy, were at the same time gradually abandoning ordinary labour law as the legal system applicable to their public servants and realising the virtues of statutory mechanisms for establishing and protecting certain fundamental principles in specific laws and regulations.

63. In practice, it can be seen that things are not so simple and employment systems, given legitimacy by the concept of flexibility, nonetheless maintain much rigidity, while career systems, principally by virtue of the separation of grade and post, may provide “free zones” within which flexibility is possible if it is supported by serious political will.

64. There is a temptation for the supporters of “managerialism” to manage the state and local authorities like businesses. This position is more often a matter of ideology than a search for greater efficiency in public services. It is not always appropriate since the purposes of state and local authorities are completely different, the aim being, not wealth creation, but social and territorial cohesion, economic development, security, justice, education, etc. Public authorities have nothing to gain by systematically transposing the tools of private management.

65. Stating this does not mean that the efficiency of the public service management system should not be questioned. It is perfectly possible to believe that a number of management techniques are applicable to public services without modifying their purposes. In order to improve public management, a number of areas need to be worked on, first and foremost human resources management.

66. A thorough review of human resources management is required because of the widening gap between one world (the private sector) increasingly subject to competition, computerisation, employment mobility and career changes, and another (the civil service) locked into its procedures, protective mechanisms, guarantees and conservatism. Demographic change and retirement provide an opportunity to rethink the number and distribution of civil servants without reducing public services.

67. This does not mean that the ‘career regulations’ of public servants are obsolete. It should be remembered that they have a purpose: to prevent politicisation and make professionalism possible in order efficiently to implement political decisions and directives.

68. To varying degrees in different countries, this mechanism is often replaced by concerns about good management: mobility mechanisms, motivation by promotion on merit and performance-related pay.

69. However, the dialogue between employers (state or local authorities) and staff (the unions) has gradually reduced the room for manoeuvre because of the prominence given to “combating” arbitrariness and has resulted in egalitarian management (which is contrary to the notion of equity between individuals: all do not have equal merit).

70. Thus, public employers have increasingly sought to import management tools from the private sector since, when the period of continuous expansion and easy money came to an end, they realised that there were no longer unlimited resources available unless they were justified by the services provided to the community.

71. This is public management applied to staff and summed up as HRM.

72. The principal features of this new style of public management are as follows:

• forecasting employment and skills requirements: adapting a department’s “production” capacity to “market” demands (user-customer citizens); it is done for the short and medium terms: two years to balance vacancies and individuals available, and for the medium term (five years) to anticipate future needs and put in place the necessary tools (training or retraining of existing staff, recruitment, redundancies, etc);

• recruitment: awareness of the need to recruit on the basis of clearly defined skills and professions using precise job descriptions;

• career development management: developing flexibility and mobility according to economic uncertainties and changing missions, promotion mechanisms based more on merit and professional value evaluated during individual assessment interviews than on unsatisfactory automatic promotion based on length of service.

• diversification of employment systems: awareness that, in order to be effective, flexible and responsive to demand and requirements, especially in terms of continuity and the adaptability of the public service, not one, but several, types of employment system are needed: permanent civil servants, certainly, but also people employed on a contractual basis – indefinite or fixed-term contracts - , and “socially assisted posts” (financed from public funds and state grants, such as the contrats emplois-solidarité and emplois-jeunes in France.

• a new organisation of work in terms of working hours (more flexibility), the management of change, particularly technological change (which requires study and therefore attention to the “labour relations instrument panel” and results as well as analysis of the labour relations climate and well-managed negotiations with unions on planned reforms);

• a different way of viewing pay, which is always subject to economic constraints (the labour market), internal constraints (post evaluation), individual management constraints (taking into account individual and collective performance with the thorny problem of defining performance and the assessment system).

73. However, the introduction of such mechanisms still comes up against recruitment procedures, notably competitive entry examinations, the nature of which, apart from the principle of equality of access to which they are still the best response and compromise, are utterly outmoded and do not take into account departments’ real occupational requirements; the lack of a long-term view (forecasting); promotion and mobility characterised by “grade and Buggins’ turn” rather than merit; a pay system based on extreme egalitarianism which is an obstacle to efficiency; a systematically increasing workforce; and a rigid employment system extended to ever more people without any attempt being made to achieve coherence and efficiency.

74. It can therefore be seen that the issue of modernising public services and civil services is less a question of changing the legal framework and system particular to each country and its history, than of a complete overhaul of the mentality and behaviour of civil servants who are imbued with a hierarchical administrative culture and now have to absorb the values of a managerial system based on transversal practices and shared skills.

II. European civil services and the temptations of politics and money

75. Public servants everywhere in Europe now carry out their responsibilities in an ever-changing environment.

76. In western Europe, particularly in the European Union, they are increasingly subject to growing demands from citizens who, like real consumers, are increasingly demanding high quality community public services at the lowest cost, while, at the same time, the resources they have available are increasingly limited.

77. In order to satisfy these demands, public servants have for various reasons to take on new duties and further responsibilities: transfer of responsibilities, greater power of judgment in management, private-public partnerships when setting up operations and projects, adaptation to the new information and communications technologies, etc. In short, they have to adapt to new methods of conducting the affairs of their departments.

78. While reforms modernising public management have had beneficial effects in terms of administrative efficiency and effectiveness, they have sometimes also affected civil servants’ ethics and rules of conduct in unexpected ways.

79. These changes have sometimes put public servants in situations involving conflicts of interest or objectives, with few guidelines as to how they should act and behave.

80. Furthermore, in the countries of central and eastern Europe, the period of democratic transition has been accompanied by an abrupt change from a planned economy to a market economy that is often neo-liberal, together with a complete overhaul of the nature, size and structures of the public sector, the implosion of the bureaucratic system previously controlled by a single party and union, and therefore a sometimes complete disintegration of the administrative apparatus.

81. This complete change in public servants’ value system and terms of reference has brought about an unprecedented rise in corruption in civil service departments and in relations between them and the competitive private sector. This being the case, the “ethical” dimension of the civil service in all European countries is now of prime importance.

82. Another factor to be taken into account is the reformulation of public action and the emergence of new public players and decision-makers, notably through wide-ranging decentralisation processes embarked upon almost everywhere in Europe in the last twenty years, which have significantly altered public servants’ relationship with politicians: central or devolved government for officials of the state and federated entities, elected local representatives for the officials of decentralised local authorities.

83. It is therefore the whole question of civil servants’ rights and duties in terms of loyalty, neutrality, impartiality and equality, but also of stability and permanence, in the face of the demands of public service and service to the public, which is at stake and is seen differently according to the dominant civil service model chosen by each country.

84. We shall therefore examine in turn the initiatives taken and measures introduced in most European countries to prevent and effectively combat the temptations of politics and money facing their public servants.

II – 1 The ethical infrastructure of civil services and combating corruption

85. Many European countries are experiencing a decline in confidence in the authorities. Citizens are losing confidence in their decision-makers and this is having a negative impact on the legitimacy of government and its institutions. The “lack of confidence” may be fuelled by very fully reported “scandals”, which range from what might be called “inappropriate acts” by public servants to actual corruption. Few European countries have been immune to the - presumed or real - decline resulting from such “bad conduct”. As a consequence, ethics and standards of conduct in public life have become an important subject of political and public debate.

II - 1-1: The undermining of the cardinal virtues of public service

86. The ethics of public service vary greatly according to the historical and cultural values in each European country and are also influenced by other factors, such as the level of economic development and democratic maturity.

87. This goes some way to explaining the reticence about trying to find a European, or even international, approach to ethics and standards of good conduct.

88. Therefore, an action that in some countries would be termed nepotism and a violation of the principle of promotion on merit, would in others be regarded simply as “helping one’s own”. In one context, providing and accepting gifts is part of the normal way of doing business, while in another it will raise very serious legal problems and involve civil, financial or even criminal liability.

89. Nevertheless, in many European countries, the two cardinal virtues of the public service are the probity and disinterestedness of the public servants who run it and are therefore responsible for managing the “general interest”.

90. How, therefore, can they be undermined? It would be useful here to introduce a distinction between three types of behaviour:

- illegal behaviour, i.e. behaviour which is against the criminal law;

- “unethical” behaviour, i.e. behaviour which goes against ethical guidelines, principles or values;

- “inappropriate” behaviour, i.e. behaviour which is contrary to conventions or usual practices.

91. Corruption may come into one or other of these categories. The characteristics which define it are misuse of office, public funds or public resources with a view to deriving private advantage, material or otherwise.

92. There is first of all the improper use of vehicles, telephones and expenses, etc for personal ends. Then there are all the apparently venial sins called gifts, favours, business lunches, study trips, etc, minor bad habits that in the end compromise public servants and discredit their departments. Lastly, there are the serious offences falling under the headings of embezzlement, misappropriation of public funds, and taking illegal advantage, the public markets being excellent channels for illegal dealings.

93. Because they are clearly illegal, the latter are easily punished, usually by prosecution. When the errors committed fall into the “grey area” of “unethical” or “inappropriate” behaviour, however, it is far less clear what measures should be taken. It is just as important to eliminate the “grey area” as to combat corruption in the strict sense of the term by detection and suppression primarily by applying criminal law.

94. The integrity and good conduct of public servants must therefore be promoted by giving them guidelines as to how to act, make decisions and use their judgment in their day-to-day work with citizens and in the context of their duty to develop public policy.

95. Ethics thus act as an important counterweight to the arbitrary when exercising public prerogatives.

II - 1-2: Preventive mechanisms and the management of ethics

96. According to a 1996 OECD report on public service ethics, most European countries have instruments or processes involving either regulations against undesirable forms of behaviour or incentives to good conduct.

97. All these measures make up what the report calls an ethical infrastructure composed of the following eight key elements:

- strong political commitment: in that no initiative on ethics in the public services will have any chance of success if it is not supported by genuine political commitment expressed verbally and by the allocation of adequate resources. Examples of this are the Nolan Committee (1994) in the United Kingdom, the initiatives taken by the Norwegian Ministry of Justice and civil service to form a working group to investigate ethics in the public services (1991), and the Dutch Ministry of the Interior initiative making the question of integrity in public management a priority of the political agenda (1992).

- an effective legal framework: the country concerned must have a body of laws and regulations that sets out standards of conduct for public servants and imposes respect for them through investigation and prosecution systems. This includes everything from the criminal law applicable to all citizens to adopting specific laws punishing specific forms of behaviour, whether or not they are criminal offences.

- effective mechanisms for making people aware of their responsibilities: in addition to laws and regulations, administrative procedures and mechanisms to make people aware of their responsibilities should be put in place to serve as preventive monitoring mechanisms of the day-to-day conduct of civil servants.

- practical codes of conduct: the code of conduct may be a legal document or a simple administrative declaration stating the levels and quality of performance expected of the public officials concerned. It should outline the ethical principles applicable to the public service generally or to a particular ministry, executive agency or local authority.

- professional socialisation mechanisms: professional socialisation is the process by which public servants learn and instil values, ethics and standards of conduct; education and training programmes are the key socialisation mechanisms.

- favourable civil service conditions: in order to provide an environment favourable to ethical conduct, the human resources policy of the public bodies concerned should ensure high quality recruitment and training, promotion on merit, and fair, equitable remuneration so that officials are better able to resist the temptation of misconduct or corruption.

- some sort of body to co-ordinate ethics: such bodies may include parliamentary committees, central agencies, ministries or independent agencies specially created to supervise ethics in the civil service.

- a civil society that monitors civil servants’ actions.

98. The synergy between the various components of an “ethical infrastructure” depends upon the country’s cultural and politico-administrative traditions, its general approach to public management and its previous initiatives to promote ethical conduct.

99. In the final analysis, the effectiveness of such a mechanism requires that it be put into practice, understood and used consistently.

100. As with respect to modernising public services by introducing public management (see section I above), there is a fairly clear difference in the practical implementation of such preventive and ethical management mechanisms between the European countries which have chosen a predominantly employment system for their civil service and those that have opted for a predominantly career system, since there is inevitably a clear link between the ethical system of a country and its approach to public management.

101. With respect to the former, the contractual framework of the civil service, both national and local, suggests the adoption of a code of ethics and good conduct for civil servants, in so far as the lack of a precise statutory framework in terms of rights and duties provides no special pre-existing guarantees in this area.

102. Thus, in the United Kingdom, a code of ethics for civil servants was introduced in January 1996. It establishes the framework within which public officials work, their roles, duties and standards of conduct, as well as the values to which they must conform in terms of integrity, honesty, impartiality and objectivity. The code expressly prohibits disrespect for parliament and the public, misuse of power and divulging information without authorisation.

103. In countries with a career system, it may seem unnecessary or even pointless to set out yet again in a code, albeit in a different legal form, an arsenal of constitutional, legislative, regulatory and case-law regulations and provisions which already govern the statutory framework of the civil service.

104. Thus in France, there is no code of conduct applicable to all public servants, as the law setting out the rights and duties of civil servants, applicable to the three (national, hospital and local government) civil services already provides a mechanism considered sufficient in this respect, including with respect to multiple public and private activities. Only the national police force has a code of ethics. In recent years, however, measures have been taken concerning civil servants’ duties and led to the establishment of an Ethics Committee in each of the three civil services, examination of the development of their missions, reforms of the rules on holding multiple posts and remuneration, and the drafting of ethical guidelines by ministries. Such documents have also been tried out in several local authorities.

105. In other countries, such as Belgium, Poland, the Czech Republic and Hungary, there are no codes of conduct either, but a number of binding legal provisions. The rights and duties of civil servants are contained in various general and specific laws.

106. In Poland, the laws of 1982 and 1996 deal with professional ethics.

107. However, in Portugal, which has opted for a predominantly career civil service, there is a code of conduct, the Public Service Charter of Ethics, based on what are regarded as the fundamental public service values, including public service as the purpose and raison d’etre of the civil service, the principle of equality, the principle of political, economic and religious neutrality, and integrity as a condition of individual freedom.

108. In Italy, too, there is a code of conduct for public servants. Laws and collective contracts provide other pointers to the conduct expected of public servants. But it is true that successive reforms (including Legislative Decree 29/93 and subsequent amendments to it) have introduced the privatisation of the working relationship of civil servants, which is now governed by private law.

109. It should also be noted that a code of conduct is now being drafted in Bulgaria.

II – 2 Civil services and the risk of politicisation of civil servants

110. With regard to power (central or devolved power in the case of civil servants of the state and federated bodies, the power of local elected representatives in the case of officials in decentralised local authorities), the public servant must have a duty of neutrality and loyalty.

111. The principle of neutrality means that the public services must function impartially and not serve a particular political party, but rather the general interest of citizens and the state. In practical terms, neutrality means that civil servants must not discriminate in any way between users of public services according to their political opinions, religious convictions, race, sex, etc.

112. A distinction needs to be made between institutional loyalty and personal loyalty. Absolute loyalty is owed to the institution: state, federated body or local authority. Thus, in Germany, in the oath taken by all civil servants, they swear “conscientiously to perform the duties of their office”. Personal loyalty to an individual, however, has to be qualified according to whether the person is the superior, executive authority or official representative of the institution.

113. This distinction is especially important in local authorities, where the risk of confusion is greater. As a result of decentralisation, the relationship with politics, i.e. the relationship between elected local representatives and civil servants, is in the nature of things. It is permanent and general; every civil servant of whatever grade or post, whatever his or her duties, may have to work on a particular subject with an elected official. The relationship is closer and more regular when it concerns an elected official with power delegated by the executive and the head of a department whose activities are among the responsibilities delegated to the elected official; it is direct and daily between a mayor or chairperson of a local authority and the director-general of services.

114. The relationship may remain purely administrative and technical and exclude all political considerations, but the often dual, ambivalent nature of local authority blurs criteria where the “chief” of a town, county or region holds two offices simultaneously.

- a political office, since the elected chairperson of the decision-making assembly is the political leader of the local government majority;

- an administrative office, since, as head of the administration, he or she has direct authority over all the services of the local authority concerned and directly appoints the director-general of services.

115. There is no contradiction, but a subordination of one office to the other in that, for elected local officials, the administration is a tool serving a policy, the content and objectives of which may vary from one period in office to another, particularly when the political majority changes.

116. The situation varies from country to country according to the degree of state decentralisation and the degree of differentiation between national civil service and local civil service. It is particularly obvious in Germany where, in most Länder, the chief executive is also the director of services, and the same is true in towns and districts.

117. We still need to be clear about definitions:

- there are national and local policies which make up a set of guidelines for action in the economic, social and cultural fields: the public servant has a duty to serve them;

- there is the so-called “political” policy followed by some elected officials or groups of elected officials: it is wrong for a public servant to serve this end.

118. For this reason, we shall now examine in turn the situations in which civil servants risk politicisation and those in which they themselves enter politics.

II - 2-1: Public servants at risk of politicisation

119. Here again there is a clear division between countries that have opted for a predominantly employment organisation for their civil services and those that have chosen a predominantly career system.

120. ‘Career’ civil servants, including senior and top civil servants, are recruited by competitive examination, qualifications or test. While this process is often criticised for being cumbersome and unrelated to actual civil service posts, it has the advantage of guaranteeing everyone equal access to the civil service and impartiality in the choice of the successful candidates by a political authority with the power to appoint them on merit.12

121. On the other hand, civil servants in a predominantly employment system are usually recruited on the basis of interviews, various technical tests and a discretionary assessment of their abilities and skills in relation to a particular job description. Consequently, the risk of taking political considerations into account, in terms of membership of, or loyalty to, a particular political party, cannot be excluded, especially where recruitment is to a very senior post with important responsibilities requiring great loyalty to the government in power.

122. This statement needs a great deal of qualification, however, as, on the one hand, in career civil services there are significant exemptions and many posts which are filled at the government’s or local authority’s discretion, and, on the other, in employment civil services, public servants are subject to sometimes very tight restrictions on the exercise of their political rights when they take on important responsibilities. This is the case in France, with respect to the former, where appointments to some 450 posts in the state civil service are made by the government by Cabinet decision.

123. The posts most sensitive to changes, whether administrative or political, are, apart from those in ministerial private offices, the posts of prefect, director of central services, chief education officer and chief executives of major publicly owned companies. Civil servants who are dismissed lose their post, but keep their grade and may also later be appointed to a post of similar level. This is also true of specially appointed prefects.

124. Furthermore, in the French local civil service, elected officials have a veritable ‘right of repudiation’ vis-à-vis senior officials. This concerns, first and foremost, the members of their private office, but also the senior executives occupying civil service management posts, such as director-general or deputy director-general of services.

125. They merely have to take a decision to end the secondment of the officials concerned. Here again, the civil servants retain their grade and grade-related salary, but lose their posts and the related attributes and advantages. Although it is taken within a legal framework, the decision is discretionary and threatens a large number of civil servants every time there are local elections.

126. It must be stressed that, at national and local authority levels, the replacement of managerial staff is not exclusively the result of political change. Other criteria play their part, such as a change in management policy.

127. However, with respect to officials working in the private office in French local authorities, the legislation in force has the advantage of clearly identifying their role and political function and separating them completely from other administrative activities. Thus, since they are not appointed to any particular local authority civil service grade or post and then given tenure, they are freely chosen by the mayor, or chairperson of the council or regional council to manage that elected official’s dealings with civil society or the voluntary sector, the local or national press, and draw his or her attention to the management of ‘politically sensitive’ subjects. They have no power over local authority services.

128. Unlike in the predominantly employment systems such as the United Kingdom, the principle of political neutrality implies that senior civil servants work for the democratically elected government, whatever its colour. They are required not only to serve different governments, but to identify themselves with the programmes of successive governments with respect to all aspects of government action.

129. But there is a reverse side to every coin: in order for ministers to be able to work with all their civil servants with equal confidence, the latter must avoid expressing personal political opinions. This rule applies at every level of the hierarchy to all civil servants in direct contact with the public, so as to avoid the possibility of a citizen or group of citizens feeling that political prejudice might have played a part in an administrative decision. For this reason, most British civil servants are deprived of what their colleagues in other countries regard as their right as citizens to express political opinions or write articles about controversial issues.

II - 2-2: The civil servant in politics

130. As civil servants are citizens like any others, they should normally enjoy all the rights of citizens, in particular the right to participate in political life. However, the necessary separation of political power and the executive has often led states to impose severe restrictions on, or even withdraw, civil servants’ rights in this respect. There is, indeed, a contradiction between the duty of neutrality and free participation in political life.

131. For this reason there are huge differences between European countries on this matter.

132. Some states are very liberal. This is true of France, where the law common to the three civil services – national, local and hospital – on the rights and duties of civil servants:

- guarantees freedom of opinion, no distinction being allowed between civil servants on grounds of their political, trade union, philosophical or religious opinions;

- states that “the career of civil servants who are candidates for elected office may in no way be affected by their votes or the opinions they express during their election campaign or period in office”;

- further stipulates that “without prejudice to more favourable provisions that might be applied to them (as they usually are), civil servants in elected office enjoy the guarantees accorded to those holding local government office”; this refers to the rights, authorised absences, training end benefits given within the framework of the law on the conditions of occupying elected local office.

133. In addition to this, in order to occupy national or local office, civil servants may ask to be placed on secondment, an eminently favourable situation compared to that of someone from the private sector.

134. The conditions are therefore extremely generous, authorising and encouraging civil servants to seek election. So much so that the question has been asked whether the Ecole Nationale d’Administration does not train more parliamentarians than senior civil servants. As for local assemblies, a great many of their members are from the civil service in general and education in particular.

135. In exchange for rights, there are, however, a few special obligations:

- prior to election, there are impediments to civil servants seeking office that relates to ineligibility and incompatibility. Thus, national civil servants with any responsibility at all, and this principally concerns prefects, directors of devolved services, judges, officers of the armed forces, police superintendents, etc, may not be elected to Parliament, still less a local assembly, in a constituency in which he or she works or has worked in the last six months. This last restriction is also imposed on local government civil servants occupying the post of director-general, deputy director-general, director, head of department or head of office. Moreover, a local government civil servant may not seek election in the authority which pays him. It should also be mentioned that, in the event of appeal, the electoral judge is less interested in the title than the actual responsibilities of the individual concerned.

- once elected, the civil servant is subject to the duties of discretion and reserve in the framework of his or her department or local authority. Breaches of these duties are difficult to judge, but nonetheless firmly punished by the judge, particularly in the case of excessive proselytising.

136. Conversely, other countries, such as the United Kingdom (see section II-2-1 above) and Germany are more restrictive and the restrictions are correspondingly greater the more responsibility the civil servant has. Senior civil servants may not participate in national political activity (they may stand for office at national elections and be elected, but must then resign); those lower down the scale may be given authorisation to stand; only civil servants at the lowest level and manual workers are almost unrestricted. In some countries, all public servants are prohibited from participating in political life.

137. Similarly, in Ireland, senior civil servants of administrative grade do not have the right to take part in political activities.

138. The question of political rights is closely linked to national political traditions and the particular political situation in some countries.

139. To conclude this section about “Civil services and the risk of politicisation of their civil servants”, it should be noted that:

- nothing should prevent a government or local authority majority implementing the manifesto on which it has been elected;

- nothing should prevent a civil servant loyally serving any government or local authority.

140. Politicians must, however, always be aware of what they may and may not ask of civil servants, and civil servants must take care not to overstep the mark so as not to lose their reputation and harm that of the civil service.

III. Concluding Remarks

141. The Rapporteur wishes to thank all sub-committee members as well as the experts who took part in the Rome seminar for their enriching ideas and comments and for their wholehearted support throughout.

142. In the course of the seminar, a sub-committee member argued that it was crucial for national civil services to actively recruit in institutions of higher education to attract talented people for employment. The Rapporteur considers that a public administration composed of less motivated people, perhaps with limited skills for lack of training, could be detrimental to democracy and impair confidence in public institutions.

143. The Rapporteur recalls the Council of Europe’s particular role in Europe’s new institutional architecture and the Laeken Declaration of December 2001 calling for greater democracy, transparency and efficiency on the part of European institutions. He would therefore suggest that the Assembly ask the European Union’s Convention on the Future of Europe to include an article laying down fundamental principles for European and national public officials, such as universal and fair possibility access to such functions, equal opportunities for women, integrity, loyalty, objectivity and probity – in consideration of the fact that a high-quality civil service is a vital precondition for strong democracy and the rule of law.

144. Administrative reform offers an opportunity for achieving a system of administration that would be more transparent and efficient, in particular in the context of European Union enlargement. Each national administration has unique knowledge and experience to contribute in Europe’s common quest for social and economic development. Reform should be guided by two objectives; to place the interests of citizens and Europe’s common values at the centre and to maintain or restore, as the case may be, the legitimacy and popular confidence in public institutions. No reform will succeed if civil society and public officials are not reasonably assured that the proposed changes are guided by the public interest and based on ethics and the flexible use of human resources.

Reporting committee: Committee on Economic Affairs and Development

Reference to committee: Doc. 9012, Reference 2600 of 27.4.2001.

Draft recommendation unanimously adopted by the committee on 24 January 2003.

Members of the committee: Mrs Zapfl-Helbling (Chairperson), Mr Kirilov (Vice-Chairman), ZZ ... (Vice-Chairperson), Ms Burbiene (Vice-Chairperson), Mr Adam, Mr Agius, Mr Agramunt, Mrs Akgönenç, Mr I. Aliyev (Alternate: Mr Abbasov), Mr Anacoreta Correia, Mr Arnau, Mr Assis Miranda, Mr Berceanu, Mr Billing, Mr Braun, Mr Brunhart, Mr Budin, Mrs Calner, Mr Cerrahoglu, Mr Cosarciuc, Mr Crema, Mr Djupedal, Mr Duivesteijn, Mr Elo, Mr Eyskens, Mr Galoyan, Mr Grachev (Alternate: Ms Yarygina), Ms Griffiths, Mr Grignon, Mr Gülek, Mr Gusenbauer (Alternate: Ms Schicker), Mr Haupert, Mrs Hoffmann, Mr Hrebenciuc, Mr Kacin, Mrs Kestelijn-Sierens, Mr Klympush (Alternate: Mr Poroshenko), Mr Lachnit, Mr Le Guen, Mr Liapis, Mr Makhachev, Mr Masseret, Mr Melcak, Mr Mikkelsen, Mr Naumov, Mr O’Keeffe, Mr Palis, Mrs Patarkalishvili, Mr Pavlidis, Mrs Pericleous-Papadopoulos, Mrs Pintat Rossell, Mr Pleshakov (Alternate: Mr Tulaev), Mr Podgorski, Mr Popa, Mr Popovski, Mr Prokes, Mr Puche, Mrs Ragnarsdottir, Mr Ramponi (Alternate: Mr Rigoni), Mr Reimann (Alternate: Mr Frey), Mr Riccardi, Mr Rivolta (Alternate: Mr Mauro), Lord Russell-Johnston, Mr Rybak, Mr Schmitz, Mrs Schoettel-Delacher, Mr Schreiner (Alternate: Mrs Durrieu), Mr Seyidov, Ms Smith (Alternate: Baroness Hooper), Mr Stefanov, Mr Tepshi, Mr Torbar, Mr Tosic, Mrs Vadai, Mr Voog, Mr Walter, Mr Wielowieyski, Mr Wikinski, Mr Zhevago, Mr Zvonar.

N.B. The names of those members present at the meeting are printed in italics

Head of Secretariat: Mr Torbiörn

Co-Secretaries to the committee: M. Bertozzi, Ms Ramanauskaite and Ms Kopaçi-Di Michele