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Accountability and Control

Citizens As Customers – Charters And The Contractualisation Of Quality In Public Services
 

                                        - The UK Citizen’s Charter

The original version of the UK Citizen's Charter was officially launched in a White Paper, published in July 1991 (Cabinet Office, 1991). Although it pursued themes (value for money, increased competition, privatisation, greater emphasis upon performance measurement, etc.) that were already well in train by the time Mr Major took over the premiership from Mrs Thatcher in 1990, the Charter was presented from the outset as encapsulating the prime minister's personal vision of the public services. The initiative had support from, among others, the free market think tank, the Adam Smith Institute (Pirie, 1992), and it remained a core part of the Conservative Government’s programme until the change of government in 1997. It was then repackaged and relaunched by Tony Blair’s Labour administration, and has become absorbed into the continuing process of ’modernising’ public services.

The original Citizen’s Charter reaffirmed the Government's continuing commitment to privatisation, to the further contracting out of public services, and to the extension of compulsory competitive tenderingiii; but it implicitly accepted that a lot of services should remain within the public sector - while arguing that they must be more consumer-sensitive. Its main themes (to paraphrase some of the relevant sections of the1991 White Paper) were:

• Higher standards: publication, in clear language, of standards of service; tougher, independent inspectorates; a ‘Charter Mark’ scheme to commend bodies that abide by the terms of the Charter.
• Openness: elimination of secrecy about organisational arrangements, costs of service, etc. Staff to be identified by name badges.
• Information: regular publication of information about performance targets, and how well they have been met.
• Choice: ‘the public sector should provide choice wherever practicable’.
• Non-Discrimination: services to be available regardless of race or sex; leaflets to be printed in minority languages where there is a need.
• Accessibility: ‘services should be run to suit the convenience of customers, not staff.’
• Proper redress when things go wrong: ‘at the very least the citizen is entitled to a good explanation, or an apology’; better machinery for redress of grievances (including, as originally envisaged, a system of local lay adjudicators to deal with minor claims for redress); adequate remedies, including compensation where appropriate.

The Charter was to apply to central government departments and their Next Steps executive agencies; also to local government, the National Health Service, the police – and even the courts, where there are special sensitivities about judicial independence. It also promised stronger powers for the regulatory agencies that oversee the privatized public utilities like British Telecom, and the gas, electricity and water industries (all of which have their own charters).

The Raison d’Être of the Charter Initiative - The ‘New Right’ Perspective

In a pamphlet published by the Conservative Political Centre, John Major’s Public Service Minister, William Waldegrave. wrote as follows about the post-war reforms of public services:

By a process that was, in retrospect, inevitable, it turned out that we had designed public services where the interests of the providers systematically outweighed those of the users, and which, driven only by the natural tendency of all provider organisations to claim that they can only do better with more money, contained an overwhelming dynamic for increased cost which was bound to end in conflict with reality. Many loyal public servants did good work within them - but the seeds of their own destruction were firmly embedded in the organisations' structures (Waldegrave, 1993, p. 8).

He conceded that the language used in support of policies of privatisation in the 1980s was not focussed ‘where in reality the focus of our concern is - on the user of the service until the language of the Citizen's Charter began to turn the national debate in the right direction before and after the election of 1992.’ Moving away from expenditure as the only ‘index of compassion’ and reasserting the primacy of outputs is, he argued, a way of avoiding the presentation to the electorate of ‘a false choice between low rates of taxation and high standards of service’ (Waldegrave, 1993, p. 10).

He went on to claim that, internationally, Britain had been ‘blazing a trail on public service reform in the 1990s’ and that innovations like the Citizen’s Charter had influenced and anticipated changes and reform agendas in other countries - for instance, Osborne and Gaebler’s, Reinventing Government (1992; see also Gore, 1993).

But other commentators have stressed that the pre-history of the Charter, and the credit for its invention lies elsewhere, particularly in local government. The public lawyer, Ian Harden, has noted the precedent of the ‘customer contracts, pioneered by some English local authorities in the 1980s’ (Harden, 1992, p. x). Rod Rhodes - citing his own experiences, working with York city council - states categorically that ‘citizen’s charters originated in local government, not with John Major’ (Rhodes, 1997, p.129). And David Prior has concluded that charters ‘arrived on the managerialist tide that flooded local government in the 1980s’ (Prior, 1995, p. 100). In his foreword to the Charter White Paper (Cabinet Office, 1991), John Major himself wrote that, ‘to make public services answer better to the wishes of their users, and to raise their quality overall, have been ambitions of mine since I was a local councillor in Lambeth over twenty years ago.’

While a ‘consumerist’ tendency in local government and elsewhere is an important element of the pre-history of the Citizen’s Charter, it is clear that, in the early 1990s, the ministerial and civil service architects of the Charter were anxious to claim it as a logical extension of the Thatcherite New Right’s public sector reform programme and, in particular, as being a natural evolutionary progression from the ‘Next Steps’ agency programme, launched in 1988 (Greer, 1994). The Charter became, from the outset, a prominent feature of the agendas of executive agencies and of the framework agreements that define their performance targets. Brian Hilton, the first director of the Citizen's Charter Unit in the Cabinet Office, saw the Charter as:

• the next stage after Next Steps. Next Steps gets management sorted out and now we are saying with greater clarity what we want management to deliver. This is not a nine-day wonder. It is very much a long-term problem (quoted by Hennessy, 1991).
• John Major’s tenure as prime minister, which ended with his party’s emphatic defeat in the general election of May 1997, saw his Citizen’s Charter reach its sixth birthday. The main features of the Charter regime inherited by Tony Blair from his predecessor included:
• 41 national Charters covering the major public services: e.g. the Patient’s Charter, the Parent’s Charter, the Courts Charter, the Taxpayer’s Charter.
• over 10,000 local charters, prepared by local agencies (e.g. doctors’ surgeries, hospital trusts, schools, local authority services and local job centres) in consultation with service users.
• the annual Charter Mark award scheme, recognising excellence and innovation in public service (at the time of the consultation exercise, below, there were 645 holders of the award. Over 3,600 services had applied for the award, and more than 1,100 were successfulv ).
• 24 Charter quality networks around the UK. These were established by the Charter Unit in 1994, and consisted of small groups of managers from public services and privatized utilities who met locally to exchange ideas on issues relating to customer service and quality.
• A Good Practice Guide, produced by a Citizen’s Charter complaints task force, and published in June 1995, containing recommendations on how public services can improve their handling of complaints.
• The regular publication of performance league tables, notably in the fields of education and health services.

The initiative was signalled as John Major’s ‘big idea’, something that would give a distinctive flavour to the Major era of public service reform, after ten years of Thatcherism. As noted in Waldegrave's apologia, cited above, although the Charter carried forward familiar 1980s New Public Management themes, it also hinted at a confession of past doctrinal (or at least presentational) error – perhaps even a tacit admission that ‘the “minimising” elements of the government’s reform strategy may have gone too far’ (Lffler, 2003, p. 481). But unkind critics might interpret this, not so much as a disclaimer, but as an attempt to claim distinctiveness for what was, in essence, a populist re-packaging of Thatcherite reforms, perhaps designed implicitly to rebut Mrs Thatcher's famously dismissive observation that ‘there is no such thing as Majorism.’ As one commentator put it, ‘the Citizen's Charter is partly a genuine article of belief for John Major and partly a vehicle for symbolically differentiating him from his predecessor’ (Doern, 1993, p. 20).

New Labour, New Charter

In Opposition, ‘New Labour’ politicians had been scornful of some of the more ambitious claims made on behalf of the Charter by Conservative ministers, but its main specific objections were to do with the Charter’s lack of enforceable rights and legislative ‘teeth’ (e.g. with regard to freedom of information). Under the leadership of Tony Blair in the 1990s, the Party had begun to adopt some of the ideas and rhetoric of the ‘communitarian’ movement – represented, for instance by Amitai Etzioni, who had written that:

Communitarians favour strong democracy. That is, we seek to make government more representative, more participatory, and more responsive to all members of the community. We seek to find ways to accord citizens more information and more say, more often (Etzioni, 1995, p. 235).

Lessons were also learned from the Clinton-Gore National Performance Review. And references to the desirability of creating a more socially inclusive ‘stakeholder’ society began to appear in the speeches of Blair and his party associates. There were regular references to the need to restore power and functions to local government and to improving mechanisms of public accountability. The Charter - suitably modified, and relaunched with appropriate New Labour packaging - was seen as having a contribution to make to the new government’s goals.

Charterism – too much stick and not enough carrot?

From the outset the authors of the UK Citizen’s Charter made it clear that one important principle underlying the initiative was to improve value for money for the citizen- taxpayer, by making public resources go further. This has been an important driving force behind public sector reform in Britain, and in many other countries. Charters impose a discipline on service providers at relatively little central cost.

It is plausible to suggest that the new disciplines of a charter may usefully focus the minds of service providers, operating at the interface between a State and its ‘empowered’ citizen-customers, on finding ways of improving standards when resources are having to be squeezed. But, given the hierarchical nature of many public service institutions the definition of the ‘provider’ can be problematical. Much of the immediate impact of charters falls upon relatively low paid and/or junior state employees (e.g. railway station staff, school teachers, hospital receptionists, front line officers in tax and benefits offices) who have to bear - without extra rewards, and sometimes with little or no extra training - the brunt of complaints and criticisms by ‘empowered’ customers. A newspaper article published a few months after the launch of the Charter quoted an assistant manager in the Benefits Agency as saying that ‘most of us see it as quite a cynical exercise to paper over the cracks in the service’; the general secretary of the Civil and Public Services Association was quoted as saying that the Charter is ‘all stick and no carrot’ (Willmore, 1992).

Charters - ‘Rights’ without Laws?

Alongside controversies about the ambiguities of ‘citizenship’ are other issues associated with making reference to a ‘charter’, a word that has formal and legalistic connotations. But despite the resonance of the language with grand constitutional statements of the past, such as Magna Carta, the UK Citizen’s Charter was not a constitutional document. And it has been a feature of the UK Charter that it does not directly imply the conferment of legal entitlements.

The Citizen's Charter offered no Bill of Rights (though it talked a lot about rights), nor a Freedom of Information Act. It comprised a melange of aims and exhortations, rendered more amorphous by the diversity of the services and institutions to which it applied. In the words of the 1991 White Paper:

The Charter programme will be pursued in a number of ways. The approach will vary from service to service in different parts of the United Kingdom. The Citizen's Charter is not a blueprint which imposes a drab and uniform pattern on every service. It is a toolkit of initiatives and ideas to raise standards in the way most appropriate to each service (Cabinet Office, 1991, p. 4).

The Charter itself was never intended to be a justiciable document, conferring legal rights that could be enforced in the courts. William Waldegrave, true to the British tradition of regarding law and lawyers as impediments rather than as aids to good government, told the House of Commons Treasury and Civil Service Committee, with reference to the improved redress of grievance systems promised by the Charter, that 'if we can avoid getting too many lawyers involved in these redress systems, except when issues are very, very serious, so much the better I think...' .

This approach is symptomatic of the historic resistance of the British political and bureaucratic culture to the development of administrative law and administrative codes. As the political scientist Fred Ridley - a European comparativist, well placed to observe the peculiarities of the British resistance to public law - once observed, ‘the idea of 'political' rather than 'legal' protection of citizens against administration is deeply embedded in British political traditions and has imprinted itself on British ways of thought’ (Ridley, 1984, p. 4).

There have been some important recent developments in UK public law. We now even have an Administrative Court, and the Blair Government’s decision to incorporate the European Convention on Human Rights into domestic law by enactment of the Human Rights Act 1998 has already had an impact on law and administration. The development in New Public Management contexts of more contractual, quasi-contractual and pseudo- contractual modes of service delivery also has important implications, some with legal significance.

But the fact remains that, compared with many other countries - particularly some of the UK’s continental European neighbours, such as France - public law has a relatively low profile, as does the concept of legally enforceable rights. As one British commentator has put it.

Charterism - Something for Everyone?

There is plenty of scope for philosophical debate and ideological dispute about the meaning and the merits of charterism. But, for practical purposes, it is probably appropriate to regard these charters, not as a universal and rigidly pre-ordained schedule of principles and objectives but as a series of packages, of broadly similar shape, but with different wrapping paper to suit the location and the occasion. As has been noted, variants of the charter package can comfortably be embraced both by New Right free market individualists and by New Left collectivists with communitarian leanings. The wrapping paper - the rhetoric used to discuss charters, and the relative emphasis placed on one aspect rather than another - may vary, but the actual contents, can often, in the end, look very similar.

Charters are to be found in states with strong traditions of administrative and constitutional law, as well as in the UK, where these characteristics are much less evident. However, one would expect more legalistic systems of public administration to have different perceptions of what charters mean and how they are to be enforced. The ‘empowerment’ ingredient of charters may be played down in countries with weak traditions of electoral democracy; or played up in countries whose governments want to encourage more civic awareness and participation. Charters exist in unitary states with highly centralized systems of governance (paradoxically, they can be used both to reinforce central control of decentralized institutions, and as a counterweight to excessive centralization); they are also found in countries with federal arrangements and/or strong traditions of localized public administration.

To pursue the ‘package’ metaphor a little further, there is a danger that attractive wrapping paper may raise unrealistically high expectations that are doomed to disappointment when the package is opened. This is particularly the case if (as some critics of the original UK Charter complained) some of the contents turn out to be recycled items from the past. A charter package can be made to look very appealing. The ostensible message of charters - simultaneously bureau-sceptical and appealing to democratic and populist sentiments - is hard for anyone to quarrel with. The promise of better and more user-friendly services with no extra burdens falling on the taxpayer may seem almost too good to be true.

There has been a lot of discussion - the UK and elsewhere - whether charters really ‘work’. Some of this debate is of a technical kind: to do, for instance, with the authenticity of performance measurement - what do ‘league tables’ of schools (based mainly on examination performance) and hospitals (based, for instance, on waiting times for surgery) or police forces (based on such indicators as crime clear-up rates and the time taken to respond to emergency calls) really tell us? And, even if the technical controversies about performance rankings could be resolved, what, in the real world, can the empowered citizen, whose choices of alternative service providers are often limited, do with this information?

The impact of the Charter Mark scheme is currently being investigated in various public service organisations, beginning with the Court Service of England and Wales, the first organisation to undertake a corporate programme of Charter Mark applications and to adopt Charter Mark as its national service standard. The consultancy company, ORC International, analysed data from 17,877 civil and family court customers across 218 courts, collected between February 2001 and February 2004. It found that that service at public counters received significantly higher satisfaction ratings (88%) than those without the award (80%); satisfaction with telephone service was 83% for Charter Mark courts, compared with 74% for non-Charter Mark courts; for written correspondence the respective figures were 80% and 74%; and for complaints handling they were 36% and 26% (Thompson, 2005).

These findings obviously relate to only one aspect of charterism, in one service sector, and need to be interpreted with caution. Establishing cause and effect relationships in quality-improvement schemes is notoriously difficult.

The British experience does suggest that the Citizen’s Charter has probably had beneficial effects on quality of service. However, there have been intermittent allegations (many of them anecdotal) that performance outcomes may sometimes be manipulated by those involved - e.g. police officers who are reluctant to log reports of crimes that they know they cannot solve; students being entered for examinations only if their school is sure that they will pass; railway timetables adjusted so that trains are seldom ‘late’; postboxes re-labelled with the last collection time rather than with a series of detailed collection times from morning until evening.

When addressing the question ‘do charters work’?, two related considerations must be borne in mind. First, that what ‘works’ in one national or sectoral context may not work in another. Secondly, and perhaps more crucially, it must be remembered that charters - although they contain a lot of uncontentiously sensible messages about improving service quality and efficiency, and about increasing citizen satisfaction - are not value- neutral documents. Their purpose and content is strongly driven by political considerations. There is a political message to be read between every line of every school performance league table.

Charters – How ‘Contractual’?

A movement towards contractual arrangements, of varying degrees of ‘hardness’ and ‘softness’, has been a pervasive feature of public management reform in many countries around the world in the past two or three decades. However, in their introduction to a volume of essays, published five years ago under the auspices of this study group, the editors, Yvonne Fortin and Hugo Van Hassel, observed that regular usage of the term ‘contract’ in public management contexts is comparatively recent. They noted that ‘the terms agreement, convention, commitment and pact had often been favoured, especially when indicating those agreements with no legal value’ [i.e. what we might nowadays refer to as soft contracts, see below] (Fortin and Van Hassel, 2000, p. 4). And they went on to suggest various explanations for the growing dominance of the term in public management discourse, the first being the nature of some of a contract’s technical attributes:

The contract represents a tried and tested legal technique that serves to implement a mechanism along with a set of arguments easily acceptable to lay audiences; included herein would be: the necessity for the two parties to be distinct entities, the principle of equality between both parties, the principle of negotiation, the notion of reciprocity and the fulfillment of commitments (ibid. p. 6).

They also observe that the perceived neutrality of the term contract makes it an attractive device for politicians seeking to build a consensus for public sector reform; it has international currency; and It also conveys an aura of the private sector, and in particular a commercial tone, which within today’s context of economic competitiveness and attraction for the private sector’s latest generation of management tools gets interpreted as a stamp of seriousness and efficiency (ibid).

The UK provides many illustrative examples, including agency framework agreements and internal markets (soft) to private finance initiatives (hard). However, in practice, the hard/soft dichotomy is seldom clear-cut: for example, the hard contractual bottom line of a private finance initiative may need softening along the way, though negotiation and mutual trust, in order to make it work.

Harlow and Rawlings (1997, p. 211, see also chapter 5) use the term, ‘pseudo-contracts’, noting ‘the link with the idea of citizen as consumer expressed in the Citizen’s Charter: the portrayal of the relationship in contractual terms – services in return for taxes… ‘ At one level, the use of such pseudo-contractual language can be seen as an attractive addition to the armoury of political rhetoric (cf. Fortin and Van Hassel, above). So the contractual resonance of a citizen’s charter is at least as much presentational as substantive.

When we look more closely at how far, if at all, citizen’s charters fit into the contractual picture, with particular reference to the hard/soft dichtomy, an interestingly ambiguous picture emerges. A convenient overview of the main characteristics of hard and soft models of contracting is to be found in Anne Davies’ account of contracting in the UK National Health Service, (Davies, 2001, p. 92):

‘Hard model:

• Low trust relationship between the parties
• Standard-setting through adversarial negotiations
• Comprehensive and precisely drafted standards
• Monitoring through ‘policing’
• Enforcement through sanctions, particularly exit

Soft model :

• High trust relationship between the parties
• Standard-setting through collaborative negotiations
• Broadly drafted, general standards and written assumptions
• Monitoring through shared information or trusting the provider to comply
• Enforcement through ‘persuasion’

How do these characteristics (and those noted by Fortin and Van Hassel) apply to UK- type citizen’s charters? In the remarks that follow, I take ‘the parties’ to be the service provider on the one hand and the citizen customer on the other. However, a more elaborate analysis would require us to factor in the relationship (sometimes a pseudo- contractual one) between the provider and the State/government, particularly in so far as the government may have been the active initiator of a charter programme, which then trickles outwards and downwards into each service sector:

(1) Nature of relationship between the parties: one important object of a charter is to encourage improved trust between citizen and provider, through improved transparency and accountability; in a democracy, regime legitimacy (sometimes a fragile commodity) might be taken as an analogue of trust. However, the ‘empowerment’ subtext of charterism might be regarded as actively fostering ‘distrust’ – encouraging citizens to look more carefully at quality of service and not to take what they are told at face value. The ‘equality’ and ‘reciprocity’, highlighted by Fortin and van Hassel are often conspicuous by their absence, though we have noted (with reference to the UK National Health Service) recognition that consumer entitlements may need to be balanced against reciprocal social and civic obligations.

(2) Standard-setting: in general, the content of charters is unilaterally determined by the providers. There is no negotiation, though providers sometimes take steps to ascertain consumers’ attitudes and preferences.

(3) Formality and precision of the drafting: charters are drafted in general and informal terms (usually by non-lawyers).

(4) Monitoring: varies in scope. Charters themselves are seldom explicitly ‘policed’. But sometimes service-quality outcomes are linked to other mechanisms, such as the framework agreements of next steps executive agencies, and breaches may have implications e.g. for the tenure of chief executives and their performance-related pay. Performance league-tables (e.g. school exam results, hospital waiting lists) are regularly invoked by ministers, who hold the purse-strings of public funding, and may link to more formal quality measurement regimes, such as ‘best value’. Regulatory bodies have regard to service quality criteria (some of which may appear in charters) e.g. when allowing the Post Office to increase postal charges or franchised railway companies to increase their fares.

(5)Enforcement: charters involve no legal enforcement. ‘Exit’, identified by Davies as a common sanction associated with hard contracts, is also potentially a bottom line of informed consumer choice (though is easier said than done in what are often monopolistic or near-monopolistic contexts). Another area of enforcement has to do with what happens inside the provider-organisation itself - the role of a charter as a management tool (cf. earlier reference to ‘sticks and carrots’).

My general conclusion from all this is that citizen’s charters do indeed have a place in the realm of government by contract – albeit as pseudo-contracts, which go nowhere near to satisfying the criteria of mutuality, parity, reciprocity and legal enforceability that are minimal requirements for true contractual relationships. To some extent, the adjective ‘soft’ overlaps with the prefix ‘pseudo’ but the citizen’s charter case suggests that they are not quite identical. Informal drafting and non-enforceability in court are common factors, but the possibility of financial sanctions in some contexts and (if Davies is right) the potential for consumer exit gives this curious species of soft-pseudo contract a slightly hard edge.

Source - Gavin Drewry

Professor of Public Administration,

Royal Holloway, University of London

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