Impartiality

… a core term in Governance and Institutions and Atlas100

Definition

Merriam-Webster (reference below), defines impartial as not biased and treating all people and groups equally.

Impartiality in the judiciary

The Canadian Superior Courts Judges Association (CSCJA, reference below) states:

“It is not enough for the judiciary, as an institution, to be independent – individual judges must be seen to be objective and impartial. In their personal lives, judges must avoid words, actions or situations that might make them appear to be biased or disrespectful of the laws they are sworn to uphold. They must treat lawyers, clients and witnesses with respect and must refrain from comments that suggest they have made up their minds in advance. Outside the courtroom, judges do not socialize or associate with lawyers or other persons connected with the cases they hear, or they may be accused of favouritism. Judges typically declare a conflict and withdraw from a case that involves relatives or friends. The same is true if the case involves a former client, a member of the judge’s former law firm, law partners or a former business associate, at least until a year or two has passed since the judge was appointed and those ties were severed.

“Judges often choose to avoid most forms of community involvement. A judge may undertake community or charitable work but cannot offer legal or investment advice. Judges cannot take part in politics, either as a party member, fundraiser or donor, and many choose to relinquish their right to vote. While judges have been more willing in recent years to make public speeches or agree to media interviews, they refrain from expressing opinions on legal issues that could come before them in a future case. Judges are forbidden from being paid to do anything other than their judicial duties, but can accept appointments to serve on royal commissions, inquiries and other official investigations.”

Impartiality in the civil service

The Public Service Commission of Canada (reference below) states:

“Impartiality is integral to the calling of a professional public service in Canada’s federal government. An impartial public service allows Canadians, regardless of their political views, to expect fair, objective treatment from public servants.”

The term impartiality has long been used in the UK as one of core attributes of the civil service. The current Civil Service Code (reference below) distinguishes between impartiality in treating the public and political impartiality:

“The UK Civil Service Code says this on impartiality:

“You must: carry out your responsibilities in a way that is fair, just and equitable and reflects the Civil Service commitment to equality and diversity.

“You must not: act in a way that unjustifiably favours or discriminates against particular individuals or interests.

“Here is some practical advice to supplement the above instructions.

“Equality of Treatment

“The public expect both Ministers and their officials to deal equally with everyone, and with every organisation, without prejudice, favour or disfavour. This simple but vital concept has a number of useful consequences.

“First, it enables you to ask appropriate questions, however grand the person or organisation with which you are dealing. For instance, an enquiry into the financial standing of a multinational can often be less rigorous than a similar enquiry of a small firm. But large firms and substantial charities can go bust (remember Kids Company), so you should never take anything for granted. Ask a carefully targeted question and then decide whether further questions are necessary. Take particular care if you have heard a critical rumour or comment. There can be smoke without fire, but the two are usually closely associated.

“Second, it is your defence against the senior or public figure who might otherwise expect you to give them priority, or rubber stamp some sort of application. You must never allow queue-jumping, nor must you ever refrain from asking a pertinent question, whoever you are dealing with. (It is of course perfectly reasonable to ‘fast track’ some work for a senior person who has a genuine need for it to be done quickly. But you must be sure that you would do the same for anyone else with a similar need, and that they are not jumping ahead of someone whose needs are just as great, but who is less well connected.)

“Incidentally, the vast majority of senior/public figures understand perfectly well that they have to receive the same treatment as everyone else. If they get stroppy then (a) they believe that everyone should be receiving better treatment (if they are right then you should improve the service to everyone), or (b) they are trying to hide something (never allow yourself to be bullied into dropping a potentially important line of questioning), or (c) they are simply pompous (in which case don’t favour them, but don’t set out to punish them either).

“Third, it is your defence against anyone, including journalists, who might ask you to give them advice and information that you have not given to others. If possible, of course, you should be free with information. But there are no circumstances in which you should give information or advice to one person that you would not give to anyone else that asked a similar question.”

“Political impartiality

“The Civil Service Code‌ says the following on the need for political impartiality:

“You must:

  • serve the Government, whatever its political persuasion, to the best of your ability in a way which maintains political impartiality and is in line with the requirements of this Code, no matter what your own political beliefs are;
  • act in a way which deserves and retains the confidence of Ministers, while at the same time ensuring that you will be able to establish the same relationship with those whom you may be required to serve in some future Government; and
  • comply with any restrictions that have been laid down on your political activities.

“You must not:

  • act in a way that is determined by party political considerations, or
  • use official resources for party political purposes; or
  • allow your personal political views to determine any advice you give or your actions.

“…The civil service is required to be politically impartial, and able loyally and with equal commitment to serve Governments of all political persuasions. This means that:

  • you may not publicly defend the decisions and views of your Ministers (as distinct from explaining them), including in the social and other media, or by writing to newspapers,
  • you must even avoid saying or writing anything which could be quoted as demonstrating that you personally (or your colleagues) either agree or disagree with Ministers’ decisions,
  • you may not disclose the advice that you have given to Ministers,
    but on the other hand:
  • you must explain and implement your Minister’s policies with real commitment, whatever your personal views.

“It can be very hard to follow the above advice, especially when a Minister or Special Adviser does not share your view of the borderline between ‘explaining’ a policy and ‘defending’ it.  It is even more difficult if you strongly support – or strongly object to – decisions that have been made, or might be made, by Ministers. It is not always possible to hide those views from colleagues, and it is sometimes difficult to hide them from those outside the Government with whom you come into frequent contact. But it is absolutely essential that you give no sign that you oppose the principles and underlying thrust of the Government’s policies, nor must you suggest that you do not respect your Minister.

“It can be even more difficult to follow the above advice where minor decisions are concerned. (‘Of course I will try to get him to open your conference. It’s an important occasion’). But you will learn from bitter experience that the advice is sensible, for it is embarrassing all round when the Minister refuses to do what you suggest. There is, I am afraid, no alternative to sounding rather pathetic and merely promising that the case will be put to the Minister, adding that you cannot predict the result. Quite simply, it should never be possible for anyone to be able to criticise Ministers for failing to take your advice. And it is even more important that incoming Ministers should be unaware of the extent or otherwise of your personal support for their predecessors’ policies.

“Equally, you may not be asked to engage in activities which call into question your political impartiality, or which give rise to criticism that people paid from public funds are being used for party political purposes. You may not, of course, engage in political activities. And you may not help draft ‘Dear Colleague’ letters unless they are to be sent to all MPs. You are, however, allowed to provide Ministers with facts which might be used in political speeches etc., and you are allowed to check Ministers’ political speeches for factual accuracy. You are also allowed to comment on the analysis, costings and proposals contained in documents produced by political organisations, including the Opposition, but you must not draft Ministers’ responses to such documents.

“You may not brief an MP (including from the Government party) or agree that an MP may visit a Government office etc. without Ministerial approval. Ministers will usually agree to factual or uncontroversial briefings and visits, but they sometimes want to get involved themselves, in which case any meeting or visit has to be arranged at a time convenient for both the Minister and the MP.

“For the avoidance of doubt, however, you are expected to take politics into account when giving private advice to Ministers, and you are expected to help Ministers defend their policies, once they have made their decisions, even if you don’t agree with them.”

Impartiality in philosophy

Writing in the Stanford Encyclopedia of Philosophy (reference below) Troy Jollimore says:

“In this broad sense, impartiality is probably best characterized in a negative rather than positive manner: an impartial choice is simply one in which a certain sort of consideration (i.e. some property of the individuals being chosen between) has no influence. An analysis along these lines has been proposed by Bernard Gert. Gert’s analysis holds that “A is impartial in respect R with regard to group G if and only if A‘s actions in respect R are not influenced at all by which member(s) of G benefit or are harmed by these actions” (Gert 1995, p.104). Thus, for Gert, impartiality is a property of a set of decisions made by a particular agent, directed toward a particular group.

“Gert’s analysis captures the important fact that one cannot simply ask of a given agent whether or not she is impartial. Rather, we must also specify with regard to whom she is impartial, and in what respect. Gert’s analysis, then, permits and indeed requires that we make fairly fine-grained distinctions between various sorts of impartiality. This is necessary, since one and the same agent might manifest various sorts of partiality and impartiality towards various groups of persons. Consider, for instance, a university professor who is also a mother of five children, and who is currently acting as a member of a hiring committee. Such an agent might be impartial between her children with respect to the care they receive (while preferring her own children over others in this respect), and also impartial between the various job candidates; but it is clear that these two uses of the word ‘impartial’ denote very different practices. In particular, the idea of merit applies in one case but not the other: to be impartial between job candidates is presumably to select between them on the basis of merit, whereas to be impartial between one’s children is not to think of merit at all, but rather to provide equal protection and care to all.”

Atlas topic, subject, and course

Courts, Tribunals, and Commissions (core topic) in Governance and Institutions and Atlas100 Governance and Institutions.

Sources

Merriam-Webster, impartial, at http://www.merriam-webster.com/dictionary/impartial, accessed 16 November 2016.

Canadian Superior Courts Judges Association, An Independent and Impartial Judiciary, at http://www.cscja-acjcs.ca/independent_impartial-en.asp?l=5, accessed 15 November 2016.

Public Service Commission of Canada (2008), Public Service Impartiality – Taking Stock, at http://www.psc-cfp.gc.ca/plcy-pltq/rprt/impart/impart-eng.pdf, page 5, accessed 10 February 2017.

UK Civil Servant, Impartiality and Political Impartiality, at http://www.civilservant.org.uk/ethics-impartiality.html, accessed 15 November 2016.

Troy Jollimore (2011), Impartiality, Stanford Encyclopedia of Philosophy, at http://plato.stanford.edu/entries/impartiality/, accessed 15 November 2016. Reference cited by Jollimore above is: Gert, Bernard, 1995. “Moral Impartiality,” Midwest Studies in Philosophy, XX: 102–127.

Page created by: Ian Clark, last modified on 10 February 2017.