Acting in the public interest – a framework for analysis - ICAEW

‘There is no such thing as society, there are individual men and women, and there are families.’ 32Reinforcing this is the argument that notions such as ‘good’ and ‘value’ (relevant to the‘normative’ theory) can only pertain to living organisms (ie, individual people) rather thansome disembodied aggregate of relationships. Where ‘common good’ is regarded as somethingdifferent to individual good, that can mean ‘the good of some taking precedence over thegood of others, the latter being treated as sacrificial animals’. 33However, asserting that there is no such thing as society, or even that there should not bea concept of the public interest separate from the interest of individuals, is not the same asasserting that there is no such thing as the public interest. Even those concerned that anynotion of social responsibility would actually undermine the operation of free societies generallyaccept that this is not the same as advocating a complete free for all: for example companydirectors in many countries have a fiduciary duty to shareholders but also need to complywith the rule of law (including ‘ethical custom’). 34 What is legal is not always the same as whatis ‘right’ , but the ‘rule of law’ is a wider concept than merely having legal authority to takeaction. 35 There is a recurring notion in writings of even those attracted to laissez-faire, thatit is in the interest of individuals for there to be a form of structure to protect the ability ofindividuals to be individual. In our view, though different people and cultures will come upwith different outcomes, as a concept there is a clear perspective of a collective good that canbe applied, that is different from that of a number of individuals.Thus we do not subscribe to the abolitionist theory as such, though it is a useful reminderthat there is a public interest in people being able to go about their business. In other words,non-interference might well be the public interest outcome. Where there is a case for an action,values, process and opinion all have a role to play in determining a public interest action, sothe pragmatic solution would combine all of the above theories.2.8 Historical perspective on the public interestConsidering the concept from a historical perspective shows a gradual evolution of what thenotion involves.2.8.1 The term ‘the public interest’Although the concept has been considered for thousands of years (see below), the phrase‘the public interest’ seems to have come into use during the seventeenth century. The Frenchsatirist Regnier is said to have argued in 1609 that the public interest is something governmentsinvoke to justify unjust or illegal action, though he actually used the phrase ‘raison d’état’. 36In England, the 1624 Statute of Monopolies, while considered to be discussing publicinterest matters in concept, used the phrase (for patents not in the public interest) ‘generallyinconvenient’. 37 Similar references of being ‘inconvenient to the Commonwealth’ appear inpatent letters at the same time. 38 However, by around 1670, the Lord Chief Justice of the King’sBench of England was referring, in an essay on access to ports, to wharves being ‘affected witha public interest’. 392.8.2 Evolution of acting with the people in mindThe notion of acting with the interests of the people in mind existed long before that, but ithas evolved – changing but building on past ideas, as society has evolved.In times of absolute dynastic rule where the interests of the ruler were paramount, acting inthe interests of the people was, perhaps, a pragmatic measure to minimise trouble. Cyrus theGreat of Persia, ruling some 2,600 years ago, is asserted by the ancient Greeks to have believedthat a ruler should ‘understand how to govern people so they might have all the necessities oflife in abundance and might all become what they ought to be’. 40 The implicit rationale for thiswas to achieve approval, and thereby stability, and make ruling an empire that much easier:‘after Cyrus died, his sons immediately quarrelled, cities and nations immediately revolted, andall things turned to the worse’. 41 Confucius, around the same time, (considered further below inPanel 6.5) sought to build stability through using morality as the basis of law.32Margaret Thatcher, quoted in Partridge, ‘Conscience of a Progressive’.33Rand, quoted in Partridge, ibid.34Friedman, quoted in Champlin and Knoedler, ‘Corporations, Workers and the Public Interest’, Plender, ‘Friedman and CSR’.35Hayek, The Road to Serfdom.36Saul, Voltaire’s Bastards: The Dictatorship of Reason in the West.37Dent, ‘Generally Inconvenient: The 1624 Statute of Monopolies as Political Compromise’.38Lord Hunt, quoted in Dent, ibid.39McAllister, ‘Lord Hale and Business Affected with a Public Interest’ referring to Hargraves ‘Collection of Tracts’ of 1787.40Xenephon, Cyropedia although note this is said to be a fictionalised account of Cyrus’ life41Ibid.Introduction15