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

4.4 Whether the remit is wide enough to regard it as a publicinterest matterOne of the issues for the advocate of a public interest action to consider, particularly for anorganisation, is what authority there is and whether the advocate’s remit extends to the issue.This especially applies where the intent is to apply the decision rather than act as a force ofinfluence on others. A public interest perspective may be mandated by remit and encouragedby structure. This explains why the matter is said to be a public interest issue but the onus toexplain why the particular action is the right public interest one remains.Alternatively the remit scope may be very narrow (as in the village example above). In suchcircumstances a public interest perspective would seem over-complicated and indeed slightlyvainglorious.While a remit may pass the test of being sufficient for an action to be a public interest matter,it does not follow that all matters considered within such a remit will automatically be publicinterest matters – see ICAEW example in Panel 4.1 below.Panel 4.1: ICAEW and public interest mattersAs noted in Panel 2.4, while ICAEW’s charters do not mandate it to adopt a public interestperspective, ICAEW accepts that it should be adopted as part of the consideration for ourcontinuing professional status. This is particularly noticeable in: (i) making large parts of ourtechnical guidance on interpretation of legal and regulatory matters available to all, free ofcharge; and (ii) representations to governments and others on policy matters.However, not all matters addressed by ICAEW are public interest matters. For example,membership fees are a matter between ICAEW and its members. Following the village analogyin Section 4.3, this involves a fixed number of people, who can be communicated with andwho have the right to opt out. This is not a public interest matter.The IESBA and ICAEW codes of ethics, among others, discuss the concept of ‘public interestentities’ (PIEs). Different authorities take different views as to what constitutes a PIE for thepurposes of ethics codes. The IESBA and ICAEW codes specifically include companies witha listing on a recognised stock exchange but other entities which have a ‘large number andwide range of stakeholders’ 91 can be seen as PIEs at a given point in time – organisations andindividuals can move in and out of the categories of PIEs and stakeholders. The concept of a PIEexists in the code for a specified purpose (that of deciding which set of auditor independencerequirements need to be complied with) and it is therefore narrower in scope than what wemight consider to be an entity in which there is a public interest. However, the rationale isrelated to our argument previously about the use of the public interest concept: a PIE willgenerally have a wider range of stakeholders than can be communicated with directly andtherefore a set of standards that places a greater emphasis on perception is required.The codes also consider matters that individuals might address in terms of acting in thepublic interest, in particular overriding presumptions of confidentiality where instances of badbehaviour have been discovered or at least suspected. Confidentiality is a fundamental principleas without it, there would be insufficient trust in the accountant to enable him or her to dotheir job. However, where the law permits, the codes note that there can be circumstanceswhere that principle can be over-ridden to allow disclosure in the public interest.ICAEW has supplementary guidance on this issue, noting that (in line with UK legislation)examples of situations where disclosure might be regarded as being in the public interestinclude: a criminal offence; a miscarriage of justice; matters where health and safety areendangered; and damage to the environment.In terms of matters to consider when determining whether or not a disclosure is justified in thepublic interest, examples given include similar matters to those referred to in 4.3.1 above in thecontext of breach of professional confidentiality, as well as the availability of legal protection forbreach of duty of confidentiality. Critically though, the guidance cautions that each situationneeds to be considered on its own merits. 924.5 Practical limitations on the outcomeICAEW’s Crisis Without a Legacy programme of policy summits has developed a triangulationdoctrine: recognition that at a practical level, international public policy decisions need tobalance the demands of international public interest, market forces and popular opinion. 9391ICAEW, Code of Ethics.92ICAEW, Professional Conduct in Relation to Defaults or Unlawful Acts.93For example, ICAEW, Crisis Without a Legacy London Policy Summit 21 May 2012.30Applicability of the public interest