Structural features – powers, functions and resources

Unfortunately, little is known as to the functions and powers of ethics committees. From what is known it seems that Member States provide for ethics bodies that give advice but only few are allowed to investigate allegations and/or to impose sanctions. Other important differences include budgetary powers, and responsibilities for collecting and analysing private disclosure statements by Members (or whether this is done by the personnel administration, the President etc.). However, from a comparative point of view, very little is known as to the operation of these – relatively intransparent – ethics committees, commissions etc. Also little evidence exists as to their internal operations, budgets, rules of procedure and working styles. In the United States, the Congress (House of Representatives and Senate) and the Judiciary all have different ethics committees. In addition, thirty-six states have ethics commissions, which vary enormously in size and capacity. “Budgets vary from 5,000 dollars in Michigan to 7 million dollars in California”⁷⁰.

In Europe, the best known ethics committee is probably the Committee on Standards in Public Life and Privileges in the UK. In a survey by Saint-Martin the author shows that

“Ethics commissions in the US are generally more powerful than in the Canadian provinces and in Britain. Their mandate is broader and covers thousands of government

70 Menzel, Ethics Management, op cit, p. 135.

employees. And as a rule, they have the power to conduct investigations at their own instigation”⁷¹. Key differences between ethics commission in the US and those in Westminster concern the fact that the US commission covers officials in the executive branch whereas most commissions in the Westminster system focus on the legislative branch. The main role of the British Committee on Standards and Privileges is investigating cases which have been recommended by the Parliamentary Commissioner for Standards. The Committee can also recommend penalties to be voted on by Parliament. According to Saint-Martin the most powerful ethics commission is probably the Australian Independent Commission against Corruption (ICAC)⁷². Its main function is to investigate allegations of unethical conduct by Members of Parliament, judges, ministers, police officers and all employees in government departments and local authorities.

Table 15: Differences between ethics committees and ethics commissions⁷³

Country Advisory

In its Annual Report for 2004, the Irish Standards Commission noted that while it can appoint an Inquiry Officer where a complaint is made in relation to a specified act or a contravention of the Ethics Acts, it cannot do so if it is acting on its own initiative and has not received a complaint.

Despite the fact that little is known as to Ethics Commissions and Ethics Committees in general, there seems to be a trend towards the introduction of more of these bodies. In most cases these committees are neither independent bodies nor do they have important monitoring and enforcement powers. Most institutions in the Member States of the EU are of the opinion that any form of self-regulation has the advantage that it is simpler, easier and less conflictual. Therefore, at least currently the Member States and the European institutions prefer this model.

The problem with this practice is that the public increasingly tends to question practices where public institutions regulate their own ethical conduct. More and more it seems that any form of self-regulation causes suspicion. On the other hand, arguments against and in favour of the creation of an independent ethics watchdog are still more based on faith than on empirical evidence. There is also much confusion and exaggeration linked to independent watchdogs. In particular the challenge facing legislative ethics committees is how to ensure their credibility with the press or the public. Most professions – including doctors, lawyers and teachers – discipline their own members through internal committees without facing accusations of attempts to protect their own. However, legislators who intend to discipline their fellow members face a higher level of scrutiny, one resulting from a commitment to public service.

Our data suggests that there is also some link between codes of ethics and the existence of ethics committees (see Table 16: Ethics Committees by Code of Ethics/Conduct ⁱ). In one third of the cases in which an institution had adopted a code of conduct/ethics, it also had established an ethics committee to provide guidance and monitoring on ethical issues. This is logical, since the adoption of the code would expectedly lead to establishing such committees. On the other hand, to function effectively committees need to have a code that sets the standards for ethical behaviour.

Table 16: Ethics Committees by Code of Ethics/Conduct ⁱ (Frequencies in parenthesis)

Ethics Committees

No Yes Total

No 75% (27) 25% (9) 100% (36) Code of Ethics/

Conduct Yes 66% (48) 34% (25) 100% (73) EU-27

average 69% (75) 31% (34) 100% (109)

i The total number total cases in each category does not correspond to 27 since unregulated or missing cases have been excluded.

However, the actual difference between those institutions that had a code of conduct/ethics and those that were lacking it did not seem to be very significant. Among the institutions that did not have a code, in one fourth of the cases they still seemed to have an Ethics Committee. The presence of these committees in the absence of a code also stems from the fact that in the majority of these cases the Ethics Committees were in fact Parliaments’ standing committees.⁷⁴ Nevertheless, it may be somewhat debateable whether these committees can be considered typical Ethics Committees, since the regulation of ethical practices constitutes only a part of their overall responsibilities.

In the EU many Member States have established an internal body that oversees the conduct of the members of the institution. Depending on the institution in question these may take the form of a Parliamentary Committee or a specific Central Bank committee.

In other cases the President of the Parliament is in charge of overseeing ethical standards.

A model that depends on legislators investigating and sanctioning their fellow members can be problematic. Dennis F. Thompson notes that legislators “rarely report improprieties of their colleagues or even of the members of their colleagues’ staffs, and they even more rarely criticise colleagues in public for neglecting their legislative duties.”41 Germany has adopted a somewhat market-oriented approach: the President of the Federal Diet discloses any violations to the voters, thereby letting them decide the member’s political fate. Another institutional model involves establishing a regulatory system within the legislature or executive. Such a system is typically created through internal standing rules rather than through legislation. It generally takes the form of a Parliamentary committee composed of members, combined with an independent Parliamentary commissioner or commission. Ireland and the United Kingdom adopted this model in the wake of several ethics scandals in the mid-1990s. In the British House of Commons, members appoint a Parliamentary Commissioner for Standards who, along with the Registrar, maintains the Register of Members’ Interests.

At EU level the European Commission proposed the setting up of an Advisory Committee on Standards in Public Life (SEC (2000) 2077 final).

The main features of the Commission's proposal were:

– The Advisory Committee should provide advice on ethical standards in the European bodies whilst excluding the possibility of monitoring individual cases. Each institution would be entitled to seek the advice of the committee on its own initiative. However, the request would have to relate to the ethical standards of only the institution putting forward the request

– The European bodies would have to commit themselves to co-operating fully with the Committee (through providing information, attending hearings etc.)

This model would have no sanctioning powers and also no powers as to the management and monitoring of registers of interest. However, despite some differences it has some similarities with the UN Ethics Office, which has also a more consultative and advisory role and of which the tasks are:

– Administering the organisation’s financial disclosure programme

– Undertaking the responsibilities assigned to it under the organisation’s policy for the protection of staff against retaliation for reporting misconduct and for co-operating with duly authorised audits or investigations

– Providing confidential advice and guidance to staff on ethical issues (e.g., conflicts of interest), including administering an ethics helpline

– Developing standards, training and education on ethics issues, in co-ordination with the Office of Human Resources Management and other offices as appropriate, including ensuring annual ethics training for all staff

– Such other functions as the Secretary-General considers appropriate for the Office

The inter-institutional proposal of the European Commission was not welcomed by the European Parliament. The consequence is that inter-institutional as well as sectoral independent ethics committees are still lacking on EU level. Instead, the Commission set up its own ad hoc ethics committee for Commissioners in 2003 in the field of post-employment. This ad hoc ethical committee is not empowered to provide advice on outside activities during the term of office of Commissioners. Our study suggests that this situation needs to be changed. More and more, it seems that any form of no regulation or self-regulation will cause growing public suspicion. The EU institutions are called to act – either on an inter-institutional level (and according to the proposal pending from the Commission), for their own institutions or for both.