The UK’s framework for regulating ethical standards in government is not working. It’s time for an independent Ethics Commission.

Introduction The UK’s approach to regulating ethical standards in government is in dire need of reform. The patchwork of regulatory bodies has developed in response to scandals rather than as a coherent approach to tackling corruption risks. Covid-19 and Brexit have stretched the system to breaking point. With some of the UK’s closest allies setting […]

Author: George Havenhand

Introduction

The UK’s approach to regulating ethical standards in government is in dire need of reform. The patchwork of regulatory bodies has developed in response to scandals rather than as a coherent approach to tackling corruption risks. Covid-19 and Brexit have stretched the system to breaking point. With some of the UK’s closest allies setting up centralised anti-corruption and pro-integrity bodies, there is a real opportunity for the UK to take a long hard look at whether its current fragmented regime for holding those in government accountable is fit for purpose. 

The consequences of weak and unaccountable institutions and governance are severe. Public trust in the government has fallen to its lowest point in decades, and the UK’s credit rating was downgraded in October 2020 partly as a result of weakened legislative and executive institutions.

The current consultation by the Committee on Standards in Public Life (CSPL) is an opportunity for bold and ambitious proposals to upgrade the UK’s regime for holding those with top executive functions to account for ethical conduct. Creating an independent Ethics Commission fits the bill. 

 

Following emerging best practice by the UK’s allies

The UK will find itself increasingly behind the curve of some of its closest partners on ethical standards in government if it fails to take action. 

President Biden has committed to setting up a Commission on Federal Ethics: a single government agency with the powers to oversee and enforce federal anti-corruption and ethics laws. He has already passed an Executive Order requiring every new appointee to an executive agency to sign an ethics pledge.

In Australia, a proposed Commonwealth Integrity Commission would have powers to assess and investigate corruption in the public sector. While the current draft proposal has been criticised for not going far enough, an ongoing consultation could see a new law introducing the Commission take effect next year

In Canada, the Office of the Conflict of Interest and Ethics Commissioner enforces and reports on breaches of the Conflict of Interest Act covering ministers, ministerial advisers, and other public office holders, and a Conflict of Interest Code for MPs. The Commissioner has faced criticism for its narrow mandate and limited powers to penalise violations (beyond imposing fines for administrative breaches) but is nonetheless a good starting point for developing a statutory ethics regulator.

 

Why we need an independent UK Integrity and Ethics Commission

The idea of an Ethics Commission isn’t new. In 2012, the Public Administration Select Committee recommended that the Advisory Committee on Business Appointments (ACoBA) and the Independent Adviser on Ministers’ Interests be replaced with an independent Ethics Commission, drawing on the model in Canada. Prominent members of the Committee at the time included Priti Patel, Bernard Jenkin and Robert Halfon.

The government rejected their proposal, stating that ACoBA “does an effective job.” However, international review bodies have disagreed. Both the Group of States Against Corruption in 2017, and the UN in its 2019 review of the UK’s implementation of the UN Convention against Corruption, identified the UK’s regulation of ethical standards, particularly with regards to the revolving door and regulation of ministerial interests, as requiring reform. 

The creation of an Ethics Commission would help the UK implement recommendations made by these international bodies, by creating a centralised mechanism to analyse and mitigate corruption risks and conflicts of interest for those at the top of government. 

What are the issues?

– ACoBA and the regulation of post-public appointments

ACoBA – which polices the Business Appointment Rules for former ministers, special advisers and senior civil servants – has no statutory basis. Nor does it have the power to prevent politicians or civil servants from accepting an “unsuitable” appointment, impose sanctions, or scrutinise former ministers who return to government.

ACoBA has been criticised for rubber stamping approval for individuals to take up employment rather than enforcing high standards of conduct. Indeed, between 2010 and 2016, not one of the 137 applications by former ministers for clearance for 394 jobs was refused.

In 2017,  PACAC, which has repeatedly expressed concerns about ACoBA, concluded that “the regulatory system for scrutinising the post public employment of former Ministers and civil servants is ineffectual and does not inspire public confidence or respect.” 

– Independent Adviser on Ministers’ Interests and the regulation of ethical standards

The Independent Adviser on Ministers’ Interests is appointed by the Prime Minister to investigate alleged breaches of the Ministerial Code. He or she can only investigate when directed by the Prime Minister and has no power to impose sanctions. Cases are usually resolved by the Prime Minister without an investigation. There have been few investigations by the Adviser since the role was created in 2006, and they did not result in sanctions. As a result, ministers are often not held accountable for alleged wrongdoing.

The Adviser’s role meanwhile was further diminished by changes to their remit in 2019. In November 2020, the former Adviser stepped down after the Prime Minister overruled his decision that Priti Patel had breached the Ministerial Code for alleged bullying, and due to other concerns. 

PACAC’s recommendation to make the Adviser’s role independent and more powerful, including the power to launch investigations, were rejected by the government. The Committee’s long-running concerns have been echoed by the current Chair of the CSPL.

What would an independent Ethics Commission look like?

In response to the current CSPL consultation on public standards, we recommended that an independent, statutory Ethics Commission should replace some of the current standards bodies. 

The purpose of the Commission would be to: oversee ethical standards in government, improve a culture of integrity, identify corruption risks, increase public trust in the government, and make government more accountable and transparent.

In our view, this Commission should oversee and enforce enhanced, statutory codes of conduct for ministers and special advisers, covering conflicts of interest, lobbying, financial disclosures and post-employment rules. It should also oversee post-employment rules for civil servants at level SCS1 or above. The Commission should ensure that the public and those in government understand the codes of conduct, and act as an advisory body in respect of those rules.

The Ethics Commission should have the powers to:

– act on complaints;

– initiate and conduct investigations;

– compel the handing over of documents;

– hold public hearings;

– compel witnesses to attend;

– impose sanctions for non-compliance; and

– refer cases for prosecution. 

The Commission would need to operate independently of public officials, have a statutory basis, have its own budget and the power to employ support staff and independent experts. Three or five independent Commissioners should be selected on the basis of merit and relevant experience through a transparent process that ensures independence. Appointments could be confirmed by a cross-party committee that does include officials who are overseen by the Commission. Commissioners should serve a fixed term and only be removed for cause. And finally, the Commission should report directly to Parliament rather than to the Prime Minister.

To be accountable, the Ethics Commission would need to be fully transparent and publish policies and procedures with clear written guidance, including the process and timescales it will follow when considering a breach of the rules, and promptly publish all of its decisions, advisory opinions and the details of any enforcement actions. The Commission should also publish annual reports on its activities with recommendations for improving its role and the codes of conduct it oversees.

The current review by the CSPL is a golden opportunity for a reset of ethical standards for those who hold public office in the UK. We need a big bold idea, like an independent Ethics Commission, to promote a new sense of ambition and urgency and to restore public trust.