12. Oversight

External scrutiny and oversight are essential parts of an integrity system. Public organisations and officials are accountable for their decisions, actions and expenditures. Oversight contributes to the public integrity system’s effectiveness, notably by means of adequate responses of public organisations to oversight bodies’ recommendations; effective handling of complaints and allegations, through both oversight bodies’ own procedures and those of public organisations; and the impartial enforcement of laws and regulations throughout the public sector. Beyond creating specific mechanisms to establish and strengthen public accountability, oversight can foster learning through evaluation and highlighting bad and good practices. Moreover, oversight reporting can inform the integrity strategy, as well as policies and reforms. Some oversight bodies also exercise core integrity functions (for example, whistleblower protection or asset disclosure collection and verification).

The OECD Recommendation on Public Integrity states that adherents should “reinforce the role of external oversight and control within the public integrity system, in particular through:

  1. a. Facilitating organisational learning and demonstrating accountability of public sector organisations by providing adequate responses (including redress, where relevant) to the sanctions, rulings and formal advice by oversight bodies (such as supreme audit institutions, ombudsmen or information commissions), regulatory enforcement agencies and administrative courts;

  2. b. Ensuring that oversight bodies, regulatory enforcement agencies and administrative courts that reinforce public integrity are responsive to information on suspected wrongdoings or misconduct received from third parties (such as complaints or allegations submitted by businesses, employees and other individuals);

  3. c. Ensuring the impartial enforcement of laws and regulations (which may apply to public and private organisations, and individuals) by regulatory enforcement agencies” (OECD, 2017[1]).

Public accountability helps to instil confidence that the public sector is being managed appropriately. It is a relationship between an actor and a forum in which the actor has an obligation to explain and to justify his or her conduct; the forum can pose questions and pass judgement, and the actor may face consequences (Bovens, 2006[2]). Thus, a comprehensive model of public accountability comprises two dimensions:

  • answerability: the obligation to provide information, clarification, explanation and justification

  • enforcement: formal action against illegal, incorrect, inefficient or ineffective conduct of the accountable institution or public official (Schedler, Diamond and Plattner, 1999[3]; Pelizzo and Stapenhurst, 2013[4]).

Both answerability and enforcement requires an adequate institutional setup at two levels: 1) internal mechanisms (within the bureaucratic chain of command) and 2) external oversight and control mechanisms. Internal control mechanisms, as discussed in Chapter 10, can eliminate most of the irregularities and provide information that external oversight bodies can build on. However, internal control mechanisms may lack independence and objectivity in investigating wrongdoing. Therefore, both internal and external oversight mechanisms are necessary to ensure a comprehensive oversight scheme for all public bodies.

This chapter focuses solely on external accountability mechanisms, in particular independent and specialised oversight and control institutions. Figure 12.1 details the typology and position of external oversight bodies among various mechanisms of answerability and enforcement.

Within the typology of external oversight, control and enforcement bodies, the following four groups of institutions are focused on:

  • ombudsmen: general and specialised mandates

  • supreme audit institutions (SAI)1

  • administrative courts: specialised administrative courts and courts of general jurisdiction providing independent and impartial judicial review of administrative actions and omissions

  • regulatory enforcement agencies: bodies responsible for enhancing compliance and reaching goals of regulation among public and private bodies.

Ombudsmen, SAIs and administrative courts are explicitly tasked with oversight of public bodies. The regulatory enforcement agencies, however, have a broader field of operations. These agencies focus primarily on inspecting relevant markets and activities of public and semi-public entities, private businesses and individuals creating particular risks to various public goods, including public health, education, safety and the environment. Though not explicitly tasked with oversight of public bodies, regulatory enforcement agencies are necessary elements of public integrity systems, as their mandate also covers supervision of public institutions and state-owned enterprises. Table 12.1 summarises the key features, similarities and differences between oversight bodies.

Although there are a number of ways in which the institutions can be configured, along with the tools and mechanisms that a country may use to achieve external oversight, the following lines of action are essential:

  • fostering adequate responses by public sector entities to oversight bodies’ advice

  • strengthening effective complaint and allegation handling by oversight bodies

  • ensuring impartial enforcement of laws and regulations by oversight bodies.

To facilitate organisational learning and demonstrate the accountability of public sector organisations, adequate responses to oversight bodies’ sanctions, rulings and formal advice is required. Moreover, good governance arrangements increase the prospect of successfully implementing the recommendations and advice of the oversight bodies (ANAO, n.d.[5]). In establishing a tracking and monitoring system, it is essential that public organisations assign clear responsibilities, connect the tracking and monitoring system to the management and control cycle, and regularly communicate on the status of implementation to the relevant internal and external bodies.

The tracking and monitoring system should include basic elements such as the advice and which body provided it, the date the advice was issued, and the date by which a response is due. If a response date is not provided by the oversight body and is not outlined in a relevant law or regulation, public sector organisations should set a reasonable time by which they will respond to every advice, recommendation and sanction they have received. To support implementation, public organisations should also designate an individual within the organisation who will be responsible for implementing and/or responding to the advice, as well as updating senior management on the status of implementation (Box 12.1). Managers responsible for implementing advice or recommendations can take various measures, depending on the severity or the complexity of said advice or recommendations. A traffic light dashboard document highlighting the more important and/or urgent matters in red may be used to set and highlight priorities.

To track the recommendations from SAIs and other external oversight bodies, an audit committee similar to those commonly in place in the private sector may help oversee the implementation of recommendations. An audit committee provides advice and assurance to the head of an entity on the appropriateness of the entity’s accountability and control framework and on the status of implementation of recommendations by the SAI. To be effective, audit committees are provided with a degree of autonomy or independence and meet regularly (Box 12.2).

Input from oversight bodies is also useful beyond improving the legality, probity, effectiveness and efficiency of public organisations. Oversight bodies’ inputs can also contribute to better government policies, including integrity policies. For example, the work of SAIs on performance audits related to government policies has great potential for supporting formulation, implementation and evaluation of the integrity system. Their external, objective analysis contributes to evidence-based reforms and public policies, and their cross-cutting view enables them to comprehensively assess the effectiveness and efficiency of government programmes, including those on integrity (OECD, 2016[7]). Specifically relevant in this context are the integrity audits carried out by SAIs. These can be audits on the organisation’s integrity management or the implementation of relevant regulations, such as managing conflicts of interest. However, they can also be government-wide audits of the implementation and performance of governments’ integrity policy, and even an audit of the integrity infrastructure of a country.

Moreover, by implementing core integrity functions such as conducting integrity audits, verifying asset and interest disclosure and providing ethical guidance, oversight functions can use their position in the integrity system to support organisational learning. For example, in Austria the Court of Audit (ACA) is a key player in the integrity system in carrying out integrity audits of public organisations. The ACA assesses if existing mechanisms are suitable to prevent corruption within public organisations, and publishes the recommendations to increase transparency as well as public scrutiny and awareness of these issues.2 Input from ombudsman institutions can also inform improvements to public services or policies, in particular by learning from the results of the investigations they undertake. A particular tool that ombudsman institutions can use to suggest policy changes is the “own initiative” investigation, which enables an ombudsman to launch an investigation without first having received an individual complaint (International Ombudsman Institute, 2018[8]). Own initiative investigations are used to address the root cause of an issue that has given rise to a number of similar complaints. The findings can inform an early response to an issue before it escalates, or can allow the ombudsman to issue recommendations on a problematic issue affecting a number of public organisations. Moreover, own initiative investigations can bring attention to matters of public interest, as well as generate discussion on policy and legislative issues. Finally, such investigations can bring voices into the policy arena that seldom complain, are rarely heard, or are unable to complain, thereby contributing to improved access in policy making (International Ombudsman Institute, 2018[8]).

As SAIs and ombudsman institutions usually issue reports to their national legislature, the legislature can also support implementation of their recommendations. For instance, the legislature may set up a special committee or subcommittee to regularly monitor implementation of oversight bodies’ advice and require the government bodies to report on their performance in this matter. Ensuring that oversight bodies have access to the legislature and the opportunity to present the outcomes of their work both in the relevant committees and in plenary sessions can also help support implementation.

With regards to regulatory enforcement agencies, their recommendations are primarily addressed to the regulated entities, but the relevant government departments can also monitor these recommendations. In particular, monitoring can detect areas where violations of regulations are the most serious or frequent, and indicate where there is a need for policy intervention or strengthened monitoring. Their recommendations notably include those dealing with implementation of integrity standards, principles of efficiency and transparency, and conflict-of-interest rules (OECD, 2019[9]). Whenever the recommendations of regulatory enforcement agencies relate to state-owned market operators or other public institutions, they can be analysed and monitored by the government departments supervising them (OECD, 2019[9]).

Effective execution of the administrative courts’ rulings requires various mechanisms, depending on the nature and content of the ruling. For instance, if the administrative court accepts a complaint about administrative silence, it needs to set a binding deadline for the administration to resolve the case. To resolve complaints against the legality of administrative acts, the court requires extensive competencies to fully and effectively redress irregular actions and decisions of public administration, such as:

  • the power not only to repeal illegal administrative decisions, but also to replace these acts with its final decision, resolving the case on merits

  • the power to impose sanctions (e.g. fines) on administrative bodies or individual civil servants responsible for illegal acts causing damage to citizens or businesses.

The handling of complaints and allegations is another key function of oversight bodies (for more, see Chapters 9 and 10). Among them, ombudsmen are commonly required by law to record and process individual reports from all natural and legal persons about violations of their rights and freedoms by public authorities, including reports of integrity breaches by public organisations. Some ombudsman institutions are also specifically tasked with receiving whistleblower reports and providing protection to whistleblowers. For example, since 2016 the French Defender of Rights, tasked with protecting individuals’ rights and freedoms and promoting equality, has been responsible for protecting reporting individuals and directing them to competent authorities considering the case. The ombudsman publishes guidance and supports whistleblowers in their referrals to other responsible authorities while protecting them, if necessary, from any sort of retaliatory measures that might be taken against them (HATVP, 2019[10]).

Regardless of whether there is a specific integrity mandate or not, effective complaint and allegation handling requires clear access and timely responses. Ombudsman institutions can facilitate filing reports by accepting various channels for submission, such as in-person submission, written reports and reports submitted via electronic channels, including social media. Similarly, while there may be no deadline for considering the cases, every complaint requires treatment in a reasonable time. Service charters could raise awareness about the right to complain, the remit of the institution, the scope of jurisdiction and service standards in terms of response.

Once the report is considered and accepted, the recommendations of the ombudsman need to be addressed to the relevant public institution and the applicant informed about actions undertaken by the ombudsman. Developing mechanisms to monitor the implementation of recommendations of ombudsman institutions is also crucial (Box 12.3).

In order to improve their responsiveness and openness, oversight bodies can develop a strategy for better communication and enhancing public participation. With more visibility and trust among the citizens, oversight bodies may achieve greater impact on the administration. Recommendations can be published and disseminated through various communication channels, such as press releases, social media and public presentations. The visibility of ombudsman institutions might also be improved with greater territorial presence of the institution. For instance, the Ombudsman of Poland organises regional consultations (Box 12.4).

With regard to supreme audit institutions, publishing audit reports is not sufficient to strengthen public trust. The function of SAIs has evolved, with some now playing a foresight role where the results of their data collection can be used to analyse relevance, performance and alternatives to existing public processes. In turn, these results and recommendations feed into the policy formulation stage (OECD, 2016[7]). Some SAIs have notably been involved in strengthening merit-based human resource management systems and their transformation from career- to position-based systems, where corruption risks can arise from revolving doors or lobbying activities. In Austria and the United Kingdom, the assessments of SAIs contributed to increasing transparency and the integrity of public-private partnerships and public procurement, strengthening whistleblower protection, and defining safeguards against undue influence in public decision-making processes.

Traditionally, as bodies of parliamentary oversight of the executive, SAIs were not obliged to interact with the citizens, as the legislature was their main counterpart. The evolution of their role towards becoming the most prominent public watchdog can be accompanied by opening SAIs to citizens’ inputs and engagement (OECD, 2017[14]). SAIs could consider enabling citizens to submit complaints and proposals for topics or public bodies to be audited. Citizens and civil society organisations may also be invited to share feedback about implementing the recommendations of SAIs (UN Department of Economic and Social Affairs, 2013[15]).

SAIs, ombudsmen and regulatory enforcement agencies can also collect information through systematic media monitoring, including not only national but also regional and local media outlets reporting on alleged wrongdoings of the administration. In such cases, oversight bodies may initiate investigations ex officio, without a formal request from the citizens affected. Oversight institutions may set up a team or unit tasked with collection of data from media monitoring.

The remit of the administrative courts could embrace all actions and omissions of the bodies performing public functions. The deadlines for submitting a case (appeals, complaints against administrative actions and omissions) need to be long enough to ensure that the party can prepare the submission and collect all necessary information. Accessibility to administrative justice is essential. The court fees should not prevent those in need from accessing justice and legal aid. Moreover, processing of cases by the courts in a reasonable time frame helps ensure confidence in the court system. In some countries, the legislation imposes deadlines for administrative courts to consider the cases and/or issue a decision, which can be extended under specific and complex circumstances.

Individual complaints about and allegations of wrongdoings by regulated entities can also be taken into account by regulatory enforcement agencies in planning inspection activities. These agencies can ensure that the necessary measures are in place to enable the public to submit complaints and report allegations through various channels (in person, in writing, via phone or forms available on the website), with submissions free of charge and bureaucratic burden reduced to the necessary minimum, e.g. describing the case and providing the applicant with contact details. Awareness-raising campaigns about the typologies and risks associated with wrongdoings can be used to encourage the public to report (Box 12.5). Agencies need to carefully analyse the information received from third parties to distinguish between substantiated complaints indicating infringements of regulations and complaints expressing general dissatisfaction with services provided by the regulated entities (OECD, 2014[16]). Moreover, governments can ensure that regulatory agencies adopt procedures and processes to deal with complaints and allegations that provide strong evidence of a major and imminent risk (OECD, 2014[16]).

The principle on oversight also calls on adherents to ensure the impartial enforcement of laws and regulations, which may apply to public and private organisations or individuals, by regulatory enforcement agencies (OECD, 2017[1]). This requirement can be met if the regulatory enforcement agencies are free from undue influence of political decision makers and interest groups, and remain subject to external accountability, particularly judicial review of their decisions.

The independence of regulatory enforcement agencies has two dimensions (OECD, 2018[17]): 1) formal (de jure) independence requiring that regulatory agencies remain outside the bureaucratic, hierarchical chain of command within a ministry; and 2) actual (de facto) independence, which relates to the agency’s self-determination in the use of regulatory measures (Hanretty and Koop, 2012[18]).

Preventing political decision makers from giving instructions or adopting binding guidance and directions on the regulatory enforcement agencies’ measures and priorities fosters their formal independence. The agencies can be provided with extensive independence in selecting the regulated entities to be inspected and deciding on the measures to be applied, including sanctions. The managing bodies of agencies can be appointed through open and transparent procedures for a fixed term, with limited possibility for early dismissal based on grounds entrenched in legislation. Their independence also relies upon their autonomy in defining their internal organisation as well as their human resources and financial management.

Accountability and transparency are the other side of the coin of independence (OECD, 2018[17]). Indeed, these agencies are subject to oversight and control mechanisms to ensure that they effectively achieve policy objectives deemed by government and the legislator to be in the public interest. A clear definition of the regulatory agencies’ objectives, comprehensive and meaningful performance indicators, and regular reporting on their performance to the legislature – such as legislative oversight committees, either directly or via their minister – can support this objective (OECD, 2014[19]).

The principle of regulatory enforcement agencies’ independence does not imply lack of government supervision of their activities. For instance, respective government departments may be empowered to set performance objectives and targets for agencies operating in its policy domain, while abstaining from interfering with day-to-day management and individual administrative proceedings. Objectives and targets can reflect broader policy objectives and priorities of the government, as well as address the major risks in the relevant domains. The regulatory enforcement agencies can also provide the relevant government departments with up-to-date information from the field about major corruption risks or deficiencies of regulation.

While formal de jure independence may create favourable conditions for enhancing de facto independence, it cannot fully eliminate the risk of undue influence (OECD, 2017[20]). In order to address this risk, regulators need to build and sustain a strong and institutionally proactive culture of independence that will bolster their daily practice and behaviour (OECD, 2014[19]). An OECD review of the governance arrangements of 130 economic regulators (most of which hold enforcement powers) across 38 countries shows that there is a positive association between independence and accountability. These results confirm the findings of the 2013 OECD Product Market Regulation survey (Koske et al., 2016[21]), indicating that for economic sector regulators, greater autonomy is accompanied by stronger accountability structures. The correlation coefficients can be seen in all reviewed sectors (energy, e-communications, rail and air transport and water) and are particularly strong for regulators in the energy and e-communications sectors. (Casullo, 2019[22]).

Reducing the risk of undue influence of politicians and regulated industries on regulatory enforcement agencies requires formal guarantees of independence, and moreover actively reinforces the agencies’ self-determination (OECD, 2018[17]). As such, governments can take into consideration the aspects affecting the degree of actual independence of agencies, presented in Table 12.2.

To address aspects affecting the independence of these agencies, some countries – such as Canada and Norway – have developed policies and standards for the managers of regulatory agencies (see Box 12.6, as well as Chapter 13).

Timely, transparent and robust mechanisms for appeals of significant regulatory decisions are also necessary (OECD, 2014[19]). In practice, this can relate both to oversight of the content of decisions (such as imposing sanctions and fines on market operators), and to procedure, notably with regard to excessive length of inspections and other proceedings conducted by these bodies. Judicial review is also one of the instruments for measuring the quality of inspection activities. The share of the acts of regulatory enforcement agencies upheld by the courts serves as one of the major quality indicators.

Other oversight bodies, such as SAIs and ombudsman institutions, also review the activities of regulatory enforcement agencies. While ombudsmen investigate potential violations of human rights in the course of inspections, the remit of SAIs enables them to also focus on the effectiveness and efficiency of inspections. Regulatory enforcement agencies could also fall under the transparency regime for all public bodies, enabling individuals to access information about their activities and governance (for more, see Chapter 13).

Although challenges in strengthening external oversight may vary depending on national contexts and setups, they generally include:

  • delivering decisions in a timely manner, especially by administrative courts

  • reducing the burden and strengthening effectiveness through risk-based reforms

Excessive length of judicial proceedings in administrative courts undermines the legal certainty of the parties, creates additional costs, and damages trust in the judiciary as an effective oversight mechanism. Long delays create a sense of impunity, especially if investigations are limited and no sanction is pronounced, or when proceedings and investigations are conducted but limitation periods expire. Delays in delivering administrative justice may result from excessive length of proceedings in one instance, or be created by recurrent consideration of the same case by various instances in the administration and/or courts.

Tackling the issue of excessive length of judicial proceedings requires continuous monitoring of the workload of courts and judges, and improving technical conditions for the court administration. However, the parties affected by the delays should also have access to effective procedural remedies. These include special types of complaints to accelerate the proceedings and a right to seek compensation for damages caused by the delays. Building on the jurisprudence of the European Court of Human Rights, some European countries developed legislation providing for both special complaints procedures and a right to compensation. For instance, Slovenia adopted such a law in 2006 (Box 12.7).

Regulators rely increasingly on combining compliance-based procedures and incentives-driven measures to strengthen impartial and effective enforcement of laws and regulations. Regulatory enforcement agencies are necessary to protect public goods and improve regulatory outcomes, but their activities also create burden and costs for the regulated industries and markets. Smart enforcement is less visible and less burdensome for businesses, and more effective in serving the public interest. Inspection reforms of recent decades provide an extensive catalogue of measures serving this purpose, including:

  • Joint planning of inspections enhanced by joint IT systems for all or most of the inspectorates.

  • Risk-based targeting enabling agencies to limit the total number of inspections, while increasing the effectiveness of the overall inspection scheme. Risk-based targeting requires advanced methodology and access to data collected by numerous public institutions.

  • Providing regulated entities with clear guidance on “how to do things right”, including the preparation and publishing of checklists to be used by the inspectors (Blanc, 2012[28]).

To complement traditional compliance tools, regulators increasingly use behavioural insights to shape incentives and norms (OECD, 2016[29]). In various areas ranging from public service delivery to tax collection, a number of organisations and regulatory enforcement agencies have carried out experiments to identify where behavioural insights could improve compliance and implementation. The experiments themselves have ranged from improving the effectiveness of formal rules and practices within public organisations to broadening incentives to regulated entities and citizens. For example, in the financial products and public works fields, experiments have led to solutions that could improve complaints resolution and increase civic engagement with public organisations, respectively. Beyond fostering implementation and compliance, behavioural insights can also be applied to evaluate the effectiveness of implementation, feed into policy design and reforms, and – building on lessons learned – reduce the need for correcting measures (OECD, 2017[30]).

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Notes

← 1. SAIs with jurisdictional powers are also entitled to proceed with enforcement actions.

← 2. For a detailed overview of auditing for integrity, including country case studies, see (EUROSAI Task Force on Audit & Ethics, n.d.[31]). For further guidance on how to audit for integrity, see (EUROSAI Task Force on Audit & Ethics, 2017[33]).

← 3. There are three types of revolving door flows that should be considered: 1) Public-to-private: former public officials currently serving regulatees; 2) Private-to-public: former executives of regulatees taking over public functions; 3) Private-to-public-to-private: combination of type 1 and type 2 movements (Brezis and Cariolle, 2014[32]).

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