Politics of Ethics: Do ethics committees represent the civil society?

Mariachiara Tallachiara,  Faculty of Bio technology, University of Milan, Italy

I am going to say something about the role of ethics in the Knowledge Society and this is also the topic I contributed to in the report, ‘Taking European Knowledge Society seriously’. I am going to start with ethics as, in the widely accepted definition, the rational account of what is right and wrong. So the rationalization, or rational account of morals which has become, through Science and Technology and in Knowledge society, an important self-regulatory device for the society that is looking for a public legitimation of the choices in  Science and Technology. The identification, in the sense of purification, as some documents say, of what an ethical issue is, and the delegation of  this role to a dedicated institution for ethical advice. Also, let me add as a footnote, the passage from an institution of the broader technology assessment, declining to just a social assessment, to just normative ethical advance.

These institutions have been criticized for having bureaucratized the ethical discourse and further becoming policy instruments. More recently they have been criticized for having  become heavily politicized, namely –mere  tools for government choices and regulation.

In my ten minutes I would like to briefly explore the case of the European Union, because the process, has occurred in a number of states, and also exists at the international level.

Ethics has played a special role in the European Union., wherein it has really become a tool in the hands of the power.  Ethics in the EU was born, in the context of developing a biotechnological industry, as a way to move from the merely economic community to the political union, specifically by integrating and representing citizens’ values in policy-making;

What actually happened is that it has become a normative instrument aimed at strengthening member-states’ governments, weakening the law and legislation and to reorganize power.

Going briefly to the history of European Ethics:  This started formally in 1991, with the appointment of the Group of Advisers on the Ethical Implications of Biotechnology (GAEIB 1991-1997) an expert group. The idea was to incorporate ethics into the decision-making process . The formal mandate of GAEIB was to identify and define the ethical issues raised by biotechnology – in order to say that ethic has been taken into account-- that all ethical issues have been considered and  to ensure that the general public is kept properly informed. Thus in a way, acknowledging that  there is already a gap between the idea of integration and information, informing the public. 1991 is an interesting date because it is just before, and during the process of the approval of, the Maastricht treaty- the treaty that transformed the Economic Union into a more political entity. And the mandate of the GAIEB said that human, social and ethical dimension has to be given to the Union. Otherwise European citizenship cannot be established. So a strong connection between having ethics in the policy making and being a European citizen was established .

But then, what happened later? In 1997,  The mandate of this group on biotechnology  was passed on to the EGE group - the European Group on Ethics in Science and New Technologies (EGE), by extending the Group’s mandate to cover all areas of the application of science and technology and the EGE group becomes the only official advisor for the European Commission. All the members are professionally either in the legal field or ethics or they are scientist.  There is this nice “Expression of Interest” under which a citizens can make his/her views known to the commission, but it is the commission and member states that make the final decision. Therefore I think that through time, this formal mechanism EU ethics has acquired very particular characteristics --  some of them are common to all the expert groups oin ethics, but some other features are really peculiar to the EU.

The characteristics are: that ethics has become an expertised and technocratic tool. Ethics is constructed as a form of  knowledge-- “ethical knowledge” and in this respect it comes an instrument for a  technocratic decision. The knowledge about values is constructed in analogy with idea of scientific expertise, as it was expressed by Polanyi,  and Merton as a neutral way of “speaking truth to power”.  The other characteristic of this ethics group is that it foster a  disconnection between ethics and citizen and individuals in a much more fundamental way.  If we look into the European tradition,  the main moral philosophy --the big tradition of the Kantian and the Benthian philosophy, critiques the assumption that citizens are rational beings if they follow a certain way of reasoning, and allows for them to legitimize their presence in civil society, and, their participation in decision making, in society’s decisions.

Now, ethics becomes, an expert knowledge that is completely separated from  is no longer a common endowment of citizens.   Verticality, the ethics from the Commission, and  from the expert, is the top –down governance of ethics. It is a way to empower member states, and to disempower citizens, who are not represented in these bodies.

It is also a form of outsourcing of values, namely values are commissioned to these committees and commissions, and so the framing of relevant questions, and what is an ethical issue itself, is completely decided inside these bodies.

What is peculiar to the EU are, other characteristics – namely the subsidiarising  character of this kind of ethics.  The principle of subsidiarity in the EU, means that in certain matters about certain issues, the power of member states, to make their own decision is preserved, and overrules, the power of the EU in its harmonization of legislation.

Also this way it legitimizes the state-based ethics, because ethics are expressed by government,  and not by the parliaments of member states. It becomes a criterion of demarcation, not only between citizen and expert , which is happening already elsewhere, but also between the EU as a market and the EU as a polity. And so it sets the boundary between what a citizen can do and what the market will do.

Finally it has become a formal procedural requirement to legitimate legislation by saying that the EGE group has taken ethics into account. It also becomes an important requirement, or at least substantial element in getting your research funded under the  EU Research Framework Programme. Further, as the White Paper on Governance 2001 states, it has also become a way to speed-up the legislative process, because the ethics committee can make decisions in a very fast way, while parliament takes a long time,  and the legislation process takes a long time.

Recently a further precedent enables the ethics group be a separate of normativity, to redefine what law as well as the market are and can do.

In the process of the approval of the recent regulation about the commercialization of advanced cell based therapy, there was a controversy between the European parliament, and the commission, about the opportunity to commercially place in the market products based on embryonic material an embryo- based products. Parliaments’ official legislative committee said that the law also has to look inside the content. Parliament also have to value and assess the ethical content because law extents to the content of the law. The commission and council said ‘no’. Legislation does not deal with values. It has no power on values. The parliament said,  we have to deal with the ethics because the ethics has been incorporated in some legislative document existing in Europe.  Europe should not harmonise legislation where there are ethical issues and should not commercialise ethically sensitive products. This has been said about the patentability and validity of bio-technology. The Commission says ‘no’. Ethics does not belong to the Parliament but to member-states, because this would make ethics subjective as it would be left to the subjectivity of the European Parliament members.  As “public morality”, it to governments,  to the power of states.

In parliament’s vision, the market is neutral only if the product that are placed in the market, are  neutral products and that harmonisation is possible only in this context and this condition. And the commission said ‘no’. The market  is per se neutral and has the potential to neutralizes all the products placed in it. Thus harmonisation is provided through subsidiarity

What is ironic in this decision is that the parliament at the end, joined the commission, because they actally wanted to commercialise  and  to place embyros in the market. In order to do that they had to accept that they are not allowed to discuss ethics and that ethics is beyond the powers of the parliament.

To sum up: while this process is seen as an institutional success, it is the manner in which the changes are conducted, the quality of procedures and processes, which lend legitimacy to the whole experiment. I think a distinct European collective identity is missing—particularly absent is the unifying public sphere for identity-formation of the European citizens.

To quote Eriken: The EU is a process of unfinished democratization.