In TA 106 we explored the legal, moral and ethical obligations that apply to CIfA-accredited professionals.
- We are citizens, so we must comply with laws. They vary by jurisdiction, but generally they apply to everyone in that place.
- We are part of society, so we should wish to be moral. While morality underpins law-making, there are many socially constructed, contextual rules governing public morality that are reflected in law.
- We are professionals and must therefore, by definition, act ethically, complying with our Code of conduct, which sets out how we should behave as we carry out our archaeological activities. It is not intended as a tool to regulate our compliance with the law or moral norms in our personal lives.
This means that CIfA must be clear about where its responsibilities lie and what might be in or out of scope for its professional conduct process.
Taking advice from the Advisory Council and the Equality, Diversity and Inclusion steering group, the Board’s working group sought to establish which actions or convictions might constitute a breach of the CIfA Code of conduct, and could therefore be considered by the CIfA professional conduct process, or when assessing applications for accreditation. The intended outcomes were
- greater clarity about the relationship of law, ethics and morality
- clarity on the need to report potentially criminal acts to the police in the first instance, not CIfA , with serious incidents addressed through appropriate mechanisms with effective deterrence and rehabilitation of offenders where possible
- safer workplaces supporting a more diverse workforce
- reduction of reputational risk for the profession from CIfA dealing with, or being expected to deal with, issues it is not competent to handle.
It is important that there are no false expectations of what lies within CIfA’s remit. Using the wrong processes may delay resolution, and could be harmful – to the interests of the affected parties and to the reputation of the profession. New guidance is being developed to help people who have concerns or feel they have been mistreated, outlining when and how to make an allegation under the professional conduct process and when to approach other competent authorities. The rationale behind that guidance and some changes to constitutional documents are described below.
CIfA responsibilities
The starting point was that the correct way of addressing criminal activity is the criminal justice system, that wider society defines and polices moral behaviour in what is often a rapidly evolving way, and that all CIfA-accredited archaeologists are collectively responsible for defining our ethical Code of conduct and managing compliance with it. It is obvious that CIfA is not the appropriate organisation to tackle most criminal activity; and similarly poor archaeological practice would rarely be a matter for the police.
The ethical responsibilities of CIfA-accredited professionals are set out in the Code of conduct. Accredited individuals and organisations must be competent to apply those principles in their conduct of archaeology.
CIfA is responsible for assessing the pre-existing technical competence of applicants for accreditation, and is introducing enhanced assessment of ethical competence. CIfA also investigates ‘after the event’ potential breaches of the ethical Code of conduct by accredited individuals and organisations (as well as acts undertaken during the process of application).
Breaches of public morality (here interpreted as behaviour that offends public values) and the law may constitute breaches of the Code, but more often they will not. Equally, many breaches of the Code are unlikely to be illegal, unlawful or perceived as immoral.
The job of the validation committee is to determine the relevance of any known offence or act when deciding whether to accredit an applicant. The job of the professional conduct panel is to determine whether any offence or act constitutes a breach of the Code of conduct. These are tough asks without clearer guidance – which would also benefit those considering bringing or defending an allegation.
Nearly all activities required or proscribed by the Code of conduct in rules 1.2 to 5.8 are, in theory, straightforward to deal with. Rule 1.6 states A member shall know and comply with all laws applicable to their archaeological activities whether as employer or employee. This means that a professional conduct investigation may arise if a member breaks any law relevant to their archaeological activities or while acting ‘as an archaeologist’, and not just ‘in work time’.
More difficult are illegal or distasteful acts which are not cited in the Code of conduct, but which could harm the reputation of archaeologists collectively. The relevant rule is 1.1: A member shall conduct themselves in a manner which will not bring archaeology or the Institute into disrepute.
To help all concerned, the Board has issued a policy statement and guidance on what might amount to a breach of rule 1.1, and should therefore be considered under the validation and professional conduct processes. That guidance takes account of
- the context of the conduct, ie whether it was in the course of or outside of an individual's archaeological work
- the seriousness of the conduct, ie whether it attracted a high sentence or is particularly offensive/damaging
- the timing of the conduct, ie whether it was current/live or historic (the issue of historic conduct is likely to be particularly relevant for applicants)
In terms of context, conduct outside a member's archaeological activities is unlikely to bring archaeology/CIfA into disrepute – or it would be very hard to demonstrate whether or how much disrepute might be incurred.
However, there are exceptions where actions have serious consequences. Two types of conduct could be argued to bring archaeology or CIfA into disrepute.
One comprises any criminal conviction that attracted a penalty of more than four years' imprisonment or a public protection sentence (a custodial sentence for specified sexual and violent offences) – because a penalty of that magnitude will have taken into account the gravity and impact of the offence on victims, mitigating circumstances and the social attitude prevailing in the jurisdiction where the penalty was imposed.
The second type comprises proven acts that attracted lesser or no penalties – because those actions are particularly offensive but may not (yet) attract high sentences in criminal justice systems. They include sexual harassment, racist behaviour, serious bullying, corporate manslaughter, serious Health & Safety breaches, serious fraud and embezzlement. The list of acts and offences cannot be definitive and on occasion CIfA may need to be able to investigate offences not on the list, or to disregard those included – but a persuasive rationale for exception would need to be documented.
Timing is important too. Certain historic conduct will become ‘spent’ (for example in accordance with the provisions of the UK Rehabilitation of Offenders Act) and therefore cannot form the basis for taking action for breach of the Code of conduct, or in consideration of an application for accreditation. In the UK custodial sentences over four years and public protection sentences are never regarded as spent. A member with a conviction in a jurisdiction where the threshold for unspent convictions is higher may be able to argue an appropriate exemption.
The assumption here is that what constitutes good practice relating to employment of ex-offenders equally constitutes good practice for determining ‘fitness to practise’, either through a professional conduct case or assessment of an application.
CIfA processes
In future, an applicant for accreditation will be asked to declare that they have not been convicted with a sentence meeting the four-year threshold and that there have been no allegations against them in the last twelve months (a data protection limitation) relating to sexual harassment, racist behaviour, serious bullying, corporate manslaughter, serious Health & Safety breaches, serious fraud and embezzlement. There is an option, if the declaration cannot be made, to provide brief details the nature, date and outcome of the allegation.
People who affected by acts that are covered by relevant authorities and who have approached CIfA will be encouraged to contact those authorities (eg in the UK the police, Health & Safety Executive, the member's employer etc). Save in exceptional circumstances, CIfA will defer its professional conduct process until the competent authorities have completed their investigation and any subsequent criminal/civil/employer's internal disciplinary proceedings have concluded. CIfA will normally rely on those third-party findings as fact when determining its own action. There may be exceptions, for example where the member is pleading guilty to or admitting an activity so serious that, regardless of sanction/penalty, it will bring archaeology or CIfA into disrepute and it is appropriate for CIfA to take action at the earliest possible opportunity.
Professional ethics are central to CIfA’s role. These changes to the Code of conduct, the policy statements and processes will give us more focus in our job of regulating archaeological practise. The better we define and promote ethical behaviour, the better we can look after the interests of the public, and of other archaeologists. We hope this article and these changes explain better what our Code of conduct and processes cover. As ever, we welcome your thoughts, comments and collaboration in our commitment to professional ethics in archaeology.
Checklist of changes
From 21 July 2021
- There is a new section in the policy statements setting out the crimes and actions the Institute considers might constitute a breach of rule 1.1.
- There is new guidance pointing to the revised policy statement.
- New applications by individuals for accreditation must declare on the application form that they have not been convicted with a sentence meeting the four-year threshold and that there have been no allegations against them in the last twelve months relating to the
oother acts and offences listed in the revised policy statement. The applicant may, if they cannot make that declaration, provide brief details of the nature, date and outcome of the allegation – eg not investigated and dismissed, investigated and dismissed, upheld with no sanction, upheld with sanction. - the Professional conduct regulations at clause 3 will read
For the avoidance of doubt, other than for the interpretation of rule 1.1, these regulations shall not apply to alleged breaches of the Code of conduct by an individual member or representative of a registered organisation in their personal life. The Institute reserves the right to refer such allegations to the police or other authorities where appropriate. The Institute will normally suspend any ongoing investigation under these regulations where it becomes apparent that an allegation is the subject of any civil or criminal proceedings or ongoing investigation by police or other authorities.
Later
- To support and clarify these changes, at the AGM the Board will propose a resolution to make changes to the ethical Code of conduct
- To extend the title Code of conduct recognised in the by-laws with the addition of the words : professional ethics in archaeology
- To the preamble, an additional sentence to para 5:
The Institute from time to time publishes policy statements, including on the interpretation of rule 1.1 of the Code regarding bringing archaeology or the Institute into disrepute, to which members, applicants, CIfA committees and panels are expected to give due regard.
- To rule 1.1:
A member shall conduct themselves in a manner which will does not and is not likely to bring archaeology or the Institute into disrepute.
- To underpin Principle 1 and to ensure that the public interest responsibilities of members are reflected in a rule, the addition of a new rule after rule 1.11 (and renumbering of the following rules):
A member shall be being mindful of their ethical responsibility to act always in the public interest.
- To principle 5 (The member shall recognise the aspirations of employees, colleagues and helpers with regard to all matters relating to employment, including career development, health and safety, terms and conditions of employment and equality of opportunity): the addition of a new rule 5.9:
A member shall not behave in a way, repeated over time, that is intended or likely to hurt an individual employee, colleague or helper, or group of employees, colleagues and helpers, physically or emotionally
If agreed at the AGM these changes would come into immediate effect.
- Changes to the Membership Regulations will include appropriate assessment of ethical competence.
