Legal advice shows no conflict of interest by MPs who sit on public boards - government
The government says it has been advised that there is nothing at law which puts Members of Parliament who take up a government appointment in any form of conflict of interest.
On 5 July 2019, Commissioner for Standards in Public Life George Hyzler published a report on an investigation initiated by a complaint submitted on 14 January 2019 by MP Godfrey Farrugia. The commissioner was asked to investigate whether the engagement or employment of backbenchers as consultants or employees of the government or bodies set up by the law represented a conflict of interest or a breach of ethical or statutory duties. Among other things, the report proposes that parliamentarians should be disqualified from the House of Representatives if they accept contracts of any kind from the government or public entities. Similarly, MPs should not be allowed to accept appointments as persons of trust or as members of government boards and committees.
On 8 July 2019, Prime Minister Joseph Muscat tasked Principal Permanent Secretary Mario Cutajar with analysing the Commissioner for Standards in Public Life’s report and coordinating this analysis both from a legal and administrative aspect.
The government published the permanent secretary’s full report in addition to legal advice from Attorney General Peter Grech, and constitutional expert Prof Ian Refalo.
According to the government, its analysis had found that the constitution did not prohibit MPs from being engaged by the government. It said that the constitution “allows for some public officials to hold a parliamentary seat and allows Parliament to legislate and remove other prohibitions.”
The government noted that the possibility of MPs sitting on public boards and entities predated Independence.
“While examining what goes on abroad,” the government said, “the analysis explains that the Commissioner for Standards in Public Life makes no distinction between Permanent Public Service and temporary appointments, like those on the basis of trust, and does not consider regulations introduced to regulate these engagements.”
As part of the analysis of the commissioner’s report, an indepth examination of all the considerations emanating from the report was carried, which essentially found—even from the research conducted and the advice given— that when parliamentary deputies are engaged or appointed, in both cases temporarily on a trust basis, either to provide counsel to ministers in public entities, or on boards of public entities, no breach of the constitution occurs; no disavowal of the principles of the constitution takes place; no laws are broken; and one cannot say that there is a conflict of interest for parliamentary deputies as so appointed.
Among the reasons listed for this conclusion, are: that the constitution is one based on the rule of law where, for instance, a minister and a parliamentary secretary (the executive) are also parliamentary deputies (the legislative); that the constitution itself is not so exacting as to prohibit all those who are public officers or public employees from being parliamentary deputies, so much so that it provides for two exemptions with regard to cases where public officers cannot be parliamentary deputies, and, moreover, grants Parliament the power to legislate in such a that public officers or employees may become elected as parliamentary deputies; and that Members of Parliament (Public Employment) Act deals with and regulates situations where public officers are elected to Parliament and does not refer to situations where an MP is given an appointment and/or temporary engagement within the public administration.
Other conclusions include that the engagement of parliamentary deputies on a trust basis, both to provide counsel or to serve some other function within a ministry or a public entity, does not amount to permanent public service, but rather is made on a temporary basis and then dissolved and terminated once the minister who engaged the said individual ceases to occupy that role. “Regarding the appointment of parliamentary deputies on government boards and public entities, nowhere is it stated in the report itself that the law is being broken when these are appointed. Since Independence, a number of public entities have been set up which did not prohibit parliamentary deputies from serving on their boards.”
This analysis also considers that, from the Commissioner for Standards in Public Life’s report, one might come up with proposals for change which should be discussed. As an example, the analysis mentions that “the experience of other countries with the same political and administrative system as ours shows that not only did they administratively regulate temporary engagements on a trust basis, but that they also did so legally. In our country, these engagements are already regulated administratively. The government has already stated that it agrees that there should be legislation in this regard. It is recommended that such legislation define these engagements in order to bring the matter to a close.”
In addition, “it is further recommended that because historically no clear line emerges regarding the appointment of parliamentary deputies on boards of public entities, that the functions of every public entity be evaluated in order to determine when parliamentary deputies may or may not be appointed.”