The media reports on last Monday’s meeting of the Public Accounts Committee (PAC) of the House of Representatives intrigued me. The meeting was investigating a report made by the National Audit Office (NAO) on the government’s decision to withdraw the court case instituted against the Labour Party for breach of contract, with which it had obtained Australia Hall from the government.
For those who care to remember, Australia Hall was given to the then MLP in 1979 by a Labour government in exchange for land owned by it in Marsa that was subsequently used for the development of the now defunct Marsa Shipbuilding.
The contract stipulated that the MLP had to refurbish and maintain the building. However, it was practically abandoned for a long number of years, giving rise to the court case instituted by the Commissioner of Lands for breach of contract. After the change of government, somehow, someone decided to come to an amicable decision with the Labour Party and withdraw the court case. The Opposition asked the NAO to investigate and the NAO found that the documentation at the Government Property Division did not indicate who had taken the decision to withdraw the case. The NAO could not but point out that the responsibility for retaining such documentation rested with the department. This did not happen and transparency, accountability and good governance flew out of the window.
In the organisational set-up of the state, decisions are taken every day. Most of them would not be controversial and are taken in the normal course of events. The problem lies with those decisions that are controversial.
After the experience of the 1971-1987 Labour governments, when decisions were taken ostensibly by ministers without being recorded as such, the first Fenech Adami administration sought to rectify this lacuna by amending the Interpretation Act such that it is clear that heads of department are responsible for decisions, unless they are overruled by ministers, in which case the department head has a right to ask for the ministerial directive in writing.
The idea behind this amendment was to ensure that the civil service is responsible for all decisions except in the case of a ministerial order with which a head of department might not be comfortable. In that situation, the department head had every right to ask for the directive in writing, thus shifting the responsibility of the decision to the political master.
Since it does not appear that, in this case, the Government Property Division was following a written directive of the responsible minister, the head of department in question is technically responsible for the decision and is obliged to justify it with the PAC.
Another strange problem raised its head in the PAC meeting last Monday: the issue of professional secrecy raised by the Auditor General (AG) while giving his evidence.
It is strange that a parliamentary committee delving into the ways the country’s moneys are spent or misspent by the government cannot get the answers to all its questions made to the AG about a case it is investigating, because the AG pleads he is bound by professional secrecy in his dealings with his ‘client’ i.e. the government.
From the NAO report, it results that from existing records, the extent of the AG’s intervention or advice in this case is not quite clear. A memorandum submitted by the AG did not indicate to the department what course it should take but simply discussed the merits of the case and the consequences of an out-of-court settlement. Yet the request for advice from the AG was never recorded on file.
Mr Speaker, taking a leaf of what happens in the British Parliament, ruled that only the government of the day could release the AG from his obligation of professional secrecy. Yet, other countries – both EU member states and Commonwealth countries – have written rules on this issue that do not necessarily agree with the convention of the British Parliament to which the Speaker referred and which is, apparently, a blanket provision.
Political parties campaign in poetry and govern in prose
The issue involves a clash between the inviolability of parliamentary immunity and the inviolability of the professional secrecy inherent in any lawyer-client relationship. Apart from the particular case in which the issue arose, it certainly deserves further study and perhaps a clearer resolution by appropriate legislation.
The public will never know what advice was sought from the AG’s office, with whom the issue was discussed before the memorandum was drawn up, and other relevant information unless the government releases the AG from the obligation of observing professional secrecy.
In this particular case, the Labour government is being accused by the Opposition of letting the Labour Party off the hook at the expense of the public exchequer and its position is severely weakened if it is perceived as opting to hide behind the shroud of the AG’s right to plead professional secrecy, rather than making a clean breast of it.
Transparency, accountability and good governance are not electoral slogans. Nor can talk about them made during the electoral campaign be forgotten because political parties campaign in poetry and govern in prose.
micfal@maltanet.net