The proposed Commissioner for Standards in Public Life will not be able to probe asset declarations or allegations of ethical breaches made in the past by Cabinet ministers, MPs or those occupying positions of trust, according to the Bill.

Parliament is expected to start debating the Standards in Public Life Bill, which provides for the setting up of the commissioner’s office, later this month.

An office very similar to the one being proposed is the House of Commons’ Parliamentary Commissioner for Standards, which oversees British MPs’ conduct and propriety. It was set up in 1995 in the wake of the Nolan Report following allegations that MPs were receiving money to table parliamentary questions.

One of Lord Nolan’s main conclusions was that the internal systems for maintaining standards should be supported by independent scrutiny. Besides the creation of the office of parliamentary commissioner, the Nolan Report triggered the setting up of the Committee on Standards in Public Life to serve as a government advisory body on what is expected of public servants and MPs in their duty to uphold the highest standards.

In Malta, the first Bill in this regard was proposed in the White Paper entitled ‘The Maltese Parliament: more autonomy, more accountability’, launched in September 2012 by Tonio Borg, then Leader of the House.

It proposed the appointment of a Parliamentary Commissioner for Standards to investigate allegations of abuse of parliamentary privilege, misbehaviour or unethical behaviour by MPs.

The Labour Party’s 2013 election manifesto proposed such a commissioner, reporting to the Speaker, to oversee in an independent manner MPs’ behaviour, including that of ministers, and to ensure all their work and financial interests were declared, to investigate as he deemed fit and to publish his reports.

Opposition leader Simon Busuttil tabled a private members’ motion on September 30, 2013, calling for the appointment of a commissioner and a standing parliamentary committee on the proper behaviour of all holders of public office and not just MPs.

As soon as a minister is appointed, it is expected of him not to continue with his private work

His move followed a controversy about certain ministerial declarations of assets and the waiver awarded to then parliamentary secretary Franco Mercieca to carry on with his private work.

Then, on October 16, 2013, Deputy Prime Minister Louis Grech tabled a motion for the setting up of a select committee, chaired by the Speaker, to draw up a report on the establishment of such an office.

Following five formal meetings and a public consultation exercise, the committee wrote the draft Bill proposing the Commissioner for Standards in Public Life, to be appointed by the President following a parliamentary resolution supported by at least two-thirds of the House.

On March 24, 2014, the Speaker tabled in Parliament a draft law. The first reading was approved the following day and the debate in the House has been pending since.

The Bill also provides for a Standing Committee on Standards in Public Life, chaired by the Speaker and consisting of four MPs, two nominated by the Prime Minister and two by the leader of the Opposition.

The proposed commissioner will mainly have the duty to examine income and asset declarations, investigate written allegations of breaches of statutory or ethical duty and rule on whether an intended action is in line with statutory or ethical obligations.

There was debate on whether the commissioner’s remit should extend beyond MPs to local councillors and members of the executive, as indicated in Dr Busuttil’s motion. Eventually, it was agreed that the law should apply to MPs, including ministers and parliamentary secretaries, those engaged as advisers, consultants to the government, any statutory body and employees engaged in a position of trust.

The latter include anyone not engaged through the Public Service Commission.

The proposed committee oversees the work of the commissioner, examines his reports, adopts or rejects his conclusions and applies indicated sanctions. These may include referral to the Police Commissioner or the Permanent Commission Against Corruption for further investigation, a reprimand, a demand for an apology and repayment of resources improperly used.

The proposed law includes two codes of ethics: one for parliamentarians and another one for ministers and parliamentary secretaries.

The first already forms part of the House of Representatives (Privileges and Powers) Act and the other could require certain streamlining with the one in place.

The code of ethics for ministers, published last February, lays down that the final decision on whether any action constituted an ethical breach and the ensuing consequences “will always remain the Prime Minister’s exclusive competence”. This provision could turn out to be incongruent with the Bill’s provisions.

Another issue may arise with regard to private work by ministers. The code proposed by the draft law stipulates that “as soon as a minister is appointed, it is expected of him not to continue with his private work. He should devote his whole time to his official duties. The prohibition covers also consultancies, attendance at offices/clinics to give professional advice, etc., even if the work is not remunerated”.

In contrast, the February 2015 code allows such work in “exceptional cases when required in the national interest and following Cabinet approval”.

Proposed sanctions

Sanctions that may be imposed by Parliament following the proposed committee’s finding of an ethical breach by an MP:

• Direction to rectify the breach;

• Demand for an apology in writing to be made to the committee;

• Demand for an apology through a personal statement in Parliament;

• Demand for the repayment of or payment for the resources improperly used; and

• Any other measure deemed fit.

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