Public regulators and the case for some uniformity

A read through of the laws establishing diverse public regulators in Malta reveals a glaring lack of uniformity when it comes to appointments and dismissals of their headship.

The periods of appointment of office vary from one regulator to another, whereas the grounds for dismissal are in some instances significantly different. Some laws envisage procedures whereby a person forming part of the headship dismissed from office can contest his or her dismissal. Conversely, other laws are silent on this aspect. Are all these differences necessary? Whilst there is no one perfect template that can be applied to all regulators, there are some norms which can be applied to most regulators.

Having in place norms on appointments and dismissals of headships that are applicable uniformly can ultimately serve to provide for more clarity and transparency in the overall regulatory landscape.

Appointments

With some singular exceptions such as the Broadcasting Authority, the procedure relating to appointments to headship positions empowers the minister responsible politically for the regulated sector to appoint the person or persons making up the headship. Whilst the majority of headships consist of collective memberships, there are a few where the headship is composed of a single person. Whether the headship consists of a single person or of a collective body is generally conditioned by the nature of the tasks onerous on the regulator concerned, more so where the tasks span across different fields of expertise which may therefore in turn necessitate decision making by a collective body rather than by a single person.

One aspect concerning collective headships that has not been given enough importance is the need to ensure that change in the composition of collective headships is done gradually. Regrettably, in some instances such changes have been made wholesale. This does make practical sense. Whilst, it is of course inevitable that over time members change, it should not be done in such a manner so as to ensure a reasonable degree of continuity in the knowledge and policy direction of the headship in question.

In this regard a template that may be adopted is that provided for under the Regulator for Energy and Water Services Act (REWS). This law provides for what is described as ‘an appropriate rotation scheme’ whereby the terms of appointment of the members of the REWS Board are not the same, thereby ensuring that some of the earlier members of the Board remain in place when new members are appointed. 

The periods of appointment to office of the diverse headships vary considerably commencing from unspecified minimum periods up to a maximum of seven years. Hence, the members of the Malta Financial Services Authority (MFSA) Board of Governors are appointed for a period of not more than five years (the law does not provide for a minimum), whereas for example the members of the REWS Board are appointed for a term of between five to seven years.  Moreover, in some instances appointees are eligible for only one other term of office, in other instances for more than one term. Again, there is no apparent reason why these differences exist.

Persons who are not eligible for headship appointments are normally listed at law. However, again substantial differences result when going through the list of persons excluded from headship membership. Hence, whilst members of the judiciary, ministers and members of the House of Representatives or of local councils are invariably excluded, in some instances no mention is made of persons declared bankrupt or of persons convicted of any criminal offences. In some instances, the law limits itself to persons convicted only of certain criminal offences such fraud and theft, without however mentioning, for example, equally if not more serious criminal offences such as rape or murder. Persons being considered for headship positions convicted of any serious crimes should by law be definitively excluded.     

Dismissal

When it comes to the dismissal of a headship member, the norms in place vary from one regulator to another. One glaring omission with some regulators is the right of a headship member to contest his or her dismissal if he or she considers that this was unjustified. In many instances the law simply lists the grounds on the basis of which a headship member may be removed during his or her tenure of office, and stops there.

A template to remedy such an omission is that provided in the case of the Malta Communications Authority, whereby a member who has been removed from office may ask for a statement for the reasons for his or her removal and in doing so may request that this is made public. The member concerned may furthermore seek civil redress before the courts.

There is of course more to be said concerning other aspects such as the role of Public Appointments Committee and the procedures adopted in dealing with such appointments. The first point of departure should be the initiation of a public consultation proposing measures that can be uniformly applied to public regulators eliminating as much as possible the myriad of diverse norms.