MPs’ plum jobs: Seven takeaways from Standards report that calls time on practice

The Standards Commissioner has come out strongly against the practice of giving backbench MPs government positions, saying in no uncertain terms that doing so is wrong, regardless of the rationale.

In a report issued on 5 July, George Hyzler found that all government backbenchers as well as some Opposition MPs are employed or appointed in the public sector.

Hyzler, who took up his role last November, decided to investigate the matter following a request by PD MP Godfrey Farrugia to look into whether the engagement or employment of backbench members of the House of Representatives as consultants or employees in the civil service, or of statutory government bodies, constituted a conflict of interest or beach of ethical or statutory duties.

As part of the investigation procedure, Hyzler compiled an exhaustive list of statutory bodies and information on which of them allow MPs to be part of their board of directors. He then asked all individual MPs to supply information on any appointments they may hold.

Below are seven main takeaways from the Commissioner’s report:

1. The practice of employing MPs within the public sector or appointing them to provide contractual services to the public sector is fundamentally wrong, whether this is done to compensate for inadequate parliamentary salaries or for any other reason

To support this conclusion, Hyzler says such a practice dilutes Parliament’s role in scrutinising the government’s work, therefore “eating into the principle of the separation of powers.”

Paying MPs through government posts puts them in a position of financial dependence on the executive, reducing their independence and emasculating them, he says.

The practice overly politicises statutory bodies and distorts their independence from the government; exacerbates the debatable practice of employing “persons of trust” or persons on a “contract of service basis”; and might create unnecessary jobs or fill genuine vacancies with persons who are not the best suited for the job.

Moreover, it goes against the underlying principles of the Constitution and breaches the Code of Ethics of Public Employees and Board Members.

2. Two-thirds of the total number of backbench MPs are employed or engaged by the government in the public service or the wider public sector, in one capacity or another

Noting that the practice of appointing MPs as parliamentary assistants was adopted under the previous administration, Hyzler found that, in recent years, it had become the practice for backbench MPs to be appointed to roles within ministries.

MPs were not precluded from holding other jobs, and their part-time parliamentary salary by itself “does not allow a standard of living commensurate with their position and responsibilities,” the report notes.

Within this context, the practice of appointing backbenchers to positions within administration, or to provide contractual services is commonly seen as either a means to appease those MPs who are not given minister or parliamentary secretary roles, or as a means of working around the issue of raising salaries for parliamentarians.

Hyzler goes on to lament that while successive governments had acknowledged the problem of MPs remuneration, they had all shied away from increasing the relative emoluments, “presumably in fear of political backlash”.

3. A 2004 law regulating MPs virtually nullified a constitutional clause prohibiting them from employment in the public service

The Constitution prohibits anyone from being elected as an MP, save as otherwise provided by Parliament, if they hold or act in any public office or are a member of the armed forces (excluding soldiers and officers).

In 2004, through the Members of Parliament Act, Parliament put in place an exemption from this prohibition by way of an exception allowing an MP to serve concurrently as a public officer if her employment is in a salary scale not higher than scale 6, provided she is not a member of a disciplined force.

Hyzler argues that, through this law, Parliament “went well beyond making an exception” and “practically nullified” the rule altogether in so far as public services on salaries lower than scale 6 are concerned.

Before the 2004 law, it was the practice for public officers standing for a general election to go out on unpaid leave, pending resignation from the public service.

4. No conflict in the case of MPs who were employees of a statutory body prior to their election, or who are university lectures or hold appointments on the board of the two statutory bodies which require appointment from both sides of the House

Since statutory bodies cannot be considered as employment with the government, the employment of MPs with such bodies does not give rise to a conflict, except in cases where a law concerning the relative body is being discussed in Parliament.

Likewise, MPs holding university lecturing posts do not have a conflict, since academia is exempted in the Constitution itself.

In accordance with the law, the government and Opposition can each appoint one member as representatives on the Planning Authority and Lands Authority Boards. Since such MPs fulfil a legal role, no conflict arises here either.

5. “Person of trust” appointments, contracts of service and chairpersonships give rise to concerns and run counter to the Constitution’s principles or to the civil servants Code of Ethics

Appointments on a “person of trust” basis are made outside the parameters laid out in Article 110 of the Constitution and go against its principles which disqualify public officers from being members of the House, Hyzler says.

On the fact that the 2004 law limits disqualified MPs from civil service roles at salary scales 1 to 5, he says it makes no sense to on the one hand disqualify senior public officers from being MPs, but to then appoint MPs in positions of trust, many of which attract salaries in scales 1 to 5.

The widespread appointment of persons of trust jeopardises the principle of protecting the public administration from politicisation, the report notes.

Furthermore, even having MPs occupy positions of trust at salary scale 6 or lower is a matter of concern, because the 2004 law was meant to exempt serving public officers who are elected as MPs rather than MPs who are engaged as public officers after their election to the House.

And, as MPs employed as persons of trust are subject to the public employees’ Code of Ethics – which obliges political neutrality and limits public comments and political participation – such appointments render them in conflict with the code they are meant to observe.

The same reasoning applies to MPs employed on a “contract of service basis” and those appointed by the government as chairpersons or directors on boards.

In the case of the latter, it does not matter whether such boards allow the appointment of MPs, since any appointments will still be subject to the Code of Ethics consequently placing the parliamentarians in conflict with its provisions.

6. Consultancies are also of concern and ultimately breach the Constitution

MPs appointed as legal and other consultants falls within the scope of a prohibition in Article 55 of the Constitution which states that the seat of an MP becomes vacant if she becomes a party to a contract of works with the Maltese government.

Article 55, however, also provides that the Speaker can exempt an MP from such provision.

Hyzler said that, following legal advice on the matter, he was accepting a restrictive interpretation of the definition of “contract of works” to include contracts for services.

Therefore, contracts for such consultancies for MPs run counter to the Constitution, Hyzler says.

7. The issue of MPs’ inadequate remuneration needs to be addressed by Parliament with urgency, and could also be framed within the context of giving each MP the option to go full-time or remain part-time

Hyzler remarks that, if the reason for giving public employment or a public appointment to an MP is to compensate for a salary which is too low, a fundamental problem of discrimination arises, since currently it is mostly MPs on the government’s own backbenches are given such roles.

This also gives government MPs an “unacceptable advantage” over Opposition MPs where access to government resources is concerned.

Hyzler says he will comment further, at the appropriate time, on the suggestion to grant the option of choosing between being a full-time and part-time MP.