Almost a decade after the introduction of the Standards in Public Life Act, the time has come to review the way this law has been applied and seek to remedy any shortcomings which have cropped up either in its application or through loopholes, perceived or real, in the provisions of the Act itself.

The law was conceived in a bill that the Nationalist administration attached to a White Paper published on September 15, 2012. Its main provisions were that a Commissioner for Standards in Public Life be appointed with the support of two-thirds of all MPs, that the commissioner would have the right to investigate any MP not only for alleged breaches of the law, but also of the Code of Ethics.

The House of Representatives would decide on any issue of wrongdoing unless the case amounted to a breach of the law in which case legal action was to be commenced at the instance of the police commissioner or the attorney general.

The first problem encountered in recent times was the amendment introduced only recently by the current administration to allow the government of the day to appoint the commissioner even without the need of a two-thirds majority. This controversial amendment has weakened the office itself.

The idea behind the two-thirds majority requirement which I had introduced in the White Paper, was that by inserting such a high requirement the two sides of the political spectrum in parliament would strive to reach an agreement. A reasonable proposal would be that should the two-thirds majority be not achieved, rather than having the government of the day appointing a person enjoying only its trust, the power of appointment should be shifted to the President of Malta, acting alone according to his own deliberate judgment. In that way a fall-back position would be created without involving any of the political parties’ intervention.

The second point is the following: In a ruling on April 9, 2021, the Speaker of the House of Representatives stated that as chairperson of the Permanent Parliamentary Committee on Standards, he is not a member of such a committee since he does not enjoy the right to an original vote.

Apart from the fact that it is inconceivable how one can be chairperson of an entity without being its member, this ruling has in practice meant that since the quorum at such a five-member committee is three, the moment either side boycotts the sittings of the committee, the latter’s operations come to a standstill.

The third shortcoming is that on one occasion the Speaker, during a sitting of the permanent committee exercised his casting vote (vot deċisiv in the Maltese text) by abstaining. An abstention is the direct opposite of expressing a casting and decisive vote.

Goodwill and common sense are enough even though sometimes common sense is not so common at all- Tonio Borg

Does the Standards Act apply to the Speaker? The constitution is absolutely clear on the point that a Speaker even if chosen from outside the membership of the House of Representatives, is considered to be a member of parliament who, however, does not have an original vote but only a casting vote in case of tie. It is evident, therefore, that once the Speaker is a member of the legislature, like any MP, he is bound by the provisions of the Act including investigation of his actions by the commissioner.

Recently a complaint was filed against the Speaker on the contents of a ruling he delivered. The standards commissioner decided that he could not investigate the Speaker because that would create a conflict of interest since his report would eventually be considered by the Permanent Committee on Standards presided over by the Speaker himself.

Of course, the solution to such a quandary is to have the Deputy Speaker, whose office is specifically established in the constitution, to stand instead of the Speaker in such exceptional cases.

I sincerely have doubts as to whether a commissioner can decide that a ruling delivered by the Speaker is in breach of parliamentary ethics; but such complaint should not have been dismissed on an erroneous technical point of remit and jurisdiction.

Besides, this decision is in direct contrast with what happened in the United Kingdom from where most of the provisions of our law have been culled. There, an investigation in 2012 regarding bullying was commenced by Standards Commissioner Kathryn Stone who found Speaker John Bercow guilty on several counts of bullying and inappropriate behaviour.

Tonio Borg

There is no need of legislative intervention to solve these issues. Goodwill and common sense are enough even though sometimes common sense is not so common at all.

Tonio Borg is a former European Commissioner and deputy prime minister.