Updated January 26 with right of reply
The Commissioner for Standards in Public Life has proposed an overhaul of the rules guiding the appointment of persons of trust by ministers and parliamentary secretaries, saying the government’s legislative efforts were “a major step backwards”.
According to commissioner George Hyzler, a Bill currently pending before parliament was not properly addressing the issue and may be constitutionally challenged in court because no changes to the constitution were being proposed.
Hyzler made his comments in a document he has issued with guidelines on the engagement of persons of trust, the legal definition given to such employees and his reaction to Bill 159 currently being discussed in parliament.
The Maltese government employs an estimated 700 people as persons of trust, politically appointed individuals, and consultants.
Hyzler expressed concern that through a proposed change in the definition given to a person of trust, many of those engaged in this position would no longer fall under his remit and he would not be able to investigate any allegations of wrongdoing.
It defines persons of trust as being any employee or person engaged directly from outside the public service and the public sector to act as consultants and staff in the private secretariat of a minister or parliamentary secretary.
This means that members of the public service or the civil service who became persons of trust would no longer fall under the wing of the Standards Commissioner.
Government employs an estimated 700 people as persons of trust, politically appointed individuals and consultants
Furthermore, the new definition is limited to persons of trust who are engaged from outside the public administration and, therefore, persons in positions of trust – those who are also serving public employees – will no longer be subject to the Act, whatever the nature of their duties.
According to Hyzler, these are “a major step backwards”.
Under the Standards in Public Life Act, the Commissioner for Standards in Public Life can investigate breaches of ethics by MPs and persons of trust.
The term “person of trust” is generally understood as referring to political appointees – individuals who have been employed by the government of the day without a call for applications.
The government of the day uses one of three mechanisms to engage the services of a particular person without going through a competitive selection process: employing the person on the basis of trust; awarding the person a contract for services as a consultant or adviser by means of a direct order, or appointing the person as chairperson or member of an official board or committee, including the board of directors of a public entity.
Most persons of trust hold positions in the private secretariats of ministers and parliamentary secretaries.
The prime minister can have 37 persons in his private secretariat while ministers can have up to 19 and up to 11 for parliamentary secretaries.
All secretariat staff and associated units are chosen on the basis of trust but not all are officially classified as persons of trust. This term is generally reserved for those engaged directly from outside the public administration.
Those who were already employed in public administration before being engaged in secretariats are officially classified as persons holding “positions of trust”.
In October, Hyzler wrote to all MPs expressing concern that Bill 159 will permit appointments on trust in any occupational group of public employees, as long as they remain unfilled through public calls for applications.
He predicted this would lead to the recruitment of an increasing number of persons of trust, all of whom would owe their jobs to ministers, and many of whom would not necessarily be qualified or fit for their posts.
“This would politicise Maltese public administration and result in the further lowering of standards of ethical conduct and service delivery,” he had written in his letter.
Government right of reply
In a right of reply issued on Tuesday, January 26, the government said:
While the Ministry is appreciative of the work undertaken by the Office of the Commissioner for Standards in Public Life established in 2018, one notes that Bill no. 159 must be considered within a wider legislative framework. The latter includes the Standards in Public Life Act and the Public Administration Act, both of which are closely related to Bill 159.
In its Opinion of June 2020, the Venice Commission welcomed the proposals for legislative amendments regarding the appointments of persons of trust. It has been seen as another bold step of the Robert Abela administration in securing good governance and accountability.
The appointment of persons of trust has been used and proven to be necessary to our system of governance under any administration. This is not to mention the fact that such a system is an EU, and global, practice.
Contrary to what was stated in the said article, Bill 159 will amend the Standards in Public Life Act to introduce a wider definition of a person of trust. This shall include “any employee or person engaged directly from outside the public service and the public sector” to act as consultants and staff of a Minister or Parliamentary Secretary within their private secretariat.
What is more, the same Bill shall also amend the Public Administration Act to introduce a new article to regulate persons of trust. The limitations on the roles for which such persons may be recruited are in line with the limitations of the new definition in the Standards in Public life Act.
This new disposition of the law shall provide a limitation in terms of quantity of persons of trust that may be engaged, whilst also amending their conditions of employment. All this will be established in the Manual published by the Cabinet Office, which will be presented to the House of Representatives.
Moreover, the Public Service Management Code (PSMC) Manual which regulates, amongst other things, the engagement of persons of trust has also been given the status of a public service Directive which binds public officers and is enforceable in terms of Article 15(2) of the Public Administration Act.
The strengthening of the Office of the Commissioner for Standards in Public Life
By virtue of an amendment to the Standards in Public Life Act, which is currently before Parliament, the Commissioner for Standards in Public Life will also be given the power to refer a case to the Attorney General in cases where from the investigation “it appears prima facie that a criminal offence or a corrupt practice has been committed”.
It is also relevant to note that by virtue of amendments made to Article 541 of the Criminal Code and to the Code of Organisation and Civil Procedure (new article 469B), by means of the Judicial Review (Decisions not to Prosecute and Other Decisions of the Prosecution) Act 2020, the Commissioner for Standards in Public Life has been granted the same rights as an injured party (locus standi) to seek judicial review of decisions not to prosecute taken further to reports referred by the Commissioner to the Attorney General.
This Government is taking issues relating to good governance and the rule of law seriously, both in letter and in spirit This is evident in the number of Constitutional and Institutional reforms implemented throughout the past months. These came with the endorsement of the Venice Commission and praised by the European Commission.