Updated January 26 with right of reply
The public life standards commissioner has proposed an overhaul of the rules guiding the appointment of trusted persons by ministers and parliamentary secretaries, saying the government’s legislative efforts were “a big step backwards”.
According to Commissioner George Hyzler, a bill currently before Parliament did not properly address the issue and could be constitutionally challenged in the courts as no constitutional amendment was proposed.
Hyzler made his comments in a paper he released with guidelines on hiring trusted people, the legal definition given to such employees, and his reaction to Bill 159 currently under discussion in parliament.
The Maltese government employs around 700 people as appointees, political appointees and consultants.
Hyzler expressed concern that due to a proposed change in the definition of a support person, many of the people in that position would no longer fall within his remit and he would not be able to to investigate allegations of wrongdoing.
It defines trusted persons as any employee or any person hired directly from outside the public service and the public sector to act as consultants and staff within the private secretariat of a minister or secretary. parliamentary.
This means that members of the public service or the public service who have become people of confidence would no longer come under the wing of the Standards Commissioner.
The government employs around 700 people as appointees, political appointees and consultants
In addition, the new definition is limited to people of trust who are engaged outside the public administration and, therefore, people in positions of trust – those who are also in the service of public officials – will no longer be subject to the law, whatever the nature of their duties.
According to Hyzler, this is “a big step backwards”.
Under the Public Life Standards Act, the Commissioner for Public Life Standards can investigate ethical breaches committed by Members of Parliament and trusted individuals.
The term “support person” is generally understood to refer to persons appointed for political reasons – persons who have been employed by the government of the day without a call for candidates.
The government of the day uses one of three mechanisms to retain the services of a particular person without going through a competitive selection process: hiring the person on the basis of trust; award the person a contract for services as a consultant or advisor by direct order, or appoint the person as chair or member of any official board or committee, including the board of directors of a public entity.
Most trusted people hold positions in the private secretariats of ministers and parliamentary secretaries.
The Prime Minister can have 37 people 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 selected on the basis of trust, but not all are officially classified as trusted individuals. This term is generally reserved for people employed directly outside the public administration.
Those who were already employed in public administration before joining secretariats are officially classified as persons in “positions of trust”.
In October, Hyzler wrote to all MPs expressing concern that Bill 159 will allow trusted appointments to any occupational group of public sector employees, as long as they are not filled through ‘public calls for candidates.
He predicted that this would lead to the recruitment of a growing number of trusted people, all of whom owed their jobs to ministers, and many of whom would not necessarily be qualified or fit for their posts.
“This would politicize the Maltese public administration and lead to a further lowering of standards of ethical conduct and service delivery,” he wrote in his letter.
Government’s right of reply
In a right of reply issued on Tuesday, January 26, the government said:
Although the ministry appreciates the work undertaken by the Commissioner for Public Life Standards created in 2018, we note that Bill no. 159 must be seen within a broader legislative framework. The latter includes the Law on Standards of Public Life and the Law on Public Administration, both of which are closely related to Bill 159.
In its opinion of June 2020, the Venice Commission welcomed the proposals for legislative amendments concerning the appointment of persons of trust. This was seen as another bold step in Robert Abela’s administration to ensure good governance and accountability.
The appointment of people of trust has been used and proved to be necessary for our system of governance under any administration. Not to mention the fact that such a system is a European and global practice.
Contrary to what was indicated in the said article, Bill 159 will amend the Law on the Standards of Public Life in order to introduce a broader definition of person of trust. This includes “any employee or person engaged directly outside the public service and the public sector” to act as consultants and staff of a minister or parliamentary secretary within their private secretariat.
In addition, the same bill will also amend the Law on Public Administration to introduce a new article regulating trusted persons. The limitations of the roles for which these persons can be recruited are in line with the limitations of the new definition of the Law on Standards of Public Life.
This new provision of the law provides for a limitation in terms of the number of trusted persons who can be hired, while also modifying 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.
In addition, the manual of the Civil Service Management Code (PSMC) which regulates, among other things, the hiring of trusted persons has also been given the status of a public service directive which binds public officials and is enforceable under the terms of Article 15, paragraph 2 of the Law on Public Administration.
Strengthening the Office of the Public Life Standards Commissioner
Under an amendment to the Public Life Standards Act, which is currently before Parliament, the Commissioner for Public Life Standards will also be empowered to refer a case to the Attorney General in cases where, according to the investigation, “it appears prima facie that a criminal offense or corrupt practice has been committed”.
It is also relevant to note that under the changes made to article 541 of the Penal Code and to the Code of Organization and Civil Procedure (new article 469B), through judicial review (Decisions not to prosecute and other decisions of the Prosecution) Act 2020, the Commissioner for Public Life Standards was granted the same rights as an injured party (locus standi) to request judicial review of decisions not to initiate proceedings taken as a result reports transmitted by the Commissioner to the Attorney General.
This government takes issues of 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 in recent months. These have been approved by the Venice Commission and welcomed by the European Commission.
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