Ian Refalo advised the government that there need be no separation between parliament and government. The head of the civil service, Mario Cutajar referred to that advice a few days ago when he gave his reasons for ignoring the recommendations from George Hyzler, Commissioner for Public Standards.
Here is what Mario Cutajar said about what Ian Refalo had told him: “Professor Refalo explains that in our Constitution one does not find a clear line which separates the executive from the legislative. It is necessary for both to be constitutionally bound as all the power in the British and Maltese constitutions emanates from the House of Representatives and the government of the day, so much so that members of the executive—ministers and parliamentary secretaries—need to be parliamentary members. Therefore, there is no constitutional incompatibility between members of the executive and parliamentary members, so much so that the Constitution itself requires that a Minister be chosen only from amongst parliamentary members.”
I think this is appalling. I’ll take the argument to its extreme which is a very hot place where the outrageous is no longer cushioned by the blankets of fluffy talk. If there is no reason to keep the legislature and the executive separate, then why are we spending money on paying two institutions that do the job of one? Why not just let the government – elected directly – to make laws? After all, as Bismarck is believed to have said once there are two things you don’t want people to know how they are really made: sausages and laws.
Why should we have a parliament?
Because my reading of the Westminster tradition is different from Ian Refalo’s. Parliament is the institution that is elected to make laws. The government makes those laws work and administers the country. But government reports to parliament. Government is accountable to parliament. Government depends on parliament’s confidence which can be withdrawn. Government depends on parliament’s favour to be able to raise taxes and spend money. Government is subject to parliament’s scrutiny.
But parliament is not government and cannot replace its role. So, government is chosen from among people who can expect to enjoy, under normal circumstances, the ongoing confidence of a majority in parliament. In the Westminster model ministers are indeed MPs chosen from the party that enjoys majority support.
However, and here’s the big difference, the number of MPs that can be appointed to government is capped so that the role of parliament of scrutinising and overseeing government is not subsumed by the size of the government itself.
The UK government is not allowed to employ all the MPs from the party that supports it. On the contrary. The bulk of the MPs must stay out of government and instead sit on committees in parliament to help scrutinise and oversee various aspects of public policy.
The Maltese parliament has been weak for a long time. But since 2013 it’s been made a branch of the Labour Party. This is not a snide remark about the opposition’s half-hearted fulfilment of its theoretical mission of opposing. Even if the opposition was keen, the government does not merely enjoy the support of a strong majority of MPs. That strong majority is on its payroll.
Ian Refalo, Mario Cutajar, Peter Grech and so on may see no difference. But I think there’s a big difference between MPs supporting a government through party affiliation and political conviction (or even naked political convenience, for that matter) and MPs supporting a government because it pays them money to do so or because their livelihood depends on the government’s pleasure.
Why is that difference material? Because – and here is my big challenge to Ian Refalo’s advice – we can’t have a true democracy if there is no functional separation between the legislature and the executive. If we drop that line of separation we forego scrutiny, financial accountability, and even the means of finding opportunities of broad consensus even across the aisle.
Saying there is no scope for separation of powers between the executive and the legislature is reducing parliament to theatre in which opposition MPs are spectators and government MPs are salaried actors.
The ramifications on the country’s governance of this notion are enormous. We have independent agents of scrutiny in the country that are intentionally set up to report directly to parliament, not to government because they help in parliament’s function of scrutiny. The Ombudsman, the Auditor General, the Commissioner for Standards in Public Life: these officers report directly to parliament because their job is to report on where the government falls short of its responsibilities.
Why do they report to parliament? Because then parliament is supposed to do something with their reports. We can only improve things if someone is admonishing government for its shortfalls. When government overspends on something as mundane as paperclips, parliament should feel free to apply pressure on government to control its paperclip spending. It does not have to come to a political crisis before paperclip spending can be addressed.
But if the majority of parliament is made of paperclip consumers, the opposition can scream about the auditor’s findings until it’s blue in the face. Nothing changes.
This is dysfunctional. It is also undemocratic. And it is also wasteful. It reduces parliament, another institution of the state – a very important one, that should be the highest in the land – to a subservient status.
The recommendations of the Commissioner for Public Standards developed on observations by GRECO and the Venice Commission. They also open up the issue of persons appointed to positions of trust bypassing the Constitutional rules on public sector employment.
There have been appointments of persons of trust before Labour came on in 2013. I was one at a time when the government appointed a couple of dozen people. Now we have more than 700.
It was for Mario Cutajar, the Principal Permanent Secretary, the head of the civil service, to come out and say this is a-okay and the Commissioner of Public Standards was wrong to suggest it should not happen.
I’m not going here into the argument on why 700 persons of trust (as opposed to 50) change the dynamics of things radically and the “they used to do it before” argument does not really hold.
I will say that our Constitution has rules about public sector employment because it seeks to achieve a number of things. It seeks to achieve fairness in recruitment so that people join the service on the basis of merit, not political loyalties. That’s a good thing because we all pay these people from our taxes so we’d want to get the best quality service out of them.
But it also seeks to ensure that the employed administration of the country is distinct from the holders of elected office. Ministers come and go but the show must go on. In some respects, we all accept this. No one thinks the Minister of Health should get to choose the surgeons and doctors to work in hospital because even the biggest tagħnalkoller wants the best heart surgeon to dig into his chest, not the most partisan and loyal surgeon the Ministers owed a favour to. We also all expect work in hospital to be unaffected by an election or a change in government.
But this principle should apply throughout. The civil service must serve the government of the day but must do so on the basis of its own distinct ethos. We need people that look at things beyond the next election: people who ensure institutional memory and continuity so we don’t make the same mistakes every time a Minister is changed.
As head of the civil service Mario Cutajar would be expected to viscerally defend this notion: the autonomy and distinctiveness of the civil service even as it loyally serves the government of the day, within of course the limits of the law. But Mario Cutajar did the opposite. He gave a press conference to explain why it’s ok for Ministers to stuff his staff with their party cronies on the choice of whom he had no role whatsoever.
You see that and you see how the government has destroyed yet another institution in our Constitutional make-up: a distinct civil service. Perhaps Ian Refalo would like to compare that with the Westminster model and see again how poorly he’s interpreting our British institutional heritage and the dog’s breakfast we’ve made of it.
I’ll finish with one last point. The Labour Parliamentary Group yesterday “adopted” Mario Cutajar’s report on why the Commissioner for Standards in Public Life’s report is wrong and needs to be ignored.
It sort of proves my point, doesn’t it? The Commissioner for Standards in Public Life reports to parliament. He has made recommendations on how the powers of parliament can be strengthened and how the encroachment of the executive beyond the Constitutional limits of its powers can in practice be kept in check.
The executive has responded by protecting that overstretched power and has wheeled out its puppet in the form of the head of the civil service, effectively another glorified secretary of the prime minister, to say why parliament should shut up and keep its place.
What does the Labour Parliamentary Group do? Does it support the Commissioner for Public Standards who made suggestions on how the balance could be tipped more in favour of the parliament they belong to?
Not at all. They instead resolved to support the government that pays them. For money speaks first. And holds power to the last.