CoI and the need for different policies for different Holders of Public Office – Why taking a special interest in Ministers (and EU Commissioners)?

Obviously, it is important to design CoI policies and rules and adapt these to the specific situation, power, and influence of the various institutions. However, the downside of this is also the danger of fragmented and uncoordinated approaches. Therefore, it makes sense to adopt a mixed-approach. For example, we share the opinion of the European Court of Auditor as regards the need for a flexible approach: “We also found areas where the ethical frameworks would benefit from cross-institutional harmonisation (e.g. outside activities for staff, and declarations on Members’ spouses and partners’

activities)…”.⁷⁶ Why should the management of disclosure policies be different for different institutions, or persons? Why should the definition of the term spouse be different?

From this point of view, it is not surprising that there exist little differences in the policy coverage density of Ministers and top-officials (except in Belgium and in Sweden). Nevertheless, it’s important to emphasise that the consistency in most other countries is not to be derived from the fact that the same rules apply to ministers and top-officials, this is most definitely not the case. It just implies that regulation is in place for both, ministers and top-officials, for roughly the same amount of CoI issues. It should further be noted that Bulgaria and the Netherlands only answered regarding ministers, whereas Finland and Poland only answered regarding top-officials. Hence, the data for the counterpart in each country lack respectively.

75 Hartmann M., (2020), Vertrauen, S. Fischer: München, 13.

76 European Court of Auditors, (2019), Special report no 13/2019: The ethical frameworks of the audited EU institutions: scope for improvement.

Figure 11: Policy Coverage Density of most important CoI issues in Member States

Source: Own calculations by the authors based on the information/data received from the Member States of the EU

However, CoI issues have different importance for different Institutions and holders of public office. For example, obviously, there should be more attention to post-employment policies in countries with career systems and life-time tenure than in countries where top-officials have performance contracts and are employed on a fixed-term basis. Also, side-activities play different importance for MoP than for Ministers. On the other hand, attention to the implementation of CoI policies is even more important for Ministers, because any violation of rules and standards may generate public scandals and influence trust perceptions in the political system as such.

Overall, people have a right to expect ministers to have very high standards of integrity because they have more power, influence, and decision-making discretion than any other public official and holder of public office. They exercise public powers on behalf of the country. They spend public money on important governmental projects. They raise taxes. They hunt down criminals. They protect the people.

They take decisions that have an impact on the fundamental rights of the citizens. They decide on health and risk protection. For all these important tasks, it is important that they exercise their role properly, and act lawfully, honestly and loyally without acquiring any personal advantage. Because of this, standards of integrity must be set at high levels.

However, the different categories of Holders of Public Office are not the same: They have different positions and tasks, enjoy different degrees of media attention, have different powers, and work in different organisational, institutional, political, and legal settings. Moreover, CoI are more acute in certain sectors and certain policies. Therefore, countries should focus more on the management of CoI in certain areas and in sectors than in others.

Table 3: Prevalence of Conflict of Interest

Therefore, countries have adopted different requirements for different categories of staff and different holders of public office. Take the example of the EU Institutions:

“While there are common provisions applicable to all of the EU institutions, there are also different specific legal ethical requirements for each EU institution, for the Directorates-General (DGs) of the European Commission (Commission), and for staff and Members of the EU institutions. The specific provisions reflect different roles, responsibilities and risks”⁷⁷

Generally, the higher the position of a public official (or politician), the stricter the policy, regulations, and codes, and the more transparency is required. For example, whereas Members of Government are often required to avoid or withdraw from activities, memberships, financial interests or situations that would place them in a real, potential or apparent conflict of interests, legislators are often allowed to take part in professional activities unless these activities are likely to give rise to a conflict of interest.

As regards the latter the most important argument for this is that Parliaments should not develop into arenas where only full-time professional politicians can represent their constituencies. Another – frequently cited – argument is that legislators should be allowed to keep contact with their profession as this would also be beneficial for Parliamentary systems. Finally, full-time Parliamentarians may lose contact with the “real world” if they are prohibited from exercising other activities.

Still, the question of whether these additional professional activities should be (more strictly) regulated is the subject of intense discussion. At least finding the right balance between the right to have a professional life, respecting ethical values, and avoiding corruption and conflicts of interest remains a real challenge. It is important to note that legislators are placed in an area in the political system where conflicting interests are abundant.

A comparative study⁷⁸ on legislative ethics concluded that “…the problem is not that legislators are inherently corrupt, or will necessarily become so. Rather, the nature of their positions requires legislators to continually face difficult ethical dilemmas. Legislators must constantly decide among

77 European Court of Justice, ECA 2019, op cit.

78 National Democratic Institute for International Affairs Legislative Research Series, Paper No. 4 Legislative Ethics:

A Comparative Analysis, National Democratic Institute for International Affairs (NDI) 1999.

competing interests: national, constituent based, political and personal. This difficulty is amplified by the fact that most legislators simultaneously hold positions in the private sector, and as such are perpetually ‘changing hats’ from one position to the other. In addition, legislators are subject to intense scrutiny by the media, non-governmental organisations and the public at large”.⁷⁹ In a way being a politician implies being involved in the political process where different interests come together. Thus, being a legislator means per se being confronted with many conflicting interests. Consequently, it is in the nature of being a Member of Parliament (or a minister) to deal with and to manage these conflicting interests and values. Moreover, the sovereignty of parliament means that it is not easy to introduce external (executive) forms of monitoring and control.

Obviously, politicians also face different conflicts of interests than Judges or Directors of Central Banks.

Also, the media scrutiny is different than for Judges or Directors of banks, etc. Legislators also face different accountability and legitimacy challenges. For example, which has primacy: one’s own political career, one’s own professional activities, the party, the electorate, the government, or the nation?

“Probably legislators face the widest range of potentially conflicting interests: personal, representational and other private pecuniary and non-pecuniary interests. Certain interests are personally inherent: as a resident of a town or province, as a parent, spouse, or child, as a female or male, as indigenous or non-indigenous, and so on. Other interests arise from the representative role:

as a member of the legislature, as the representative of his or her electorate and as a member of a political party. Further interests arise from outside activities as a member of a non-political organisation, as a businessman, professional, farmer, grazier, or employee.

As already mentioned, another important difference between legislators and other categories of Holders of Public Office is the fact that, in most countries, Parliaments have little interest in allowing for external and independent control. Instead, they often monitor themselves and decide themselves upon the setting up of “independent” ethics committees. Therefore, rules of conflict of interest for Members of Parliament are generally enforced through a system of self-regulation.

Conflicts of interests may also occur because in most countries' legislators decide on essential parts of their own remuneration. In addition, politicians decide upon the laws and regulations, on the party and election finance, and on lobbying issues. Finally, they also legislate on behalf of their own interests when defining their own rules and standards in the field of conflicts of interest. Also, Parliamentary immunity is an issue for the Parliament itself. In many countries, this constitutes a sensitive issue, since Parliamentarians are almost exempt from any civil or criminal prosecution.

Thus, legislators are – at least partly – regulating themselves. This is problematic as it raises suspicion and raises doubts about independence, fairness, and accountability. However, it would also be problematic to ask the executive to regulate, manage, and/or monitor the legislative.

Consequently, more countries are thinking about the introduction of external interinstitutional ethics committees or independent offices. “This is because traditional systems of self-regulation are more and more discredited. They can no longer command public confidence”.⁸⁰ Yet, countries like Canada and Britain have recently adopted measures allowing for the first time the involvement of “outsiders” in their system of ethics regulation, making it less internal and more external. The move towards a more external form of ethics regulation is designed to enhance public trust and confidence in the procedures that Parliament uses to discipline its Members. It is intended to depoliticize the process of ethics

79 National Democratic Institute for International Affairs, op cit, p.3.

80 Ibid.

regulation. The goal is to mitigate the perception that MPs face an inherent and inescapable conflict of interest when they sit in judgment on fellow MPs. Yet, even if the maxim that “‘no one should be the judge in his own cause’ has great moral power it seems difficult to oppose”.⁸¹ However, trends differ widely. Whereas many Parliaments have at least established different forms of self-regulation others do not even have this.