PARLIAMENTARIANS IN THE EU AND CONFLICTS OF INTEREST

The higher the position of an Holder of Public Office (HPO), 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 interest, 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 are allowed to 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. In Germany for example 25% of all German MPs in the German Bundestag hold additional positions and memberships next to their public function as an MP. At the EU level, a 2011 report points out that one out of seven MEPs have second paid jobs such as being a board member, a lawyer or consultant and those holding a second paid job originate mostly from Germany, Sweden, Belgium and Denmark.

The question 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.

Legislators are placed in an area in the political system where conflicting interests are abundant. A comparative study 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 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. 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 to deal with and to manage these conflicting interests and values.

Obviously politicians 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 nterests [pecuniary interests involve situations of financial profit or financial problems. However, financial property or financial interests do not need to change hands for an interest to be pecuniary. People have a pecuniary interest if they (or a relative or other close associate) own property, hold shares, have a position in a company bidding for government work, or receive benefits (such as concessions, discounts, gifts or hospitality) from a particular source and non-pecuniary interests [Non-pecuniary interests do not have a financial component. They may arise from personal or family relationships, or other activities. They include any tendency toward favour or prejudice resulting from friendship, animosity, or other personal involvement with another person or group]. 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.

Another important difference between legislators and other categories of Holders of Public Office is the fact that, in most countries, the constitution assigns the Parliament the responsibility for the regulation of its Members of Parliament. Because of this – and it is different to the situation in the public services.  Members of Parliament have little interest in monitoring themselves and deciding upon the setting up of independent ethics committees. Instead rules of conflicts 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 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. Moreover, enforcing sanctions imply the starting of time-consuming procedures (whereas the public may ask for quick responses to political scandals).

Thus, legislators are – at least partly – regulating themselves. This is problematic as it raises suspicion and raises doubts about independence, fairness, and accountability. As a consequence more countries are thinking about the introduction of external inter-institutional 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.

Yet, countries like Canada and Britain have 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 regulation. The goal is to mitigate the perception that MPs face an inherent and inescapable conflicts 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. However, trends differ widely.

Whereas many Parliaments have at least established different forms of self-regulation others do not even have this. The European Parliament has the so-called Quaestors who are responsible for monitoring the ethical conduct of MEPs. However, until today little is known as to the internal control of ethical standards by the Quaestors.

Parliaments in the EU as genuinely self-regulating bodies, are generally comparatively “under-regulated”, i.e. have at their disposal a significantly less developed set of ethics related provisions and instruments. For example, parliaments have less rules and standards in the field of gifts than other institutions. This should not be interpreted in the sense that the simple answer is more regulation and that ethics regimes of public officials or of other categories of Holders of Public Office should be taken as a benchmark for the regulation of legislators.

This also means that legislators need specific rules and standards in the field of Conflicts of Interest. In addition, they need to be trained on Conflicts of Interests and must be made aware of (un-) ethical issues. At the same time, legislators need less rules and standards in specific fields (such as post-employment, the regulation of political, professional- and outside activities). However, clear rules and standards in the field of gift taking, nepotism and lobbyism may be very relevant for legislators.

Potential Conflicts of Interest concern different issues such as :

• Violating general principles while exercising public office.
• Receiving gifts.
• Receiving other benefits.
• Political activities.
• Lobbyism.
• Securing the appointment of relatives and friends.
• Memberships of boards, NGOs, companies and non-profit organisations.
• Affiliations with trade unions or professional organisations or other personal interests.
• Involvement in secondary employment that potentially conflicts with an official's public duties.
• Relationships (such as obligations to professional, community, ethnic, family, or religious group in a personal or professional capacity, or to people living in the same household.
• Possession of important information.
• Representing and acting for foreign countries.
• Misuse of own position for private gain.
• Misuse of government property.
• Other professional activities.
• Post-employment.
• Financial interests.
• Different responsibilities to different actors.
• Honorary positions.
• Invitations for holidays, diners, speeches, participation in events.
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