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REGULATING CONFLICTS OF INTEREST IN PARLIAMENT BY PLACING LEGAL CONSTRAINST ON MPs

THE CASES OF BRITAIN, FRANCE AND PORTUGAL

1. Introduction

In recent years, the problematic relationship between conflicts of interest1 and corruption

has been a sensitive one in most Western democracies. The changing nature of the State and the

blurring of the public/private divide have been at the core of recent manifestations of corruption,

alerting decision-makers to the need to strengthen controls. Corruption grows where public ethics

have degenerated, where there are no clear rules governing public business, where public or

private commercial relationships lack proper modes of regulation to guarantee due process and

fairness, where the legal and social sanctioning of conflicts of interest are weak. Even though

conflicts of interest have not always resulted in corruption, they do constitute an important

opportunity structure for such illicit behaviour.

In their attempt to curb the incidence and scope of corruption in public life, decision-

makers have implemented a series of measures aimed at regulating various types of conflicts of

interest. Manifestations have varied across countries and so have the moral costs raised against

these illicit exchanges and practices.

Of particular relevance have been the increasing manifestations of influence trafficking,

insider trading and impropriety at the parliamentary level. The weakness of conflict of interest

rules as applied to MPs, in the light of increased opportunities for illicit behaviour, posed a

serious threat to representative institutions. On the one hand, opportunity structures for corruption

and impropriety in parliament grew apace due to the interaction of a number of transformations:

the increased regulatory function of the State; the expansion of political consulting and lobbying

firms; the changing nature of national political elites; the decline in the popularity and visibility

of national representative functions; the close relationship between MPs and members of the

executive; and the possibility of accumulating several functions, positions or mandates. On the

other hand, the costs imposed upon conflicts of interest in parliament have been substantially

reduced: weakened ethics and controls inside party structures and across the house of parliament;

weak conflict of interest rules to applying elective officials; and more worryingly, a tolerant

environment towards these exchanges. These are some of the conditions that help us to

understand the growth and expansion of corruption and impropriety in parliament.

The particularity of regulating conflicts of interest to elective office is that, unlike public

office, there does not necessarily exist an element of continuity. Elective officials are temporary

office holders, whose permanence in office is dependent upon (re)election. Hence it is difficult to

make elective officials accept and guide their conduct by the same principles which govern

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public office and to impose credible sanctions, which aim at clearing conflicts of interest in a

continuum, i.e. prior to and following the holding of office.2 For that reason, legal frameworks

regulating conflict of interests have only aimed at targeting specific situations of conflict which

are more prone to threaten the probity of office holders while in office. The object of control is

therefore the accumulation of elective office with certain jobs and positions across different

spheres of activity. Controls address the office itself rather than its holder. A more

comprehensive initiative to conflicts of interest would require that they be addressed in a

continuum as opportunity structures for illicit behaviour, emerging from past or future

interactions between actors positioned in different spheres of activity which may put the public

interest at risk. This continuous scrutiny of conflicts of interest has not been an easy solution to

implement. For example, whereas, in some cases, senior public officials have been impeded from

celebrating contractual agreements with the public sphere after leaving office, as part of a conflict

of interest clearance system, in most cases, elective officials are only required to submit a self-

declaration of interests and activities before taking and when leaving office. But even where these

registries have been adopted, more often than not, declarations are not clear, systematic or

representative of the interests and activities held by the elective officials in question.

The reforms on regimes of incompatibility that took place during the late 1980s and early

1990s show that not all elective offices were paid the same attention by legislators. The reason is

twofold. On the one hand, conflicts of interest at the ministerial, presidential and other levels of

decision-making have been constrained by rules governing these political and senior public

offices and by the visibility these positions have. On the other hand, there is a myriad of

situations of conflict that are perfectly acceptable to office-holders and citizens at large and,

therefore, have not been subject to reform. In such a climate of toleration, it is unlikely that legal

impediments will be adopted to constrain elective officials to adopt a particular posture in office.

Traditionally, impediments have been particularly flexible and limited concerning the

accumulation of a parliamentary mandate with other offices and activities. For a long time, such

impediments were viewed as an encroachment on the representative function of MPs. In recent

years, however, the functionality of accumulation to pluralist representation has been overtly

contested and difficult to sustain in the light of a series of scandals involving MPs who held

several mandates, offices or jobs with consulting/lobbying firms.

Private/professional activities were regarded as compatible with the parliamentary

mandate as a means of preventing an undesirable level of professionalisation of MPs and a

mechanism enabling interest groups to be widely represented in parliament. More recently, the

accumulation of the parliamentary mandate with private and professional activities has proved

costly to representative institutions given the increased manifestations of collusion between

money and politics, between public and private interests in parliament. There was an inevitable

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weakening of the ethical standards governing parliamentary office that put the dignity of

parliament and the contractual people-representative relation at risk. It was not surprising,

therefore, when, as a reaction to the wave of scandals on impropriety in British politics, such as

the “cash for questions” saga and the Hamiltong-Greer-Al Fayed affair, Lord Nolan suggested the

following in relation to the growing public discontent about members of the House of

Commons3:

‘It is vital for the democratic process, that Members of Parliament should maintain the highest standards of propriety in discharging their obligations to the public which elects them. It is also essential for public confidence that they should be seen to do so’ (First Nolan Report 1995, 20).

Although the most problematic manifestations to control have been conflicts rising

between elective and private positions, the measures adopted have equally touched other kinds of

conflicts of interest rising between elective and governmental/appointed office or between

elective mandates at different levels of governance. A major theme of reform in recent years has

been the introduction of incompatibilities on the accumulation of several mandates. The

dimension assumed by the accumulation of mandates and the resulting parliamentary absenteeism

have been gradually perceived as a serious obstacle to the modernisation of the political system.

This convention has raised problems with regard to the functionality of the representative system

and the division of powers between national and local spheres of government. The concentration

of power in Mayor-MPs or Mayor-MEPs has been at the core of various manifestations of

corruption and impropriety in countries where such accumulation is permitted by law and looked

on with indifference by legislators.

Recent waves of reform have attempted to address some of these problems through a

revision of incompatibility, ineligibility and disqualification rules concerning parliamentary

office,4 but the process has proved to be a sensitive and contested one. The revision of conflict of

interest rules governing parliamentary office is often dealt with by special legislation.5 Although

these reforms represent a step forward towards the reinforcement of preventive mechanisms

against corruption, they are far from being comprehensive or exhaustive. More often than not,

creating new incompatibilities and impediments to MPs have been late responses to specific

scandals rather than a conscious and positive political attitude towards conflicts of interest in

parliament. This normative/legislative process is often characterised by two major instances: 1)

the institutionalisation of situations of conflict – the need to establish by law what ethics cannot

prevent; 2) the trivialisation of control – MPs have always avoided stringent impediments by

introducing symbolic or cosmetic reforms on the regime of incompatibilities as a reaction to

crisis situations.

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The type and scope of restrictions place on accumulation, and the interaction between

political, public and private spheres varies from country to country according to the different

traditions in dealing with conflicts of interest in Parliament. Some regimes have been more

permissive with regard to accumulation, others more rigid. Some focus primarily on the

functional divide between public and elective office, others offer a more enlarged definition of

conflict of interests. For instance, the French and Portuguese traditions have always tended to

determine by law those situations of conflict harmful to the public interest and in granting the

faculty of choice to elected officials. The fact that choice rather than swift discharge from duties

is granted to those trapped in situations of conflict, is in itself evidence of an indulgent attitude

towards conflicts of interest in parliament. Situations of conflict are permitted to enter parliament

and only then do controls act as a corrective measure, forcing elective officials to chose between

conflicting positions. The Westminster tradition, by contrast, reduces to a minimum the number

of impediments to MPs, but demands an unconditional and prompt resolution of parliament

followed by resignation whenever a violation of these rules is found. Moreover, conflict of

interest rules in the Westminster tradition are guided by the principle that no professional

activity, function or position that encroaches on the candidate’s integrity, objectivity and honesty

is compatible with the quality of member of the House of Commons. In other words, the deterrent

effect acts prior to entering elective office. Another contrasting feature is the fact that conflict of

interest rules in the French and Portuguese tradition are seen by parliamentarians as constraints to

entitlements, hence any “grey” area of conflict which does not fall under these legal nominations

is considered compatible. This is largely due to the fact that there is a great degree of tolerance

towards conflicts of interests in those political societies. The same seems not to be a rule in the

Westminster tradition. The House of Commons has often left to the courts of public opinion all

“grey” areas which do not fall under its conflict of interest rules. On several occasions the

parliament has reacted and condemned “grey” areas that have caused or have been susceptible to

public opprobrium, for example, MPs’ membership in lobbying and political consulting firms.

The kind of conflict created between different spheres of activity varies and so does the

attempt to control them. Some rules aim at guaranteeing the division of powers within the State

apparatus, horizontally and vertically, by avoiding the concentration of decisional power in the

hands of a few people and ensuring a proper system of checks and balances. Others are meant to

avoid the mingling of public and private interests by constraining undue business influence over

the decision-making process. In all cases, what seems to be at stake is the attempt to safeguard

the equality of citizens before the State, to promote the impartiality and selflessness of decision-

makers, and to guarantee fairness of public decisions. Variations in relation to the modality of

impediments placed on elective office - the way these are monitored and sanctioned – and

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subsequent revisions can only be understood with reference to the prevailing culture on conflicts

of interest in any given country.

This paper aims to assess these variations in relation to the regulation of conflicts of

interest in elective office by focusing on incompatibility rules to MPs. There are different kinds

of interaction which incompatibility rules aim to address, but these can be summarised into the

following broad categories: incompatibility between the parliamentary mandate and other public,

appointed and judicial functions; incompatibility between the parliamentary mandate and other

mandates; incompatibility between the parliamentary mandate and private-sector employment

and other professional activities. For each of these ideal-types, there are different principles at

stake and the attempt to address them through these legislative interventions varies across

countries and in time.

2. Conceptual nuances

Before assessing recent attempts at regulating conflicts of interest in parliament, the

principles and extent of impediments placed on MPs, it is worthwhile disentangling the various

concepts implicated - incompatibility, ineligibility and disqualification rules – even though these

concepts are intertwined and relate to electoral law. In contrast to ineligibility and

disqualification rules, whose constraints are static and reduced to a minimum in order not to

encroach on the right of eligibility, incompatibilities are a more variable concept often regulated

by special legislation and targeting circumstantial manifestations of conflict of interests.

2.1. Ineligibility rules

Ineligibility rules consist of a number of electoral constraints to candidates aimed at

guaranteeing the dignity, responsibility and exemption required to holding elective office. The

definition of ineligibility is straightforward and set by electoral law. Impediments of this sort,

however, constitute an exception to the rule, since they are essentially a negation of the basic

principles of political liberty and citizenship - any citizen’s right to run for political office.

The concept of ineligibility is different from that of electoral incapacity stipulated by most

constitutions. Electoral incapacity translates those prohibitions imposed on individuals prior to

candidacy (the candidate’s age, nationality/citizenship and criminal record, the completion of

compulsive military service, insanity, bankruptcy, etc…).6 In short, it means the deprivation of

the right of eligibility. Ineligibility rules, by contrast, deal with situations of conflict resulting

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from the electoral act. Once exposed, these situations of conflict require an evaluation and

decision of the parliamentary chamber of which the candidate wishes to become part.7 When

ineligibility is found, the electoral act is declared void and the candidate is unable to exercise

his/her parliamentary mandate.

Historically, these impediments have been placed on those citizens who occupy or

exercise certain public positions or functions of considerable prominence and influence in

society. On the one hand, these electoral constraints are meant to guarantee equality and fairness

in the electoral process by disabling citizens from voting on these prominent candidates in the

expectation that some benefits can be drawn a posteriori. On the other hand, they aim at

safeguarding the principle of division of powers and the impartiality and integrity of elective

officials.

In France, for example, art.133 of the Code Electoral stipulates a series of public

positions that have been considered likely to influence the voters’ choice and the exemption of

MPs. In some cases, ineligibility applies to circumscriptions comprised within the jurisdictional

area where these candidates exercise or have exercised their functions during the last six months

prior to electoral consultation. These range from general inspectors of public institutions or

public spending bodies, magistrates and court staff, military officers, rectors, general paymasters,

customs and inland revenue directors, officers in charge of economic and financial inquiries,

regional inspectors of social security and welfare, directors of regional agricultural credit

institutions, departmental directors for construction and urbanisation, senior departmental police

officers, etc. The préfets cannot be elected in any circumscription of the jurisdiction where they

exercise or have exercised office for the last three years preceding the elections, whereas a one-

year clearance period is required for the sous-préfets and secrétaire général de préfecture. In

other cases, such as the ombudsman (médiateur), ineligibility applies to any electoral

circumscription (art. 130-1 Code Electoral).

In the case of Portugal, the law 14/79 of 16 May, Lei Eleitoral para a Assembleia da

República, in chapters I and II distinguishes between active and passive electoral capacity. The

legal document defines as active electoral capacity the ability to participate in the electoral

process – i.e. electoral incapacity, as defined above - and as passive that of qualifying as a

parliamentary candidate – i.e. ineligibility. Some office holders are excluded from qualifying as

candidates for any electoral circumscription: judicial magistrates and full-time public

prosecutors; active members of the military and of militarised forces; career diplomats and those

specified under article 308 of the Constitution. Others cannot qualify as candidates for the

electoral circumscription in which they exercise their public functions: regional Governors,

district wardens, directors or senior chiefs of the inland revenue office and ministers of any cult

or religion with plenary jurisdictional powers.

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More recently, the concept of ineligibility has been applied as a sanction to particular

infringements of the rules of disclosure governing elective office. In France, the series of laws

issued during the late 1980s and early 1990s to promote greater transparency in political life have

made it compulsory for MPs to declare their wealth, patrimony and interests, as well as the

publication of their electoral accounts before taking office. The Law 88-226 of 11 March

provided under article 12 of chapter III that those MPs who have infringed or ignored these rules

of disclosure (art. 135-1, Code Electoral) are to be considered ineligible for a whole year (art.

128, Code Electoral). The Law 88-227 of 11 March would extend the same impediment to other

elective offices, such as Members of Government, Mayors, Presidents of Regional Councils, the

President of the Corsican Assembly, the Presidents of any executive from the overseas territories

and Presidents of General Councils (Conseil Général). There was ambiguity as to the way

ineligibility should apply in these cases and what body ought to oversee its enforcement. This

resulted in arbitrary interpretations of its compulsive nature. Given the degree of non-compliance

with the rules of disclosure and the low costs imposed on wrongdoers, a new set of laws were

introduced to tackle loopholes in previous legislation. It was only with the Laws 95-62

(modifying dispositions relative to presidential and general elections) and 95-63 of 19 January

(regulating the patrimonial declaration of MPs and setting incompatibilities to both MPs and

members of the Conseil Constitutionnel - C.C.) that the C.C. was empowered to oversee the

publicity of election accounts and the registration of patrimonial declarations respectively. A one-

year ineligibility rule applied to both candidates, who have not presented their election accounts

or whose accounts have been rejected by the Comission nationale des comptes de campagne and

MPs who have not presented their patrimonial declaration as requested by law (art. 128, Code

Electoral). But the C.C.’s monitoring action has been that of confirming the regularity of

declarations rather than assessing and screening potential situations of conflict of interest.

2.2. Disqualification rules

Disqualification rules, in the Westminster tradition, are a sort of ineligibility. Although

disqualification acts upon a certain number of positions prior to the electoral act, preventing their

holders from qualifying as candidates to the House of Commons, the impediment can equally be

asserted while taking office and afterwards. Its sanctioning effect is closer to that of ineligibility:

whenever disqualification is asserted, the office holder is immediately discharged from his/her

duties in the House. No faculty of choice is granted to the office holder in order to clear conflict.

The House of Commons Disqualification Act of 19758 has placed a series of impediments

on candidates. In no measure are disqualification rules to be interpreted as an attempt to curtail

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the right to membership – i.e. eligibility. Section 1(4) clearly states that ‘except as provided by

this Act, a person shall not be disqualified for membership of the House of Commons by reason

of his holding an office or place of profit under the Crown or any other office or place.’ [italics

by the author]. Hence, similar to ineligibility, disqualification rules are only intended to avoid a

small number of specific situations, historically constructed, in which the House of Commons has

decreed that qualification of such candidates would put at risk the principles of integrity and

objectivity required. The primary aim seems to have always been that of establishing a clear

dividing line between those elected to represent the interests of its constituents – MPs - and those

entrusted to uphold the public interest – civil servants. Disqualification is defined in Schedule 1

of the Act partly with reference to employment in various branches of the Civil Service and

partly by reference to the holding of particular prominent offices:

All persons employed either full- or part-time in the Civil Service are disqualified.9 This principle is also reiterated by the Servants of the Crown Order 1987, which provides for the requirement of resignation before becoming a candidate for Parliament. In short, civil servants are precluded from sitting as MPs at all times. These rules were meant to avoid the mingling between public and political office which would inevitably discredit impartiality and objectivity in the Civil Service;

Disqualification is also applied to a series of other public positions considered incompatible with the parliamentary mandate due both to the prominence of such offices and the excessive influence these may exert upon the voter’s choice.10

The 1975 Disqualification Act also created a complaint system against breaches to disqualification rules, which are dealt with before or immediately after the candidate enters into parliament.11

1.2. Incompatibilities rules

Incompatibility rules are a more complex concept and thus require deeper reflection.

These rules aim at regulating those activities or positions considered to be in conflict with

elective office, but unlike ineligibility or disqualification rules, candidates found in a situation of

conflict are not precluded from acceding to office. The validity of the electoral act is not

questioned. Once a situation of conflict is asserted, the candidate elected is allowed to choose

within a predetermined period, often short, between holding his mandate or the occupation or

office incompatible with it.

Regimes of incompatibility are meant to act as preventive measures to corruption by

reducing the likelihood of conflicts of interest. On the one hand, these rules comprise

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legal/formal constraints aimed at reducing or excluding certain types of interaction and

accumulation deemed unhealthy to democracy and the due process of Law - between public and

private spheres, between political and administrative offices or even between local and national

elective offices. On the other hand, a series of controls are meant to monitor, unveil and sanction

those situations in which the office holder does not show the objectivity and exemption required

to hold elective office.

Traditionally, countries have regarded incompatibility regimes as primarily designed to

uphold the principle of division of powers. Recent developments show that incompatibility rules

have expanded to embrace a series of conflicts of interest hitherto ignored or regarded compatible

with, if not functional to, the exercise of a parliamentary mandate. Other than addressing the

functionality of the system of representation – i.e. the need to ensure that “Turbo MPs” respected

the minimum time required to perform their representative function adequately – this change of

attitude aimed at safeguarding the independence and integrity of MPs from various situations of

undue influence.

Today, placing constraints on the accumulation of jobs, positions or activities by MPs

constitutes an important pillar of parliamentary reform. In principle, reforming incompatibility

rules is part of a wider effort to increase transparency in Parliament and protect MPs from

entering grey areas of activity which are conducive to corruption or impropriety. In practice,

however, the scope and intensity of reforms has been less far-reaching than expected.

Reforming incompatibility regimes has always been faced with the problem of reaching a

compromise between the symbolism of control and the protection of MPs’ vested interests.

Parliaments never seem to find the right occasion to move on with the necessary reforms and

have often reacted as “corporate” guardians of their members’ privileges and interests during

tentative reforms. Whenever impediments have been proposed, these have always been less far-

reaching than the safeguards created for the vested financial interests of MPs.

Changes to the regime of incompatibilities affect all MPs, regardless of their partisan

allegiance, thus requiring dialogue and accommodation between all major parties in parliament.

This explains the slow pace and limited scope of reforms and the low profile played by both the

ruling party and opposition.

New incompatibilities to parliamentary mandate have regularly been identified by

selective and circumstantial reforms, reactions to excess and scandal. In recent years, new

incompatibilities have been introduced and monitoring procedures have been strengthened, but

the drives for political reform seem to have been more the product of successive crises than a

coherent ethical reflection by the Legislature on potential conflicts of interest.

Regimes of incompatibility are essentially post-facto attempts to deal with conflicts of

interest and their nature is strictly formal and denominative. Impediments always came late in the

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day as a reaction to deep-seated practices, which gradually came to be perceived as threats to the

values of democracy. The scope of impediments placed on accumulation has often been limited

to a few instances of conflict specified by law. The parameters used have been deliberately

selective, addressing some forms of conflict while leaving others unregulated. Incompatibility

rules tend to regulate the exception and MPs have always been keen to explore that fact -

whatever is not proscribed by law becomes acceptable according to their own mores! In other

words, entitlement comes before any serious attempt to curtail potential conflicts of interest

resulting from the accumulation with other mandates, functions, jobs or activities. Beyond the

formality of incompatibility regimes placed on MPs, a series of conflicts of interest not yet

subject to regulation has gradually become unacceptable to public opinion. In some instances, the

public’s concerns were addressed with reforms, but, more often than not, they were treated in a

cosmetic fashion.

The analysis that follows aims to address normative variation across the three countries in

question by looking at different kinds of incompatibilities/impediments placed on MPs and the

principles behind their adoption and revision. The exercise is not meant to present a systematic

typology of incompatibility rules to MPs, but to assess the extent of reforms that have ensued for

each type of conflict raised with the interaction of political, public and private spheres of activity.

3. Incompatibility between the parliamentary mandate and public, judicial, ministerial and appointed offices

The most traditional form of incompatibility is that between the parliamentary mandate

and a certain number of public, appointed and judicial offices. This set of incompatibilities is

essentially designed to guarantee the principle of division of powers in democracy and, hence,

avoid situations of abuse of power by reducing the possibility of concentrating power in the

hands of a few people. Parliamentary mandate is made incompatible with the exercise of a series

of public positions – the civil service, certain judicial offices and prominent public positions and

ministerial appointments.

3.1. Incompatibility with the exercise of civil service positions

Most democracies prohibit the accumulation of mandate and civil service positions.12 This

aims to act as a preventive measure to patronage in public administration and to keep both

political and public spheres separate. But the understanding of this sort of conflict is by no means

similar in every country.

The Westminster tradition precludes civil servants from qualifying as candidates. This has

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historically guaranteed an exempt Civil Service and administrative continuity in political

alternation. The separation between the political and public sphere ‘is a long-established practice

in British politics and the civil service does not provide a significant career path for would-be

politicians’ (Rush & Cromwell 2000, 468). The French and Portuguese electoral traditions have

opted for prohibiting the exercise of both functions, but not the faculty of civil servants from

running for elective office. Only the cumulative exercise of these positions is forbidden, not the

continuous move from public to political spheres.

In this line, the House of Commons disqualification rules offer a more restrictive

framework to functional conflicts (public-elective) than the French and Portuguese regimes of

incompatibility. The latter do not require civil servants to cease their functions prior to or in order

to qualify as candidates. Civil servants are placed in a situation of détachment or suspension from

their public functions meaning that these candidates can safely return to their former positions if

not (re)elected or after the cessation of their mandate. This regime is at odds with the exemption

of public officials and the role of MPs as “guardians” of the relationship between executive and

administration. It also constitutes an essential ingredient of political patronage and the subsequent

malaises affecting the public purse – guerrymandering, embezzlement, maladministration.

3.2. Incompatibility with the exercise of judicial office

This type of incompatibility is also based on the principle of division of powers. It is

considered pernicious to the democratic system that those who uphold the Law (the Judiciary)

were to be allowed to become the makers of that Law (the Legislature). Such an impediment aims

at guaranteeing the impartiality and independence of the magistracy in relation to the political

sphere. This functional division of powers is upheld strongly by the French electoral laws:

incompatibility applies to all judicial offices.13 More recently, the Law 95-63 of 19 January

precluded members of the C.C.14 from exercising cumulatively a parliamentary mandate (or any

elective office in that regard).

In Britain, despite the fact that disqualification applies to a small number of positions in

the magistracy, the concurrent holding of the parliamentary mandate with judicial office seems

not to raise any problems to the Westminster parliamentary tradition nor any doubts as to the

credibility and independence of magistrates.

In Portugal, incompatibilities have been placed specifically on senior magistrates,15 both

due to their importance for the judicial system and their prominent position in society. As to the

remaining judicial offices, it is not clear what rules apply, thus raising doubts as to whether these

should be treated under the same ineligibility governing public officials.

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3.3. Incompatibility with the exercise of influential positions in the State apparatus16

The impediments placed on the accumulation of the parliamentary mandate with these

prominent positions are often covered by ineligibility and disqualification rules. In order to run

for elections, these prominent figures have to resign from their present functions. These positions

are generally similar across the three countries: the President, members of regional and overseas

governments, appointed ambassadors, members of national commissions (for example, those

dealing with the Electoral process), High Commissioners (for example, those for the

media/information or commissioners against corruption), those holding any official position

conferred by a Foreign State or an international organisation, the chairmen and vice-chairmen of

the Economic and Social Council, members of the public boards of nationalised industries and

certain directors of companies in which the state holds an interest.

3.4. Incompatibility with the exercise of a ministerial office or governmental appointments

The incompatibility set between the quality of MP and the acceptance of ministerial

appointments is perhaps the most controversial and the one that varies the most from one political

system to another.

In Portugal, members of government, members of ministerial cabinets (and similar

positions), and ministers of the Republic cannot exercise accumulatively their functions with a

parliamentary mandate. The MP who has been appointed to a governmental position has to

choose between offices. This inevitably means that if a cabinet reshuffle takes place and the

appointed MP is left out, he/she is not entitled to return to his/her parliamentary seat.17

In a similar fashion, art. 23 of the French Constitution sets out an incompatibility between

the parliamentary mandate and ministerial functions. Incompatibility is meant to avoid the

accumulation of executive and legislative functions, which would endager the independence of

parliament and its function as watchdog of governmental performance. In order to avoid vacant

seats in parliament, the regime introduces a rule of replacement, in other words, the MP placed in

a position of incompatibility will be substituted for a whole legislature while exercising his/her

governmental appointment.

The accumulation of ministerial office and a parliamentary seat is interpreted differently

at Westminster. ‘[T]he combination of ministerial and parliamentary duties is not only authorised

but actively encouraged in order to strengthen the ties between assemblies and the Executive’

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(Van der Hulst 2000, 48). But this has not always been a rule. Before, British MPs who were

appointed ministers had to run immediately for re-election so to have their appointment

confirmed by vote. The purpose of this rule, abolished in 1926, was to have the MPs’ accession

to ministerial office legitimised by the constituents the candidate had been elected to represent in

the first place. Today, the inverse has become the rule: ministers have also to be members of

parliament despite the absence of legal provisions to that effect. This convention represents a

retreat from a significant element of the principle of division of powers as discussed in the First

Nolan Report. On the one hand, the government of the day can exert considerable influence over

the House of Commons and its members. This has led to another convention in British politics,

which accrues to the distancing between MPs and the interests of their constituents, the so-called

“payroll vote”. The ambition of some MPs for ministerial appointment has led to strict allegiance

with the incumbents’ voting strategy and policies, which could lead, on certain occasions, to the

sacrificing of constituency demands. On the other hand, British MPs who have been appointed

junior ministers or secretaries of State have used, on a number of occasions, their privileged

position to forward their clients’ interests and those of their colleagues in Parliament. Ministers

knew they had breached the principles of conduct in Questions of Procedure for Ministers (QPM)

when passing sensitive and privileged information to their fellow MPs, who approached them on

behalf of multi-client consulting and lobbying firms. The accumulation between parliamentary

and ministerial functions is neither the sole nor the main cause of impropriety in British politics;

nonetheless, it has eased the promiscuous relationship between lobbying and consulting activities

in the House of Commons through “the granting of favours at the ministerial level”. In a context

of persistence of the same party in office (i.e. 18 year Conservative rule!), this convention has

created important opportunity structures for impropriety.

Despite the diversity of constitutional and parliamentary traditions and arguments in

favour of the strict collaboration between the Legislature and the Executive, current trends on

parliamentary reform seem to raise the need for such incompatibility so as to strengthen a clear

division of powers whose balance has gradually favoured the first to the detriment of the latter.

The need to guarantee the watchdog function of parliament by shielding parliamentarians from

government influence has become central to recent reviews on rules of incompatibility.

There are, however, a series of governmental appointments which MPs can easily

accumulate and which have raised important opportunities for impropriety and corruption in

recent years. The radical transformation of public administration, through the creation of new

bodies of a flexible organisational nature, hybrids between the public and private sphere, poses

new challenges to conflict of interest rules. These bodies are responsible for a large slice of

public spending, whereas legal constraints to conflicts of interest applying to those who occupy

senior positions have, overall, been minimal and confusing. Appointments to the executive

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positions of these bodies are often the competence of Ministers, who, on several occasions, have

strategically placed some of their fellow MPs. Some of these situations of accumulation have

been dealt with by recent reforms, whilst others are still unregulated and often depend on the

government’s willingness to curtail patronage and conflicts of interest between the political and

public/appointed spheres.

In Britain, governments have avoided appointing loyal MPs to the executive boards of

these bodies due to the public’s distaste for such practices, even if, during the 18 years of

Conservative rule, many quango directors have been leading national political figures or

sympathisers of the incumbent party.

A similar moral restraint is not found in the case of Portugal, where the parapublic sector

has always been viewed by the governmental sphere as an emporium subject to its power and

influence. This has raised serious problems with regard to good management practices in these

bodies and constitutes an important opportunity structure for personal and party corruption. Not

only have appointments of MPs to public institutes, foundations and top managerial positions in

public or semi-public companies been made on the basis of partisan loyalty, but the very nature

of the office – neither public nor political and often acting across public and private spheres –

poses serious problems with regard to accountability and the parameters of responsibility to be

applied.

The accumulation of the parliamentary mandate with governmental appointments or

representations has been central to most of the corruption and maladministration that surfaced the

Portuguese public sector during the 1980s,18 and became critical during long periods without

party alternation in office. The political elites’ reluctance to move from a system of political

appointment to meritocratic and competitive recruitment, for example, by abolishing the existing

regime of substitution for MPs who accumulate their mandate with the exercise of governmental

appointments, must also be understood with reference to the problem of party financing. For most

of the 1980s, loyal MPs could happily accumulate their national mandate with executive

functions in any State company with the incumbent’s indulgence and protection. This constituted

an important mechanism for illicit party financing throughout that period.

The 1989 reform of the Estatuto dos Deputados was neither a rigorous nor corrective

measure against these widespread practices. MPs were forbidden to accumulate their

parliamentary mandate with membership on the board of directors of public companies,

autonomous public spending institutes or any company in which the State was a major

shareholder, but similar to what happened in relation to local elective offices, a regime of

suspension and temporary substitution was created as an exception to the rule. The regime

15

created conditions for MPs to exercise their mandate interchangeably with the appointed

positions. MPs could suspend their mandate for a period of 45 days during every legislative

session to exercise their managerial functions or directorships in the parapublic sector. While

“accumulation” with managerial functions has decreased in frequency as a consequence of the

substantial reduction in public enterprises for the past two decades, the inverse has happened in

relation to senior positions in public institutes, foundations or quangos. In February 1992, the

Communist Party presented a project of law calling for the prohibition of this type of

accumulation. The ruling Social Democrat majority at the time reacted but the new procedures

adopted with the 1993 reform of the Statute of MPs fell short of outright prohibition. The regime

of suspension and temporary substitution remained operational to the cases previously defined by

the Statute, while those MPs who held governmental appointments or representations not

proscribed by law were required to inform the President of the Assembly about such

appointments, who would consequently inform the Commission on Mandates and Regiment.19

The principle of transparency was reinforced, but accumulation became a lawful entitlement.

In France, article 144 of the Electoral Code regulates governmental appointments to MPs,

but the parameters set are vague and susceptible to interpretation by the Assembly’s bureau. An

MP that has been appointed to a governmental/ministerial representation (chargé de mission) for

more than six months becomes temporarily qualified as a public official, thus unable to

accumulate his/her new position with the parliamentary mandate. The impediment has been in

operation since 1949 (Loi Electoral du 16 mars), but its application has been less than optimal.

The rule seems clear with regard to ministerial appointments, but less so for a myriad of other

governmental representations and appointments. The reasons have been twofold:

this mechanism has become a common practice to all parties in government, there is no clear definition of what a “temporary ministerial mission” means;

the regime is not clear as to whether an MP is forbidden to accumulate his/her parliamentary

mandate with a “temporary ministerial mission” longer than six months during the same legislature or if each ministerial mission cannot exceed six months, which in practice means that MPs can be in charge of a maximum of ten missions of six months each. In other words, MPs would accumulate their parliamentary mandate with a “temporary ministerial mission” for the whole legislature (5 years!).

Some appointments, however, have been addressed by recent regulation. The Loi 95-63 of

19 January, which introduced a new article 146-I to the Code Électoral, has barred MPs from

holding a position in a council which was not theirs prior to their mandate. This impediment

aimed at curtailing MPs from accumulating legislative functions with specific deliberative ones,

but the exercise has been a reaction to excess accumulation rather than a clear stance against

conflicts of interest. It suffices to say that a similar impediment was not extended to those

16

members of councils recruited from the private sector, whom remain subject to special statutes.

4. Incompatibility between the parliamentary mandate and other mandates

Another set of incompatibilities are meant to address the disfunction and inefficiency

caused by the accumulation of different elective offices. In other words, incompatibility between

different mandates aims to curtail the possibility of having one man pulling several levers at

different levels of government. In some cases, these impediments are straightforward. Countries

with a bicameral tradition preclude members from being members of both chambers.20

As der

Hulst puts it,

‘This is a logical rule in the light of the theory underlying bicameralism. Either the second house is there to ensure a “second reading” of legislative instruments, in which case an upper house composed wholly or partly of the same members as the lower house makes little sense, or else the upper house is not a mirror image of the lower house and is supposed to represent specific segments of the population or components of the State (particularly in federal systems), in which case, it is equally illogical to allow a person to be a member of both houses concurrently’ (Van der Hulst 2000, 50).

Countries display different traditions in regulating the accumulation of mandates. Not

always has this sort of accumulation been interpreted as unfair or prejudicial to democratic

government. Until very recently, the plurality of mandates held by a single person remained a

convention in most European liberal democracies. To some extent, this practice was viewed as a

reflection of “the people’s will” and a means of encouraging the masses (especially those in rural

peripheral areas) to participate in the political life of the country.

4.1. Cumul des mandats

An important feature of the French political system is the possibility of accumulating

national with local elective offices. The so-called cumul des mandats is not a new manifestation,

but has assumed worrying proportions during the two last decades.21 This growth has been paved

by a series of political and institutional conditions: the diminished role and prestige of parliament

and the concentration of power by central administrative elites. Political elites have continously

ignored national/local conflicts of interests and this has also permitted the cumul des mandats to

expand and become one of the most deep-sited conventions in French politics.

For a long time, both ruling elites and the public at large have accepted it as a normal

feature of the political and administrative processes. The clientelistic exchanges helped by the

17

accumulation of several elective positions constituted those “white forms” of corruption

commonly tolerated in French political society. A nationally or European elected Mayor using

his/her privileged position at the regional, national and European levels was regarded as a plus of

representative democracy by the local electorate concerned. For the Mayor-MP, working at the

national or European level as a parliamentarian became a sporadic activity and always with

reference to his/her local elective office. Cumul was considered functional to the representation

of local needs and problems at the national level. It served as a means for local political elites to

counterbalance the jacobin state. The cumul has permitted these to be organised, so-to-speak, as

an interest group in parliament. As Mény observed,

‘le cumul des mandats en France “organisent” la pression du local sur le pouvoir central. Les initiatives de ce dernier sont immédiatement endiguées, amendées, mises sous contrôle dès lors u’elles ne satisfaisont pas les exigences des deux groupes de pression essentiels: celui des petites communes et celui des grandes villes’ (Mény 1996, 439).

The decentralisation introduced by the laws of 1982-83 changed little; on the contrary, it

increased the political elites’ willingness to accumulate, given that protagonism at the national

level was guaranteed by the capacity to deliver at the local level. The lack of a tradition in

intermediary territorial bodies partly explains the complex relations created amongst local

authorities and between these and the central administration with the laws of decentralisation. In

such a maze of confusion and opportunities, the accumulation of both national and local

mandates (the mayor who becomes MP or the MP who has to guarantee his/her root support, the

so-called “parachuté”) has transformed local mayors into a sort of policy-brokers. Given the

diversity of resources, institutional complexity and the mingling of local-national interests, the

Mayor-MP will use specific instruments, for example, a selective public works policy, to

withdraw advantages to his/her clienteles, while guaranteeing at the same time continuous

allegiance and support to his permanence in office, pork barrel politics (Mény 1996, 436). The

ability to withdraw benefits for local clienteles is directly related to the possibility of a single

political actor being placed strategically at different levels of decision-making. Hence, from a

means to counter-weighing the excessive power of central administrative and political elites,

cumul became simply a means to defy any workable system of checks-and-balances.

Today, cumul, besides creating an inevitable confusion between local and national

political dimensions, also poses a serious threat to the meaning and applicability of

Montesquieu’s principle of division of powers. In no other European democracy, is the influence

of mayors upon national politics so clear and strong. In a country where clientelistic practices are

still present at local power structures and powerful Mayors are central to the central-periphery

relations, the cumul has created a propitious ethical environment for the most pernicious forms of

political behaviour by concentrating power in the hands of a few men. It is not difficult to discern

18

that the Mayor of a large city, who is also secretary of State for the treasury, will be a valuable

asset for any medium-sized local businessmen who will look for an advantageous tax concession

by his minister and friend. To the incumbent party, the operation is simply natural and essential

to its mechanisms of financing. A happy client is also a successful party donator! Cumul remains,

therefore, a privileged mechanism at the disposal of powerful Mayors to forward their clients’

interests at other levels of decision-making. By the late 1980s, Mayor-MPs were known for

cashing in a series of illicit inducements at the local level, for personal or party enrichment, to act

as mediators between demands from their clienteles and favours granted by central authorities.

Not only did the vast majority of Mayors accumulate other political offices, but they also had

considerable influence over executive councillors and controlled directly a myriad of private and

semi-public companies (especially in the areas of urbanisation and industrial development) and

local public spending bodies. It is at the local level that the phenomenon of protagonism is often

directly related to unaccountability and unrestrained power/influence. Not surprisingly, most

instances of corruption which took place in France during the early 1990s, involved politicians

performing at different levels of decision-making (local/national/European) and across different

spheres of activity (public/private, elective/market). As Mény observed,

‘La corruption à la française fonctionne à la confusion des rôles et des genres… Qu’on ne se méprenne pas: tous ceux qui cumulent ne sont pas corrompus heureusement! -, mais la structure du cumul et plus généralement la tolérance à l’égard du conflit d’intérêts sont au coeur du problème’ (Mény 1999, 128).

Cumul did not remain solely a problem confined to national borders. The multiplication of

decisional centres - local, regional, national, European – and the possibility for the same

candidate to accede and accumulate different elective positions, hinders the alternation of ruling

elites and helps to create vicious circles for undue influence as well as the expansion of

clientelism at the European level. The First Report by the Committee of Independent Experts on

Allegations Regarding Fraud, Mismanagement, and Nepotism in the European Commission,

which would culminate in the Commission’s decision to resign, found a strong link between the

practices of favouritism and clientelism by M. Berthelot and the faculty of his principal, Mme

Cresson, accumulating her status as a Commissioner with that of Mayor of Châtelleraut:

‘8.1.26. Virtually all his [Mr Berthelot’s] missions were to Châtelleraut. On this essential point in the case, we consider it highly unlikely that these missions could be justified in the interests of the Commission. That strongly suggests (despite the above-mentioned note of 8 July 1996) that the missions must have been mainly undertaken in the personal interests of Mrs Cresson when mayor of that town. Such a situation gives rise to a confusion of interests between Mrs Cresson’s dual status as a Commissioner and as Mayor.’ (First Report, 15 March 1999, 128).

Countries have decided on different arrangements for territorial politics, so as to integrate

some local elements and demands at the national level. The cumul des mandats was the French -

19

rudimentary - response to this lack of communication and co-operation in centre-periphery

relations. The persistence of this precarious arrangement has increased ‘la résistance au

changement en raison de l’intérêt commum des deux catégories d’élites pour la conservation de

structures et de circuits de relations qui conditionnent leur maintien au pouvoir’ (Mabileau 1987).

For that reason the attitude of the French political class in curtailing cumul has been paradoxical:

“excessive accumulation” is perceived as morally wrong, but “some accumulation” continues to

be conceived as functional! The legislation of 30 December 198522 reflects this attitude: instead

of an outright ban on accumulation, the regime introduced new ceilings. In principle, the fear of

having one man pulling several levers at different levels of decision-making has been present

during the different legislative waves. In practice, however, Mayor-MPs have acted cohesively as

an important pressure group and reforms have fallen short of outright bans on accumulation. The

quality of Member of Parliament was no longer compatible with more than one of the following

elective offices: Euro-MP, Regional Councillor, Councillor of the Assembly of Corsica, General

Councillor (and other assimilated elective offices), Councillor of Paris, Mayor of any town of ≥

20.000 inhabitants (other than Paris), Vice-Mayor of any town of ≥ 100.000 inhabitants (other

than Paris). But the elections of March 1986 continued to show the prevalence of this convention

in French politics: out of the total of MPs elected, 265 were Mayors, 273 executive councillors,

113 regional councillors, 22 councillors of the city of Paris and 4 members of overseas

assemblies, not to mention those who were also municipal councillors. The extent of this practice

was even greater if the possibilities of accumulating other political offices at the regional level

were taken into consideration: the majority of presidencies of general and regional councils were

held by parliamentarians and senators. In France, the beginning of a national political career, be it

parliamentarian or ministerial, requires a solid local legitimisation and experience (Mény 1996,

444).

A similar negative attitude towards reviewing legal constraints to cumul can also be found

at the Senate. Here, the argument favouring the accumulation between local and national

mandates had to do with the functionality of the system of representation. Senators are often

elected in a very indirect and undemocratic fashion and this poses considerable problems to the

credibility and legitimacy of the Senate as the “grand conseil des communes de France”. For

these political actors, cumul served as a means of democratic legitimisation, i.e. to make senators

closer to the problems of local populations who they ought to represent. During the recent

legislative interventions, Loi Organique 2000-294 and Loi 2000-295 of 5 April, senators made

their position prevail against a general willingness to bring cumul to an end at the national

Assembly. The first legal document aimed at reviewing incompatibilities between mandates on

two fronts: 1) a new article LO 137-1 was introduced to the Electoral Code prohibiting MEPs

from accumulating their national mandate (whereas before they were given an option, now they

20

were forced to cease their national elective functions); 2) article LO 141, prohibiting MPs from

accumulating “more than one of the following mandates”, was extended to include the elective

position of conseiller municipal d’une commune d’au moins 3500 habitants (a 30 day deadline

was set for the application of the new limitation). The second legislative document aimed at

curtailing cumul and regulating the conditions of their exercise by modifying art. L 46-1: the

position of conseiller municipal was added to the list of elective offices which cannot be

accumulated. Because the incompatibilities set by organic law imply changes to the Constitution,

the document has to be implemented in parity with regard to both MPs and Senators and,

consequently, receive the approval of both parliamentary chambers. The Senate, however,

decided to veto23 the project for reform, following its approval in parliament, because it

considered that the restrictions to cumul were contrary to the right of eligibility guaranteed by the

Constitution. The ordinary bill, on the other hand, was approved modifying the Code général des

collectivités territoriales and declaring an incompatibility between local elective functions and

the quality of MEP or member of the European Commission. While Senators’ claims about the

unconstitutionality of the project of law were discarded by the C.C.’s decision of 30 March

2000,24 the legal differentiation set between MPs and Senators (who were regulated by organic

law and therefore escaped new limitations to cumul) and MEPs (who were regulated by ordinary

law and hence forced to cease their local elective functions) was reinstated. The C.C. considered

that the competencies of the European Parliament are specific and different from those of

national parliamentary chambers; hence, the legislator can decide to place constraints on MEPs

that will not necessarily be applicable to MPs or Senators. While on this occasion the Senate

raised major obstacles to reform, the national Assembly and Jospin’s government have equally

preferred the status quo to further restrict cumul des mandats. The National Assembly could have

accepted the introduction of restrictions on cumul for its own members, despite the Senate’s

opposition to the passing of a common provision. Even if the creation of differentiated regimes

between both representational chambers would probably meet the disapproval of the

Constitutional Council, it would still be possible for the National Assembly to take the initiative

and raise a high moral ground against the Senate. Instead, MPs opted for a minimum common

basis of agreement between both houses. Setting restrictions on cumul remains a sensitive area of

reform that overlaps party interests and often leads to “corporate” decisions amongst all parties

and between members represented in both chambers. Moreover, the government could equally

have drawn political advantage from the Senate’s position by claiming a high moral ground

against the opposition on this tentative reform. Given the present partisan disposition of both

chambers – the National Assembly is predominantly left-wing, whereas the Senate is right-wing

– the Senate’s rejection of further restrictions on cumul, approved beforehand in parliament,

would have scored in favour of the incumbent party. More importantly, the unpopularity cumul

21

has registered in recent years in the French public opinion would have been sufficient grounds

and an easy way for Jospin’s government to push the issue towards a referendum and,

consequently, overcome the constitutional obstacles relating to the implementation of an organic

law. Yet, this did not happen. The government seemed unwilling to challenge the French

Establishment. In this line, the reforms of 1985 and 2000, which set a limit on cumul des mandats

to no more than two, 25 have to be interpreted as a response to the symptoms of excessive

accumulation – the abuse of power, the accumulation of privileges and salaries by a single actor,

parliamentary absenteeism – rather than its pathology, i.e. the conflict between local, national and

European levels of decision-making. These parameters of reform were neither corrective to the

dysfunctionalities caused by accumulation nor congruent with the principle of division of powers

at stake. On the one hand, it did not resolve the problem of parliamentary absenteeism: the

possibility of MPs exercising other elective positions (even if some are limited) adding to a

myriad of sinecures and professional activities MPs can accumulate, left no doubts as to the

prevalence of this symptom in the French system of representation. The limitation in number,

rather than an outright ban on this sort of accumulation, means that MPs accumulate less, but

they all accumulate.26 On the other hand, the regime provided a limited list of elective offices that

MPs could not accumulate par raison de convention, instead of setting incompatibilities between

functions (local vs national; deliberative vs executive) par raison de principe. The French

codified approach to impediments falls into legal minimalism: cumul is permitted in so far as

incompatibility regimes do not specify the elective offices concerned.27 The convention becomes

a lawful entitlement. Moreover, there is a great risk that parliament will gradually become a

political stage for local problems to be debated and negotiated to the detriment of matters

pertaining to the national, European and international dimensions. As Mény warned:

‘Nous manquons aujourd’hui d’une véritable classe politique nationale qui ne soit plus simplement le principal lobby local à Paris. Le décompte des absences et les statistiques parlementaires témoignent d’un fait brutal: le parlementaire préfère le local au national’ (Mény 1997, 38).

The French legal-political tradition regarding the accumulation of mandates continues to

depict a weak culture on conflict of interests between local and national levels of decision-

making which stands contrary to the ethical standards upheld by the majority of citizens.

4.2. Regime of suspension and temporary substitution

The Portuguese political class displays a similar attitude towards national/local conflicts

22

of interest, even if the solution adopted is slightly different. The efforts to regulate accumulation

between national and local elective office results essentially from the tension between a

modernising element of reform, which demands an outright ban on this sort of practice, and a

pragmatic element of reform, which tries to cope with traditional forms of interest, mobilisation

and representation, and, hence, still perceives the accumulation of mandates as functional to the

system of representation. There are two elements to take into consideration when attempting to

understand why the accumulation of national and local mandates is normal practice in Portugal,

although it should be noted that the number of elective positions that can be accumulated is

smaller than in France.

On the one hand, there is a discrepancy between the constitutional definition of

parliamentary mandate and the reality of the system of representation. In principle, MPs are

constitutionally defined national representatives. The plurality of local interests underlying the

different candidacies are subject to a higher “general interest” which representatives are supposed

to promote. In practice, however, most MPs have had a local political career and there is a strong

probability that they will make their local interests prevail while in parliament. In other words,

given that parties are still essentially parties of cadres with weak foundations at the local level,

the system of representation relies on other traditional forms and mechanisms of interest

representation. The centrality of local barons in national party structures and the prevalence in

parliament of MPs who have had previous experience in local government are not surprising.

According to Magone, the number of MPs from the IV to the VII legislatures (1985-1999) who

had previously held local executive and deliberative functions ranges from one-fifth to a half of

the total number of seats in parliament (Magone 2000, 361-363).

On the other hand, the regime of incompatibilities in place has been permissive with

regard to the accumulation of local and national mandates for brief periods of time, denoting how

central the mobilisation and protection of local interests and clienteles are to the functioning of

the political system. For local elective officials, a place in parliament is highly valued in so far as

the regime of incompatibilities allows them to exercise interchangeably their national and local

mandates. While their interests are locally based, parliamentary office is an advantageous means

to benefit their local clienteles. The so-called regime of “suspension of mandate”28 introduced by

the Estatuto dos Deputados in 1985 is a schizophrenic compromise between modernity and

clientelism. In principle, the regime of suspension and temporary substitution aims to curtail the

simultaneous exercise of both elective mandates. In practice, however, not only can Mayors or

executive councillors qualify as candidates during a general election without first having to

abdicate from their local elective position, but once elected as national or European MPs they are

entitled to maintain their local mandate (even if they formally cease their previous elective

23

functions).29 In other words, the regime creates the conditions for both mandates (national-local

or European-local) to be exercised interchangeably by a single person for brief periods of time.

MPs can suspend their national (or European) mandate for a maximum of 45 days in each

legislative session in order to exercise temporarily their local elective functions.

The argument behind opting for a regime of suspension and temporary substitution,

instead of the simultaneous exercise of both mandates, was that of broadening the national

political class and the representation of interests, while securing, at the same time, the presence in

S. Bento of MPs with strong local interests. Besides, the move towards an outright ban on

accumulation was severely contested on the grounds that it would deprive national representative

institutions from a local input.

Although Portugal does not suffer from the absenteeism caused by excessive

accumulation, the regime of suspensions and temporary substitution also has its functional

problems. The practice has become pervasive in parliamentary life to the extent that the

overseeing body (i.e. the Presidency of Parliament) has lost track of the exact number of

substitutions granted. More important than this material dysfunctionality is the fact that

legislators have shown a tendency to institutionalise particular situations of conflict of interest

and clientelism. The reforms of 1989 and 1993 to the 1985 Statute of Parliamentarians have

curtailed some of the formal justifications for MPs to suspend their mandate and appoint

substitutes to represent them in parliament, but the regime of substitution has remained

untouched in relation to the exercise of local executive functions.

The reason for this ad-hoc concession to MPs with localised interests mirrors the weight

local barons play in national politics and the prevalence of centre-periphery clientelistic networks

upon which parties and the system of representation rely at the local level. The “Mayor-MPs” or

“Mayor-MEPs” mobilise masses locally and represent/promote local interests at the national and

European levels, or even at the European level, in a way that parties have never been able to

provide. Moreover, public investment in local government depends largely upon the ability of

local Mayors to lobby at different decision-making levels, which explains their success and

protagonism as well as the indifference of local populations towards the regime of suspension

and temporary substitution. Electoral success is made possible due to the massive material and

financial support of local clienteles. For local electors, such conflict will not be considered a

challenge to the ethical foundations of democracy, not even when certain disfunctionalities are

made visible, provided that material advantages derive from such clientelistic networks. This was

the case of Fernando Gomes,30 who was able to accumulate his position as Mayor of Oporto (the

second largest city of Portugal) with a parliamentary seat in Strasbourg. The Law 9/90 of 1

March, introducing incompatibilities with political office (other than national MPs) and senior

public officials, allowed Euro-MPs to accumulate local elective office. Fearing the protagonism

24

of the Socialist Mayor, some months later the ruling Social Democrat majority passed a revised

version of the regime of incompatibilities (Law 56/90 of 5 September). The Constitutional Court

then declared incompatibility, but had later to review its position with considerable

embarrassment, since the new regime was not applicable to Gomes’ case. Mr Gomes could then

remain king of both thrones, with overwhelming support from his electorate. The fact that Mr

Gomes EMP had barely set foot in any plenary session in Strasbourg did not cause any negative

reaction upon his local supporters. Local electors were simply “happy” with the fact that “their

man” was able to bring financial and material benefits to Oporto at different levels of government

through the accumulation of both mandates. The prevailing attitude of indifference, if not

contentment, was allied to the fact that the vast majority of infrastructural works which took

place in Oporto during the early 1990s, owed much to the “agility” and “cleverness” of this

“Mayor-MEP”. If the disfunctionality felt in Strasbourg was ignored by local populations, what is

even more worrying is that no condemnation of such conflict of interest or the absenteeism

caused by the accumulation of both mandates ensued from the European Parliament Bureau.

The continuing unwillingness to tackle national/local conflicts of interest, coupled with

the weakness of parties as mechanisms of representation and the diminished reputation of

national representative institutions, partly explains the persistence of patrimonial forms of

political representation and centre-periphery clientelism. The interchangeable exercise of national

representative/deliberative functions with local executive ones has proven to be a serious obstacle

to the modernisation of the political system and an important opportunity structure for illicit

behaviour. Recently, legislators have considered reviewing the regime of suspension and

temporary substitution between national and local mandates, but only as a consequence of two

recent cases of impropriety involving MPs with strong local interests. Before presenting the 2001

Budget to be voted in parliament, the Socialist government was aware of the difficulty in passing

a full version of his budget, since all opposition parties pledge to vote against it. In order to avoid

going through a painful negotiation with the opposition parties, and hence agreeing on some

some concessions and changes, Prime-Minister Guterres sought a realpolitik technique typical of

the 19th century caciquismo: persuasion through the redistribution of public money to local

authorities as an alternative to modern techniques of bargaining and accommodation. Aware of

how weak and fluid local party structures and the allegiances of elective officials to their national

parties are, Guterres secured the budget’s approval by coaxing Daniel Campelo MP, member of

the opposition party Partido Popular, to abstain. “Pork barrel” politics at its best! The price of

that abstention was the government’s commitment to invest large sums of money to make viable

a cheese-processing factory in the small northern town of Ponte de Lima, of which, not strangely,

Campelo MP is also mayor.31 The practice was not, in any measure, different from the persuasion

techniques used during the previous Social Democrat majority. However, on this occasion, the

25

matter at stake was not solely that of conquering the allegiance of local mayors to the incumbent

party’s policies and programme (bandwagoning), in order to secure its popularity at the local

level; it was a clear and successful attempt “to buy” the vote of an MP by making use of selective

rewards/incentives and promises. The case was regarded with particular distaste by part of the

national public opinion, because it concerned the passing of one of the most important laws of

any country, i.e. the budget, by resorting to “pork barrel” methods. As for the majority of citizens

at the local level, those of Ponte de Lima comprised, such a persuasive practice was viewed as

politics as usual. Another case of impropriety, first disclosed by an investigation initiated by the

newspaper Público, occupied the tabloids during the same period. It was the story of António

Saleiro, a Socialist MP suspected of illicit wealth and other illegalities while Mayor of

Almodôvar, a small town in the south of Portugal32 and district governor of Beja. The

particularity of this case is two-fold: on the one hand, the case was shelved allegedly due to the

lack of evidence, once again showing that the Portuguese judiciary is unwilling and unable to

deal with corruption by political figures; on the other, the illegality incurred, or suspected, was

closely associated with the MP’s ability to control several levers at different levels of decision-

making.

4.3. The Dual Mandate system

No system akin to the French cumul des mandats or the Portuguese regime of suspension

and temporary substitution, in its occurrence or extension, can be found in Britain. Yet, even

Britain does not lack such opportunities.

In the Westminster tradition, although MPs are elected to represent the interests and

problems of their constituents, parliament has never been a mirror of local problems, interests and

demands. The House of Commons has continuously reminded MPs that the faculty of being

elected at the constituency level should never encroach on the objectivity and independence

required to hold parliamentary office and has always severed national/local conflicts of interest

(Adonis 1997, 111). Traditionally, very few national representatives initiated their political career

on local and regional councils, or had “local connections”. In recent years, however, although

British parliamentary politics have remained nationalised, political recruitment to the House of

Commons has increasingly become localised:

‘For MPs generally and Labour MPs in particular, one of the most frequent forms of constituency connection is as a local councillor with pre-election local government experience increasing among Conservatives from between a third and a quarter to 45.5% in 1992, though falling again to 32.7% in 1997. Among Labour MPs, the figures are much higher, often as high as two-thirds, never less than half, and applying to 63.2% in 1997. Pre-election local government service became more common as the elective

26

local government system developed, largely in the latter part of the nineteenth century: in 1868, only 5.1% of Conservatives and 8.5% of Liberals had held local elective office before first being elected, but increasingly local government became one of the pathways to Parliament, particularly in the Labour Party’ (Rush & Cromwell 2000, 484-485).

In legal terms, parliamentary membership is not incompatible with local elective office.

There is not a single Act or Standing Order prohibiting the accumulation of both mandates. As

MPs are elected, any conflict of interest arising from the accumulation of several mandates is a

matter pertaining to the candidate’s conscience, the (dis)approval of his/her constituents and of

the party who proposes/accepts his/her candidature. The holding of Dual Mandates for more than

one Parliament or Assembly is possible and a number of MPs are, or have been in the past, both

Members of the British Parliament and Members of either the Scottish Parliament, Welsh

Assembly or even the European Parliament. Today, however, it is becoming increasingly difficult

to serve in more than one assembly and more Members of Parliament are giving up the Dual

Mandate system. The standing norm is one candidate, one mandate. This is not so much a

product of the pressures of time inherent to the diverse representative functions the candidate

should assume as a direct consequence of an adverse ethical environment towards such practice.

The lack of regulations prohibiting the accumulation of mandates in Britain is

concomitant with a positive perception of different levels of political influence and the need to

keep them separate. On the one hand, the constitutional position of local elective officials has

been a major constraint to the accumulation of national and local elective offices. British local

government has gradually been overtaken by the committee system, which since the 1830s has

severely limited the concentration of power in the hands of a few local barons. Local elective

office remains essentially an administrative position. The absence of executive mayors has

greatly reduced the incentives for accumulation. As Mény put it,

‘Le “mayor” britannique est à la mairie ce que la reine est au governement du Royaume-Uni: un représentant sans pouvoirs. Généralement élu pour un an, vêtu du pourpe et d’hermine, armé de son marteau de cérémonie, éventuellement doté d’une Rolls-Royce, le “mayor” mène une existence heureuse, éphémère et mondaine’ (Mény 1996, 433).

Even if very few Mayors have had a clear ambition to enter the national political scene, this

convention has not precluded, however, large urban city councils from recently becoming

important stages for competition between national political personalities. The growing

importance and protagonism of local authorities may, in the near future, become a threat to the

present constitutional arrangements and, consequently, increase the need for concrete legal

provisions. However, given the public’s distaste for accumulation, be it of several mandates or

with other professional activities that interfere with their national representative function,

political elites and parties will continue to avoid any conflict of interest arising from Dual

27

Mandates in their Manifestos.

5. Incompatibility with private-sector employment and other professional activities

Placing impediments on private jobs and activities is, perhaps, the most emblematic

illustration of how countries differ in terms of regulating the behaviour of their elective officials.

The moral costs have been heavier or softer depending on traditions of interest representation and

regulation in national parliaments and the prevailing culture of conflicts of interest in political

society. There are, however, common trends across the countries in question: 1) attempts at

limiting accumulation with private jobs are often made simultaneously with reviews of the

salaries and privileges of MPs; 2) the impediments set out tend to be limited, regarding only a

few specific instances of conflict; in principle, the holding of private-sector employment and

professional activities remains compatible with the exercise of a parliamentary mandate.

Traditionally, liberal democracies have considered representation a voluntary function in

political society and this has often entitled representatives to hold outside jobs and interests. This

convention constituted a privilege in relation to other public and elective offices that remained

under a regime of exclusivity. In practice, these extra-parliamentary resources worked as a means

to make up for the low income of representatives in the earlier days of parliament. During the

Third Republic, French MPs continuously complained about their low salaries in relation to the

expenses incurred when carrying out their representative functions or running for a parliamentary

seat. Adding to this functional demand for personal capital, the refined and expensive lifestyle in

Paris also increased the temptation to make up for these financial constraints by accumulating

offices, outside jobs and interests and, inevitably, by engaging in corrupt transactions. For liberal

professionals, the faculty of accumulating their private occupation with the parliamentary

mandate enhanced their availability and readiness to stand for elections. A similar situation could

be found in Britain at the turn of the 19th century:

‘The fact that MPs received no remuneration until 1912 meant that being a Member of Parliament required a private income, a professional or other career, personal wealth, or, from the nineteenth century, financial sponsorship by a trade union, the latter being crucial to the Labour Party. Before 1912 and for many years after, most MPs had private wealth or were able to continue to earn a sufficient income from business or professional activities’ (Rush & Cromwell 2000, 488).

In order to temper the greediness of MPs and to prevent parliaments being transformed into ideal

places for private business, a series of public indemnities and facilities were introduced to soothe

28

the financial costs of representation and, hence, work as an incentive against impropriety in

parliament. Other than their monthly salary – whose rates are variable from one country to

another - MPs have often been granted travel, daily and secretarial allowances, free postage and

telephone calls and advantageous pension schemes.

Parliamentary privilege, or more strictly, the faculty of holding accumulatively outside

jobs and interests has not been interpreted similarly across the different parliamentary traditions.

The Westminster tradition has historically understood parliamentary privilege as ‘the sum of the

peculiar rights enjoyed by each House collectively as a constituent of the High Court of

Parliament, and by Members of each House individually’ (Erskine May 1989, 69). In other

words, “privilege” is composed both by the ensemble of entitlements peculiar to national

parliamentarians,33 “a concession by the people to those who represent them” and a system of

self-regulation. The system of self-regulation not only guarantees that the rights and immunities

MPs enjoy are protected at all times from external incursions/interference (for example, media

allegations against the probity of MPs), but it also ensures that any breach of privilege will be

treated as an offence and duly sanctioned. The fact that no legal/formal restrictions are placed on

the holding of outside pecuniary interests does not preclude MPs from being responsive to

parliament and public opinion at large. Privilege means that MPs can hold outside jobs and

interests, however, 1) MPs are forbidden from entering contractual agreements that interfere with

their work as representatives and 2) interests must be registered and disclosed at all times when

taking part in public business sessions (Erskine May 1989, 384-390). The system of self-

regulation operates so as to guarantee against the abuse of privilege, which, if it takes place

anyhow will be severely sanctioned under the Law of Parliament.

Neither the French nor the Portuguese parliamentary traditions have developed such a

culture against public/private conflicts of interest by its members. Parliamentary privilege has

regularly been interpreted by MPs as a sort of entitlement (and often a constitutional right!).34

Despite the tendency to mystify the “general interest” which MPs are supposed to promote and

defend at all times and to set an ideological loophole between money and politics in public life,

product of a Catholic inheritance, this moral antinomy capitulates when the interests of the

political class are at stake. Using office to enrich oneself quickly is considered bad, but the

accumulation of public and private positions, which constitutes an important opportunity

structure for such deviant behaviour, is largely ignored, if not perceived as being functional to

political representation. The attempt to temper the outright greed of MPs was expressed through a

series of positive duties to parliamentary office, which, in most cases, are nothing but wishful

thinking,35 whilst legal constraints have always been dealt with with great unease:

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regimes of incompatibilities between parliamentary office and private activities are composed of legalistic exceptions, because the orthodoxy allows for accumulation with private jobs and activities;

parliaments have been impotent to discipline their own members on elective-private conflicts of interest. For example, the sanctioning of those who do not submit their patrimonial declarations as requested by law, or do not proceed to their revision when found in a position of conflict of interest, remains minimal. For that reason, parliaments have relied on external mechanisms to supervise and sanction conflicts of interest by its members. The action of external bodies to regulate conflicts of interest in parliament helps to formalise some of these exchanges, while giving the impression that the public interest is overseen and safeguarded at all times.

the net result is that only a few situations of conflict between elective office and private

interests are sanctioned.

France and Portugal have adopted a legalistic and restrictive approach to the problem of

elective-private conflicts of interest in parliament, whereas in Britain the absence of formal

impediments takes place in a context where the MPs’ “contractual agreements” outside

parliament are likely to meet public opprobrium whenever they fail to observe the impartiality

and objectivity required to hold parliamentary office. The absence of legal/formal impediments

and the reliance on the courts of public opinion reflects a higher moral deterrent in political

society to the promiscuous relationship between the representative function and private interests.

However, in recent years, both systems of interest representation and regulation have been at

odds with an increase in the number of cases of impropriety and influence trafficking involving

MPs who exercised simultaneously their mandate with private-sector jobs and activities. The

manifestations varied from one country to another, but the reason for this crescent illegality

seemed common to all: parliaments had been permissive with regard to the kind of contractual

relations MPs had with the business world.

In order to address the public unrest caused by the frequency and extension of such illicit

exchanges, new procedures and/or impediments were set out to curtail undue business influence

in parliament and safeguard the independence and probity of MPs at all times. Although

countries tackled this sort of accumulation in very different ways, there are some common

elements of how reforms took place that seem common to all three parliamentary traditions: 1)

reviewing or placing new impediments on the accumulation of parliamentary mandate with

private or professional activities remains an unpopular reform for most MPs; 2) MPs are

generally proud and protective of their privileges and immunities and have been prone to act

concertedly whenever their standards of propriety have fallen under external criticism; 3)

consequently, any sort of intrusion or limitation by external bodies has been avoided; 4) reforms

30

have always come late in the day as reactions to excess and/or scandal, hence legal impediments

have tended to address exceptions to the rule.

5.1. Self-regulation and the weakening of mores in parliament: privilege, accumulation and sleaze in the House of Commons

MPs holding lobbying and consulting positions has become a widely acceptable practice

in the House of Commons during the last two decades. Throughout the 1980s, ‘many of the

elected MPs at Westminster who should have been doing the job were resorting to lining their

own pockets, peddling influence, or seeking preferment from the Government, as one of the 116

lucky members of the “payroll vote”’ (Leigh & Vulliamy 1997, 38). Outside revenues for MPs

taking jobs with lobbying and political consulting firms increased substantially.36 This was partly

a response to the accrued importance and extensiveness of the State’s regulatory function and the

processes of privatisation in course during that period. If opportunity structures for impropriety

resulting from this sort of accumulation had grown, the moral costs traditionally imposed by the

HC system of self-regulation and parties themselves had been substantially reduced. There was a

shared belief across the floor of the House that any attempt to place legal impediments on MPs

was a threat to their independence and parliamentary privilege and a challenge to the system of

self-regulation. The sovereignty of parliament in matters affecting its members’ privileges was, in

the light of growing allegations of impropriety and public suspicion about a decline of standards

in public life, more a constraint than an engine for reform. As Berrington put it, ‘Sovereignty is

what politicians talk about when they have nothing palpable left to say. […] There are some

issues, when partisan bias or self-interest intervenes, on which the House is tardy to act’

(Berrington 1995, 438). Reviewing the system of self-regulation, strengthening procedures of

interest disclosure and making MPs liable to further disqualification rules have been some of

these issues at stake.

The regulation of elective-private conflicts of interest in the House of Commons was first

dealt with in a 1947 Resolution, which set out the distinction between advocacy (forbidden, since

it places the MP under client instructions) from advice (informative and perfectly acceptable).

This formal dividing line remained, nonetheless, thin. The resolution ‘only prevented, it seemed,

an MP from entering into a consultancy agreement which imposed, in return for payment, “a

binding obligation” to speak, lobby or vote in accordance with the client’s instructions, or to act

as the client’s representative in parliament. It did not prohibit a binding obligation “to advise” the

client on parliamentary matters. Nor did the resolution appear to prevent MPs from “voluntary”

speaking, lobbying, or voting in support of their clients’ interests’ (Leigh & Vulliamy 1997, 43).

On several occasions, however, advice on parliamentary matters slipped into advocacy and

31

influence trafficking, as shown by the Hamilton MP-Greer Associates-Al Fayed affair. During

the Declaration of the 1969 Select Committee on Members’ Interests, known as the Strauss

Committee, it was recommended that paid consultancies should be banned as they were contrary

to the usage and dignity of the House. MPs considered the resolution too restrictive and rejected

it. In 1971, after the then leader of the House, Rt. Hon. William Whitelaw MP, had consulted

both the government and opposition about the proposal made, the Strauss Committee Report was

shelved without debate. This concerted attitude was at the heart of the “culture of slackness”

towards public/private conflicts of interest which had been installed in parliament during the

1980s. The dominant belief was that provided outside jobs, interests and activities were

registered or declared, everything was permissible. Gradually, this trading of legal restrictions for

procedural transparency was not sufficient to guarantee general compliance.

By the early 1990s, repeated scandals had suggested that MPs holding lobbying and

political consulting activities were infringing parliamentary privilege. Growing media allegations

of financial impropriety, traffic of influence and corruption by MPs were immediately brushed

aside by the ruling Conservative Party. One of the forms of corruption that had become a

convention at Westminster was that of commercial lobbyists paying inducements to MPs for

putting questions during the oral sessions of Question Time. The value of these interventions to

the businesses concerned was incalculable and could range from matters of future regulation to

ongoing investigations by the Department of Trade and Industry. The going rate for such

inducements, allegedly £1000 for each question, and the extensiveness of such practice showed

how consolidated the “market” was for this sort of corrupt exchange. The House of Commons

fell into disruption following continuous media allegations of impropriety linked to the disclosure

of outside jobs and activities. The opposition supported by the courts of public opinion played

and important role in bringing the issue to parliamentary debate and reform. On 25 October 1994,

PM John Major announced the setting up of the Committee on Standards in Public Life, first

chaired by Lord Nolan.

One of the main issues of public concern the Committee was assigned to examine was the

position of MPs acting as consultants to multi-client lobbying firms seeking to influence public

policy. The Committee was equally requested to ‘make recommendations as to any changes in

present arrangements which might be required to ensure the highest standards in public life.’37 By

May 1995, the Nolan Committee had issued its first report which concluded that MPs

systematically disregarded parliament rules on the disclosure of outside jobs, interest and

activities. The problem of conflict of interest in parliament once more became central to the

qualitative definition of corruption in British politics, as stated by the Nolan Committee:

‘...there are problems of principle and practice over the separation of public and private interests, which damage the standing of Parliament’ (First Nolan Report 1995, 31).

32

The fall of public confidence in MPs largely had to do with the belief that standards of

propriety in public life had degenerated and a widespread conviction that business and lobbying

activities by MPs were at the heart of this problem. Representation had been seriously damaged

by disfunctions in the system of self-regulation. On the one hand, MPs were devoting less time to

their constituents’ problems, since they were too busy promoting their own and their clients’

interests in Parliament. On the other, there was a growing feeling that “some” (i.e. “big money”

interests) not only had privileged access to the decision-making mechanisms, but they were also

gaining advantages from this influential position. Such practice was therefore perceived as

contrary to the principle of fairness, objectivity and equality that was supposed rule the social

contract between citizens and their representatives. More worryingly, this widespread fear was

supported by evidence. An overview of the 1995 Register of Members’ Interests suggests that the

number of backbench MPs holding paid outside consultancies on parliamentary and other related

matters had grown substantially: 26 MPs had rendered paid consultancy services to public

relations or multi-client lobbying firms and a further 142 in total, around 30% of all MPs, had

consultancy agreements with other types of company or trade associations. Nearly 70% of all

backbenchers – around 389 MPs in total – had one sort or another of financial relationships with

outside bodies relating directly to their membership in parliament.

Despite calls for a substantial revision of the House rules concerning accumulation with

outside jobs and activities, Nolan’s approach to the problem was not revolutionary. Neither the

House of Commons system of self-regulation nor the concept of interest representation were

challenged. The first report was essentially a blueprint for moralisation and reform, conforming

with the spirit of the House. It did not accept the view that control measures over impropriety

should rely on statutory impediments. The measures adopted combined the strengthening of

existing House rules on disclosure, the perfecting of the Register, deontological codes, induction

guidance to MPs and the creation of a new House Commissioner for Standards in Public Life.

The action of the Nolan Committee towards impropriety rising from the holding of outside jobs,

activities and interests can be summarised as follows:

1) The Nolan Committee found no direct link between holding outside employment and the

problem of conflicts of interest and corruption in Parliament. The Nolan Report did not ignore

the fact that paid outside consultancies had become an issue of discontent amongst public

opinion and a source of impropriety. Consultancy clients had exerted undue influence upon

MPs to the detriment of the principles of fairness, objectivity and equality required to hold

parliamentary office. The fear that licit paid advice could shade into illicit advocacy was

33

greatly supported by evidence and Nolan was aware of this opportunity structure for

corruption,

‘If a Member is engaged to advise a client on Parliamentary matters affecting the client and is at the same time free to speak, lobby and vote on the same matters in the House, it is not merely possible but highly likely that the Member will use Parliamentary opportunities in a way consistent with that advice’ (First Nolan Report 1995, 29).

Yet, lobbying MPs was still considered by the Committee to be a fair “system of voice”

through which some prestigious institutions and social organisations could be heard in

parliament in spite of their weakness or lack of constituency structures. Consequently, to

impede MPs from holding jobs with consulting and lobbying on parliamentary affairs would

prejudice other democratic principles deeply rooted in the Westminster tradition of interest

representation. Pluralist interest representation would be negatively affected if access to the

national decision-making bodies was formally curtailed. Despite the principles of

representation invoked, and the functionality of an open and self-regulated system of

representation, the reality of the problem was different. Raising tradition or constitutional

arguments was a deliberate attempt to ignore the distinction between different sources and

purposes of pressure at the parliamentary level and to avoid introducing the necessary checks.

The multitude of interests represented by these firms were not organised to function as

mechanisms of pressure, but to seek “insider traders” to peddle influence on their behalf.

Contrary to sponsorship by organised interest or pressure groups, such as trade unions or

business organisations, MPs do not have direct contact with their private “sponsors” prior to

winning a parliamentary seat. These “sponsors” are not only unknown to MPs, but there is no

representative contract between them. Given the multi-client structure of these firms, any

client becomes a good client. MPs, aware of their privileged position, members of “the best

club in London”, will either seek or be approached by these firms to whom they will give

privileged information, influence or even abuse parliamentary procedures in exchange for paid

inducements. Any deeper reflection on the networks of influence at the parliamentary level

would inevitably question Nolan’s strong belief in the restraints imposed by the system of self-

regulation.

Another argument raised in favour of the increasing number of outside paid consultancies

was the insufficient payment and retirement benefits enjoyed by British MPs. This view,

however, was not sufficient to justify the perceived greediness of MPs in the face of existing

opportunities. Nolan knew that MPs had gone far beyond the attempt of finding compensatory

means to their salaries and showed an awareness of their privileged position to “get rich fast”.

In order to avoid public suspicion, MPs were advised to observe the principle of self-restraint

34

and declare outside interests which could conflict with their public duties: ‘Members with

outside interests should behave in order to avoid conflicts of interest’ (First Nolan Report

1995, 31).

2) According to the Committee’s assessment, the problem resides in the disclosure of these

outside jobs, interests and activities. The enforcement of obligations on the disclosure of MPs’

interests has been ‘less than satisfactory’ (First Nolan Report 1995, 41). Breaches of the rules

of disclosure by MPs have not been properly investigated nor sanctioned by the House.

Moreover, during public business sessions, the position of MPs was not totally analogous to

that of Ministers or local councillors, and the requirements of disclosure relied essentially on

the MPs’ good will to declare those interests in conflict with their public duties. Problems

arose with MPs appointed to Standing Committees. On several occasions, MPs took part in the

Standing Committees dealing with privatisation or regulation in which they had vested

financial interests. There were several situations in which conflicts of interest were evident,

though tolerated. The Committee saw ‘the need for fixed and fair arrangements which provide

for proper investigation and demonstrably fair hearings’ (First Nolan Report 1995, 40), but

such arrangements should always fall under the House of Commons system of self-regulation.

3) Nolan’s recommendations were less far-reaching than expected, but their adoption still caused

great disruption in the House. Recommendations on a mandatory disclosure of outside

earnings, jobs and interests were at first discarded by the Tory government and finally

accepted with considerable moral damage to the incumbent. John Major’s attempt to defeat

media allegations on financial impropriety by Tory Ministers and MPs placed the government

with the difficult choice between introducing those recommendations – in order not to lose the

moral high ground claimed against the opposition - and protecting the interests of its

backbenchers - whose lobbying activities constituted one of the party’s major fund raising

activities! On June 1995, the House of Commons approved the establishment of a new Select

Committee on Standards and Privileges38 to further investigate aspects of “sleaze”, and to

advise on the implementation of Nolan’s recommendations. A month later, the Conservative

government rejected Nolan’s recommendation for a mandatory and full disclosure of outside

earnings. Later, on 6 November 1995, 23 Tory MPs broke rank to ensure the approval in

Parliament of a Labour amendment to reinstate Nolan’s recommendations.

The HC Resolution of 6 November 1995 Relating to the Conduct of Members further

clarified the principles laid out previously in the 1947 resolution. The Register of Members'

Interests sets out new rules governing MPs’ outside jobs, interests and activities, both paid and

unpaid. The Committee on Standards in Public Life is required to publish the Register

35

annually. Despite making disclosure mandatory and introducing new procedures and clear

guidelines to the Register, there are still several ways of circumventing the law and hiding

illicit inducements paid by lobbying firms and consultancies. In practice, resolutions of the

House on the matters of disclosure of interests have always had a low binding character on

MPs. MPs have continuously defied resolutions of the House with respect to entries in the

Register. On the other hand, the House has equally been reluctant to judge fellow Members on

these matters, unless the issues in question involve high moral costs to the parliament. There is

a shared feeling that no MP has the right to be both judge and jury of his/her fellow colleagues

while exercising functions for the Register.

The Nolan Committee restated that paid advocacy constitutes a breach of privilege, but

did not prohibit the opportunity structures for that illicit behaviour, i.e. paid outside

consultancies. Even though any outside contractual agreement hindering MPs’ independence

and objectivity as parliamentarians is prohibited and sanctioned by the House, there were

several arguments raised against the introduction of legal impediments. The first derived from

the House of Commons’ conservativism in dealing with changes to its system of self-

regulation. There was a shared belief that the system worked with only minor disruption, and

this should be a lesson to those who believed that codifying behaviour would be better able to

prevent conflicts of interest in parliament. Against this in-house “justified conservatism”,

public opinion seemed to favour more radical measures against impropriety in parliament.

Nolan’s conservatism then turns to the efficiency of impediments. A ban, the Committee

argued, was “impracticable in the short term” as two-thirds of the MPs held such

consultancies. An outright ban on this sort of accumulation would provoke a “short term

disruption of the business of the House”. There was equally an understanding, at least in some

quarters of the House, that closing the door to political consulting and the lobbying industry

would have had negative implications for party funding, even though the Nolan committee

avoided addressing the extent of this relationship.

Today, the regulation of MPs’ conduct remains the most complex and controversial issue

of British parliamentary reform. On 24 July 1996, a new Code of Conduct and Guide to the Rules

Relating to the Conduct of Members was adopted. Some provisions are devoted to the declaration

of MPs’ outside earnings and interests. Again, the adoption of “Codes of Conduct” instead of

legal constraints reflected a strong belief in the system of self-regulation. The House of

Commons remains sovereign on matters regulating its members’ privileges.

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5.2. The pitfall of legalistic approaches to public-private conflicts of interest in parliament: impeding the excess and institutionalising the orthodoxy

Traditionally, French MPs have been allowed to freely exercise their private activities

with the exception of a few positions or professional activities designated by law and interpreted

restrictively according to the French constitutional tradition and jurisprudence. In the case of

France, the regulation of conflicts of interest between political and private spheres resembles a

“leopard skin”, made of small patches against a mono-colour background of indifference towards

this sort of conflict. Mény writes,

‘Le régime des incompatibilités entre mandat parlementaire et certaines fonctions privées, dans sa définition comme son interprétation, fait eau de toutes parts à la fois parce qu’il ne s’inspire pas d’une éthique de la chose publique (il n’est qu’une mosaïque de mesures de circonstance accumulés depuis un siècle) et parce qu’il ne correspond pas à l’évolution de la politique dans les États développés contemporains’ (Mény 1992, 38).

A close look at the evolution of such incompatibilities shows how limited impediments to

accumulation between the parliamentary mandate and private activities have been and how they

generally represent post-facto reactions to excess and scandal.

The legislative reform of 1928,39 the cornerstone of this kind of incompatibility,40 came as

a result of a series of scandals concerning the indiscriminate appointment of MPs to the board of

directors of several credit and savings institutions, such as “L’affaire Gazette du Franc” and

“L’affaire Marthe Hanau”. The undue association of parliamentarians with savings institutions

caused distortion in the financial market, by providing an illicit competitive edge to those

companies who had MPs on their board of directors. But the impediment set by the 1928 Loi des

Finances was limited in scope and nature. In the words of its rapporteur to the Senate, M. Peres,

‘La peur n’est pas de voir le brasseur d’affaires devenir homme public: ce que l’on vise à empêcher, c’est, en sens inverse, que l’homme public mette à prix, au service de certaines entreprises qui font appel à l’épargne publique, sont prestige acquis’ (Quoted by Frédéric Ancel 1975, 11).

The mode in which the impediment was set constituted a foundation for future legislative

interventions on the issue. The legal constraint specifically addressed MPs who had become

bankers while in office, but left aside those who held such positions before entering parliament.

Only later, with the Ordonnance of 24 October 1958, was the accumulation with directorships or

senior positions in credit and savings institution finally banned. However, the reform changed

little the mingling between financial and political interests. MPs ceased to be bankers, but this did

not prevent MPs from lobbying on behalf of their clients or companies at the parliamentary level!

“L’affaire Stavisky”, in which lawyer MPs had been publicly exposed for having abused

parliamentary office to influence magistrates during court sittings, led to the introduction of new

37

impediments. Consequently, MPs were prohibited from exercising advocacy against the State or

public companies or to participate actively in any judicial process regarding crimes against the

security of the nation, credit and savings institutions or the media, except before the Supreme

Court of Justice. This latter exception permitted Roland Dumas MP to be appointed advisor to

Christian Nucci MP during the judicial proceedings concerning a case of illicit party financing

known as “l’affaire Carrefour du Développement”. Lawyer-MPs were equally barred from

becoming solicitors to companies having commercial relations with the State (including those

supplying public goods and services) or having benefited from public subventions.

The tendency to deal with conflicts of interest in parliament in a circumstantial manner

was also clear during the 1972 reform. The close links between national political and economic

elites favoured by the stability of Gaullism (13 years in office!) and the increased importance of

urbanisation policies (aiming to address the rural exodus of the late 1960s), created an

environment propitious for favouritism and clientelism. The initial indifference felt for such

practices soon reverted into political scandal and reform. Frédéric Ancel concluded:

‘la matière des incompatibilités devait s’étaler dans la presse à propos de la situation des deux principaux adversaires de les agissements allaient entraîner le gouvernement à demander au Parlement de voter une loi de circonstances dont il espérait qu’elle clôuterait la vague de scandales immobiliers et qui s’est vue appeler “loi Rives-Henrÿs”. La “querelle des suppléants” qui éclate en 1974 va permettre au gouvernement Chirac de reprendre le fond du débat lors d’un projet abandonné de révision constitutionnelle.’ (Ancel 1975, 9, italics by the author).

The incompatibility set by the Organic Law of 24 January 1972 to the accumulation of

directorships in building societies and real-estate agencies was a post-facto reaction to the

scandalous practices of favouritism felt during the Pompidou years rather than a serious attempt

to deal with conflicts of interest. Following “l’affaire de la Garantie Foncière”, a new article

15.4 was introduced to the Ordonnance 58-998 of 24 October, preventing MPs from holding

senior positions in ‘sociétés ou entreprises à but lucratif dont l’objet est l’achat ou la vente de

terrains destinés à des constructions, quelle soit leur nature, ou qui exercent une activité de

promotion immobilière ou, à titre habituel, de construction d’immeubles en vue de leur vente.’

[italics by the author]. Again the impediment was tailored to specific cases and had no

applicability to a series of situations of conflict which had been at the heart of recent scandals on

party financing and impropriety. The impediment did not concern those MPs who hold senior

management positions or directorships in building co-operatives (HLM) whose end is not

necessarily lucrative, but who still administer a large slice of public funds.

The reform of 1972 reinstated the spirit of the 1958 Ordonnance. Impediments continued

to concern only directorships, executive or senior managerial positions of societies from

enterprises benefiting from public subventions or any other advantage granted by a public body

or whose main activity evolved around public contracts, supplies or any contractual activities

38

related with the State. Moreover, the law of 1972 also continued to interpret public-private

conflicts of interest in terms of pecuniary incentives to impropriety rather than the opportunity

structures created by accumulating strategic positions in both sides of the fence. This conception

is also evidenced by the exception set out in article 17 of the 1958 Ordonnance:41 MPs who are

also members of a municipal or departmental council are allowed to hold unpaid senior

management positions in several local and regional organisms. Not only does this exception

allow decisional power to be concentrated in the hands of a few men, damaging the principle of

division of powers, but it also permits the mingling of political and local economic interests, thus

increasing the likelihood of corruption.

To no degree has the regime in operation since 1972 worked as a preventive or corrective

measure to conflicts of interest emerging at the parliamentary level. Not only have impediments

between the parliamentary mandate and private jobs and activities been minimal, but the control

exercised has been less than satisfactory. This is evidenced by the way in which the

Constitutional Council has acted to seize, evaluate and sanction conflicts of interest in parliament.

The Ordonnance of 24 October 1958 empowered the Constitutional Council to decide upon

situations of incompatibility between the parliamentary mandate and private activities and to

dismiss MPs from office.42 But the Council’s decisions hitherto have been no less formalist and

paradigmatic than the regime of incompatibilities itself. For example, incompatibility has been

applied to certain directorships, executive or top managerial positions but not extended to the

quality of shareholder (even if majority shareholder). The vagueness of this rule was evidenced

by the Council’s decision on the case of M. Dassault. The Council found that the incompatibility

set between the parliamentary mandate and the holding of a directorship in a company under

contract with the State could not be extended to MPs, who, acting as shareholders (even if

majority shareholders), exercise the rights pertaining to such ownership.43 The C.C.’s decision

became even more tautological when stating that incompatibility would have been applied if it

was proved that the MP who was the majority shareholder controlled the company either directly

or through an intermediary. In the case of Bernard Tapie, the Council decided that the

incompatibility between holding a parliamentary mandate and being the president-general

director of a financial holding (Bernard Tapie-Finance) could not apply to those “sociétés d’appel

à l’épargne” whose activity is not exclusively financial but also industrial and commercial.44

According to the Council’s interpretation of provisions set in article 1 of the Loi Organique of 24

January 1972,45 the fact that M. Tapie’s had publicised his own financial holding on television

proved not to be a sufficient ground to declare incompatibility.

The legalistic approach of the French regime of impediments leads to the

institutionalisation of conflicts of interest in parliament. There are a series of lacuna that MPs are

too keen to explore and that have recently shown to be important opportunity structures for

39

corruption and traffic of influence. For instance, in order to keep to the strict wording of the law a

series of MPs hold non-directive positions in companies with commercial relations with the State.

The reason for this practice must be understood in a context where economic elites have grown

under the State’s umbrella. For most businesses in France having MPs on their payroll is part of

the company’s strategy to stay in business. The “sponsored” MP who holds a fictitious position in

a given company is of great advantage in the sense that he/she can work as an inside trader, a

mediator to the company’s interests at the political level. Advantageous conditions for investment

are sought by lobbying certain Ministers or senior officials on regulatory matters or in order to

seek public subventions or flexible tax regimes from the Treasury. Having an MP (or several)

who does not perform directive or executive functions on the company’s payroll is not a cost, but

the price for an illicit competitive edge. On the other hand, political elites continue to gain from

these promiscuous relationships between parliament and the business world, permitted and

institutionalised by a weak regime of incompatibilities. Mény concludes, ‘la clientèle

professionnelle “nourrit” la clientèle politique et vice versa’ (Mény 1992, 42).

5.3. “Perche nulla cambi, bisogna che tutto cambi”46

There is nothing more appropriate than Tommasi di Lampedusa’s historical scepticism,

“changing everything, so that nothing really changes”, to understand the consecutive waves of

reforms to the Statute of MPs in Portugal.47 In all these legislative interventions, MPs were

unable to create an appropriate ethical framework to prevent conflicts of interest deriving from

the accumulation of the parliamentary mandate with other outside jobs, positions, appointments

or even mandates. The legal mechanisms permitting these opportunity structures for conflicts of

interest were left untouched from one intervention to another. This was particularly the case for

the regime of suspension in relation to Mayor-MPs and other outside jobs and activities. The

accumulation between the parliamentary mandate and private positions had been a common

practice since the early days of the new democracy and was finally guaranteed as entitlement

under the 1985 Statute of MPs. According to article 5(2)(b), MPs were entitled to advocate the

“urgent exercise of a professional activity” as a legitimate ground to be temporarily substituted in

parliament. MPs could return to their professional activities and outside jobs while in office, for a

minimum of 15 days and a maximum of 2 years per legislature, without having to declare them.

This regime, which was later reduced to a single period of 45 days for each legislative session,

remained contrary to any effective control on public/private conflicts of interest in parliament.

The 1989 reform to the Statute of MPs introduced, for the first time, impediments to

private activities (art. 19-A), but the exercise was far from guaranteeing the impartiality and

40

integrity of MPs. The impediments placed on MPs were few and their application was vague.

MPs were prohibited from appearing or participating in any commercial publicity or

advertisement by private entities [art. 19-A(1)(e)]. But that did not preclude companies from

continuously displaying well-known parliamentarians as members of their board of directors or

as external advisors. MPs holding private jobs and activities were precluded from entering any

public competition for the supply of goods and services to the State or any other collective public

entity [art. 19-A(1)(d)]. In practice, however, the impediment only applied to those companies in

which MPs held visible positions, such as directorships or ownership, otherwise permissible if

MPs held fictitious positions, exercised their rights as shareholders or even acted through an

intermediary or family member. MPs were prohibited from taking part, as remunerated experts or

referees, to any judicial process in which the State or any other public entity are parties [art. 19-

A(1)(b)]. But there were no impediments placed on membership in law, consulting or lobbying

firms. In fact, a large number of MPs were members of the major law firms in Portugal, most of

which were often requested to write expert opinions on certain regulatory legislation. Adding to

its vagueness, the impediment could always be lifted through parliamentary deliberation in cases

of alleged “public interest” [art. 19-A(2)]. This mechanism meant the trivialisation of any serious

attempt to deal with growing opportunity structures for corruption and influence trafficking at the

parliamentary level that emerged with the proliferation of parliamentary commissions on

regulation. A new article 19-B was also introduced making it compulsory for MPs to deposit with

the Bureau of the Procurator-General (PGR) a declaration of honour confirming the non-

existence of any incompatibility or impediment. The declaration of non-incompatibility was a

mere formality, liberating MPs from future checks (which were also unlikely to take place), since

the regime of temporary substitution for the “urgent exercise of a professional activity” continued

to guarantee public/private conflicts of interest entering parliament. Yet, the political class

seemed unwilling to proceed with the necessary reforms. In 1993, when the then president of the

Order of Advocates, Júlio de Castro Caldas demanded a complete ban on accumulation between

the parliamentary mandate and the exercise of advocacy, the call for reform immediately

triggered the outcry of 38 lawyer-MPs who threatened to vote against this project.48 While those

pressing for a ban claimed that the reform would dignify the parliamentary mandate – an MP

cannot serve both gods, the public and their clients’ interests – the vast majority of MPs

interpreted such an impediment as discriminatory and conducive to an undesirable professional

political class. Lawyer-MPs argued, not surprisingly, that the problem of influence trafficking

deriving from illicit political lobbying concerned diverse protagonists of whom they were the

least suspected. This attitude was a reflection of the prevailing negative environment towards

impediments to outside professional activities. Certainly, the problem of influence trafficking at

41

the parliamentary level was not restricted to this class of MPs, but what seemed worrying was the

overall unwillingness to preclude MPs from holding lobbying and consulting activities.

The reform of 1989, which finally led to the publication of a new and complete version of

the Statute of MPs in 1993, showed a tendency to emulate the Westminster model with regard to

the regulation of public/private conflicts of interest in parliament. Disclosure was preferred to

setting legal constraints. There were several arguments for impediments to be restricted to

specific situations of conflict which arose when MPs acted on both sides of the fence. First, MPs

believed impediments to private-sector employment were an assault on their parliamentary

entitlements. MPs believed they were able to self-impose ethical standards regulating their

conduct vis-à-vis business influence, and that the introduction of legal impediments was a

dispensable practice (especially if dismissal from office was introduced as a sanction!).

Moreover, there was a general feeling that the creation of “career politicians” was undesirable.

However, contrary to the British case, where “the courts of public opinion” act to impose

standards on MPs, thus ensuring that the system of self-regulation and disclosure of interests

works with very few drawbacks, in Portugal, public opinion and in particular the media play no

role in the monitoring of conflicts of interest in parliament. In this context, setting or reviewing

impediments becomes essentially a cosmetic and “corporate” initiative by members of

parliament. The few impediments placed on MPs contrast greatly with an ethical environment

where little or no distinction is made between public and private interests. Instead of self-

regulation, the reforms of 1989 and 1993 to the Statute of MPs on matters of impediments

created a normative context similar to that of developing countries, that is, of non-intrusion and

non-interference with parliamentary privilege.

By the mid-1990s, the Socialist Party presented two projects of law reforming

incompatibilities to politicians, senior public officials and MPs.49 The project of Law 498/VI was

mainly designed to prohibit lobbying and consulting activities, which had become a way of life in

parliament. The Commission on Constitutional Matters approved, in principle, the two proposals

for reform with a unanimous vote. One month later, the Social Democrat majority rejected both

proposals just before the general elections of October 1995, which would bring to an end its 10-

year rule. While the problem of advocacy and lobbying had been a source of considerable public

concern and an important issue of parliamentary reform in Britain, in Portugal it was met with the

indifference of public opinion and the complacency of its political class. Impediments to outside

jobs and activities have recently been reviewed and extended in the light of these earlier

proposals. The new article 21 of the 1999 Statute of MPs regulates the exception, while the

orthodoxy becomes institutionalised. Notwithstanding the “good will “ of legislators, the fallacy

of the legalistic approach to conflicts of interest prevails. The more detailed impediments to MPs

are, the likelier that their applicability and monitoring will be at odds. MPs have now been

42

precluded from entering, directly as single or collective interested parties or indirectly as

shareholders or acting through an intermediary or family member, any public tendering or

contract with any public or semi-public institution [arts. 21(3)(a), 21-A and 21(3)(d)]. The

detailed nature of the impediment covers several business relations between the State and other

private entities from which MPs can gain directly or indirectly an advantage to themselves, their

family members or their company, but it is by no means exhaustive. For instance, the impediment

does not preclude MPs from putting pressure on behalf of third party clients. In fact, a new article

21(3)(b), now precludes MPs from providing political consulting or assistance to private entities

“whose interests are opposed to those of the State or any public entity”. Again, the measure has

only addressed the symptoms of the mingling of public/private interests in parliament paved by

the regime of accumulation. MPs are still allowed to hold jobs or be members of lawyer,

consulting and lobbying firms. Sanctions on wrongdoers have also been stiffened under article

21(4): those MPs found in a position of impediment will lose their mandate. The degree of

deterrence is, however, minimal. It is the Assembly’s responsibility to investigate the truthfulness

of an alleged situation of impediment by one of its members. But who wants to be an accuser,

policeman, judge or jury in a legal and ethical framework in which MPs have more to gain from

their silence about impropriety than from being at each other’s throats? The answer seems to be:

no one! Even if impropriety was proven and the wrongdoer caught and dismissed from office,

he/she would still “take home the bacon”, whilst the State would only recover his/her wage from

the moment incompatibility was found. With such low costs, disrespect for the law pays!

5.4. Different traditions in regulating the behaviour of elective officials: the constraints of public morale versus the enforcement of legal impediments?

The revision of incompatibility rules between the parliamentary mandate and private jobs

and activities has been part of a wider effort to moralise and improve transparency in public life.

The importance of these legal constraints to the accumulation of outside jobs and activities has

not been understood similarly across countries. Whereas France and Portugal have set legal

constraints on accumulation, Britain has relied more on moral constraints to conflicts of interest

by securing disclosure and public scrutiny of MPs’ outside jobs and activities.

Traditionally, the Westminster model has avoided setting legal constraints on MPs’

outside jobs and interests. The logic behind this mode of regulation is simple: all constraints to

accumulation are bound to be unjust and contrary to the right of eligibility and plural

representation of interests. Why place an impediment on one given professional activity and not

on another? Legal classifications also lead to partial judgements by overseeing bodies. Some

professions or situations of conflict will always be dealt with more severely than others. The HC

system of self-regulation works without placing a preliminary list of impediments on candidates

holding outside jobs and interests, while leaving it to the judgement of parliament, parties and

43

public opinion whether to condemn alleged situations of conflict. This mode of regulating

conflicts of interest requires, a priori, a clear definition of the ethical standards governing the

parliamentary mandate. Creating codes of conduct for MPs is an additional measure which

substitutes the need to selectively pin-point what activities/professions are in conflict with

parliamentary duties. This means that conflicts of interest can be dealt with in a continuum, i.e.

whenever the occasion arises, and not just as a formality when entering office. Without this

ethical environment, the monitoring body would not be able to scrutinise and assess objectively

those situations in conflict with parliamentary duties and exercise a proper deterrence. The

problem of arbitrariness is solved by allowing citizens or any collective entity, public or private,

to seize the competent monitoring body and demand a prompt resolution when a situation of

conflict is confirmed by evidence. In other words, asserting a situation of conflict of interest is

not just a matter between the MP implicated and the overseeing body’s interpretation of

legal/statutory parameters, but also concerns public opinion standards. All situations that seem to

escape the attention of in-house mechanisms of complaint are left to the courts of public opinion.

Allegations on the violation of parliamentary privilege can be referred, at any given time, to the

Privileges Select Committee, which will then act accordingly. The abuse of privilege, which may

result, for example, from advocacy in favour of outside interests, may not always raise a debate

before a verdict is pronounced. There are different ways in which the House of Commons system

of self-regulation may proceed in these cases. In all instances, the decision would be entirely with

parliament, and there would, of course, be no question of an appeal to a court of law (Erskine

May 1989, 82). In short, because there is a general understanding outside parliament of what is

and what is not deemed proper behaviour in “grey” areas where MPs, party Whips or the House

seem reluctant to or uncertain how to act, the system of self-regulation functions with very few

drawbacks.

In France and Portugal, debates about modes of regulation of public/private conflicts of

interest in parliament are not new and have always swung between two ideal poles: a regime of

exclusivity to MPs similar to the one applying to civil servants and the free exercise of outside

jobs and activities. Whereas the first favours the professionalisation of politics, the second

believes parliamentary office should be filled with voluntary rather than career MPs. In practice,

the regulation of conflicts of interest in parliament by setting limits on accumulation is a matter

of gradation: some are more permissive, some more comprehensive, but they all display regulated

regimes of accumulation. Although recent reforms have envisaged a gradual professionalisation

of the parliamentary mandate, for instance by curtailing the number of professional activities

MPs can hold outside parliament, the regulation of public/private conflicts of interest through the

introduction of incompatibilities has been preferred to an outright ban on accumulation. A

complete ban on accumulation with private jobs and activities is technically possible, yet, the

44

likelihood that such a radical measure would curtail conflicts of interest from entering parliament

is not guaranteed. The only probable consequence of such a measure would be a substantial

increase in the indemnities and privileges of parliamentarians. Not surprisingly, setting new

incompatibilities or impediments on MPs or tightening controls over their private activities has

always been dealt with as a trade off for better salary rates and pension schemes. The outright ban

on accumulation is also a problematic solution, because it questions important symbols

underlying the Republican tradition of democratic representation, which MPs are not prepared to

abandon. The first argument presented against this model is that of transforming parliamentarians

into a professional (career) rather than voluntary (occasional) political class. The coherence of the

argument is not unquestionable. Voluntarism is another symbol MPs are keen to invoke

whenever their interests are threatened by the prospect of new impediments. Nowadays, however,

it is not easy to sustain that MPs are simple amateurs of politics, given the amount of money

spent on their campaigns. The reduced mobility and renewal of political elites seems to be

evidence of how the parliamentary class increasingly resembles a closed circle of professionals

living for and from politics. Another argument presented against this radical solution is that of

transforming the representative/legislative function into a full-time job against a background of

insufficient material/working conditions in Parliament. It is true that most national Parliaments

are overcrowded and often do not offer the necessary conditions for MPs to work a full day in

their premises. But it is equally the case that the present complexity of legislative politics requires

full-time commitment by MPs. More often than not, the working hours for seating a legislative

commission are not even sufficient to carry out the necessary work! It is dangerous to believe that

the lack of material conditions can be solved by allowing a large number of MPs to carry on with

their private activities and to be absent from parliamentary works and plenary sessions. The result

of such permissiveness has been widespread absenteeism during voting sessions which are not in

the MPs’ or their party’s interest. There is also no evidence that levels of expertise in parliament

have improved as a consequence of allowing MPs to accumulate outside jobs and activities.

The French and Portuguese attempts at dealing with conflicts of interest in parliament

have opted for allowing accumulation while regulating a series of instances that have been

pernicious to parliamentary representation or have caused scandal. One major issue of contention

raised by MPs holding outside professional activities has been the procedural distinction between

impediments to private or professional activities and incompatibilities to public office. This

statutory distinction is held to be unfair and discretionary in terms of the sanctions imposed on

either public-private or public-elective composite of activities. Impediments force private sector

candidates to sacrifice their interests before entering parliament with the risk of losing their

mandate when a situation of conflict is asserted a posteriori. Incompatibilities to public sector

candidates, on the other hand, grant them the faculty of choice. The latter do not have to resign

45

from the civil service in order to qualify as candidates. This means that civil servant candidates

can safely return to their previous positions following an electoral defeat. Private sector

candidates have also argued that separating them from their previous private/professional

activities may prove fatal to their future reinsertion in the job market after leaving office. The

argument is valid but with clear inconsistencies. If candidates have to risk their professional

activities in order to run for elections and exercise a parliamentary mandate, then one is entitled

to ask why are candidates willing do so? If their conscience dictates that it is time to run for

elections and serve the nation as representatives, then why bother about their private jobs and

activities? In reality, the nature of the argument is another. Instead of claiming a similar regime

of ineligibility to both civil servant and private sector candidates, forcing them to clear conflicts

before entering office, MPs recruited from the private sector are keen to find a common

denominator of privilege. They are prepared to accept the advantageous condition of their public

sector colleagues – i.e. no resignation needed as a pre-condition to qualify as a candidate - in so

far as a similar margin of tolerance applies to them – i.e. unfettered accumulation with their

private jobs and activities. It is true that the French and Portuguese public administrations remain

central to the recruitment of parliamentarians given the very few constraints to the passage of

civil servants from public to elective office and vice-versa. But that should not be a reason to

lower controls and impediments with regard to private sector MPs. Although the regime seems to

be more protective of civil servant candidates in terms of job security, in practice private sector

candidates are more likely to go unpunished for infringing rules of disclosure and impediments.

Whereas incompatibility with public office is visible, thus more effectively sanctioned,

accumulation with private activities can easily be concealed from the monitoring body, even if

candidates are aware that the declaration of such activities is compulsory and non-compliance

entails dismissal from office. The enforcement of legal impediments is often based on a

declaration of honour, complementary to the rules of disclosure of patrimony, which the

candidate is required to make when entering office. The declaration or not of a particular job,

activity or interest held in the private sector (for example, a directorship, a job with a consulting

firm or a share in capital) poses serious implications to verification. The impossibility of

asserting and monitoring possible situations of conflict questions the viability and efficiency of

legal impediments to MPs and hence puts at risk the objectivity, impartiality and integrity

required to hold parliamentary office. Punishing infringement with a swift dismissal from office

does not solve the problem either. The sanction regime to impediments stands on a very weak

and hypocritical principle: dismissal from office when disclosed. Under this “severe” façade, the

regime continues to allow conflicts of interest to become institutionalised in parliament: conflicts

of interest between parliamentary office and private activities are tolerated provided they are not

disclosed to the wider public. Because the evaluation and monitoring of conflicts of interest is

46

exclusively a task of overseeing bodies, closed to public complaints and allegations,

infringements by MPs are unlikely to be raised whilst the political class is generally permissive to

public-private conflicts of interest.

While the way impediments have developed and the efficacy of their enforcement in the

French and Portuguese parliamentary traditions depict a historical uneasiness to control

public/private conflicts of interest, the “antidote” should not necessarily entail the withdrawal of

those legal constraints as proposed by some authors.50 There is a great risk of falling into

complacency and ignoring the potential dangers of “de-penalisation”. Reducing legal constraints

on MPs could only complicate further the already precarious ethical distinction between public

and private interests in these parliamentary traditions. Judging the relevance of legal impediments

by their limited nature and scope and the inefficacy of sanctioning should not necessarily

question the reason for placing them in the first place. It is incongruent to believe that because

incompatibility/impediment rules have low compliance and hence still allow a great margin of

tolerance towards public/private conflicts of interest in parliament, no control or legal

delimitation of boundaries between both spheres should be put in place. The expectation that by

reducing impediments to a minimum electors will be the sole judges of what is permissible

behaviour can only be taken seriously in a context where ethical standards are widely diffused in

political society and upheld at all times. The fact that the House of Commons has traditionally

relied less on external mechanisms to sanction the behaviour of its members and guaranteed

standards of propriety through a system of self-regulation, has been made possible due to the

widespread culture against conflicts of interest in society. The Anglo-Saxon culture shows a

higher degree of awareness and repulsion for public/private conflict of interests, because the way

public opinion has systematically reacted to the exposure of infringement to parliamentary rules

on interest disclosure have had an important deterrent effect upon the political class. In other

words, the moral costs imposed upon MPs are heavier. This does not mean, however, that the

system of self-regulation is exempt of its own problems and failures. By contrast, the French and

Portuguese legalistic/codified approaches have always been compromised due to a dominant

attitude of laxity towards to public/private conflicts of interest in parliament. Parliament, parties,

citizens and candidates have played a minor role in upholding such ethical standards and creating

a culture negative to conflicts of interest.

In conclusion, the reason countries have opted for one or another arrangement is a matter

of political tradition and culture. Whereas the self-regulation model has taken place in a context

where parliament had a long-standing tradition in dealing with conflict of interests by its

members, the legal limitation of accumulation was a more recent and pragmatic solution to

political societies that have not yet developed a comprehensive culture against conflicts of

interest.

47

References Adonis, A. (1997) ‘The UK: civic virtue put to the rest’ in D. Della Porta & Y. Mény (eds.) Democracy and

Corruption in Europe, London, Pinter, 103-117. Becquart-Leclerq, J. (1983)‘Cumul des mandats et culture politique’ in A. Mabileau (éd.), Les Pouvoirs locaux à

l’épreuve de la décentralisation, Paris, Pedone, 207-239. Berrington, H. (1995) ‘Political Ethics: The Nolan Report’, Government and Opposition, 30(4): 431-451. Committee of Independent Experts (1999), First Report, 15 March. Committee on Standards in Public Life (1995), First Report, Volume 1, [Chairman Lord Nolan. Presented to

Parliament by the Prime Minister by Command of Her Majesty, May 1995], London, HMSO, Cm 2850-1. Erskine May (1989) Parliamentary Practice – The Law, Privileges, Proceedings and Usage of Parliament, London,

Butterworths, (21st edition). Leigh, D & Vulliamy, E. (1997) Sleaze – The Corruption of Parliament, London, Fourth Estate. Mabileau, A. (1987) ‘La limitation du cumul des mandats: illusion électoraliste ou modernisation démocratique?’ in

Annuaire des Collectivités Locales 1986, G.R.A.L., LITEC, 8-19. Magone, J. (2000)‘Political Recruitment and Elite Transformation in Modern Portugal 1870-1999: The Late Arrival

of Mass representation’ in H. Best and M. Cotta (eds.), Parliamentary Representatives in Europe 1848-2000: Legislative recruitment and careers in eleven European countries, Oxford, Oxford University Press.

Mény, Y. (1997) propos recueillis par Chantal de Rudder in “Le Manifeste Anti-Cumul: Un seul Mandat par Chaque Élu”, Le Nouvel Observateur, 3-9 Avril.

Mény, Y (1996), Politique comparée – Les démocraties Allemagne, États-Unis, France, Grande-Bretagne, Italie, Paris, Montchrestien, (5e édition).

Mény, Y. (1994) ‘Corruption: Leçons françaises du cas italien’, Le Monde, Débats, Vendredi 30 septembre. Mény, Y. (1992) La Corruption de la République, Paris, Fayard. Rush, M. & Cromwell, V. (2000) ‘Continuity and Change: Legislative recruitment in the United Kingdom 1868-

1999’ in H. Best & M. Cotta (eds.), Parliamentary Representatives in Europe 1848-2000: Legislative recruitment and careers in eleven European countries, Oxford, Oxford University Press, 463-492.

Van der Hulst, M. (2000) The Parliamentary Mandate, Inter-Parliamentary Union. Endnotes 1 ‘Dans son sens anglo-américain l’expression implique, de maniére générale, qu’un fonctionnaire ou un homme politique devra s’abstenir de toute situation qui aurait une influence négative sur son impartialité.’ (Mény 1992, 30). 2 In Portugal, the law 42/96, which came to review incompatibilities and impediments to elective and senior public officials, introduced a new art. 9-A (previous professional activities) aimed at constraining situations of conflict taking place before entering office. Elective and senior public officials – MPs excluded! – who have detained directive positions or a certain share in capital in private companies during the three years prior to entering office, were excluded from celebrating any contract or from being suppliers of goods and services to the State or any public entity to that effect and to take part in any public decision or administrative procedure, such as the concession of change of authorisations and licensing, acts of expropriation, the concession of patrimonial benefits, in which those companies were parties. These impediments were obviously aiming at safeguarding the impartiality and rectitude of office holders during any contractual or commercial relation between the state and any public entity and private actors. An interesting exception, however, was set by art. 9(2): those who have detained those directive positions in private companies doing business with the State by public appointment were excluded from such impediment. This exception is particularly dangerous, in the sense that it does not demand the same requirements of impartiality and rectitude from those ministers or secretaries of state recruited from the B.o.D.s of newly privatised public and semi-public companies. The consequence is both situations of personal enrichment at the ministerial level due to the use of privileged information and the establishment of solid clientelistic and privileged relationships between the executive and these companies in detriment of fairness and impartiality. The document aimed at reducing the opportunity structures for corruption emerging out of situations of conflict of interest, yet there was great disparity in relation to the penalties imposed to elective or public officials. Article 14 provides that any acts and contracts celebrated under these conditions will be considered null and the senior public officials who have acted in conflict will be suspended from their duties for a period of 3 years. Elective officials, i.e. governmental officials, are excluded from punishment. One practical reason for that is the fact that their mandate might have ended by the time a conflict of interest is ascertained. In practice, this means that the proclaimed standards of “exemption” and “rectitude” demanded by this legal document to elective officials can only be

48

safeguarded if the government, its leader, or the party in parliament, imposes a political sanction, something highly unlikely to be put into practice. 3 A comparison between two Gallup polls realised in 1984 and 1995 respectively, showed that 64% of the public agreed that “most MPs make a lot of money by using office improperly”, a figure that has risen from 46% in 1984. The same survey showed 77% of the people interviewed believed that “MPs care more about special interests than about people like themselves” compared to 67% scored previously. 4 These reforms were part of a broader parliamentary reform that took place during the late 1980s and early 1990s that included other complementary measures such as the disclosure of interests, patrimonial declaration and registries, immunities of parliamentarians. 5 In Portugal, for example, the Laws 9/90 of 1 March (art. 11) and 56/90 of 5 September (art. 7) introduced new incompatibilities to political office similar to those of senior public officials, whereas parliamentary office remained subject to special regulation, i.e. the Statute of MPs. 6 Article 308 of the Portuguese Constitution had also deprived from being eligible those candidates who had previously exercised senior positions during the authoritarian regime. This electoral incapacity was product of the revolutionary spirit of the early constitutional document. In practice, however, such incapacity has never prevented the continuous association of party leaderships with senior officials from the authoritarian regime, who have been able to preserve and further their political careers in different parties. 7 In France, eligibility has been traditionally interpreted as a condition asserted prior to elections. In this sense the concept was closer to that of electoral incapacity: ‘Etant d’abord une patitude à être élu l’éligibilité doit normalement se constater avant l’élection.’ More recently, the concept of eligibility has been interpreted not only as an aptitude to be elected – asserted prior to elections – but also as an aptitude to exercise a mandate – asserted after elections. In this line, ineligibility moved away from the concept of electoral incapacity and came closer to that of incompatibility (even though the two are still understood as separate concepts). Accordingly, art. LO 136 of the French Code Électoral states that ineligibility is proclaimed, followed by swift dismissal from office, to any MP who after being elected is found in a situation of ineligibility or who has not cleared (or contested) that ineligibility in time or who has been found in a situation of ineligibility during the exercise of his/her mandate. 8 Re-enacted from the previous HC Disqualification Act 1957. 9 Cf. Section 1(1)(a) of the Act of 1975. 10 Are precluded from qualifying as candidates to the House of Commons the following public offices: those who hold certain judicial offices (Judges of the High Court, Court of Appeal and Court of Session, Circuit Judges, Stipendary and Resident Magistrates, Sheriff Principal and Sheriffs.); those who hold membership in a large number of commissions, tribunals or other statutory bodies whose members are appointed by the Crown; Ambassadors and High Commissioners; peers; members of the armed forces and policemen; election and boundary commissioners; clergymen (except of non-conformist churches); members of the public boards of nationalised industries and certain directors of companies in which the State has an interest. 11 Jurisdiction to decide upon disqualification lies with the Judicial Committee of the Privy Council and allegations/complaints can be raised by anyone (and directed to the this judicial organ) or by initiative of the House of Commons, which resolves that such matter must be referred to the Judicial Committee of the Privy Council. There are no further penalties, other than the dismissal by disqualification. 12 France: art. LO 142, Code Électoral. Portugal: art. 20.1.i), Law 7/93 of 1 March (Estatuto dos Deputados). Britain: Section 1(1)(a) of the Disqualification Act of 1975. Academic positions constitute the most common exception to the incompatible between parliamentary mandate and civil service positions. 13 art LO. 140, Code Électoral. 14 article 7.I modified art. 4 of the Ordonnance 58-1067 of 7 November. The Loi 95-63 of 19 January set also new incompatibilities to members of the C.C.. The quality of member of the C.C. was incompatible with that of member of government or of the Economic and Social Council. Member of the C.C. were equal subject to the same incompatibilities set to MPs in what concerns private or professional activities. This incompatibility set to members of the C.C. was a means to guarantee its impartiality as overseeing body of the rules of disclosure (the registration of patrimonial declarations and the declaration of electoral accounts) and incompatibilities. 15 art. 20(1)(b), Law 7/93 of 1 March (Estatuto dos Deputados). 16 France: arts. LO 139–143, Code Électoral. Portugal: art. 20.1.a),d),e),f),g),j),m),n),o),p), Law 7/93 of 1 March (Estatuto dos Deputados). Britain: Schedule 1 to the Disqualification Act of 1975. 17 art. 20(1)(a)(l), Law 7/93 of 1 March (Estatuto dos Deputados). 18 ‘Gestão das EP’s: PS propõe controlo parlamentar’ Expresso, 6 Novembro 1982; ‘A dança dos gestores continua em três tempos’, Expresso, 3 Setembro 1983; ‘Os gestores públicos e o poder político’, Expresso, 26 Novembro 1983. See also Alto Comissário Contra a Corrupção (or A.A.C.C.), Relatório 1984-1986, on the reform of the penal definition of corruption. 19 Law 7/93 of 1 March (new Estatuto dos Deputados), art. 21(3). 20 In the French case, for example, this is due to the fact that both mandates have a representative function, hence, incompatible (art. LO 137, Code Électoral). 21 On October 1994, the parliamentary working group “Politique et argent” gave an approximate picture of the extension of this practice: out of 450 MPs who accumulated their parliamentary sit with another mandate, 446 held cumulatively local and regional elective functions, the remaining 4 were also Euro-MPs.

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22 The question of cumul des mandats was first dealt in 1985 with two legislative interventions: Loi 85-1406 and Loi Organique 85-1405 of 30 December. These two legal documents culminated in the introduction of a new article L. 46-1 to the Code Électoral forbidding the accumulation of more than two mandates (specific provisions for MPs on art. LO 141 and to Senators on art. LO 297). 23 The Senate’s “veto right” in relation to organic laws, i.e. legal documents which concern the implementation or reviewing of constitutional precepts, was deliberately introduced by De Gaulle in the 1958 Constitution as a means to counterweight the possibility of having an hostile parliament to the executive’s policies. 24 Décision Nº 2000-426 DC of 30 March 2000 (see also Décision Nº 2000-427 of 30 March 2000; Saisine du C.C. en date du 9 mars 2000 présentée par plus de soixante députés, en application de l’article 61, alinéa 2, de la Constitution, et visée dans la décision nº 2000-426 DC; Saisine du C.C. en date du 14 mars 2000 présentée par plus de soixante sénateurs, en application de l’article 61, alinéa 2, de la Constitution, et visée dans la décision nº 2000-426 DC; Observations du Governement sur les recours dirigées contre la loi relative à la limitation du cumul des mandats électoraux et des fonctions électives et à leurs conditions d’exercise). 25 This mechanism of limitation was not the only solution to cumul debated in parliament. Some had also argued to limit the renewal of national mandates in time. 26 By April 1997 the statistics showed that out of a total of 576 MPs, 297 were Mayors (out of which 99 of a town of ≥ 20.000 inhabitants), 88 were regional councillors, 243 were general councillors. 27 The laws of 1985 did not take into consideration a series of other elective offices, such as: Mayor of towns with less than 20.000 inhabitants, vice-Mayors of towns with less than 100.000 inhabitants, presidents of HLM offices, etc. The Law had equally bypassed situations of delegation of power: Mayors in a situation of cumul may renounce their local mandate and be replace by a person of the greatest loyalty (the vice-Mayor or a family member), thus guaranteeing and enduring his/her presence in running the local fiefdom. 28 Art. 4º(1)(e) of the Law 3/85 of 13 March. 29 Art. 20.1.h) of the Law 7/93 of 1 March 1993, Estatuto dos Deputados. 30 ‘Fernando Gomes “regressa” à Europa’, Expresso, Saturday 12 September 1992, [Política], p. A2. 31 Público, Tuesday, 7 November 2000, pp. 11-12. Público, Thursday, 9 November 2000, pp. 8-10. 32 Público, Thursday, 9 November 2000, p. 10. Público, Tuesday, 2 January 2001, pp. 2-4. 33 Such as, freedom of speech in debate, access to Her Majesty (but no interference of the Crown in parliamentary affairs), freedom from arrest (parliamentary immunity), freedom from holding outside interests (in so far these do not compromise the MP’s freedom of speech and his role as representative of the people). 34 In the case of Portugal, these rights and duties are set more specifically by the Regimento da Assembleia da República (Cf. Res. A.R. 9/85). 35 MPs must exercise the representative offices for which they were elected, attend plenary sessions and take part on the working commissions to which they have been assigned. In practice, these duties have contrasted greatly with the absenteeism to which we have become used to witness during daily parliamentary sessions. MPs must also respect the dignity of parliament, but the concept is restricted to virulent behaviour by MPs (such as violence, improper vocabulary, attempts against the personal reputation of colleagues) and only in few cases it has embraced a stance against impropriety. 36 ‘By 1989, it was estimated that the mushrooming lobbyists’ firms… were taking £10 million a year from outside commercial bodies for the sale of political influence’ (Leigh & Vulliamy 1997, 38). 37 Hansard, 25 October 1994, col. 758. 38 The new CSP amalgamated and succeeded the Select Committee on Members Interests and the Committee of Privileges. 39 art. 88 of the Loi des Finances of 30 December 1928 modifying L.O. of 30 November 1875. 40 Prior to the 1928 Loi des finances, there had been a series of attempts to deal with particular situations of conflicts of interest by MPs, which remained scattered amongst different legal documents. Unfortunately, these legislative incisions failed to prevent political scandal. 41 See art. 148 of the Electoral Code. 42 art. 20 of the 1958 Ordonnance states that‘La démission d’office est prononcé dans tous le cas par le Conseil constitutionnel, à la requête du bureau de l’assemblée intéressée ou du garde des sceaux, ministre de la justice’. 43 Dècision 77-51 of 18 October 1977. 44 Dècision 89-9 I of 6 March 1990. 45 A new reading of article 15.2 of the Ordonnance 58-998 of 24 Ocotober 1958 was introduced in 1972: ‘Les sociétés ayant exclusivement un objet financier et faisant publiquement appel à l’épargne, ainsi que les sociétés civiles autorisés à faire publiquement appel à l’épargne et les organes de direction, d’administration ou de gestion de ces sociétés.’ 46 Filippo Tommasi di Lampedusa, Il gatto pardo, Torino, Feltrinelli, 1958. 47 Seven legislative interventions during a fifteen years period: Lei 3/85 of 13 March 1985, Lei 98/89 of 29 December 1989, Lei 7/93 of 1 March 1993, Lei 24/95 of 18 August 1995, Lei 55/98 of 18 August 1998, Lei 8/99 of 10 February 1999, Lei 45/99 of 16 June 1999. The Statute is presently under new revision. 48 ‘Deputados não querem deixar advocacia’, Expresso, 9 Janeiro 1993, [Política], p. A2. 49 Projecto de Lei 462/VI, Alteração da Lei 64/93, de 26 de Agosto (Regime de incompatibilidade de titulares de cargos políticos e altos cargos públicos), D.A.R., II Serie-A, No. 6, 18 Novembro 1994; Projecto de Lei 498/VI, Cria

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um registo de interesses dos deputados e alarga as respectivas incompatibilidades e impedimentos, D.A.R., II Serie-A, No. 22,17 Fevereiro 1995. 50 In his final remarks on the evolution of impediments during the Fifth Republic, Frédéric Ancel concluded:‘La France, comme ces autres démocraties, vit dans un régime capitaliste où l’Etat intervient de plus en plus dans l’économie. Dés lors, est-il logique de vouloir séparer le Parlement du monde économique alors que l’Etat, lui, y est mêlé? Si le Parlement ne reflète pas la société, il ne sera plus représentatif et ce divorce ne pourra entraîner que l’aggravation de son déclin. Dès lors, en créant des régles qui contredisent la réalité on s’assure qu’elles seront tournées.’ (1975, 99-100).