Last Thursday’s announcement by Winston Peters heralded a new government: a formal coalition between Labour and New Zealand First, supported on confidence-and-supply by the Green Party. With the change of government came a change in multi-party governance arrangements – or, at least, a slightly different template than we’ve seen recently.

What, then, do we make of this arrangement from a constitutional perspective? What’s unusual or different? And what requires careful examination?

Government – inside and outside

Who is ‘in government’? There’s quite a bit of confusion about which parties form part of government, especially whether the Green Party are in or not. Some claim they are not and brand the new administration as a minority government – wrongly, in my view.

‘Government’ is not a constitutional term of art. It’s not defined in our skeletal constitution and, in some respects, has a hazy meaning. But, in this context, we usually take it to mean the political portion of the executive.

The old-fashioned Westminster view was a party was part of the government if some of its members were part of the Cabinet. Cabinet – although an informal creation – was the key site of power within executive government. And all the key players were at the Cabinet table.

But the multi-party politics that came with the Mixed Member Proportional (MMP) system brought local innovations. Confidence-and-supply agreements, with circumscribed support for the government programme. Ministers outside Cabinet. And so forth. Thus, fixation on Cabinet membership misses the point.

Instead, we might ask whether a party contributes members to the executive branch of government. On this view, then, parties whose members hold executive roles – ministers, whether inside or outside Cabinet, or parliamentary undersecretaries — are part of the government.

In other words, we have a government made up of Labour, New Zealand First and the Greens. And, by definition, that government is also a majority government; it’s daft to describe it as minority government when its contributing parties represent 63 of the 120 MPs in the House.

Yes, being at the Cabinet table is a big deal. But we shouldn’t be fooled into thinking that ministers outside Cabinet lack power and influence – they are still intimately involved in Cabinet decision-making processes.

Our parliamentary rules, updated for MMP politics, recognise the important role of parties – members of parties are generally treated as a bloc. Hence, it’s unhelpful to suggest, as some people do, that some Green MPs (ministers) are inside government and others (backbenchers) are outside. We don’t treat the lead party in government that way. And it ignores the fact the Green Party has committed all its members to sustain the government on important votes of confidence-and-supply and the caucus system will deliver that necessary support.

Cabinet – inside and outside

Some care needs to be taken with ministers outside Cabinet too. Many people exaggerate the significance of being outside, when these ministers are still deeply embedded in the Cabinet process.

Ministers are first and foremost appointed as members of the Executive Council – the formal executive institution charged with advising the Governor-General and formally transacting the key business of government. Then comes the ministerial warrant, appointing them as ministers responsible for specific portfolios.   

Cabinet – a creation of constitution convention – is the informal counterpart to the Executive Council. In reality, Cabinet is where the real decisions are taken, before they are formally rubber-stamped through the Executive Council process. It is, as the Cabinet Manual records, the “central decision-making body of executive government”; it’s where “all significant decisions or actions taken by the executive are first discussed and collectively agreed”. And, notably, Cabinet usually decides matters by consensus and votes are rarely taken.

So, yes, being at the Cabinet table is a big deal. But we shouldn’t be fooled into thinking that ministers outside Cabinet lack power and influence – they are still intimately involved in Cabinet decision-making processes.

Ministers outside Cabinet are members of Cabinet committees. Almost all matters for Cabinet are first deliberated in Cabinet committees, before going to Cabinet for ultimate decision. And sometimes Cabinet will also delegate the power to act directly to a Cabinet committee.

Ministers outside Cabinet also regularly attend Cabinet itself for matters relevant to their portfolios. Strictly speaking, ministers outside Cabinet (and parliamentary under-secretaries too) only attend Cabinet at the prerogative of Prime Ministers. But the practice has been that ministers outside Cabinet routinely attend when their matters are up for Cabinet decision, as well as sometimes for other matters of interest to their portfolios.

Thus, the designation of minister outside Cabinet is a bit of smoke and mirrors, perhaps even a misnomer. Sure, they don’t have the usual panoptic power of ministers inside Cabinet. But they’re hardly left on the sidelines when it comes to decisions made through Cabinet by our executive government.   

Distinctiveness and dissent

These government arrangements will also test our traditional understanding of Cabinet unanimity. Close attention needs to be taken to the provisions regulating unity and dissent. We can’t assume the traditional shorthand – whether a party is in coalition or only supporting on matters of confidence-and-supply – dictates the extent to which ministers are bound by the principle of Cabinet collective responsibility.

Again, multi-party politics catalysed by MMP has led to innovation in the ways our parties manage the tension between unity and dissent. The old-fashioned Westminster view was that all ministers (and other holders of executive positions, such as parliamentary under-secretaries) must publicly support all decisions of Cabinet, regardless of their personal views or whether they had supported or opposed a decision when it was deliberated on through Cabinet processes. As Benjamin Franklin, one of the founders of the United States, once said, “we must indeed all hang together, or, most assuredly, we shall all hang separately”. The traditional view was that a minister who couldn’t support a Cabinet decision had to resign.

In order to manage the tensions of multi-party politics and accommodate the desire for government support parties to maintain their distinctiveness, the demands of Cabinet unanimity were loosened.

With the loosening of Cabinet unanimity for coalition and support parties, the sky didn’t fall. Our politics became mature enough to recognise governance involves a degree of compromise and parties can still work together even if they don’t agree on everything.

In the first generation of differentiation provisions, we saw coalition and support parties negotiating ‘agree-to-disagree’ provisions in their coalition agreements, mandating them to register, and publicly showcase, their dissent about certain Cabinet decisions.

Then, in the second generation of differentiation provisions, the reach of Cabinet unanimity was circumscribed further. Support party ministers – sitting outside Cabinet – were only obliged to defend Cabinet decisions for matters within their portfolios (and, of course, also support matters of confidence-and-supply). In other words, outside their portfolios, support party ministers could switch hats from ministers to party leaders or MPs and criticise government policy – as long as they made that distinction clear. This has been called selective Cabinet collective responsibility.

It’s important to remember, though, the freedom to dissent is a privilege of coalition and support parties. Ministers of the lead party in government, whether inside or outside Cabinet, have continued to be bound by the traditional view of Cabinet unanimity. In other words, Labour and National ministers still must tow the party line.

With the loosening of Cabinet unanimity for coalition and support parties, the sky didn’t fall. Our politics became mature enough to recognise governance involves a degree of compromise and parties can still work together even if they don’t agree on everything. Cabinet government can survive some degree of public dissent, if carefully managed – to the point that some argue Cabinet unanimity is no longer a constitutional convention, merely an exercise in political management.

I think a degree of Cabinet collective responsibility is still constitutionally essential. When advising the Governor-General or directing their departments, ministers must, of course, implement decisions consistent with the collective wishes of Cabinet. Operational – albeit not expressive – Cabinet collective responsibility remains necessary for the operation of modern Cabinet government.

The just-released coalition and support agreements disclose a mixture of approaches to managing dissent and distinctiveness.

New Zealand First has returned to the first generation agree-to-disagree approach. Dissent must be specifically agreed between party leaders on particular issues. Otherwise, the standard provisions in the Cabinet Manual about Cabinet decision-making apply. This suggests New Zealand First ministers will not be free to switch hats in order criticise the government outside their portfolios. In other words, dissent is expected to be rare and negotiated on a case-by-case basis. These arrangements may continue to be sharpened in due course; the coalition agreement acknowledges the need for collaboration and distinctiveness in the development of policies, as well as a forthcoming protocol for coalition management. 

The Green Party agreement replicates the second generation form of differentiation based on selective Cabinet collective responsibility. That is, Green Party ministers will only be bound to support decisions within their respective portfolios, as well as being obliged to vote for matters that raise matters of confidence-and-supply. There’s also mention of agree-to-disagree provisions also applying as necessary, but that’s probably redundant given the limited reach of collective responsibility. So, Green Party ministers will have more freedom to express their distinctive views and won’t be as tightly bound to publicly back Cabinet decisions.

It will be interesting to see how these different approaches work in tandem with each other and whether they survive the dynamics of the current three-way arrangement. They may prove to be a work-in-progress – in need of further refinement.

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