In this excerpt from the evidence of Sir Maarten Wevers in the High Court case of Winston Peters vs Paula Bennett, Anne Tolley and the Crown over his superannuation leak, the former head of the Prime Minister’s Department summarises our governing arrangements. This is Part 1. In the second part, which can be found here, Sir Maarten addresses the roles of chief executives and their duty to brief their ministers.
Government in New Zealand
I have been asked to provide evidence on how the Westminster system of government operates in practice in New Zealand in order to outline the obligations and expectations of Ministers and Chief Executives and through that to offer my insight into the sorts of matters that would properly be considered by a Chief Executive when presented with an issue that may require a briefing to their Minister.
Our Westminster system: An overview
New Zealand has a Westminster system of government, which is so named because it is based on the system of government developed in England where the Palace of Westminster is the seat of the Parliament. It describes a system of constitutional parliamentary democracy. Following the election of New Zealand’s first members of Parliament in 1854, the New Zealand Westminster system has continued to develop its own characteristics.
Whilst our current parliamentary system shares much in common with other Westminster democracies, in the United Kingdom, Australia, Canada, Ireland and elsewhere, there are many aspects of our system that are not duplicated in those other jurisdictions. The Parliamentary system in New Zealand has become our own Parliamentary system, based on but not the same as present day Westminster.
To my mind, the best outline of the nature of New Zealand’s system of constitutional monarchy is contained in Sir Kenneth Keith’s introduction to the Cabinet Manual. He states that the Queen reigns, but the government rules, so long as it has the support of the House of Representatives. The Queen, and her representative in New Zealand, the Governor-General, as a matter of convention, only act on the advice of the Prime Minister or Ministers who have the support of the House. The day to day government of the country is undertaken by the Executive, headed by the Prime Minister of the day, who also chairs Cabinet. Cabinet is made up of Ministers who hold warrants signed by the Governor-General, making them responsible for portfolios. The portfolios are supported by Public Sector agencies or “departments”, such as the Ministry of Education. It is the Prime Minister of the day who decides which Minister will be responsible for what portfolio, and indeed how many Ministers will sit in Cabinet, or outside Cabinet.
Ministers have rights and responsibilities in law (and further responsibilities outlined in the Cabinet Manual, which I shall offer more comment on shortly) They exercise formal powers conferred on them by statute, and are accountable to the House of Representatives for the conduct of the departments they are responsible for. This is referred to as individual ministerial responsibility.
Ministers are also collectively responsible for the decisions that are made by Cabinet as a whole. Subject to the terms of any coalition or confidence and supply agreement to the contrary, that responsibility extends to Cabinet
The Westminster system of government is founded on the sovereignty of Parliament and the rule of law, and defined linkages between Parliament and the Executive.
The government of the day is formed under the leadership of a Prime Minister who enjoys the confidence of the House, including in coalition or other support arrangements between political parties, or who, as a minority, is accepted by the House as able to sit on the Treasury benches. Ministers must be drawn from Members of the House. As a result, Ministers are at the same time also MPs, and members of political parties, and may hold party leadership positions.
The way that I have always thought of it however, is that when members of a new government cross that little bridge between the parliamentary building and the Beehive, they put a different hat on, a Ministerial hat. They are no longer decisions relating to all departments, or strategic policy initiatives, not just to matters for which a Minister holds the portfolio responsibility. This means for example that the Minister of Justice may well have a collective responsibility for a Cabinet decision that relates to the Minister of Education’s portfolio, or a foreign affairs Cabinet decision, or Budget decisions.
Ministers are supported in their roles by the Public Service, including the advice they receive from the Chief Executives of their departments. The role of the Public Service is to support, impartially, the government of the day. Chief Executives are responsible in law to their Minister, for the performance of their departments, the responsiveness of the agency to the collective interests of government, the provision of free and frank advice, and the integrity and conduct of employees for whom the Chief Executive is responsible.
Thus, a Public Service Chief Executive is responsible for the conduct of the department he or she leads, whilst the Minister is accountable to the House for the department’s performance, including through answering questions in the House on policy and operational matters.
Ministers
The Westminster system of government is founded on the sovereignty of Parliament and the rule of law, and defined linkages between Parliament and the Executive.
The government of the day is formed under the leadership of a Prime Minister who enjoys the confidence of the House, including in coalition or other support arrangements between political parties, or who, as a minority, is accepted by the House as able to sit on the Treasury benches. Ministers must be drawn from Members of the House. As a result, Ministers are at the same time also MPs, and members of political parties, and may hold party leadership positions.
The way that I have always thought of it however, is that when members of a new government cross that little bridge between the parliamentary building and the Beehive, they put a different hat on, a Ministerial hat. They are no longer just an MP, but a Minister with a warrant and governmental powers and responsibilities.
The essence of the individual ministerial responsibility convention is that Ministers are individually responsible to Parliament for their own activities and the activities of their public servants in administering their ministerial portfolios. On occasion, this means that a Minister may be required to account for the actions of their department when errors are made, even when the Minister had no knowledge of, or involvement in, the errors. Hand in hand with this responsibility comes the power by law for the Minister to direct an agency, through its Chief Executive, on the operations and conduct of the agency save for matters where the Chief Executive must act independently (i.e. an independent statutory decision-making power).
Ministers are not required to take routine portfolio matters to Cabinet for consideration, although they are required by the Cabinet Manual to take questions such as significant policy issues, controversial matters, financial proposals, machinery of government questions, public consultation documents, and legislative proposals. The rule of thumb is that Ministers should take to Cabinet matters of the sort on which they themselves would wish to be consulted. Cabinet is both a political consideration and decision- making mechanism. Ministers, and not officials, take responsibility for Cabinet decisions, and credit or disfavour.
The accountability of Ministers to the House is effected through a number of well-established parliamentary processes. These include requirements to deliver annual departmental reports to Parliament, annual Budget processes, Select Committee processes, and Parliamentary questions processes, either in questions to Ministers for written answer, and oral questions in the House. Those accountability mechanisms extend to any aspect of the department’s performance, policy and operational.
The accountability of Ministers to the public for the operation of the Executive government is, in a formal democratic sense, assessed at least every three years through a general election. Ministers and agencies are also subject to scrutiny by the media, and through the Offices of the Ombudsmen and the Auditor- General. Legal redress, including judicial review, may also be sought through the independent court system.
In practice, operational matters, such as a decision of a department to grant a permit or to spend money on a particular item, can be a focus of intense public scrutiny. The intensity of that scrutiny, and the effectiveness of the portfolio Minister in responding to it, can influence public views on the effectiveness of a Minister, agency or government, and on whether or not the Government should be re-elected. It can also influence the decisions that the Prime Minister makes on whether a particular Minister should have or retain a particular portfolio.
For those reasons, operational matters are regularly the subject of ministerial briefings. Ministers wish to be informed of and appropriately scrutinise significant or controversial activities of their departments.
Cabinet (and the Cabinet Manual)
Ministers are formally appointed and dismissed by the Governor-General, who acts on the advice of the Prime Minister for those purposes. In addition to assigning Ministerial portfolios, the Prime Minister sets the agenda for Cabinet. In Cabinet’s weekly meetings, government policy is formulated and the direction, priorities and financial responsibilities of departments are decided. Cabinet has significant power in the New Zealand political system and has a central role in the development of new legislation through the Cabinet Legislation Committee. The conventions supporting the voting disciplines of the political parties in the House allow the government to control most aspects of Parliament’s law-making programme, in addition to exercising all of the powers given by law to the Executive.
Cabinet is the leadership team for the Executive, and I have often thought of it as a sort of Board elected to run the country. Like any Board, the role of Chair is critical. Cabinet sets the strategy and direction, receives advice, assesses risk, and makes decisions – but without involving itself unduly in day to day operational aspects of agencies. The size and complexity of modern government mean that operational aspects of necessity need to be entrusted to departments, subject to the accountability of Ministers, individually and collectively, for operational and other aspects of governing.
Cabinet is supported by Cabinet committees, which provide the forum for detailed consideration and discussion of issues before their reference to Cabinet. Almost all matters are considered first by one or more Cabinet committees, and then by Cabinet. Cabinet committees derive their powers from Cabinet, and they are usually established either around a subject area, such as social policy, or around a function across the broad front of government activity, such as expenditure and administration.
Although it is critical to the functioning of our Westminster system of government, Cabinet has no separate legal status and it is not mentioned in our Constitution Act 1986. It exists as a matter of long-established convention. That convention carries sufficient weight for many official declarations and regulations to refer to Cabinet, and a government department – DPMC – is responsible for supporting Cabinet. I emphasise that the agency I led is the Department of the Prime Minister and Cabinet, which reflects our advice to and support for the Prime Minister and his or her colleagues.
The Cabinet Office within DPMC is a government secretariat providing continuity and impartial support for operations at the centre of government. One of the ways in which it provides that support is through updating and publishing the Cabinet Manual.
The Cabinet Manual is described on DPMC’s website as a primary source of information on New Zealand’s constitutional arrangements, as seen through the lens of the Executive branch of government.
Through the guidance it contains, and its history and influence, I have come to see the Cabinet Manual as like a ‘Road Code’ to guide the practical business of how to run a government in New Zealand. It is very influential, and rather unusual amongst the Westminster democracies in its breadth and standing. In fact, in 2010 when the British Government decided to develop its own version of a Cabinet Manual, it drew to a large degree on what had been developed in New Zealand.
The Cabinet Manual is not defined in statute, and the Cabinet Manual is not mentioned in any legislation. It has no ‘legal’ status, but provides guidance to the Prime Minister, Ministers and the Public Service. It is also an agreement between the Ministers in Cabinet as to how they all propose to work together to manage the business of government.
The original Cabinet Manual was published in 1979 and it has been updated and amended periodically: changes are made through a process that is overseen by the Cabinet Office and the Secretary of the Cabinet. Any revisions need to be approved by Cabinet. I will return to the history of the Cabinet Manual in the context of my later discussion on the ‘no surprises’ guidance it contains.
The Cabinet Manual is endorsed at the first Cabinet meeting of each new government, to provide for the orderly re-commencement of the business of government. As I have already observed, the present Cabinet endorsed the current Cabinet Manual at the first Cabinet meeting of this Government [CBD v5 p205].
The Public Service
Ministers are supported in their portfolios by the Public Service.
The Public Service is made up of the departments and agencies listed in Schedule 1 of the State Sector Act 1988. The term ‘Public Service’ usually refers to the government departments and Ministries that form the central agencies of the Executive (I refer to these together as departments or agencies). It is a narrower group than is covered by the terms Public Sector, and State Sector: those terms cover a wider range of entities – such as Crown Entities, State-owned Enterprises, Officers of Parliament and so on. For each department in the Public Service, a Minister with accountability is appointed, who presides over the department. That Minister may or may not be a member of Cabinet.
The Public Service comprises public servants, employees employed by Chief Executives of agencies. Along with other employees of the State Services, they are required to serve the democratically elected government of the day, through upholding the State Services Code of Conduct [CBD v5 p15] to be fair, impartial, responsible and trustworthy. Adherence to this Code of Conduct is a key attribute of the New Zealand State Sector.
Public servants (including Chief Executives) provide Ministers with advice and are responsible for running the departments, implementing government policy, and administering the money the government has appropriated for legislated purposes. They must perform their jobs professionally, without bias towards one political party or another.
Under the Code of Conduct, public servants are expected to act in such a way that their department maintains the confidence of both its current Minister and its future Ministers. This principle is a key element of political neutrality, and it provides the basis on which public servants act impartially to support the continuing process of government by successive administrations.
The maintenance of a politically neutral Public Service is critical to sustaining Ministers’ confidence, and public confidence, that public servants will adequately and professionally exercise their responsibilities, regardless of their personal political beliefs. If the Public Service were to lose its political neutrality, or have it seriously questioned, Ministers and members of the public would not trust the Public Service in the same way to serve them properly. Public servants are expected to carry out the functions of their department or entity unaffected by their personal beliefs. A former State Services Commissioner used to say that political impartiality meant keeping your work out of your politics, and your politics out of your work. The more senior you are in the Public Service, the more you deal with Ministers and Select Committees face-to-face, the more critical it is to be resolutely impartial.
That does not mean to say that officials don’t have political views, or don’t have the same rights as other New Zealanders. Working as a public servant simply means that different rules apply. Your personal views are kept to yourself. Public servants are expected to serve faithfully the ‘government of the day’ (and only the government of the day) by supporting Ministers to carry out their ministerial functions; by giving free and frank advice; by informing Ministers of significant developments within their portfolios; and by lawfully implementing decisions made by the Ministers and government of the day. Public servants are not expected to express views or become involved in these matters from a political perspective. It would undermine the integrity of the policy making process and government generally if they did.
Another way the impartiality of the Public Service is protected in New Zealand is through the requirement – set out in guidance from the State Services Commissioner – that public servants must take care in dealing with MPs, and generally inform the Minister of a Member’s request, who must agree to the contact. Public servants serve the Government of the day, not the Parliament.
My observation would be that in a number of other jurisdictions (such as Australia, the UK and Canada) the emphasis on maintaining political impartiality in the Public Service is less rigorous than in New Zealand. A distinguishing feature of our arrangements is that Public Service Chief Executives are appointed by the statutorily independent State Services Commissioner, following a defined legislative process. Cabinet signs off the recommendation, but the employer of Chief Executives is the Commissioner. It has been that way since 1912. That is most unusual internationally. By contrast, in Australia, former Prime Minister John Howard dismissed a number of Chief Executives when he came into office in 1996. That would not happen in New Zealand where the expectation, and the practice, is that the loyalty of the Public Service switches from the outgoing government to the incoming administration, as a matter of course.
Part 2 on chief executives, ministers and briefings under the no surprises policy is here .
Sir Maarten Wevers had 35 years of experience in the state sector, mainly in the public service, and worked directly with or for five different Prime Ministers: The Rt. Hon. David Lange, The Rt. Hon. Jim Bolger, The Rt. Hon. Dame Jenny Shipley, The Rt. Hon. Helen Clark and The Rt. Hon. Sir John Key. He gave this evidence as an expert witness for the Crown defendants in the Winston Peters superannuation leak case in the High Court at Auckland – the Attorney-General on behalf of the Ministry of Social Development, its former chief executive Brendan Boyle and the State Services Commissioner, Peter Hughes.
