24 July 2007

The Public Service and political neutrality

A few more thoughts on this affair: 1. I think claims of the loss of public service neutrality and a slippery slope are overstated. First, the situation arose because of an unusual combination of circumstances: (a) the public service employee being senior; and (b) the employee being in a relationship with someone employed as a political adviser for the opposition. Secondly, present laws and expectations already recognise those two positions require particular sensitivity and care: - one contemplates the existence of strong political views (s31 of the Human Rights Act says that a person's political opinion can be taken into account in relation to employment as a political adviser for politicians or political parties); - the other one insists on absolute political neutrality (both the old NZ Public Sector Code of Conduct and the new Code of conduct for the State Services recognise that political neutrality becomes more critical for senior public employees or those working closely with ministers). The combination of both in the present situation exascerbates the concerns. (As an aside, although the s31 exception does not directly apply to public sector employment, I've noted before the s32 exception governing collusion does. Also, the Human Rights Act implicitly accepts that the issues may arise through relationships (s21(2) extends the prohibition against discrimination to a person's relative; the arguable corollary is that the exceptions might also extend accordingly).) 2. Picking up on a point I made in comments on another post, I think the SSC and the Minister are incorrect about one element of the conflict of interest issue. Repeated reference has been made to an "apparent" or "perceived" conflict of interest, rather than a real risk of collusion or conflict of interest. The distinction is subtle but important. The collusion exception requires a real risk of collusion - the appearance of collusion is not enough. In this case, there is no suggestion of some potential benefit to the employee; rather the suggestion is some detriment to their employer. The importance of the appearance of propriety only arises in relation to former, not the latter. 3. The real issue here, in my view, is the risk that the MfE employee created an unmanageable risk of disclosure of sensitive information into the hands of opposition political parties - thereby creating a situation of possible detriment for the Ministry. Quite simply, it's difficult to maintain a "Chinese wall" at home in one's relationship. Even if one is able to not discuss sensitive "shop" matters at home, other signals are implicitly sent. Eg, The innocuous message: "Honey, I won't be home for dinner tonight. I'm really busy with something pressing at work." might convey indications of particular weakness on something which, in combination with knowledge from an opposition political adviser, is enough to alert a political party to attack the Ministry on a particular issue.


Nigel Kearney said...

If it is relevant that she was in a relationship with an opposition staff member rather than a government one, does that mean it would be ok for National to sack senior public servants with Labour connections if they become the government?

I didn't think our system worked like that.

Dean Knight said...

If they are senior and in relationships with senior political advisers, then yes (or rather there employment arrangements would be "managed").

Our system is not binary - neither entirely politically neutral nor entirely politicised...

Will de Cleene said...

In response to your points:

1. Overstated for the purpose of emphasis, not to make a molehill into a mountain. The concern is valid. NZ is a village.

2. DPF has listed three case studies dealing with similar high-ranking positions during the last National administration, which treated the positions with the respect for professionalism that is usually implicit in such roles. "Perception" is paranoia. NZ is a village.

3. NZ is a village.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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