7 April 2009

Dissenting views of the Minister of Māori Affairs on greater Auckland Council Māori seats - a breach of Cabinet collective responsibility?

> RadioNZ: "Government scraps Maori seats for super-city" > Stuff: "Supercity to exclude Maori representation" Speaking on Radio New Zealand National today, Minister Pita Sharples is understandably upset that the government has rejected the Royal Commission's recommendation for mandated Māori representatives on the super Auckland Council. But, he's forgotten one thing: it's his government. And, significantly, he is bound under the principles of collective responsibility expressed in the Cabinet Manual to publicly support that government's decision. Speaking out today, as a Minister of the Crown, is a breach of the Cabinet Manual and the constitutional convention of unanimity that applies to decisions of Cabinet. Importantly, the "agree to disagree" provisions of the Māori Party's confidence and supply arrangement do not excuse his dissent. Let me explain: 1. The constitutional convention of collective responsibility applies to decisions made by Cabinet (Cabinet Manual 2008):
Collective responsibility and Ministers 5.22 The principle of collective responsibility underpins the system of Cabinet government. It reflects democratic principle: the House expresses its confidence in the collective whole of government, rather than in individual Ministers. Similarly, the Governor-General, in acting on ministerial advice, needs to be confident that individual Ministers represent official government policy. In all areas of their work, therefore, Ministers represent and implement government policy. 5.23 Acceptance of ministerial office means accepting collective responsibility. Issues are often debated vigorously within the confidential setting of Cabinet meetings, although consensus is usually reached and votes are rarely taken. Once Cabinet makes a decision, Ministers must support it (except as provided in paragraphs 5.25 - 5.27), regardless of their personal views and whether or not they were at the meeting concerned

2. To avoid any doubt, collective Cabinet responsibility applies to Ministers outside Cabinet (Cabinet Manual 2008):

2.27 Ministers outside Cabinet have full legal powers as Ministers, and may be appointed to full portfolios. They have the same role, duties, and responsibilities as Ministers inside Cabinet, and are also bound by the principle of collective responsibility. (See paragraphs 5.22 - 5.28.) They do not attend Cabinet, but, with the agreement of the Prime Minister, may attend for particular items relating to their portfolio interests. They are usually members of one or more committees, attending other committees where relevant.

3. The only exception to this principle is "agree to disagree" regime implemented in the recent era of coalition government. The exception is, however, narrow and is not a blank cheque for Ministers from coalition parties to dissent at will (Cabinet Manual 2008):

5.25 Coalition governments may also decide to establish "agree to disagree" processes, which may allow Ministers within the coalition to maintain, in public, different party positions on particular issues or policies. Once the final outcome of any "agree to disagree" issue or policy has been determined (either at the Cabinet level or through some other agreed process), Ministers must implement the resulting decision or legislation, regardless of their position throughout the decision-making process. 5.26 "Agree to disagree" processes may only be used in relation to different party positions within a coalition. Any public dissociation from Cabinet decisions by individual Ministers outside the agreed processes is unacceptable. 5.27 Ministers outside Cabinet from parliamentary parties supporting the government may be bound by collective responsibility only in relation to their particular portfolios. Under these arrangements, when such Ministers speak about issues within their portfolios, they speak for the government and as part of the government. When they speak about matters outside their portfolios, however, they may speak as political party leaders or members of Parliament rather than as Ministers, and do not necessarily represent the government position. When such Ministers represent the government internationally, they speak for the government on all issues that foreign governments may raise with them in their capacity as Ministers.

4. The Maori Party and the National Party have adopted "agree to disagree" processes in their confidence and supply agreement (Relationship and Confidence and Supply Agreement between the National Party and the Māori Party):

Collective Responsibility The Māori Party agree to be bound by collective responsibility in relation to their Ministerial portfolios and their Associate Minister responsibilities. When the Māori Party Ministers speak about issues within their portfolios and Associate Minister responsibilities, they will speak for the government and as part of the government, representing the government’s position in relation to these responsibilities. When they speak about matters outside these responsibilities, however, they speak as the Co-Leaders of the Māori Party or as members of Parliament. The “agree to disagree” provisions apply as necessary. They will support the government’s position on all matters that are the subject of confidence and supply votes.

5. While the Maori Party and ministers from the Māori Party may be entitled to adopt different party positions on matters that are not matters of confidence and supply, ministerial dissent on matters within portfolios is expressly excluded. 6. In my view, the issue of Māori representation on the super Auckland Council is a matter which falls within Pita Sharples' Māori Affairs portfolio, for a number of reasons: (a) First, he said on the radio it did. He said he raised the issue in his capacity as Minister of Māori Affairs:

I have voiced my displeasure at the taking away of those seats. And I've done so as the Minister of Māori Affairs because I have a responsibility to represent the views of Māori people, and Auckland Maori including the mana whenua have made that very clear to me.

(b) Secondly, although the super Auckland Council proposal is principally being promoted by the Minister of Local Government, it's fair to say the question of Maori representation falls squarely within the rubric of "Māori Affairs". By defintion, the portfolio is panoptic (cf many commentators conceptualisation of the Foreign Affairs portfolio when agree to disagee issues arose during the term of the previous government).

(c) Thirdly. the Minister's own Ministry states that such matters fall within its responsibility. In its statement of the portfolio responsibilities provided by Te Puni Kokiri to the Minister of Māori Affairs, amongst other things, it notes that "managing and advising on Crown-Māori relationships at the national and local level" as one of the Ministry's "core functions". (d) Fourthly, the Minister of Māori Affairs is charged with some express, albeit indirect, statutory responsibility in relation to the reorganisation of local authorities and governance arrangements. Under section 33(2) of the Local Government Act 2002, one member of the Local Government Commission (which is the body responsible for these matters) is appointed by the Minister of Local Government only after consultation with the Minister of Māori Affairs.

There may be other indicia that support this view. I recognise, thouhg, that some might argue the portfolio responsibilities could be drawn narrower. But I think that's gilding the lily somewhat, especially as the Minister himself has admitted that it falls within his portfolio responsibilities. The upshot of this is that Pita Sharples, as Minister of Māori Affairs, has expressed dissent on a matter within the rubric of his portfolio, in breach of the agree to disagree provisions and the Cabinet Manual. Further, the Minister was quite candid in recounting discussions he had with the Prime Minister and Minister of Local Government about the matter. Again, very problematic. Teamed with the "unanimity" limb of the principle collective responsibility is the "confidentiality" limb of the same principle. Although the Cabinet Manual provisions are aimed at confidentially about Cabinet discussions, the reality of the present arrangements probably means it extends more broadly to cover similar discussions between Ministers. In any event, this is expressly reinforced by the Māori Party's confidence and supply arrangement (Relationship and Confidence and Supply Agreement between the National Party and the Māori Party):

Confidentiality It is agreed that where briefings are provided to the Māori Party, or where the Maori Party is involved in a consultative arrangement with regard to legislation, policy or budgetary matters, all such discussions shall be confidential unless otherwise agreed.

Disclosure of those discussions would therefore seem to breach that commitment and amount to a breach of the confidence and supply agreement. Now, I have some sympathy for Pita Sharples - the summary rejection of Māori representation seems reactionary and rank. And I don't quibble with the belief that the Māori Party representatives need to champion the views of Māori on this issue. But, the role of minister comes - along with power - with responsibility and constraints; the most notable constraint is collective responsibility. The Māori Party bought into these obligations when they accepted the Ministerial warrants. If they want to operate as an opposition party and be free to criticise and condemn government initiatives as they relate to Māori, then perhaps they ought not to have accepted the responsibilities of office. And as a final note, I believe the Prime Minister has previously indicated he would hold his Ministers to a higher standard and would not tolerate breaches of the Cabinet Manual. Does this mean the Prime Minister is now obliged to ask Pita Sharples to resign as Minister of Māori Affairs?

10 comments:

Jeremy Baker said...

I think there is another possible interpretation.

The "let out" is the phrase "through some other agreed process" in 5.25. Minister Shaples agreed with the Prime Minister that he would publicly "agreed to disagree" on issue of Maori seats on the Auckland Council.

Since Minister Sharples is not "implementing" these decisions, as long as the "final outcome" of these decisions is not yet reached (and the Minister of Local Government made this clear publicly this morning), then Minister Sharples is quite entitled to publicly disagree.

Dean Knight said...

I can see the point, but I don't think I agree.

The regime contemplates, I think, ex ante definition of "agree to discuss" issues or processes for disagreement, rather than ad hoc decisions made on the hoof. In any event, there is still the unavoidable issue that both the Cabinet Manual and coalition agreement do not permit dissent or the adoption of "agree to disagree" provisions for matters within a Minister's portfolio.

Graeme Edgeler said...

So nothing at all on the actual report, or the response?

You haven't given up on local government law, have you?

Dean Knight said...
This comment has been removed by the author.
Dean Knight said...

GE:

Hang tight. It takes time to deal with a 800 page report, and the government's "rolling maul" response...

In particular, I'm reflecting on mechanisms to ensure the new neighbourhood boards are appropriately mandated and funded. And have a stronger linkage to their parent uber-Council...

There are just not enough hours in day.... sigh

Andrew Geddis said...

Dean,
You may be right that Pita Sharples has breached collective cabinet responsibility (ccr), as set out in the Cabinet Manual. The next question is, "so what"?

Granted, the Cabinet Manual unequivocally says ccr exists. And granted John Key has said he'll sack ministers who breach the Manual's prescriptions. But that is purely a political judgment call (a la Richard Worth) ... and clearly the relationship with the Maori Party is too important to risk over this incident. Indeed, Pita Sharples denies the decision and his dissent is creating any sort of rift - he says it is a part of the growth of the relationship (or some such claptrap).

Which then may make us ask, to what extent does (or should) ccr really operate (irrespective of what the Cabinet Manual says ... remember teh Cabinet Manual summarises the rules, rather than acts as a definitive source for them)? Consider the two rationales for ccr in para 5.22:

1. "It reflects democratic principle: the House expresses its confidence in the collective whole of government, rather than in individual Ministers."

2. "The Governor-General, in acting on ministerial advice, needs to be confident that individual Ministers represent official government policy."

Is (1) really true any more (if it ever was)? Doesn't "the House" (in reality, the MPs from those parties that have agreed to work together) really express confidence in the agreements and arrangements the various parties have reached? So Act/Maori Party give supply and confidence because they are prepared to work with National under the terms that have nutted out with National post election. And if National does something that upsets them, and the party leader speaks out about it in his role as Minister, and all parties to the governing agreement can work past that, then where's the harm to "democratic principle"? Simply put, I don't see how ccr really works in a post-MMP environment, where the fiction that the House votes confidence in "an entire Ministry" is completely attenuated.

As for (2), is this a real concern? Is the G.G. really ever going to get faced by a Minister saying "even though the official government line is X, I am advising you to do Y"? And if so, wouldn't THAT be the end of the Minister there and then (there's no way a PM will allow that degree of destabilisation of central government processes ... c.f. posturing on an issue in the media, a la Sharples).

Phil Joseph has argued for a while, and I tend to agree, that ccr is no more than good political management. Obviously if Ministers are constantly bagging collective decisions they don't like, then they present a soft target for the opposition. ("Look at this mob ... they can't run the country, because they can't even agree with each other what to do!") This is a prudential reason to keep your mouth shut, if you want a long-term future together. But as for deeper constitutional reasons why Ministers should have to avoid criticising Cabinet decisions, I'm just not convinced there are any.

Dean Knight said...

AG:

Agreed. I should have noted that my analysis was predicatd on my understanding of hte present "convention" / principle, as currently framed.

I've very sympathetic to a critique of that convention - and its evolution. I share your, and PJ's, query about it's continuing relevance.

But for present purposes the government as a collective whole have agreed to be bound by the existing effective "codification" of the principle in both the Cabinet Manual and coalition agreement. They seem to say those existing "rules" allow dissent. I don't think they do. I'm happy for them to be evolve / change to reflect a new era of partnership / governance; but that's a different - albeit perhaps more important - question.

It may be that the Maori Party may be a sensible catalyst for this change. I'm conscious that the aninimity principle is perhaps sourced in a particular history of management of dissent - one that might not be shared in the approach of Maoridom to an issue too...

Andrew Geddis said...

Dean,

"I've very sympathetic to a critique of that convention - and its evolution. I share your, and PJ's, query about it's continuing relevance."

So an interesting question then is why ccr still is talked about/presented as being a "constitutional convention", and not simply a useful political practice. Here's a thought ...

Obviously, it is "a good thing" in the long run for government if open dissent can be minimised. But there also will be a temptation on the part of individual ministers/support parties to dissociate themselves from decisions they dislike/will be unpopular with their supporters. That immediate temptation in any given case may well be stronger than the pull of the long term benefits of not dissenting. (A common problem ... it's bad for me in the long run to eat that extra potato chip, but at the time it just tastes so good.) So, in order to weight the calculus against dissent in any given case, the issue is "constitutionalised" (i.e. ministers are told "if you give in to the temptation to dissent, you're not just acting in a politically problematic way, but you are ALSO BREACHING THE CONSTITUTION OF THE GREAT NATION OF NEW ZEALAND!!!!") This is the public law equivalent of putting the potato chips on the top shelf of the pantry, making access to them harder and so reducing the immediate temptation to gorge.

I'm not saying this is a conscious or a deliberate misrepresentation of the situation ... more that the depiction of the issue as being governed by constitutional convention is useful to government as a whole. Which is why it may continue in our discourse.

Dean Knight said...

AG:

Point taken.

But, while I'm prepared to critique the "convention" / "practice", I'm not yet prepared to disavow any underlying constitutional imperative. While, vis-à-vis the public at large (your (1)), any convention looks odd - it's political management as a whole, I am interested to see whether it remains important for the "implementation" arm and tendering of advice to the G-G (your (2)). This does raise a constitutional issue, because it impacts at the core convention in our system. You're probably right that in practice Ministers are unlikely to ever put the GG in an embarrassing position where he or she has to judge whether or not they are advising for the govt... but perhaps that indicates that convention, at least vis-à-vis the Sovereign, has some bite?

Thinking out loud now, I wonder whether statements of Ministers (whether presenting a government position or expressing dissent) may also have some legal significance or bite? That is, beyond hard law, given effect by through the formal Crown anchored processes and instruments etc, are there circumstances where what Ministers say has an instrumental effect on people's lives, life-planning etc. Hard I know in the shadow of Fitz v Muld, but it's fair to say that there might be "soft law" that arises from the statements of Ministers (I might need to reflect more on some examples). I guess people ought not be put in a position of needing to second-guess whether the Minister is speaking qua Minister / govt or independently. As an example, the question of ultra vires and ostensible authority has a major complication in the public law estoppel / substantive legitimate expectation arena, albeit at a lower level within the government hierarchy.

I guess the upshot of my comments are that I would be open to some re-consideration of or circumscription of the "convention" but I'm not yet prepares to say that we're wrong to consitutionalise the principle. And I know from a vigorous debate on the floor of last year's MMP Symposium, there are some that still strongly believe in the principle as a necessary and important convention...

It's nice, though, to have a contemporary example that allows us to ventilate on this!

Anonymous said...

Dean, I agree with all the points you have made and I have one other argument that I would like to put forward as follows.

I think Pita should be sacked, plain and simple. It undermines the principle of Government, if the PM is not prepared to make this vital call it suggests that he is weak and my two blue ticks were wasted. I understand that this political relationship between National and the Maori party is, in theory, necessary for the confidence of the Government in future. But I think that in a democratic society the Government should not be constrained or pressured by a particular ethnic minority just because they feel it is politically correct. The whole premise of democracy is that it is the will of the majority and to have a minority govern, be it indirectly, is ridiculous. I think that they should have their say and MMP accommodates for this very well but for them to have leeway on matters as important as this suggest preferential treatment based on ethnicity. Sack Pita.

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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