18 February 2011

The (r)evolution of collective responsibility

Collective responsibility is dead! Long live collective responsibility!

I've been wittering on about for this time (see, for example, here). But I think this week's Question Time confirms (finally) that the conventions around collective responsibility have evolved again.

We have new operating arrangements governing the expression of dissent by Ministers of the Crown. Under MMP we have seen the incremental loosening on the unanimity element of the convention of collective responsibility. But, responding to questions about public remarks from Ministers Hide and Sharples about the independent Māori statutory board for the Auckland Council, Prime Minister indicated – whether consciously or not – that the present government is operating under even looser arrangements than before. The Prime Minister condoned deviations from the existing "rules" about collective responsibility recorded in the Cabinet Manual. That probably means that the underlying convention has evolved and that the Cabinet Manual rules will need to be re-written to reflect the new operating arrangements.

Let me explain.

But before I do, though, let me record the nature of my interest.

My interest is in the evolution of constitutional conventions. In this case, I am rather agnostic about the content of the convention. I acknowledge, as others have noted previously, that the sky has not fallen as the convention has evolved and loosened. I am not suggesting we should revert to the old, much tighter, rules about Cabinet unanimity. I have no strong view really. I lean towards the present trajectory of allowing dissent to be publicly expressed. It is more real and consistent with transparent government.

But, more importantly, I think we must clearly mark changes in the rules – and the possible death of the unanimity element of Cabinet collective responsibility.*

Okay, that's done. Don't call me an old stick in the mud now for being a pedant about this thing.

A very short history first.

In the pre-MMP days, Cabinet collective responsibility was strict. Basically, all Cabinet ministers (and other MPs holding Executive posts) had to tow the party line. Even if they disagreed with a decision of Cabinet, they had to publicly support it. Any dissent risked some sanction, most severely dismissal at the hands of the Prime Minister on behalf of Cabinet colleagues.

Then we moved to era of coalition government. Parties – or, rather, junior coalition parties – wanted to maintain their own distinctive party identity on some matters. Strict application of Cabinet collective responsibility would have seen them subsumed into the wake of the larger, lead party – and ultimately paying the price at the next election.

So parties negotiated "agree-to-disagree" processes to allow them to speak contrary to the government position on certain matters, as and when agreement was reached with the lead party about the expression of dissent. These processes were still quite tight. The principle was collectively agreed as part of coalition negotiations, but the ad hoc expression of dissent still involved pre-approval by Cabinet (or some other collective process). This still ensured the dissent was cloaked by the shroud of collective responsibility.

More recently, parties negotiated an approach which has been described as "selective collective responsibility". That is, the previous principle of unanimity governing Cabinet decisions was circumscribed – quite dramatically. Cabinet Ministers from coalition or support parties were only bound to support the agreed Cabinet position for matters falling within their portfolios, but otherwise were not bound to support the Cabinet position. (These exceptions did not apply to Ministers from the lead party of government; strict Cabinet collective responsibility continued to apply to them.)

In other words, when wearing the hat of Minister responsible for the relevant portfolio, Ministers spoke for the government and had to tow the government line. But when wearing the hat of leader or member of a coalition party, they were free to criticise the government position. The critical distinction was whether the matter fell within a Minister's portfolio or not.

I should note at this point that there has been some uncertainty and debate about the relationship between "agree-to-disagree" processes and "selective collective responsibility" – in particular, whether a Minister from a support party could engage agree-to-disagree processes for matters within their own portfolio. I think the better view, as least under the Labour administration, was that selective collective responsibility overtook agree-to-disagree processes. That is, selective collective responsibility effectively operated as a carte blanche pre-approval of dissent.

Notably, while there were many instances of Ministers from support parties criticising government positions, there was no record of that occurring in relation to their own portfolios. I need to note here that there was much debate about the demarcation of portfolios, especially as between the Foreign Affairs portfolio and Trade portfolio. However, in my view, the critical point is that under the previous administrations, the Prime Minister and Ministers expressing dissent all took the view, rightly or wrongly, that dissent only related to portfolios other than their own.

Fast-forward to the current National administration. Understandably we have seen the expression of more dissent as the coalition brings together parties with some quite disparate ideological positions. For some time I have suspected that the rules about unanimity and dissent have been much looser. In particular, I think we are seeing that Ministers from support parties are now entitled to dissent about matters within their own portfolio with impunity.

I tried to make this point some time ago. However, it got lost in debates about the demarcation of portfolios (particularly "panoptic" portfolios that might potentially cover a wide range of government policy, such as Foreign Affairs or Māori Affairs).

But, the exchanges in the House this week confirm my suspicion. The Prime Minister confirmed, without hesitation, that under his leadership Ministers from support parties are now authorised to dissent about matters within their own portfolio, as long as they do so as leader of their party not as Minister.

Look at the Prime Minister's responses to these questions in the House this week:

"Hon Shane Jones: When the Hon Pita Sharples called on the Minister of Local Government to resign if he could not accept the decision to set up the Auckland Council’s Māori Statutory Board, was he correctly reflecting the requirement of paragraph 5.26 of the Cabinet Manual, which reads: “Any public disassociation from Cabinet decisions by individual Ministers outside the agreed processes is unacceptable.”?

Rt Hon JOHN KEY: No. We have made it clear to Mr Sharples’ office that when he makes comments of those regards, he should not be doing them as the Minister of Māori Affairs. That is exactly the point he was making, but he incorrectly put it on his ministerial letterhead.

Phil Twyford: Did the Hon Rodney Hide satisfactorily apply paragraph 5.30 of the Cabinet Manual, which states: “Once a decision is reached by Cabinet, … [Ministers’] statements should reflect the fact that a collective government decision has been made,” when he said that the Auckland Council’s Māori Statutory Board should never have been included in the legislation and that he always assumed National would stick to its principle of one law for all, and in the event it decided to go against his advice?

Rt Hon JOHN KEY: Yes, because he made those comments in this position as leader of the ACT Party."
Just to reiterate, the Prime Minister is condoning the Minister for Local Government, Hon Rodney Hide, dissenting from a matter agreed by Cabinet which is central to his portfolio, as long as his dissent is expressed when wearing his hat as the leader of the ACT party, rather than as Minister.

Now this is a big deal and, importantly, the position is a departure from the rules governing unanimity and dissent in the Cabinet Manual. The Cabinet Manual records the rule operated by the previous Labour administration, as I explained them previously:

"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.

5.24 In a coalition government, Ministers are expected to show careful judgement when referring to party policy that differs from government policy. Subject to paragraphs 5.25 - 5.27, a Minister's support and responsibility for the collective government position must always be clear.

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."
The fact that the Prime Minister is "relaxed" about dissent by a Minister within their portfolio means one of three things:

(a) The Prime Minister has authorised dissent in this case, engaging the agree-to-disagree processes for matters within a Minister's portfolio. (Whether or not this is a departure from existing rules is a little uncertain as noted above.)

(b) The Minister has breached Cabinet collective responsibility, but the Prime Minister has decided not to sanction the Minister for the breach or decided not to enforce the convention – as the Prime Minister is entitled to do.

(c) The Prime Minister and Cabinet has effectively agreed to change the rules governing collective responsibility. The convention has evolved through practice. And, presumably, the Cabinet Manual will be amended at some point in the future to reflect this change.

The remarks of the Prime Minister all point towards (c), namely, the convention has evolved.

Regardless, I think it is incumbent on the Prime Minister to make it plain one way or other. If the convention has been evolved, he should signal this change and signal the intention to amend the Cabinet Manual accordingly. Or he should explain that he has otherwise condoned departures from collective Cabinet responsibility.

* As much as some will say that collective responsibility is dead, never existed or is not a constitutional convention, I think collective responsibility – at least in a limited form – is a constitutional imperative.

Ostensible unanimity (or public expressions of collective Cabinet views without dissent) is now so circumscribed that is there probably no constitutional rational that justifies it. Constitutional government has survived the public expression of dissent.

However, operational collectivism still remains the glue which binds the Westminster system of government. That is, when individual ministers advise the Governor-General or their respective ministries, they must express the view of Cabinet, not their personal view. This is recognised in cl 5.22 of the Cabinet Manual:

"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."

To that extent, collective Cabinet responsibility remains alive and must, I think, still be regarded as an important constitutional convention.

UPDATE (24/2/2011):
I should also add that the wording in the Cabinet Manual about collective responsibility was confirmed by this administration in a Cabinet circular on 16 November 2009:

- http://www.dpmc.govt.nz/cabinet/circulars/co09/COC-09-07.pdf

The inconsistency between stated protocol and actual practice is therefore of quite some concern,

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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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