6 December 2011

TID-BIT: Cabinet Collective Responsibility and Ministers Outside Cabinet


So, the Dominion Post reports ("Banks, Dunne strike a deal with National"):

"Dunne  - a strong 1080 opponent - will also keep his Associate Minister of Health post. He will be a minister outside cabinet, which means he is not bound by collective responsibility."

No. Not quite.

The position on this has been settled for a number of years now,* and is more nuanced than that.


1. The general rule is that Ministers, whether full Ministers or Associate Ministers or Ministers in or outside Cabinet, are bound by collective responsibility.

2. However, Ministers from support parties (usually outside Cabinet) may only be bound by collective responsibility in relation to their assigned portfolios, if the relevant governance agreement so provides.

As the Cabinet Manual and applicable Cabinet Circular record:

"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 confidence and supply agreement just agreed between National and United reflects this:

"Collective responsibility
United Future agrees to fully represent the government's position and be bound by Cabinet Manual provisions in respect of any areas within the portfolio responsibility of the Leader of United Future, and to support all areas which are matters of confidence and supply.
In other areas "agree to disagree" provisions will be applied as necessary.
Where there has been full participation in the development of a policy initiative outside of any portfolio responsibility held by the Leader of United Future, and that participation has led to an agreed position, it is expected that all parties to this agreement will publicly support the process and the outcome."

In other words, selective collective responsibility applies.  A subtle, but important, difference.

More thoughts on the confidence and supply agreements in due course, once any agreement with the Māori Party is settled. From a public law perspective, there are some other tid-bits to note.

* I have earlier suggested that the convention regarding collective responsibility might be evolving further, as Ministers from support parties may, in practice, be given some greater flexibility to "agree to disagree" in respect of their own portfolios. But, if this is the case, it is (a) rare; and (b) not yet reflected in the governing Cabinet protocols.








 








9 comments:

Steven Price said...

Nice post.

But what about the constitutional propriety of the proposed spending-cap legislation? On Morning Report this morning, John Banks burbled that it was necessary to preserve our "economic sovereignty". Thus does a restriction on the government's power to spend become an exercise in sovereignty.

Under the Act/Nats agreement this is supposed to be a "requirement", though it's a bit unclear how it's to be implemented or what happens if it's breached. (If unplanned spending pushes the government over the cap, an explanation in the House is required, but that doesn't seem available if the increase is a planned one).

Although it is not mentioned in the agreement, there has also been talk of a referendum as a mechanism for justifying excessive spending - that is, if a government wants to exceed the cap in circumstances not contemplated by the law (eg natural disasters), it would first need support from a referendum.

Is this on?

Justin said...

From the NZ Herald:

The support party ministers will again be outside the Cabinet and will be given the right to criticise National Party policy outside the confines of National's action plan.

This seems a different assertion again. As opposed to having to "tow the line" on matters related to their portfolios it seems to allege that anything within the "action plan" is a matter of collective responsibility.

Perhaps we are seeing a development in coalition agreements? Or perhaps the Herald sort of got it wrong?

Graeme Edgeler said...

Steven - all sorts of answers to your question may be available in the Spending Cap (People's Veto) Bill, which passed its first reading and was sent off to select committee in the last Parliament.

I put in a submission. Did you? :-)

Steven Price said...

Graeme: Nope. But of course, what governs the content of the new spending cap law is the agreement between the parties, not the Bill itself, which is pointedly not specifically mentioned in the agreement. Nor is the referendum mechanism. It's not at all clear to me what the relationship is. And the explanatory note doesn't address the constitutional issues.

Steven Price said...

.... but since it's a government bill, I guess there's good reason to figure that's what they had in mind.

Graeme Edgeler said...

Also, I'm pretty sure that Natural Disasters are an exclusion in the proposal, although it is inelegantly phrased, which has lead to a media exclusion.

Also, from a constitutional vantage, I don't see an issue. This isn't about this government telling the next government what to do, it's about this government asking the Parliament to tell future governments what they must and mustn't do. This, naturally, happens all the time: the government must release information if there aren't good reasons to withhold it; and the government may not torture. If Parliament goes along with this, it's just another one to add to the list: if the government wants to spend a lot of money it must tell us why and tell us what it intends to do about it. This isn't greatly different from some of the bits already in the public finance act. It can be a good idea, or a poor one, but it isn't a constitutional outrage.

Robin Johnson's Economics Web Page said...

Thanks for explanation. Just as long as it means Dunne will stop backing those anti-science anti-1080 Graf Brothers.

Steven Price said...

Graeme - I'm not sure we're reading the same agreement. It's not just about explaining any spending overshoot (unless it happens inadvertently), as I read it. It's about not overshooting. That's a much more fundamental restriction on Parliamentary sovereignty that OIA or human rights laws. I am assuming that whatever government commands the confidence of Parliament will not, by law, be permitted to present a budget for approval that exceeds the spending cap, and that Parliament could not pass appropriations for any extra amount without changing the law.

Graeme Edgeler said...

I don't see anything that inhibits what Parliament may do in either the bill, or the agreement. It prohibits the introduction of budgets with expenditure above the cap. No prohibition on Parliament amending them, or the government agreeing to those amendments.

Also, and here's the big difference from Colorado-type TABOR legislation (and the reason why Parliamentary Sovereignty is not impinged): Parliament can simply amend the cap. In Colorado, the Legislature and Governor couldn't get around it.

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

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

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