Inside the black box, Andrew Ladley

The Cabinet and Political Power in New Zealand
Elizabeth McLeay
Oxford University Press, $39.95
ISBN 0 19 558 312 4

 

As New Zealand squares for the next general election many candidates and their party leaders will be reaching for this study. So too will political commentators, academics, students ‑ and, that optimistic category, all who take an interest in public affairs. Not that The Cabinet and Political Power directly tackles the possibilities under MMP. It doesn’t ‑ the author’s thoughts thereon are brief, general and concluding (pp l, 2, 208). But her central thesis is that political actors function within constraints of structure and process (an echo of Marx’s “men make their own history, but … not … just as they please …”). Cabinet, the “black box” which sits at the centre of our political and constitutional system, is so constrained and this will continue (pp2, 208). [Cabinet as a “black box” is a recurrent metaphor, reminding me of the adage that one should be careful with metaphor in case it is misunderstood. The comparison with the black box of an aircraft, wherein is indestructibly stored the pilots’ and plane’s fatal flaws and last words, is uncomfortable. So is the possible analogy that cabinet is a “black hole” because of its obscurity whilst being central to the system.]

Thus the pot pourri of parties and personalities which emerge from proportional representation will not function just as they please. As the new MPs coalesce after the elections in their bids for the Treasury benches and for cabinet posts, the issues discussed in this book will gather around them, like farm fences, shaping their options and actions.

However, the cabinet, with its complex boundaries, has not been systematically studied. Elizabeth McLeay does so. This almost reads as a commentary on governments since world war II. In particular, she has outlined the cabinet’s roles in the dramatic events of the 1970s, as New Zealand struggled in the new international economic order, and of the 1980s, as far‑reaching reforms were blasted through the public sector. Whatever the limitations on cabinet power, one cannot but be impressed at the effectiveness of cabinet, really. At least twice in the last two decades it has changed the whole direction of the economy and the state system in one parliamentary session.

The author has drawn on the conventional sources in this field ‑ history, published works, the law, news media, official records, and so on. But in addition she lets many actors speak (in their restrained sorts of ways, sotto voce). There can be few political scientists who have data from their interviews with MPs in the early 1970s to compare with the insights from interviews with cabinet successors 20 years later. One small but interesting result of this comparison highlights changes such as what ministers ideally think they must possess (“integrity” in the 1970s, “policy initiation and management” in the 1990s ‑ pp123‑4).

These sources, the author’s knowledge of politics, an engaging writing style (which reads just like the author sounds, if I may jump senses) make for a valuable addition to the literature on politics and, indeed, public law in New Zealand. There are some delightful understated quips. I liked the comment that over the period of reform in the 1980s the role of the Treasury had dramatically increased, “nicely fulfilling the predictions of public choice theory” (p132). She also captures the irony over the referendum for the MMP electoral system, that cabinets, “supported by strong collective responsibility and the highly disciplined, cohesive party system that has been characteristic of New Zealand’s Parliament, were responsible for making the changes that, in the end, rebounded against them” (p42).

This work brings together an extraordinary range of information on the cabinet and is well‑referenced and sourced. The coverage includes the cabinet’s place (unstated, but central) in the constitutional system, leadership and cabinet selection, the organisation and functioning of cabinet, workloads, detailed examinations of particular events (eg, the handover of power in 1984, the removals from cabinet of Sir Roger Douglas and Winston Peters) and the interactions between cabinet and a range of “others”, such as parliamentary colleagues, officials, political parties and interest groups.

I read this book from the perspective of a public lawyer. I found immediate comfort in the central thesis. Of course cabinets are constrained by systems and processes, legal and otherwise. The whole point of democratic government under the rule of law is to provide systems which curb the possibility of arbitrary power. Something would be drastically wrong if the cabinet turned out to be a creature of whim. Yet politics is apparently dominated by personalities and power‑play, at least as bite‑packaged by the media, so the thesis needed to be stated simply and it is elaborated throughout the book. The fences around cabinet pegged in this study are, however, not the rules of public law. This is not a book about the Ombudsman, the Official Information Act, administrative law and judicial review, all of which are crucial constraints on cabinet power. The book describes such, but the focus is on systems which operate in the shadow of the formal law. Indeed, this is where much of what we call “constitutional” in our system lives.

This insight into the importance of associated controls and systems, was first reached in the nineteenth century. Writers such as Bagehot and Dicey popularised the regularities in the operation of political power. These were so important that they effectively became part of the Westminster constitution. In the Wellington version, they are the myriad “constitutional conventions” which still bewilder law students wanting to categorise them precisely and politicians advised by officials that a proposed course of action, though lawful, would be “unconstitutional”….

A public lawyer will occasionally raise an eyebrow and read arguments twice in this book. For example, it is undoubtedly a constraint on prime ministerial power that the Prime Minister may not suspend the law even if there is a good chance that the decisions may later be retrospectively validated by a new Act of Parliament. Winning a general election which had as one key issue the dumping of the previous government’s superannuation policy, does not allow the incoming Prime Minister to suspend a current Act of Parliament in a press statement, as Muldoon tried to do in 1975. But after citing the famous case of Fitzgerald v Muldoon ([1976] 2 NZLR 615) which spelt this out, the author writes: “(r)etrospective legislation could not overturn this fundamental constitutional concept” (p30). Well, sort of … Any concept could be changed, given parliamentary supremacy.

Still, the author’s quest is to go further into the constraints which shape decisions, here, pending a change of government. She cites the convention that outgoing governments will act as caretakers and not undertake any action which will embarrass the incoming government (p30). Though the precise terms of this convention are still being clarified, recent examples show it in operation. For example, there was the crisis caused by the denial of such a convention. This is a reference to Muldoon ‑ “again”, she notes wryly ‑ refusing to accept advice over a financial crisis in 1984. Also, it was seen in the events following an apparently hung Parliament after the 1993 election (see below).

The latter, incidentally, may have produced further clarification, not least as a result of officials working through the experience and being prepared to advise relevant cabinet members and the Governor‑General of their understanding of the conventions. It now seems that the responsibilities of an outgoing administration include:

‑ continuing as the government in a responsible and understated way;

‑ maintaining existing law and policies, especially if they are well‑established programmes (no vacuum in administration);

‑ not undertaking any new initiatives or action which will embarrass the government,

‑ acting on the advice of the incoming administration on crucial policy or strategic areas (eg, devaluation);

providing proper access to officials and facilitating all transition matters.

These, and related issues such as the role of the Governor‑General in appointing the Prime Minister, are likely to become even more important should there be unclear majorities after the first MMP election.

Another example where one wonders what the author meant, constitutionally, emerges from her comparing cabinet committees with Bagehot’s distinction between the “dignified and efficient parts of the constitution” (p92) that is, the ceremonial, formal powers of the Crown, versus the effective control of the cabinet. This suggests that the modern cabinet has in its turn become ceremonial and that the real power is now in the committees. But to use the parallel thus, is to confuse the historical democratic shift of power from the Crown to Parliament with a modern delegation based on efficiency to smaller units under the overall supervision of the collective. A good deal of important work undoubtedly takes place in cabinet committees, but in the end the whole cabinet must confirm any decision of a cabinet committee ‑ and it often changes them as the author notes (p93).

The last example raised here concerned the author’s discussions of the interactions between party and caucus rules and the operation of the cabinet. The author comments on these in some detail, as they were important factors in cabinet formation and dissolution (especially in the Labour Party). But there are aspects where the insights could have been extended.

One can view the entire framework of the Labour Party constitution and indeed its caucus rules as an attempt to ensure that party policy would be carried into effect once persons were elected to office. This reflects its heritage as a party of socialist transformation and the control used to be most clearly seen in the party loyalty pledges which each candidate had to sign before nomination. But it is still in the rules providing for the obligation (in the case of Labour) to vote in accordance with party policy if this conflicts with decisions made by the caucus ‑ or, by implication, by the cabinet.

Readers may recall the Labour Party’s convolutions in the late 1980s, trying to put in place party‑caucus policy consultative systems for avoiding the Labour Party’s rules on MPs implementing agreed policy. These were, of course, too late. The Labour Party broke apart and was then drummed out of office by an electorate fed up with broken promises.

Constitutionally, these party and caucus rules constitute unenforceable fetters on the freedom of MPs to stand for election, and thence act and vote and they see fit. Of course, it may not be possible to get reselected by the party for the next election. The formal position (and the political reality) was established by the dissident National MP Winston Peters, who also figures prominently in the book ‑ here confirming the conventions on cabinet responsibility (pp199‑200, also Peters v Collinge [1993] 2 NZLR).

McLeay sets out the importance of constitutional conventions, and explores many. The conventions of cabinet responsibility, for example, weave through several chapters, before occupying a chapter on their own (ch9, “Taking Responsibility”). But her explorations take us much further ‑ for example, to examine the effect of the Public Finance Act 1989 and State Sector Act 1988 on ministerial responsibility. I noted the absence of Ruth Richardson’s legacy, the Fiscal Responsibility Act 1993. This surely, will provide a major brake on cabinet options in the future, as has the Reserve Bank Act 1989.

The constitutional processes on such matters are extremely important, and likely to be more so after MMP. Obviously, only the Governor‑General can remove a person from the Executive Council. In such, as on all matters, she should be satisfied that the Prime Minister still commands the confidence of the House.

What if, in fact, the Prime Minister has already lost the support of the caucus, and thus, probably, of the House? The author’s discussion of Prime Minister David Lange’s situation over the removal of key cabinet members who were demanding further radical reform (Sir Roger Douglas and Richard Prebble) shows that matters were almost this close (p67). In the end, she argues, Lange saw the writing on the wall and resigned. The two cabinet ministers were brought back into the cabinet by his successor, Sir Geoffrey Palmer.

But reflecting on this in the light of possible coalition governments raises some interesting questions. Suppose Lange had gone to the Governor‑General and requested a dissolution of the House and a general election? What further inquiries might a prudent Governor‑General appropriately have made to establish if he commanded the confidence of the House in tendering such advice? The answer here was simple ‑ at least in the past. The convention of “commanding the confidence of the House” meant only: votes in Parliament. Some exceptional circumstances could be envisaged (for example, some disaster). But otherwise, it was not up to the Governor‑General to take account of extraneous letters, polls, press statements, etc, which suggested that a Prime Minister may have lost support (I reserve the word “confidence” for parliamentary votes) of colleagues.

But can one say the same for a post-MMP situation? The intricacies of dissolution and formation of governments ‑ and cabinets ‑ are indeed likely to be more complicated compared with the experiences under National and Labour. The author does not seek to speculate about coalitions and what might happen after the first election. Still, the insights offered, especially from Labour’s rules on cabinet selection, are instructive. The key lesson seems to be that tight agreements and processes may be necessary to hold coalition cabinets together. Further, that Muldoon‑style prime ministerial patronage and power has gone. That said, the essential constraints such as the need to keep close to party members, the demands of cabinet committees, the rules from the cabinet manual, etc, will all remain.

Reading this book, I found myself reflecting constantly on the questions of how the formal interactions between the House and cabinet, between the Prime Minister and cabinet, and between the Prime Minister/cabinet and the Governor-General were going to be played out in the absence of a clear majority. Indeed, this is the situation as I write with cabinet hanging from a United Party thread. The answer confirms McLeay’s predictions: business appears much as usual.

Given the dominance of two‑party government between 1935 and 1993, it has been easy to forget that constitutional rules existed prior to the advent of solid majorities and that they arose precisely to accommodate such uncertainties. Two‑party competition focussed attention on winning – not on structures and systems. But the basic position was always clear. The Governor‑General should appoint as Prime Minister, the person who, in the Governor‑General’s view, is most likely to command the confidence of Parliament. In the absence of a clear election winner, there are likely to be inter‑party bargains, and perhaps even some gubernatorial consultation to enable the Governor‑General to form a view on who is that person.

Equally important is the constitutional corollary noted above, that the Governor‑General should only act on the advice of a person who commands the confidence of Parliament. Both of these, as indicated, are likely to draw attention following the next election. If we are to avoid dragging the Governor‑General into detailed inquiries, in my view we urgently need clearer mechanisms of establishing constitutional confidence. In particular, we need clearer rules on the role of Parliament in confirming its confidence on appointments of the Prime Minister, on explicit votes of confidence and on the question of whether the House is in favour of a general dissolution.

In this, as in many matters to do with cabinet, all the actors have a stake in following an agreed process. Indeed, one of the most important constraints on cabinet power in New Zealand, woven silently through this book, has been the reality that MPs may be in opposition after the next election. There is nothing like a humbling spell of opposition to make MPs respect such conventions as the rules for an orderly handover of power. So, too, for MMP all have a stake in preventing the politicisation of the Governor‑General’s role.

Finally, I note the author’s illustrations of the issues of representativeness and the cabinet. On the one hand, she shows that considerable attention has been given in cabinet selection to such things as geographic spread, party loyalty and experience, the work background of candidates, and, occasionally, Maori representation. On the other hand, the author notes (without making the case) that “there is a very strong case for the fairer representation of ethnic and cultural minorities and women” (pp42‑3). By the end of the book she envisages that MMP will usher in fairer representation (p208).

As cabinets become more fairly representative of groups such as Maori, women, and perhaps, those who represent the poorer members of our society, the interests of those groups might be more effectively pursued. Wide consultation in the pursuit of policy legitimacy and effective policy implementation might also again become the commonplace practice of New Zealand cabinet government.

The origins of cabinet lie in the Crown’s need for advisors who could “get the job (of taxation) done”. Ministers had to have the confidence of the people’s representatives, as expressed through the (flawed) electoral processes. As the franchise expanded so, gradually, has the nature of the people in Parliament and hence the cabinet. Because the cabinet concerns power it can never accommodate all competition for membership. But if attention is given to key issues and if participation and representation in decision-making are closely addressed, the institution can at least survive.

In 1995, there are increasing calls for Maori to abandon “pakeha” parliamentary processes and seek alternatives for tino rangatiratanga. There is in immediate prospect a new elected national forum for Maori ‑ a Maori Parliament it is sure to become. This may offer a dramatic challenge to the system of cabinet government out of one House. Ka Awatea, perhaps.

Andrew Ladley is a senior lecturer in public law at Victoria University of Wellington.

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