Yes, Minister, Bob Gregory

The Tie That Binds: The Relationship Between Ministers and Chief Executives
Colin James
Institute of Policy Studies and the New Zealand Centre for Public Law, Victoria University of Wellington, $25.00,
ISBN 0908935676

Public service reform was not a major election issue when voters went to the polls on 17 September. The public was hardly clamouring to learn of the parties’ policies on how they intended to alter, modify, improve or emasculate the governmental bureaucracy, and any such policies (in so far as they existed at all) would not have weighed anywhere near as heavily on voters’ minds as policies on tax cuts, student loans, the nuclear-free zone, and Treaty settlement and associated issues. Yet it is not just the substance of public policies that matter, it is also how they are carried through in practice – or how, in current jargon, governments in New Zealand “manage for outcomes”.

At the heart of this process is the crucial relationship between politically elected ministers of the Crown and their appointed departmental heads. Ever since the Public Service Act of 1912 the so-called doctrine of ministerial responsibility has been the cornerstone of New Zealand’s “Westminster” system of Parliamentary democracy, and its conventions have powerfully shaped the symbiotic relationship between ministers and officials.

Between October 2001 and April 2002, political journalist and commentator Colin James chaired a series of five forums, involving ministers, departmental chief executives, senior public service officials, academics (including this reviewer) and private sector observers, to examine the changing character of this political-bureaucratic nexus in New Zealand. Organised by Victoria University’s Institute for Policy Studies and its Centre for Public Law, the seminars were funded by the State Services Commission, the Treasury and the Department of the Prime Minister and Cabinet. The Tie That Binds: The Relationship Between Ministers and Chief Executives is the result of these discussions.

The forums were predicated on the belief that the tacit bargain at the heart of this relationship (more about this below) has been changing largely as a result of the State Sector Act 1988, a component of the radical reforms introduced by David Lange’s Labour government. (Lange himself had, before the 1984 election, promised “the most radical shake out of the whole system since the demise of provincial government”.)

In this short book, James sketches by way of introduction the social and political background against which the political-bureaucratic nexus has been changing – the increasing fiscal and monetary constraints on governments, conflictingly linked with increasing public demands on governmental capacity to deliver a growing range of social services, the fragmentation and diversification of society, the change to proportional representation, and so on.

In the subsequent chapters – 11 in all – he provides a clear and succinct outline of the principal arguments made by participants at the forums, and skilfully teases out from a range of different perspectives the tentative conclusions reached. These could be influenced somewhat by the attendance at the forums of only four ministers among the 50-odd participants.

James concludes in his final chapter (“Not Business as Usual”) that “a great deal has changed in the context in which ministers and chief executives deal with each other”, and that while there is “no crisis” a new doctrine may be developing. There was general agreement that there have been strains occurring in the three key elements of the conventional principles which underpin the relationship between ministers and their chief executives – namely, anonymity, neutrality, and loyalty.

Participants conceded that in an age of heightened news media activity and capability the anonymity principle was bound to be strained. But they saw that anonymity has also been attenuated by the requirements placed on chief executives to explain programmes on behalf of the minister to Parliamentary select committees and to the public, including fronting news media interviews on policy matters rather than the technical matters as in times past; by the Official Information Act, which puts officials’ advice to ministers in the public domain; by the State Sector Act and the Public Finance Act, which together require officials to answer publicly for the management of their departments; and by “public, thinly-veiled or near-public attacks by ministers on chief executives or individual staff members”.

In the latter regard, public servants are unable to respond publicly in their own defence, a situation which in part prompted Christine Rankin to bring her employment court action against the State Services Commission (alleging political interference in her non-reappointment).

The combined effect has been increasing strain on the trust essential to an effective working relationship between the political executive and its top public service officials. This trust is fostered and maintained by an implicit “fundamental bargain”. In James’s view, “the minister takes the credit and the blame and public servants are in the background, invisible, neutral, without power bases”. Ministers cannot be expected to defend public servants’ errors, given the intense political pressures under which they (ministers) work. Nor has public criticism of officials by ministers become endemic, and fears that the Rankin case would set a precedent for more such turmoil have not been justified, according to the forums. However, participants were disturbed by the increasing number of occasions on which ministers were prepared openly to “have a whack at public servants”, behaviour which directly undermines the tacit bargain.

Yet the tacit bargain James refers to in his book is in fact rather different from the way he presents it. At its heart lies the issue of tenure for top bureaucrats. Broadly stated, public servants gave up some political rights in exchange for permanence in office, while elected politicians gave up their right to hire and fire civil servants at will in exchange for loyalty and competence.

These political rights largely take the form of prudential restrictions on the political activities of public servants, who are required to think carefully about whether their chief interest lies in personal political ambitions or in their public service employment. They are essentially matters of individual judgement and not amenable to clear and precise codification. Top public servants invariably have a strong sense of what is and is not politically acceptable behaviour, but the State Sector Act’s removal of the public service career system has created a more politically permeable service, one in which lower-level employees today are less imbued with what used to be known as the “public service ethos” and more likely to be active members of political parties and to engage in acts of surreptitious leaking of information for political purposes, and so on. It was in this sense that the forums noted the demise of the neutrality principle.

Looking at this book three years after publication allows us to consider James’s conclusions with the benefit of the extended “watching brief” he believes is needed, and against the background of several high-profile controversies, including the NCEA scholarships fiasco, the leaky homes saga, and the Controller and Auditor-general’s report on the monitoring of departmental out-sourcing. But the picture remains just as uncertain.

Chief executives and senior officials at the forums overwhelmingly averred that the crucial convention of “free and frank” advice offered to ministers remained firmly intact. To suggest otherwise would be to acknowledge that there are increasing pressures on chief executives to call it as they believe the minister wants to hear it. This might not be solely or even primarily because permanent tenure went by the wayside under the State Sector Act, or because of the constraints imposed by the Official Information Act, or the attenuation of anonymity per se.

It may be because in a politically charged environment where risk and blame games have increasingly become apparent, and where chief executives are less anonymous players in the political arena, it is much safer for them to align themselves with the stances and interests of their ministers, the better to ensure public support from ministers when things go wrong.

This book is extremely helpful for those who seek to understand and assess the evolving nature of the relationship between ministers and public service chief executives, in a political context that over the past 15 years or so has become increasingly fluid, challenging and uncertain.

On top of the influences mentioned above, senior public servants are exposed more than before to direct political scrutiny by Parliamentary select committees, and the working relationship with their ministers has over the past several years become more complicated (though not necessarily adversely affected by) the rise in the number of political advisers in ministers’ offices. The State Sector Act was intended to bring greater clarity to the roles and responsibilities of ministers and chief executives, to dissipate what Sir Geoffrey Palmer referred to as the “enveloping haze” that had come to characterise the relationship prior to the Act’s passage.

If, for example, the Maniatoto irrigation scheme issue of the early 1980s was typical of this uncertainty, and offered a much earlier case of the political risk and blames games that have now become even more common, Cave Creek has shown that even where the departmental causes of such a human tragedy are abundantly clear, questions of political and managerial responsibility can remain unsatisfactorily resolved. It was that event, in fact, which led two former State Services Commissioners, Don Hunn and Michael Wintringham, to issue a letter which some have seen as a formal refashioning of a Wellington, rather than Westminster, version of ministerial responsibility, one which places on the chief executive the possible burden of resignation in the public interest.

About 85 per cent of the current 35 departmental chief executives have been appointed to their jobs since the first Labour-led coalition government was elected in 1999. Unlike their counterparts in Australia, who are acutely conscious of their Prime Minister’s powers to effectively hire and fire, their futures rest more independently in the hands of the State Services Commission.

But they and their successors will continue to be major players in an evolving game, in which there is – as there always has been – a major disjunction between myth and reality. The myth of ministerial responsibility must endure in some form, since it is crucial for the legitimacy of a parliamentary democracy that the people believe – even if the truth is much more ambiguous – that the buck actually stops somewhere, and that there is an important constitutional difference between those politicians who are elected to executive offices and those who are appointed to them. The Tie That Binds throws significant light on the increasingly problematic nature of the relationship between the two groups, and shows how important it is to keep New Zealand’s political-bureaucratic nexus under continuing scrutiny. Perhaps it’s almost time for an update.

 

Bob Gregory is an associate professor in the School of Government, Victoria University of Wellington.