cabinet via a vis public service act (2)

February 4, 2023

The Public Service Act 2020 seeks to “provide a modern legislative framework for achieving a more adaptive and collaborative Public Service by expanding the types of agencies that comprise the Public Service, unified by a common purpose, ethos, and strengthened leadership arrangements.”

 

  1. Critically assess the extent to which the existing structure and decision-making processes of Cabinet (including the size of Cabinet, the structure and functioning of Cabinet Committees, and the interface between Cabinet and the Public Service advisors) is consistent with the likely changes to the Public Service that has resulted from the Act. 

 

THE NEW ZEALAND CABINET

The cabinet in New Zealand is a government body of ministers accountable to the New Zealand Parliament. It is not established by any statute but it has a great influence over the political field in New Zealand. All cabinet ministers serve as members of the Executive Council, a body responsible for advising the governor general in the exercise of their constitutional roles and duties.

The lack of a statutory document establishing the Cabinet poses a challenge to the roles and functions of the cabinet as they are loosely defined. Some of its functions include

  1. Directs and controls policies
  2. Holds the house of representatives accountable
  3. Influences the lawmaking process
  4. Collective responsibility- here, members are required to support all cabinet decisions and defend them in public, regardless on any personal views on the matter. Moreover, members are expected to uphold confidentiality i.e. all Cabinet discussions are to be kept confidential.

The New Zealand cabinet meets on a regular weekly basis to discuss government policy issues. The meetings are usually chaired by the prime minister but in his absence, the deputy prime minister takes over.  Currently, the New Zealand cabinet is composed of 20 members

The decision making process of the cabinet is governed by the collective responsibility tenet.

THE CABINET COLLECTIVE RESPONSIBILITY.

The cabinet collective responsibility reflects democratic principle: the House expresses its confidence in the collective whole of government, rather than in individual Ministers. Collective responsibility is a constitutional convention provided under the act and  rests on three principles i.e.

  1. Unanimity
  2. Confidentiality
  3. Confidence

Unanimity

Members are required to support all cabinet decisions and defend them in public, regardless on any personal views on the matter. A decision made by cabinet especially on matters on which agencies hold different views is supposed to be relayed to the public as a collective governmental decision.

Confidentiality

All Cabinet discussions are to be kept confidential. Ministers and officials are prohibited from disclosing proposals likely to be considered at forthcoming meetings, outside Cabinet-approved consultation procedures. Neither are they supposed to  disclose or record the nature or content of the discussions or anything else expressed at the meeting itself. 

Confidence.

Here Cabinet and executive government must have the confidence of the House of Representatives. This confidence is expressed 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

An exception to the collective responsibility tenet is envisioned when such Ministers represent the government internationally, they speak for the government on any issues that foreign governments may raise with them in their capacity as Ministers. When they are overseas in a personal capacity, for example as party leaders, they are not bound by collective responsibility. The capacity in which they are speaking must always be clear to those present

 

THE PUBLIC SERVICE ACT.

The public service commission is a public service department of New Zealand charged with overseeing, managing, and improving the performance of the State sector of New Zealand and its organizations.

The new Public Service Act 2020 (the Act) builds on the high-performance base of the public service, with the overall aim of delivering better outcomes and services for all nationals of New Zealand. The act builds on high performance in public service in an attempt to deliver better services to New Zealand. Its aim is to support the partnership between Maori and the crow. In order to achieve this, the act puts an emphasis on:

  1. Public service culture and behaviour
  2. An updated framework for employment
  3. Effective leadership
  4. A greater range of options for configuring fit-for-purpose public service organisations.

The act embodies the five public service principles which are; politically neutral, free and frank advice to Ministers, merit-based appointments, open government and stewardship. The act further requires that public servants are impartial, accountable, trustworthy, respectful, and responsive. The purpose of these values and principles is to ensure that the public and members within the public service coexist peacefully under a specific legal framework. The public service chief executives and boards of crown agents are responsible for ensuring that the principles are upheld in their agencies.

The naming of the act shows a shift in thinking as it places emphasis on the benefits to individual nationals, communities and organizations as the focal point for all public service agencies and activities. This new Act repealed and replaced the State Sector Act of 1988 and it includes provisions across five key areas to promote correlation between public service and the needs, trust and confidence of the New Zealand nationals. These areas are

  • A unified public service
  • Strengthening the Crown’s relationships with Māori
  • Employment and workforce
  • Leadership
  • Organisational flexibility

There are efforts being made to improve how public service agencies organize themselves to serve the nationals well. Since the new Act is more adoptive, agile and collaborative, it can more effectively meet the needs of nationals and the communities it serves. Therefore, the act can be viewed as an act that provides effective services and improved well being outcomes for all nationals. 

Major changes captured in the act that are consistent to the likely changes to the public service resulting from the act.

  • The act helps to create a unified public service with the purpose of upholding foundational principles and core values of New Zealanders- the new act promotes cross-departmental working.  This ensures that the officials focus on public policy goals by allowing public servants to move easily between departments creating the image of a unified public service.
  • The act makes appropriate chief executives and boards of crown agents responsible for upholding the principles upheld- the new act promotes the creation of an official public service leadership team that will work together towards achieving the goals of the act.
  • The act recognises the spirit of service as core to public service- the new act is built on the successes of the past while trying to avoid any futuristic shortcomings thus ensuring that it meets the citizens’ expectations on public service. The public service therefore earns not only the trust but also the confidence of the citizens.
  • The act reaffirms the term ‘public service’ to include agents of the Crown- this is aimed in supporting the crown in its attempt to foster a relationship with the Māori people under the Treaty of Waitangi. This emphasises that public service leaders are putting efforts into understanding maori perspectives.
  • The act allows public servants to have the same civil and political rights as all other citizens- public servants are allowed to engage in civil and political debates, democratic protests, and political parties’ participation just like any other citizens except in circumstances where such participation is inconsistent with their work as public servants.
  • The act aims to shift the focus of public service to where it makes more difference- the focus of public service is the Citizens of New Zealands. By shifting the focus to the recipients, it will be easier to achieve the goals and aims set therein.
  • The act issues a guidance on the duties and responsibilities of public servants- this works to ensure that the aim and goal of the public service act are upheld and worked on respectively.

 

Section 11, of the Public Service Act 2020 provides for the purpose of the public service by stating ‘The public service supports constitutional and democratic government, enables both the current Government and successive governments to develop and implement their policies, delivers high-quality and efficient public services, supports the Government to pursue the long-term public interest, facilitates active citizenship, and acts in accordance with the law.”

THE EXTENT TO WHICH THE EXISTING STRUCTURE OF THE CABINET IS CONSISTENT WITH CHANGES TO PUBLIC SERVICE ENVISIONED IN THE PUBLIC SERVICE ACT.

Diversity

The New Zealand cabinet is composed of diverse members of the community. In a coalition government, Ministers are expected to show careful judgement when referring to party policy that differs from government policy. Comments or statements should reflect the fact that a collective government decision has been made. Officials from departments or other agencies with policy responsibilities may be required to comment publicly on the effect of a particular decision on their area of operation. It is important that such comments are shaped as factually and neutrally as possible. This works to show the public that no matter how different views can appear, there is a chance to reach a consensus. This works to show that there can be a unified public service as envisioned in the new Public Service Act. Once a decision is reached by Cabinet, particularly on a matter on which agencies hold differing views, both officials and Ministers need to be keen when making comments or statements about the matter in the public arena. Comments or statements should reflect the fact that a collective government decision has been made.

Consultation

Ministers are expected to consult their colleagues before submitting papers that deal with potentially controversial matters, or that affect other Ministers’ portfolio interests. Papers that do not contain evidence that appropriate consultation has taken place may be deferred from a particular meeting. This works to ensure that the information relayed to the public is consistent with the tenets of collective responsibility. This is envisioned in the new act which seeks to provide a unified public service.

Moreover, in a coalition or minority government, the coalition or support partners are likely to agree to specific consultation procedures, which may be approved by Cabinet and promulgated by Cabinet Office circulars. Ministers are responsible for ensuring that consultation is undertaken in accordance with any coalition or support agreements entered into between political parties. This works to provide a unified front to the public further emphasizing the need for a unified public service as envisioned in the public service act.

Leadership.

Discussion at Cabinet and Cabinet committee meetings is informal and confidential. Ministers and officials should not disclose proposals likely to be considered at forthcoming meetings, outside Cabinet-approved consultation procedures. Nor should they disclose or record the nature or content of the discussions or the views of individual Ministers or officials expressed at the meeting itself. The detail of discussion at Cabinet and Cabinet committee meetings is not formally recorded, or included in the minutes. This serves to provide a unified front to the public thus making the public have trust in the leadership of New Zealand. This is envisioned in the new Public Service Act under the leadership tenet.

 

  • Specify, and provide justifications for, any changes to existing arrangements that might be considered.

 

THE PROCESS OF GOVERNMENT FORMATION.

The rules under which government formation occurs are important to any democratic setting. This is because they create identifiable incentives, constraints and opportunities, thus influencing the pattern of inter­ party bargaining and the outcomes expected or envisioned. Under the New Zealand law, there are no provisions for the appointment of formateurs or informateurs, no procedures for managing the conduct or sequencing of inter-party bargaining, no requirement for an investiture vote and only limited constraints on the duration of the formation process. The New Zealand approach is referred to as ‘free-style bargaining’. Such an approach may increase political uncertainty, worsen the risks of political deadlock and enhance the potential bargaining power of certain parties in the absence of a stable, two-block party system. There is need to set up rules and procedures on the process of government formation in New Zealand in order to identify all loopholes created by the lack of such procedures.

THE PROCEDURES FOR TESTING GOVERNMENT’S CONFIDENCE IN PARLIAMENT

Governments in parliamentary democracies with proportional representation tend to be less stable than those in countries with semi-proportional or non-proportional systems. For this reason, many countries with proportional representation have established constitutional rules designed to enhance political certainty, government durability in order to avoid early elections. This is usually achieved via a requirement for votes of no confidence be ‘constructive’ in nature. This means that an incumbent administration cannot be defeated by a censure motion in the legislature without an alternative government being proposed and supported. This thus shows that a government can be forced to resign only if an absolute majority of all MPs vote against it on a matter of confidence.

MANAGEMENT OF THE COALITION BETWEEN TWO PARTIES

There is no ideal way of structuring or managing a coalition between two or more parties. However, experience in Europe suggests that coalitions operate more successfully where the parties share a reasonable percentage of policy affinity. This usually occurs via certain tenets i.e. 

  • Where the parties have a clear and properly agreed policy agenda for example through a coalition agreement. 
  • Where there is a relationship of trust between the respective party leaders 
  • Where there are good mechanisms for consultation, information sharing and conflict resolution 
  • Where none of the governing parties suffers a highly disproportionate fall in public support.

Highly specific, comprehensive and exacting coalition agreements of the kind negotiated between National and New Zealand are relatively rare and generally not favored. While the majority of coalitions elsewhere negotiate pose-election agreements, these tend to be rea­sonably short, policy-focused and concerned with matters of principle. There is need for reform on this tenet in order to encompass the needs of New Zealanders.

THE NATURE AND LENGTH OF THE TERM OF PARLIAMENT

Most democratic governments do not enjoy an overall parliamentary majority and are thus dependent on the support of another party(s) to secure the passage of legislation, including the annual budget, through Parliament. Experience in Europe suggests that minority governments are likely to be most durable and effective when an administration needs the support of only one additional party to achieve a parliamentary majority and there are a number of parties from which such support can be sought. Minority governments must necessarily undertake extensive consultations and negotiations with a support party (or parties) in order to manage their legislative duties. Such a review could also consider whether the period of time between the holding of a general election and the calling of Parliament should be reduced and whether non-MPs should be eligible for appointment as ministers.

 

THE COMPOSITION OF THE CABINET

New Zealand is unusual amongst democracies with a unicameral legislature in prohibiting the appointment of non-MPs to the cabinet. Given the small size of the New Zealand Parliament, such a rule necessarily. The New Zealand Parliament is a pool of talent from which ministers can be drawn. In most jurisdictions, the Prime Ministers frequently appoint a significant proportion of their cabinets from outside the legislature. This suggests that this tends to enhance the quality and representation in terms of gender, background and occupation of the cabinet without detracting from ministerial accountability or responsiveness. A review should be considered to include appointment of non mps to the parliament. Such a review could also consider whether the period of time between the holding of a general election and the calling of Parliament should be reduced and whether non-MPs should be eligible for appointment as ministers.

CONCLUSION.

In conclusion, to some extent, the existing structure and decision making process of cabinet is consistent with the likely changes to the public service encompassed in the new Public Service Act.

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