Recent weeks have seen a relatively rare event in New Zealand politics and public administration – the resignation of a Cabinet Minister.
One can ‘make sense’ of events like this through a number of perspectives. At one level, what we are seeing is our Constitution at work. Constitutions mostly take the form of statutes – higher or embedded law. But Constitutions also include conventions – non-legal rules (and therefore not enforceable before a court of law). In the kind of Cabinet system we have in New Zealand two conventions relating to Ministers are of particular importance – Collective Cabinet Responsibility and Individual Ministerial Responsibility. ‘Resignations’ of recent occurrence relate to the latter (and the black letter detail relating to both can be found in one of the most important elements of the NZ Constitution – the Cabinet Manual) – see https://dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf - endorsement of which is the first order of business for any new Cabinet.
There are three aspects to Individual Ministerial Responsibility – primary, personal and vicarious.
Primary responsibility relates to decisions that a Minister makes in relation to their portfolios. ‘Crossing the line’ and interfering in a departmental decision within a portfolio (where the decision is properly that of a Chief Executive) would be an example.
Personal responsibility goes to personal conduct. Misusing one’s Cabinet position to advance the business interests of a family member would constitute a breach of this element.
Vicarious responsibility is the most challenging conceptually and – among observers and commentators on Cabinet government – the most arguable. This would have it that, in the final analysis a Cabinet Minister is responsible for what occurs in at any level with the policy or operational arms of the departments or agencies within their portfolio – whether they had knowledge of it or not. In effect, the ‘buck stops’ with the Minister and they take responsibility. Moreover, that responsibility for ‘owning’ a failing and undertaking to rectify it, is discharged before the Parliament. In the NZ context, resignations or dismissals for a breach of vicarious responsibility are rare. Indeed, some leading NZ scholars argue that the obligations under the convention are fully discharged by ‘fronting up’ to Parliament, undertaking to rectify a situation, and reporting back on progress.
However. the alternative interpretation of vicarious responsibility – and it is clearly a matter of degree – has the Minister taking responsibility, and if necessary to the point of resignation (or dismissal) for the political and the operational (even where there was no direct knowledge on the part of the Minister of the minutiae of the latter). This alternative interpretation is captured in this statement by the former British Conservative MP Enoch Powell. It is worth quoting a length:
“… a distinction, which I believe to be invalid, between responsibility for policy and responsibility for administration. I believe that this is a wholly fallacious view of the nature of ministerial responsibility. … the responsibility for the administration of a Department remains irrevocably with the Minister in charge. It is impossible for him to say to the House or to the country, ‘The policy was excellent and that was mine, but the execution was defective or disastrous and that has nothing to do with me.’ If that were to be the accepted position, there would be no political source to which the public could complain about administration or from which it could seek redress for failings of administration” (emphasis added).
This Powell view was, in no small part, about ensuring that public servants were not drawn into the political affray – that they remained, if not above, then in some way insulated from the predations of partisan politics. Clearly that is no longer the case.
These days, typically, Ministers inform, explain, and amend. They do not resign.
But in the final analysis Ministers serve at the pleasure of the Prime Minister, and it is that person who decides whether a convention has been breached, and if so, what will be expected of a Minister.
Chris Eichbaum, July 2020