Political Neutrality: A discussion

Chris Eichbaum, Adjunct Professor at Te Kura Kāwanatanga School of Government, Te Herenga Waka Victoria University of Wellington, shares his thoughts on the topic of political neutrality.

It is easy to find reference to ‘political neutrality’ and its value as a positive and defining element of the system of government in Aotearoa New Zealand. It’s now codified in statute with Section 11 of the Public Service Act 2020, covering purpose, public service principles, and spirit of service to the community. Section 12 codifies a set of principles.

Here, I look at the first three principles, given that they speak most directly to ‘political neutrality’: politically neutral (to act in a politically neutral manner); free and frank advice (when advising ministers, to do so in a free and frank manner); and merit-based appointments (to make merit-based appointments (unless an exception applies under this Act)).

Before we locate political neutrality in the context of our system of government as a whole, some questions relating to political neutrality arise:

• Does committing to and acting under the principle of political neutrality mean that ‘political considerations’ are irrelevant in the context of what the public service does? No. And while it will depend on the context and the nature of the public servant’s position, a good grasp of politics will be an asset (indeed, some of us believe that this should be an attribute of students completing their secondary education).

• Does political neutrality involve a denial of politics? Not at all. Political nous makes for good relationships between public servants and officials. That said – while political nous is an asset – there are real boundaries regarding roles and responsibilities (I would posit that an important one is between a prime ministerial chief of staff and the permanent public service), and those boundaries trump bonhomie. Public servants enjoy the same rights as other citizens to participate in political activity in Aotearoa New Zealand. And public servants can stand for political office.

The bigger picture

Aotearoa New Zealand is an example of a transplanted Westminster system. Rod Rhodes and Patrick Weller have distilled the essential or defining elements of Westminster down to five characteristics:

1. The concentration of political power in a collective and responsible cabinet.
2. The accountability of ministers to parliament.
3. A constitutional bureaucracy with a non-partisan and expert civil service.
4. An opposition acting as a recognised executive in waiting as part of the regime.
5. Parliamentary sovereignty with its unity of the executive and the legislature.

In the context of an examination of ‘political neutrality’, clearly the third attribute is the one deserving of the greatest attention. But it is limiting to view the characteristics of systems as fixed in time or static. They are dynamic, they are relational, they are fluid, and they are iterative (all qualities of the constitutional arrangements we find in Aotearoa New Zealand).

We can state that political neutrality is a defining feature of our system of government and interrogate that statement. But we can also state – and with some confidence – that as an attribute or quality of the state of the public service, the degree to which it manifests political neutrality may fluctuate over time. And then our task becomes one of examining the drivers of change and posing questions like ‘What enhances it?’ and ‘What diminishes it?’

Political neutrality: Supply and demand

Let’s assume that a politically neutral, non-partisan and expert public service constitutes supply. And then let’s also assume that how that supply is ‘used’ by political principals like ministers constitutes ‘demand’. A failure to allow the public service to fully realise its capabilities (and this can happen for a variety of reasons – quirks of personality, political staff being used as gatekeepers, recourse to purpose-built alternative sources of supply when it comes to advice) – can compromise ‘political neutrality’.

Some years ago, I came across an excellent Department of Labour publication: The Human Capability Framework. It posited that human capacity was about matching capacity with opportunity. In terms of a simple formula, capacity + opportunity = capability. My suggestion is that as a set of principles, informing the practice of government is inherent in all three. You need politically neutral talent (add a capacity to tender free and frank advice). You need a receptive audience in political principles (and the members of their ‘courts’) and you need a sufficiently robust process to affect a coming together of capacity and opportunity.

So political neutrality is not just about the public service narrowly defined – absent demand or the matching of capacity with opportunity. It is not simply an A4 poster on an office wall and something that we tell ourselves about at night in order to get a good night’s sleep.

It requires ministers to understand the notion of political neutrality and respect and accommodate the public service in discharging their part of the bargain when making political neutrality a working reality.

There is a ‘but’ here, and that ‘but’ suggests that political neutrality may be a function of a relationship, with key factors being determined on the demand side – we might even characterise it as exogenous.

But a retreat from political neutrality may well be a self-inflicted wound: and this we might characterise as being endogenous. In this situation, the disposition of the public service is to please the minister – at any cost. And so self-censorship becomes an aspect of the retreat from political neutrality. This variant involves the denial of the constitutional obligation to tender free and frank advice and its replacement by a desire to ensure that advice to the minister is comforting, reassuring, and affirming of established points of view.

Happily, some ministers want discomfort, the challenge, and the contestability that comes from robust processes of policy development, implementation, and review. Some ministers appreciate that the pebble in the shoe may, notwithstanding the discomfort, in the long run be a good thing (assuming it is eventually removed, and the ‘gait’ returns to being agreed and purposive).

Relational nature of political neutrality

In 2007 the Secretary of the Australian Commonwealth Treasury, Dr Ken Henry, convened a meeting of all of the staff of the Commonwealth Treasury in the period leading up to the Federal Election.

The theme of the speech was Treasury’s effectiveness in the current environment. It aimed to help staff in fulfilling their mission “to improve the wellbeing of the Australian people by providing sound and timely advice to the Government, based on objective and thorough analysis of options …”

The speech drew on examples where Treasury has been very effective, including the intergenerational report, the national reform agenda and superannuation, and the greater challenge of being effective in non-Treasury portfolio areas such as water and the environment. To be effective, Treasury needs not only to provide deep analytical rigour and economy-wide thinking but also to be persuasive in communicating its views.

Ken Henry stated, “We need to be even more acutely aware of our role and our identity as part of an apolitical APS [Australian Public Service]. This is a key feature of our system of government. The legislated APS values make it clear that the public service is apolitical, yet responsive to the government of the day. In a pre-election period, we need to be particularly vigilant in balancing our duty to be responsive to our ministers with the need to be non-partisan, non-political, in the advice that we provide”.

At its very essence, being apolitical means being politically neutral.

At this point Ken introduced a diagram, referred to as the ‘Dimensions of Advice’.

This diagram reflects that political neutrality is about a relationship or a set of understandings regarding roles. Then there is an ‘and’ and a ‘but’. The ‘and’ is that there may be circumstances where the posture needs to include advice that is responsible. In this slide, that is captured by the suggestion that such advice is of the kind that a government may want to hear but may also be advice that the government does not want to hear. It is advice of the ‘pebble in the shoe’ variety – potentially discomforting. It could be advice that identifies a flaw in the ‘intervention logic’ within a government policy; it may be advice that identifies medium-term costs that outweigh short-term benefits; it could even be advice (and here Robodebt in Australia comes to mind) that what is proposed by the government may be illegal. The list could go on.

And what about the extremes in the two left-hand quadrants in the table? What I would characterise as ‘hyper-responsiveness’ on the part of the day – an uncritical disposition to simply implement what the government desires, effectively repudiates political neutrality by dint of partisan obeisance.

On the other hand, what I would characterise as ‘hyper-responsibility’ might risk attempts by government departments or agencies to frustrate the mandated responsibilities of the government of the day by a single-minded ‘we know best’ prosecution of a departmental ‘we know best’ mindset. Again, my submission is that this is a repudiation of political neutrality.

As for the other two quadrants, given the limitations of space here, I recommend viewing as many episodes of Yes Minister and Yes Prime Minister as you can tolerate.

In Aotearoa New Zealand we do not have a fully codified (in statute) constitution. We do not have a constitutional court; we do not have an upper house – arguably we lack some of the checks and balances that we find in other jurisdictions. Ipso facto, the sage adviser speaks with a constitutional voice on behalf of the public. This is one aspect of political neutrality. The public service is not, given some kind of Wilsonian dichotomy, a set of institutions that deposes what those in politics have proposed. As the Ken Henry authored diagram might suggest, sage advisers sometimes have an obligation – albeit in terms that Sir Humphrey (from BBC TV series Yes Minister) would support – to point out when emperors have no clothes (or are inappropriately dressed).

Permanence

On the matter of ‘permanence’ (short-hand for the debate over whether the heads of government departments should, in the British tradition, be permanent employees, or whether it is preferable to have the upper echelons of the public service staffed by individuals on fixed-term contracts): since the passage of The State Sector Act 1988, we have – for those atop our departments of state – dispensed with permanence.

The State Sector Bill 1987 foreshadowed the end of permanence for the heads of government departments and agencies. Permanent heads or secretaries were now to be chief executives, and, far from permanent, placed on fixed terms contracts and subject to performance reviews.

Labour Leader and 34^th Prime Minister Mike Moore explained the justification for this change in a contribution to the debate over the Bill:

“The Bill is good, and I support it. Members know that the previous system was feudal because the cardinals would meet in the Wellington Club, put their votes in the box, and send up the name they favoured. Members should not pretend that that did not happen. This Bill will break open the feudal club … The member [a reference to Jim Bolger] could not stand up to Sir Humphrey. The member was a joke. The departmental heads made mincemeat out of him. The feudal system and the ‘Sir Humphreys’ could not stop laughing. The member is the New Zealand version of Yes Minister, and he will never be the Prime Minister … I do not support running a closed shop for the ‘Sir Humphreys’. I do not believe in a feudal, gutless system.”

Perversely enough – and given that ‘politicisation’ forms the background to this discussion – the same Bill foreshadowed something fundamentally different for the National Party Opposition members who opposed it. They were concerned with the potential for the politicisation of the upper echelons of the public service through the appointment of political, or in other material ways, sympathetic fellow travellers of the government of the day.

Tenure does relate to political neutrality. It can be argued that someone on a fixed-term contract may be more likely to place greater weight on the preference of their political masters than on what policy does not suffer from a ‘presentist’ bias and is predicated on the public, not short-term, electoral interests.

This was an issue regarding the ‘new’ Public Service Act 2020. Concerning the tenure of chief executives, the Act provides under Schedule 7 that chief executives are appointed on a permanent basis, but for a period not exceeding five years (they may, however, be reappointed). I sense that a simple bifurcation between permanence, per se, and limited-term contracts have evolved into a system with a cadre of public service leaders who can be rotated through different positions according to the circumstances present at any juncture. It would be an interesting exercise to map the career trajectories of the current cohort of chief executives.

This highlights a potential tension between the security of tenure and political neutrality. It should also be noted that incoming governments can change the rules of the game regarding the recruitment and appointment of chief executives. One hopes that in the case of Aotearoa New Zealand we do not see the equivalent of past political excesses in Australia that saw the immediate termination of departmental secretary positions occasioned by a change of government. But it is a possibility. And one that we should be wary of.

This article was published in the Public Sector Journal - Spring 2023, Issue 46.3.