No Surprises: A re-examination

IPANZ Board member, John Larkindale summarises the issues around “no surprises”, informed by a IPANZ round table where a diverse range of views were expressed.

The application of the so-called “no surprises” element of the relationship between ministers and departmental chief executives (CEs) and government boards has created much debate. The IPANZ Board came to the view that there were a range of issues around the idea of no surprises that merited further consideration. To this end, IPANZ recently facilitated a Chatham House roundtable discussion among a group of experienced practitioners able to provide a 360 degree insight into its evolution and current application. The following comments have been informed by that discussion.

“No surprises” (a concept that, incidentally, does not seem to be a formal precept in any other Westminster jurisdiction) appears to have been first spelt out under the fourth Labour government with the establishment of the new SOE operating model. Initially referred to as “early warning”, the idea was extended to the public service during the time of the Bolger administration and was subsequently codified in the Cabinet Manual in the section relating to relations between ministers and departmental officials.

In short, the Cabinet Manual states that “in their relationship with the Minister, officials should be guided by the ‘no surprises’ principle [and] as a general rule, inform Ministers promptly of matters of significance within their portfolio responsibilities, particularly where these matters may be controversial or may become the subject of public debate”. Further, it states that “the chief executive should exercise judgment as to whether, when and how to inform a Minister of any matter for which the chief executive has statutory responsibility”.

The Manual describes no surprises as a principle. It is in fact not a principle, nor a convention, but is best described as a duty, the exercise of which has evolved through guidance and practice. It is also the case that today it is applied more frequently than in years gone by, in parallel with the practice of providing ministers with more detail on agencies administrative and operational matters than was the case previously. The correlation with the ever-shorter news cycle and, more recently, the pervasiveness of social media is not coincidental.

In so far as a principle is involved, it is perhaps the constitutional principle that ministers are answerable to the public (through parliament) in the exercise of their ministerial warrant or portfolio responsibilities that is at the heart of the issue. It is accordingly necessary for CEs to support ministers in that responsibility. Conversely, however, it is not the role of CEs or government boards to make ministers look good politically or to avoid political embarrassment.

It follows, therefore, that the no surprises approach to informing should be implemented whenever and wherever a minister may require that information in order to fulfil their obligations to parliament and the public. In other words, a “purpose” test needs to be applied – why does the minister need to know? The overriding test is whether or not the minister’s political interests are being served by disclosure or the administrative interests of the executive. In short, does the minister need the information to discharge the responsibilities of their ministerial warrant (but no more)?

It follows from this, that there are four broad scenarios for departments involving no surprises:

1. The CE advises the minister that information on a particular issue is likely to get into the public arena so that the minister is forewarned and can prepare to engage on that issue in fulfilment of their ministerial warrant.

2. The CE consults the minister on a particular issue to ensure that all relevant factors are taken into account, while making it clear that decision making and action on the issue remains with the CE.

3. The CE advises the minister of a decision they have taken that may attract public comment, while making it clear that decision making and action on the issue remains with the CE. (In the case of official information, the CE may pass the issue to the minister to handle if, for example, it is determined to be political in nature and not an intrinsic statutory responsibility of the department.)

4. The CE does not advise the minister of a particular issue, perhaps because it has the potential to unnecessarily contaminate the minister or to compromise the minister’s neutrality or objectivity in other elements of the exercise of their constitutional responsibilities.

It is evident, therefore, that the no surprises concept is not an easy one to apply in practice. But there is an additional complexity in play today, namely, in the form of political advisers in ministerial offices. These often take on something of a filtering role in the communication links between CEs, boards, and ministers. Depending on the issue, this can play out either as blocking information to ministers or, conversely, demanding more information than the CE judges it is appropriate to reveal. The constitutional link, however, is between the CE and the minister, and it is critically important that the CE not be impeded with communicating directly with the minister, if necessary, on a one-to-one basis.

This raises the question of whether it would be helpful to develop a “positive list” of issues on which CEs or boards might be required to advise ministers. This could include both issues on which there is a duty to inform as well as those on which there is a duty not to inform. I suggest, however, that while there could be merit in developing a set of illustrative examples to guide CEs, it would be very difficult to compile an exhaustive list covering all eventualities.

The corollary is that much in the exercise of no surprises must necessarily rest on the judgment and experience of the CE, as well as on the quality of the relationship between the CE and the minister. A key element must be a focus on the key question of whether disclosure is conducive to good governance. And of necessity, this will always be a judgment call, even if some circumstances will be clearer than others.

Hence, it is very difficult to conceive of the development of any legislative or legal underpinning of the no surprises concept. Its weight stems only from the primacy given to the Cabinet Manual as a guide to ministers and senior departmental officials on the exercise of their duties and responsibilities.

Given the above discussion, the question of whether the no surprises practice might be better re-named “early warning” has been raised as a possibility, not least because even given best practice, surprises are always likely to eventuate in public administration. This would seem to have some merit as the term early warning would capture the intent in many circumstances. On the other hand, there will also be instances where timeliness is less of a critical factor, but “need to know” is the key driver. The nomenclature may be less important than a clear understanding of the framework in which the practice needs to be applied.

The application of the no surprises practice is particularly challenging when personal information is involved. Here the Privacy Act also comes into play. An underlying principle is that personal information is not available other than for the purpose for which it was collected or with the authorisation of the individual concerned unless exemptions apply. The potential conflict with the principles of the Official Information Act, namely that all information should be available (other than for specific reasons set out in legislation) is obvious.

In some instances (for example, where a specific individual has approached a minister or their MP about a personal matter) consent can be assumed. In others, however, this is not the case, and great care needs to be taken when a specific case may need to be drawn to the minister’s attention where the statutory decision-making power lies with the agency not the minister.

This raises the question of whether there needs to be legal reinforcement of a principle of non-availability of personal information to mirror the principle of availability of official information. A parallel has been drawn with the very strong confidentiality provisions of New Zealand’s revenue legislation, which in broad terms makes it a criminal offence for any information about an individual’s affairs to be disclosed to any person, including the minister. This means that different confidentiality provisions covering personal information apply in areas such as welfare payments and student loans, depending on whether the programme is administered by IRD or another agency.

Does the tax precedent provide a model for the wider application of no surprises? Probably not directly, since these taxation secrecy provisions are grounded on the constitutional basis of who has the power to tax individuals, which is reflected in the statutory independence of the Commissioner of Inland Revenue. There seems, however, to be no intrinsic reason why an extension to prohibit the release of other personal information could not be considered. But for the moment, disclosure of personal information under no surprises rests on Privacy Act considerations, and with this in mind, the Privacy Commissioner has developed some guidelines to assist ministers and CEs with these judgments.

I would venture to suggest that less emphasis be placed on the “surprise” element (which is ultimately subjective) and more focus be placed on the fundamental question of what is the information that the minister needs in order to discharge the responsibilities of their office and their accountabilities to parliament and the public. Such a focus could well arrest the increasing trend towards giving ministers more information than they need, which blurs that critical defining line between ministerial answerability to parliament and CE’s responsibility to ministers.

IPANZ gave this issue further consideration and put forward some propositions for future changes. These propositions can be found here.

This article was published in the Public Sector Journal - December 2020, Issue 43.4.