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The Iron Rule of Political Contest 33 4 the Everyday Paradox 47 Conclusion to Part One 59 With Respect Parliamentarians, officials, and judges too Mark Prebble Institute of Policy Studies First printed in 2010 Institute of Policy Studies School of Government Victoria University of Wellington PO Box 600 Wellington © Institute of Policy Studies ISBN 978–1–877347–38–2 IPS 167 This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced without the permission of the Institute of Policy Studies. Copy editors: Belinda Hill and Victor Lipski Indexer: Diane Lowther Cover design: Milne Print Cover illustration: ‘Benefits of Good Government’ (detail, inverted); tapestry by Mark Prebble based on the painting by Ambrogio Lorenzetti Printed by Milne Print To information and information technology staff in government agencies who ensure government websites have accessible and accurate information. Their efforts contribute to honesty and openness in the New Zealand government Contents Preface vii Contributors xi 1 Introduction 1 Part One: Principle, Contest and Clash: The basics Introduction to Part One 9 2 Constitutional Principles Come from History 11 3 The Iron Rule of Political Contest 33 4 The Everyday Paradox 47 Conclusion to Part One 59 Part Two: Parliament is Sovereign: Or so they say Introduction to Part Two 63 5 Who Makes the Law? 65 6 Who Is in Charge Here? 89 7 Who Makes Things Happen? 105 8 Who Controls Parliament? 119 Conclusion to Part Two 127 Part Three: Parliament in Action Introduction to Part Three 131 9 Making Governments 133 10 Making Laws 147 11 Funding Governments 159 12 Scrutinising Government 173 13 Representation 189 Conclusion to Part Three 207 v With Respect: Parliamentarians, officials, and judges too Part Four: Conclusion 14 Conclusion: Their parliament, and ours too 211 Afterword: A Summary 215 References 217 Cases cited 226 Index 227 vi Preface This book originated in a series of research papers and discussions convened by the Institute of Policy Studies in 2007. The discussions involved a variety of academics and practitioners chaired by Colin James. Following the seminars, Colin wrote an extensive note of the topics discussed and the emerging conclusions. That note has been a valuable inspiration to this text. Having received Colin’s paper, Andrew Ladley, the then director of the Institute of Policy Studies, worked with his colleague Nicola White to write an assessment of changing constitutional understandings of parliament and its role. Andrew made a start on a text with the intention that he and Nicola would complete it as a joint draft. However, other priorities intervened and both intended authors moved on from the institute, leaving a draft of an introductory chapter and an outline for the proposed text. Key within that proposal was Andrew’s formulation of the iron rule of political conflict; that was at the heart of the book as proposed and remains central to the book as completed. In late 2009, Jonathan Boston, the current director of the Institute of Policy Studies, commissioned me to take the available material and complete a manuscript for publication. This book has grown beyond the plans of the previous proposed authors, but I still owe a huge debt to Colin, Andrew and Nicola for the earlier work. The main shift I have brought to the work is to focus not on parliament itself, but on the relationship between parliamentarians and public servants. (Judges are there too; it turns out there are more than two parties in the relationship between officials and politicians.) Similarly, though constitutional issues are covered, this text focuses more on the pressures on people as they work in different parts of government. That reflects my own background as a public servant with long (it felt like forever) experience of working with parliamentarians. Though the resulting text is a practitioner’s document, reflecting personal experience, it is not a memoir. I aim to share my knowledge, but I am not sharing confidences. There is only one place where I have used a personal recollection, and in that example I have gained the agreement of the member of parliament concerned before publishing the incident. The text outlines a simple theory of factors that drive the relationship between politicians and public servants, and it draws out the practical implications of that theory by means of case studies. In selecting these case studies I looked for recent examples, and to ensure objectivity I have generally vii With Respect: Parliamentarians, officials, and judges too selected cases where I had no or little involvement. The exception is the case study about the advice to negotiating parties in 1996; that is the only occasion when officials have played such a role so I had to use it even though I was actively involved as a senior Treasury officer at the time. Far from relying on inside knowledge, this book is almost entirely drawn from publicly available material. In New Zealand the combination of the Official Information Act 1982 and very good departmental websites means much is available on any topic. In Part One, the emphasis is on developing the theory that drives the text, so it is not heavily sourced. But Parts Two and Three deal with the application of those theories to real incidents, and I have attempted to substantiate the facts of each example. Much is drawn from media coverage, a great deal from official websites, and a small amount from requests for information from departmental records. In that process I have been very impressed by the quality of record-keeping in government departments and the work that has gone in to making material available on the internet – hence the dedication of this book. Many have contributed to this book. Most important are Colin James, Nicola White and Andrew Ladley, whose earlier drafting has shaped my thinking. Some of Andrew’s drafting has survived into this book and he is acknowledged as the joint author of two chapters. I am very grateful to him and the other two for their efforts. The first contributor to the book was the Emerging Issues Programme; this is a fund provided by government departments to support research into issues of the day. Since this text goes as far back as 1215, it may seem odd to think of parliament as being emergent, but a theme of this text is that parliament constantly adapts and so this project qualifies for support within the programme. The Institute of Policy Studies is grateful for the continuing partnership and support that is offered through the Emerging Issues Programme. Government departments have given significant support to the development of the case studies. Permission to access information for case studies was given by the Secretary for Education (special education), State Services Commissioner (government formation), Secretary for Justice and Chief Parliamentary Counsel (Real Estate Agents Bill), Secretary to The Treasury (imprest), and Commissioner of Inland Revenue (select committee inquiry). I am particularly thankful for the special efforts by staff in those departments as follows: Jan Breakwell and Brian Coffey (Ministry of Education), Hugh Oliver and Malcolm Macaskill (State Services Commission), Alan Bell (Ministry of Justice), Fiona Leonard (Parliamentary Counsel Office), Marcus Jackson and Peter Lorimer (The Treasury), David Shanks (formerly Inland Revenue viii Preface Department, now Ministry of Social Develoment) and Peter Newell (Inland Revenue Department). Several people gave up time over Christmas to read a near final draft; I am grateful for the comments and suggestions they offered. Some were happily in contradiction to the comments that others made; that seemed to leave me with freedom to make my own choices. In other cases, the comments were emphatically uniform and I bowed to superior wisdom. I offer thanks for this service to Jonathan Boston, Matthew Palmer, Vernon Small, Chris Eichbaum, Derek Gill, Nicola White, Andrew Ladley, Lesley Bagnall and Sam Prebble. Any remaining mistakes must have been inserted after those readers checked the text and they are absolved of any responsibility. I am much indebted to the staff and contractors of the Institute of Policy Studies. Jonathan Boston first suggested to me that I take on this task and has provided warm (and critical) support and advice throughout. Zoë Lawton, an intern at the Institute of Policy Studies, has acted as research assistant; she has been very prompt in finding legal cases, newspapers, Hansards and files and has checked every reference. Zoë has been a great help, saving me many weeks’ work. Belinda Hill and Victor Lipski provided prompt and precise service as editors, Diane Lowther did an excellent job creating the index, and Kevin Scarlett at Milne Print did the lay-out work for the cover. ix Contributors Mark Prebble is the sole author of most of this work and the co-author of chapters 2 and 3. Mark is a senior associate at the Institute of Policy Studies. He was State Services Commissioner during 2004–2008. In the course of his distinguished public service career, Mark was the Chief Executive of the Department of Prime Minister and Cabinet and Deputy Secretary to the Treasury. Andrew Ladley co-authored chapters 2 and 3. Andrew is an adjunct professor in the School of Government. He was Director of the Institute of Policy Studies from 2003 to 2008. Before that he served for three years as the Chief of Staff and Coalition Manager in the Office of the Deputy Prime Minister, having previously been a senior lecturer in the Law School at Victoria University of Wellington. xi 1 Introduction The business of government involves many people attending to a variety of duties.1 Control of those processes comes from Wellington, which acts like a committee in continuous session.2 Various subcommittees form and re-form; sometimes as working groups, sometimes as officials’ committees and sometimes as ministerial or parliamentary groupings.
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