The Primary Functions of Government

Trends and developments in constitutional conventions.

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24 November 2005 Speech Notes
Address to the Third Annual NZCPL Conference on the Primary Functions of Government: The Executive Legislative Council Chamber, Parliament Buildings, Wellington

The first two NZCPL conferences on the primary functions of government have placed under the microscope the Courts and parliament respectively. From the perspective of one who has worn a number of hats during my career in public life, including the hats of Whip, Cabinet Minister, Leader of the House, Deputy Prime Minister and latterly Attorney General, it seems to me a very useful exercise to convene gatherings where the basic underpinnings of government can be examined at some length and the various trends and developments debated.

This fulfils in some small degree the role of the deliberations of constitutional courts in jurisdictions which have written constitutions. In the US, for instance, if one wants to understand the state of the art developments regarding the primary functions of government these are laid out in minute detail in the decisions of the Supreme Court. That Court spends much of its time elucidating the issues around the appropriate boundaries between the various branches of government and the domains of federal and state governments.

No such temperature gauge exists in New Zealand. Here we evolve our constitution slowly, largely outside of the courtroom, and largely through shifts in our understanding of the constitutional conventions which grease the wheels, as it were, of government.

The focus of today's conference is the executive functions of government. From some perspectives, the executive is the most elusive aspect of our system of government. When placed under the microscope it wriggles around and slips in and out of focus.

There is an obvious reason for this, in that it is the part of the system most influenced by conventions rather than rules. It is the part of the system that is required to be flexible, even to be capable of being bent out of shape, to accommodate the vicissitudes of parliamentary democracy within the necessities of government administration.

In a sense the 'purity' that exists in the other parts of the system rests upon the capacity of the executive to be 'impure', in the sense of being capable of adapting to suit the conditions. This ought to be no surprise to anyone with a passing knowledge of British constitutional history.

It has been a consistent theme of constitutional thought in the Westminster tradition, at least since Walter Bagehot was writing in the 1860s, that the genius of the system is its malleability at key points, in particular the relationship between the legislature and the executive. Compared to other jurisdictions, we devote little resource to riding shotgun along the boundaries between the various branches of government. There is a pervading spirit of pragmatism, which may grate at times, but which New Zealanders in general value highly.

There are boundaries, and there are fences; but in New Zealand they are made of number eight fencing wire.

That is not to say that modifications in how constitutional conventions around the executive work pass without notice. The announcement last month of the arrangements by which the new government will govern was met with some consternation by the press and some commentators.

Other sessions in this conference will no doubt open up the broader questions that these new arrangements raise. Sir Geoffrey Palmer's paper on the Cabinet, the Prime Minister and the Constitution will be an excellent launch pad for this discussion.

I think the best contribution I can make at the start of this conference is to focus on this latest iteration of executive flexibility and place it in its proper context.

The fact that September's general election did not produce a single party with an absolute majority in the House was no surprise. From time to time, rogue polls have suggested that such an outcome might occur, but the clear pattern of all of the MMP elections so far is that they do not deliver single party majority governments.

That of course reflects the fact that voters in New Zealand electorate are well distributed along the political spectrum, and also that they are sufficiently comfortable with the prospect of coalition or minority government so as not to be frightened into polarised voting just for the sake of neatness and certainty.

In the wake of this year's general election, commentators fell into three camps, two of which I believe to be quite mistaken. Those two took a kind of Platonist view, arguing that election results constitute a 'message' from the electorate - a worldly manifestation of some ideal form - which politicians need to decipher in order to form the government that reflected the collective will of the people.

There was on the one hand the optimistic version of this view, which assumed that the collective mind must have meant something rather wise and subtle by the exact disposition of seats in the new Parliament, and saw the result as a kind of psephological Sudoko puzzle, and hence a challenge to people such as myself to arrange the numbers correctly.

Then on the other hand there were the pessimists who saw the result as a reflection of mere anarchy in the public mind, insisting that any government that emerged would be a rough beast and unable to claim a firm mandate from the people. Although the idea was not explicitly stated, one presumes the best answer to untidy election results from this viewpoint is the appointment of an enlightened dictator, or some variation on that theme.

This amounted essentially to a rejection of the election result as flawed from the point of view of the formation of an acceptable government.

I have little patience for such views. Individuals vote according to their own conscience, and it is folly to go looking for the work of some kind of zeitgeist in the election results. It is even greater folly, in not finding that zeitgeist, to assume that the election is flawed.

Instead, a third group of commentators took a firmly Aristotelian view of the formation of governments in a parliamentary democracy. That is the view that I share. We start with the reality as we find it, and work towards an arrangement that meets all of the essential requirements of stable government and as many of the non-essential ones as we can.

Elections are a vigorous shaking of the parliamentary kaleidoscope, after which the pieces fall into a different configuration. Our task as politicians is to perceive in how the chips fall the options for a new pattern of government, and there may be several such patterns; and then to make one of those options work.

One of the ways in which we know our tradition is a living one is its capacity to innovate. Whatever else one might think of the Prime Minister's announcement on 17 October, it definitely includes some innovations.

To recap the essential features:

·A coalition agreement has been signed with the Progressive Party. Jim Anderton will continue as a Cabinet Minister.

·New Zealand First and United Future have agreed to confidence and supply agreements for the Labour-led government. The leaders of both parties, Rt Hon Winston Peters and Hon Peter Dunne have both become Ministers outside Cabinet.

·Collective responsibility will apply to the areas for which they have portfolio responsibility.

·The Green Party has signed a co-operation agreement with the government in which it undertakes not to oppose confidence or supply for this term of Parliament, and agrees to work with the government on agreed policy and budget initiatives.

It is early days yet, so what I have to offer at the moment is some initial observations on the significance of this new model of executive government, if we might call it that.

The first observation is that we have unbundled elements of executive government that used to be wrapped up into a single package, and found that life can continue despite a little bit of disaggregation.

For example, it used to be assumed that a government had to be able to demonstrate the confidence of the House, the capacity to maintain the supply of funds to keep government services functioning, and a clear set of shared policies. We have challenged that assumption, and decided that we can function quite effectively on confidence and supply only, leaving a situation in which any piece of legislation introduced into the house will proceed on its own merits.

This contrasts with the situation in 1996, when NZ First and National negotiated a lengthy pre-nuptial agreement in the form of a coalition document to which both parties pledged support. That document took weeks to finalise and contained a confusing mixture of vague statements of direction alongside minutely detailed (and often poorly thought out) policy commitments. The document was in a very real sense an attempt to determine in advance the entire policy programme for a three year term of office. It was like a pre-nuptial agreement which tried to get down to the level of which end of the toothpaste tube was to be squeezed. Not surprisingly it proved unworkable.

The second observation is that the new arrangements carry forward to the next, and some might say the logical, stage the notion of diffusion of power away from the executive and towards parliament. This was one of the important objectives of the shift to MMP. You will recall the concerns at the propensity of the former system to produce an 'elected dictatorship', through the combination of a First Past the Post voting system, a unicameral legislature, an executive drawn from within the legislature, and a relatively small number of MPs, such that cabinet constituted an almost unbeatable voting block within the government caucus.

As I have already noted, the new government is premised on the assurance only of a majority for confidence and supply motions. No other piece of government legislation has any kind of imprimatur. That includes many matters that are central to Labour's policy programme, including changes to taxation and student loans that are currently before the House.

This represents what I imagine Sir Geoffrey would call a shift from a Westminster system towards a Wash-minster one. In the former, the executive governs and imposes; in the latter the executive governs and proposes.

That has been the reality for quite some time. To formalise that should not be concern.

MMP has redistributed the power that was formerly concentrated, with the result that parliament is a much more powerful and autonomous institution. Correspondingly the task of government is a much less certain one.

Long gone are the days when the bulk of a minister's law reform work lay in formulating the policy, gaining Cabinet approval and drafting the legislation. In those days, once the boat was launched onto the parliamentary sea, one might encounter a bit of rough weather and the occasional attack by pirates, but there was never any real question that it would reach its destination.

Nowadays if a government launches a piece of legislation onto the parliamentary waters there is no guarantee where it might end up and what precise form it might take when it arrives.

That said, one has to acknowledge the effectiveness of these looser forms of government, especially in the last two parliamentary terms. Since the Labour-led government was first elected in 1999, we have delivered stable government and strong economic growth, and we have addressed some very challenging issues. Internationally, we have had to deal with the September 11 terrorist attacks and their aftermath; and on the domestic front we have had to work through the foreshore and seabed issue which threatened to create social division and to disrupt recreational access to coastal areas and economic opportunities based around that natural resource.

It has been a rough ride, and yet the last two parliaments have passed some 607 pieces of government legislation, which compares favourably with any government of the recent past. And all this has been achieved without a formal majority in parliament, and hence under the imminent possibility that the sky may fall at any moment.

My third observation is that the way in which Cabinet operates is likely to undergo a sea-change. This arises in large part from a new approach to the question of cabinet collective responsibility.

It is important to remember that ministerial responsibility is the key constitutional principle, and that, since Cabinet itself is merely a convention, collective decision making has been merely an extrapolation of that. The new arrangements provide a selective approach to collective responsibility. This is yet to be tested, although I would remind you that after the 1999 election much was made of the Alliance's statement that it reserved the right to disagree on government policy despite being within the governing coalition.

That rider on their involvement did not in the event create the kind of tension that was predicted, and the difficulties of the coalition arose entirely out of internal problems within the Alliance.

I would argue that there is no reason to believe that this will not work. What it does require is for a new set of expectations about how Cabinet will function on a day to day basis.

In the next three years we will be making constitutional history as we go. This should prompt us to be vigilant and to take time out to reflect on what is happening, but there is no cause for panic.

It is worth making the point that the effective exercise of executive functions is as much a matter of the skills of the individuals involved as it is the robustness of the laws and conventions within which those functions are carried out. In other words, after several MMP governments, MPs are now learning what behaviours work and what ones are counter productive.

As in the oft quoted Prisoners' Dilemma, what emerges over time is that co-operation is on average a better strategy for the individuals concerned. One could argue that the developing shape of the executive under MMP reflects a growing maturity of the political culture.

It is partly for that reason that I am reluctant to call the new arrangements a 'model', since different individuals would not necessarily be able to make it work. As many of the early theorists of democracy would remind us, we elect MPs not because of what they say they will do, but also because we trust their judgment to make good decisions in that unknown territory beyond the current limits of the law.

Thank you.

ENDS

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