Phil
Smith
Editor: The House
Analysis: MPs
are rightly angry that Parliament’s authority may have been
flouted by public servants. Is it possible that public
servants model their behaviour on MPs?
We look at the
current case, the history of public agencies and privilege,
and some possible issues.
Misleading Parliament: Do
MPs set a bad example?
The
background
On Wednesday, Parliament’s
speaker initiated an investigation by Parliament’s
Privileges Committee into the actions of senior Immigration
officials. It is alleged that, during annual reviews earlier
this year, the officials may have withheld
information from a select committee about a failed IT
project.
This investigation is separate to an
inquiry initiated by the Public Service Commission (at the
request of the minister of immigration) into whether
officials kept successive ministers in the dark over the
same project.
Earlier this week, MPs debating these
allegations were unified in their concern that Parliament
and government might be so disrespected.
Misleading
MPs and ministers was connected with “the erosion of
accountability”, “the erosion of public trust in
government”, and “going to the heart” of “fragile
democracy”.
Privilege and the public
service
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Cases involving MPs are not unusual
– the most recent was in 2024. A case involving a public
servant, however, is both rare and serious.
The last
time an accusation was made of withholding information was
against NZ Post in 2001. On that occasion the committee
found that NZ Post had not deliberately misinformed a select
committee, but could have been more frank.
The
Privileges Committee report on this case ruled that tension
with a committee “is no excuse for being less than fully
open and frank” (NZ Post, 2002). They have also reminded
public servants that “Parliament has the ultimate,
overriding oversight of the State sector” (TVNZ,
2006).
The committee has even previously expressed
concern that “there is insufficient material and training
provided to State enterprises and Crown agencies on their
responsibilities to Parliament” (TVNZ, 2006).
Training
has apparently improved since then. The Public Service now
provides officials with detailed specific
advice about their role in committees, including noting
that the House “must get free and frank answers and evidence
from those who appear before its committees”, that officials
are protected by privilege when they speak, and even
acknowledges that “officials must operate within the
framework of accountability to ministers who are in turn
accountable to the House.
“As a result, there is
sometimes a tension between the Parliamentary privilege of
the House on the one hand, and the accountability of agency
personnel in the public sector to ministers on the
other.”
In practice, ministry officials are typically
forthcoming during both annual reviews and scrutiny hearings
carried out by Parliament’s select committees, so this
current story does not appear to indicate a wider
malaise.
Senior public servants apparently understand
that while their immediate boss is the government of the
day, Parliament is sovereign, and that MPs’ questions arise
from that authority, equally including questions from
backbench or opposition MPs.
Role modelling
disrespect
Contrary to that behavioural
expectation, though, is the behaviour officials regularly
observe from their political masters.
When ministry
officials turn up to select committees, they often come with
their ministers. Many ministers give informative, if
careful, answers. A few are unusually open (Chris Bishop is
perhaps the best current example).
Others are often
less forthcoming than is expected of public servants. This
can be because a minister isn’t as familiar with the inner
workings of a department as its own executive. But ministers
also give what you might call “politically cautious
responses”, especially to questions from opposition
MPs.
Some ministers get rude, even aggressive, in
response to questions. The public servants sitting alongside
them can appear caught in no-man’s land.
Senior public
servants also tend to keep a close eye on Parliament’s
question time. In the House, MPs exercise the same authority
to question ministers as they employ to question officials
in committee. Every MP (including a backbench or opposition
MP) asks questions on behalf of Parliament, and with its
authority.
Again, some ministers answer well, and
others cautiously. But if public servants were seeking
consistent role modelling of appropriate responses to
questioning from MPs, question time is dangerous ground.
Flippancy, counter-attacks, evasion, dodgy statistics,
deflection, rhetorical questions, whataboutism, and
equivocation are regular and longstanding tactics in
question time.
Ministers do get chided on occasion,
but appear to consider it a small price to pay for the
chance to slap down a questioner, and avoid a genuine
answer.
A public service official who, during a select
committee hearing, employed tactics and responses borrowed
from question time might have reason to be nervous about
serious consequences.
For some reason, in the House,
no one seems concerned about
repercussions.
RNZ’s The House, with
insights into Parliament, legislation and issues, is made
with funding from Parliament’s Office of the Clerk. Enjoy
our articles or podcast at RNZ.
This
story was amended on 27 June to replace a passage
criticising the Code of Ethics for ignoring Parliament’s
authority with one acknowledging that training has since
improved, citing specific Public Service guidance on
officials’ obligations before select
committees.
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