Pita Sharples attack on the Government's decision to drop Maori seats from Auckland's supercity proposals probably breached collective cabinet responsibility. So what?

Recently I've been debating with a colleague Dean Knight, of Victoria Law School, the issue of collective cabinet responsibility. To summarise, he's made a fairly convincing argument that Dr Pita Sharples' attack on the Government's decision to drop Maori seats from the new Auckland supercity proposal is a breach of the rules on collective cabinet responsibility, contained in the Cabinet Manual. My responding comment might be summarised as, "so what?"

What with it being Easter, and me being on holiday in a sunny Central Otago, I'm going to reprise this topic rather than think up an entirely new subject to write on. But Dean, if you happen to read this, feel free to jump into the comments section with your side of the story!

Some background. Pita Sharples is the Minister of Maori Affairs, even though the Maori Party technically is not a part of New Zealand's Government. (The phenomena of Ministers who are of Government, but not in Government, is one of the odder innovations that have occurred in this country with the maturing of MMP.) Last week he responded to the decision to axe dedicated Maori seats from any new Auckland supercity by saying; "It is not good enough that tangata whenua, plus the largest Maori population in the world, will have no guaranteed voice".

Knight's point is that this display of public dissent by a Minister towards a Cabinet decision breaches the rules on collective cabinet responsibility. Collective cabinet responsibility often is described as a "constitutional convention". The nature of such "conventions" is a bit slippery; basically, they are norms of behaviour that all constitutional actors feel they should obey and that serve some sort of role in protecting or promoting important constitutional values, but which cannot be reviewed and enforced in the courts.

The Cabinet Manual (basically, the restatement of rules and proper practice for Ministers) summarises the "convention" of collective responsibility thus:

5.22 The principle of collective responsibility underpins the system of Cabinet government. It reflects democratic principle: the House expresses its confidence in the collective whole of government, rather than in individual Ministers. Similarly, the Governor-General, in acting on ministerial advice, needs to be confident that individual Ministers represent official government policy. In all areas of their work, therefore, Ministers represent and implement government policy.

5.23 Acceptance of ministerial office means accepting collective responsibility. Issues are often debated vigorously within the confidential setting of Cabinet meetings, although consensus is usually reached and votes are rarely taken. Once Cabinet makes a decision, Ministers must support it ... regardless of their personal views and whether or not they were at the meeting concerned

All that is well and good. But my question then is, to what extent should collective cabinet responsibility really be seen to operate as a constitutional convention, as opposed to a merely useful political practice? (This point stands irrespective of what the Cabinet Manual says about the matter; remember the Cabinet Manual simply purports to summarise already existing rules, rather than act as a definitive or authoritative source for those rules.)

Consider the two rationales for collective cabinet responsibility laid out in paragraph 5.22:

1. "It reflects democratic principle: the House expresses its confidence in the collective whole of government, rather than in individual Ministers."

2. "The Governor-General, in acting on ministerial advice, needs to be confident that individual Ministers represent official government policy."

Well, is (1) really true any more (if it ever was)? Doesn't "the House" (in reality, the MPs from those parties that have agreed to work together post-election) really express its confidence in the network of agreements and arrangements that the various parties have reached? So ACT/United Future/the Maori Party give supply and confidence to National because they are prepared to work with National under the terms that each of them have nutted out with National post-election. And if National does something that upsets them, and ministers from those parties publicly speak out about it, and all parties to the governing arrangements can work past that disagreement, then where's the harm to "democratic principle"? This weekend, Sharples has actually argued that his ability to "go to battle, in public" with the PM has made the Maori Party's relationship with National stronger.

Simply put, I don't see how collective cabinet responsibility really protects any important constitutional principle of democratic accountability in a post-MMP environment, where the fiction that the House votes confidence in the "whole of government" has been completely attenuated by the reality of inter-party negotiation and compromise.

As for (2), is this a real concern? Is the Governor-General really ever going to get faced by a Minister saying "even though the official government line appears to be X, I am advising you to do Y"? And if so, wouldn't that be the end of the minister there and then, as there's no way a PM will allow that degree of destabilisation of central government processes (as opposed to posturing on an issue in the media, as with Sharples)? And even if (say) Sharples did turn up in the Governor-General's office to advise him to refuse to sign the Bill creating the Auckland super-council, would the Governor-General really have any trouble working out what the official Government policy is on this matter? In short, this looks more like an ex post rationalisation for the claim that collective cabinet responsibility is a constitutional convention, rather than an ex ante reason for viewing the practice as such.

Philip Joseph, Canterbury Law School's doyen of public law matters, has argued for a while, and I agree, that insisting on collective cabinet responsibility is no more than a rule of good political management. Obviously, if individual ministers were to constantly attack in public Cabinet decisions they don't like, then they present a soft target for the opposition. (Witness Labour's attempts to make mileage out of this issue.) The desire to avoid the stigma of weakness and disunity provides a prudential reason for every minister to keep his or her mouth shut on issues he or she disagrees with, if he or she wants a long-term future in power. But as for any deeper or more principled constitutional reasons why ministers should have to avoid criticising Cabinet decisions, I'm just not that convinced there are any.

If this is so, then a further interesting question is why collective cabinet responsibility is still presented in terms of being a "constitutional convention", and not simply as being a useful or pragmatically effective political practice.

One reason might be as follows. It is 'a good thing' in the long run for government if open dissent can be minimised. But there also will be a constant temptation on the part of individual ministers, especially those from support parties, to dissociate themselves from decisions they dislike or that will be unpopular with their supporters. That immediate temptation in any given case may well be stronger than the pull of the long term benefits of not publicly dissenting. (This is a common problem in all of life ... I know it's bad for me in the long run to eat that extra potato chip, but at the time it just tastes so good!)

So, in order to weight the calculus against dissent in any given case, the issue is "constitutionalised" (i.e. ministers are told "if you give in to the temptation to dissent, you're not just acting in a politically problematic way, but you are also breaching the constitution of New Zealand!!!!") We might view this as the public law equivalent of putting the packet of potato chips on the top shelf of the pantry, thereby making access to them harder and so reducing the immediate temptation to gorge.

I'm not saying this is a conscious or a deliberate misrepresentation of the situation. It's more likely that the depiction of the issue as being governed by constitutional convention is a variant of Plato's "noble lie"; it's a story that is so pragmatically useful to government as a whole that it continues irrespective of its actual veracity. At least, that is my best guess for why it continues to be used this way.