Undesirable practices also wreak constitutional impropriety

Peter Dunne

Peter Dunne

Wellington, January 29, 2022

                                
“Parliamentary Speaker Trevor Mallard over-stepped the mark”- Peter Dunne
(Photo for Getty Images by Hagen Hopkins[/caption]

In a column some months ago, I drew attention to the way the role of the Director-General of Health has changed during the pandemic.

I expressed concern that the position has been allowed to expand well beyond the traditional role of the Chief Executive of the Ministry of Health. I suggested that the Director-General of Health is now the most powerful public servant ever in New Zealand. He frequently attends Cabinet meetings – something no other public servant has ever done under any circumstances and makes increasingly political statements on behalf of the government about the management of the pandemic.

Undesirable practice 

I argued then that all this transcended the established constitutional position between Ministers and public servants. While explainable, although certainly not justifiable, in the context of the pandemic, it was an undesirable practice that needed to be curtailed in the interests of good government. It was, I said, time to rein in the rapidly expanded role of the Director-General of Health, back to something more akin to its traditional position, and to return accountability to the responsible Ministers.

Many current and former senior public servants, as well as former Ministers, contacted me privately following that column to support the concerns I had expressed. While there have been occasional suggestions since then that the government has not always done as the Director-General has wanted since the Delta outbreak, the external perception remains that nothing much has really changed. Major health policy announcements that should be the prerogative of Ministers and the government are still being made by the Director-General, who acts less as an impartial administrator and policy adviser than an active policymaker.

The recent controversy over the acquisition of RAT testing kits is a case in point. While the precise details of what happened are still being debated, it is clear that, following an intervention from the Director-General, the order of supply of these items has been reprioritised away from the businesses which ordered stocks some time ago and in favour of the government which seems to have only recently woken up to the need for such items. Subsequent doublespeak by the Director-General has failed to clarify the situation.

“Director-General of Health is the most powerful public servant in New Zealand today”- Peter Dunne (Screen Grab)

The impropriety of the Speaker

In a similar vein, recent comments by the Speaker of Parliament attacking a British/New Zealand journalist for a recent column that he wrote critical of the government’s Covid-19 response also overstepped the mark. Although the journalist’s comments were highly debatable and of questionable accuracy in some respects, the intervention of the Speaker in response to them was inappropriate.

In New Zealand Parliament, the Speaker’s role is that of impartial arbiter and upholder of the rights of the minority, not an active participant in day-to-day political debate, a concept the current Speaker never quite seems to have got his head around, let alone accepted. If he wishes to engage in active political debate, as is his right, he should stand down as Speaker and return to the government backbenches where he will have much more freedom to speak out as he sees fit. But, having accepted the role of Speaker, he must also accept the constraints, including impartiality and the need to be seen to be above day-to-day politics, that go with it.

There will be those who will argue that the pandemic means that we are living in extraordinary times, where the old rules are not as relevant as they used to be, which justifies circumstances like the changed role of the Director-General of Health or the increasing partiality of the Speaker. It is a sort of ends justifies the means approach, where the duty to defeat Covid-19 is so overwhelming that everything else must run second to that. It is dangerous ground to start treading upon.

We are already seeing situations as diverse as the continued delay in the opening of Wellington’s Transmission Gully motorway, or the rapid rise in house prices being blamed on Covid-19. While they are legitimate matters of political debate, the links to Covid-19 are at best tangential and smack more of providing a convenient excuse than anything else. In due course, voters will judge the veracity and adequacy of the Covid-19 excuse.

Stealthy changes 

What is not acceptable, however, and is arguably more sinister, is using the excuse of the pandemic to make quasi-constitutional changes by stealth. Changing the traditional relationship between Ministers and public servants the way the role of the Director-General has been since the advent of Covid-19 is a profound change to the traditional pillar of public servants providing considered, impartial advice to Ministers.

If the government always intended to upend that fundamental principle of our system, then it should have been open about it and engaged in proper debate, rather than just implementing it by stealth. If that was not its intention, it should have been far more careful from the outset to constrain the Director-General’s role to prevent what has happened over the last two years.

Of course, it is possible the government was far more calculating and deliberately allowed the Director-General’s role to expand the way it has, to make it easier to sheet home the blame if everything later turned to custard, but that may be too cynical a view.

The politicisation of the role of Parliament’s Speaker is a similar situation. While there has been debate over the years about how impartial various Speakers have been when it comes to rulings in the House, it is hard to recall a situation in recent times where the Speaker has ever become as involved in current political debate as is the case now. Much of the authority and integrity surrounding the Speaker’s position arises from the traditional impartiality of the role being above day-to-day party politics and debate.

Making the Speaker’s role far more political the way the current Speaker has done is not a matter of individual prerogative. Rather it is a profound change to a vital element of our Westminster system of government. Any changes should only be made after full consideration and debate by the whole of Parliament and the implementation of any necessary legislative changes.

Of course, it is convenient to say that the response to Covid-19 needs to be flexible and pragmatic. That is true. However, the changes occurring by stealth to our system of government, that are taking place under that guise, go way beyond what is necessary or desirable. In the interests of preserving our Parliamentary democracy, they need to be resisted.

Peter Dunne is a former Minister of the Crown under the Labour and National-led governments from November 1999 to September 2017. He lives in Wellington.

 

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