Two watchdogs better than one

The following commentary is by Dr Chris Eichbaum, Reader in Government at the School of Government.

One of the constitutional roles of the public service is to provide free and frank advice. Public servant officials should, as the recent Dominion Post editorial wrote, “be brave and tell the minister something that he or she doesn’t want to hear”.

New Zealand is part of the Westminster family of nations. The obligation of public servants in that system to provide advice the government needs to hear (as well as what it wants to hear) underpins a constitutional obligation of the public service.

In other words, we expect our public service to provide free and frank advice to the government, and even at times to be the “pebble in its shoe”. Much does depend on Ministers. But the best do want sage advice and to be challenged.

Constitutionally, the New Zealand public service should not just be primed to serve the government of the day, but any future government, whatever its philosophical or ideological persuasion. It is one of the defining features of the New Zealand system that governments may change, but the public service – from the chief executive right throughout each department and agency, remains in place.

In a Westminster system responsive as well as responsible advice should be provided, and that advice should be valued by any government.

But as the Dominion Post editorialist points out, this is not always the case.

No one disputes that a government brings with it the mandate that is the expression of the will of the people. Indeed, many would argue that our adoption of MMP reflected the desire to ensure that government is always by way of an electoral mandate.

But equally, any government wanting to effect real change would do a disservice to citizens and consumers of government services and products if it did not seek, and act where appropriate, on the advice of the intelligent people employed to provide it.

Equally, one of the defining features of our system of government is that, unlike presidential systems, the three branches of government are not completely separate.

In New Zealand we have a fusion of the executive branch (Cabinet) and the legislative branch (Parliament). That is one of the defining features of a Westminster system. In order to be a member of the political executive (the Cabinet) you have to be a member of the legislative branch (a Member of Parliament).

Presently, all policy relating to the public service is the responsibility of the Executive branch, that is, the politically neutral, professional and permanent central agencies, with the State Services Commission at its centre.

But if the role of the public service is to serve the people and the government of the day, then there may be a case for involving the legislative branch in an oversight role.

This year we have seen the Office of the Ombudsman inquiring into serious matters involving the New Zealand public service and questioning the manner in which central agencies, and specifically the State Services Commission, have discharged their responsibilities. It is worth asking whether an additional Officer of Parliament, in the form of a Public Service Commissioner, might add some value in ensuring that the public service is meeting its obligations. As the Dominion Post editorial noted those obligations are to the citizens and communities of Aotearoa/New Zealand, not just the government of the day.

By no means would a Public Service Commissioner be a substitute for the State Services Commission. Naysayers will claim that such a possibility is a recipe for replication and an inefficient use of taxpayer funds.

Some will no doubt argue that Ministers are accountable to the Parliament for the departments and agencies that make up their portfolios, that Parliament is already actively involved in oversight of the public service through Ministerial accountability and that an additional office is not required.

But there is a precedent and we can see that in the Office of the Parliamentary Commissioner for the Environment.

We have a Ministry for the Environment, and we have a responsible Minister for the Environment. In this area of policy – both branches of government have ‘skin in the game’. The Office of the Parliamentary Commissioner was created by the passage of the Environment Act 1986. That Act specifies the powers of the Commissioner, and makes it clear that they are an Officer of Parliament.

So why is that a consideration? It means that the Commissioner can initiate inquiries into any matter where there may be adverse implications for the environment. Might one expect that degree of independence from the State Services Commission? Ideally yes, but it has been somewhat absent, and on some matters (including a decision of the State Services Commissioner to produce a code of conduct for political staff), the Commissioner was told not to proceed, and complied with that executive directive.

Perhaps a system to ensure the public service retains the independence to discharge its constitutional obligations can be found through existing arrangements. But turning our minds to other avenues is a discussion we need to have, even if it may be discomforting at times.

This commentary was published in the Dominion Post, 24 August 2016.