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Westminster Ministerial responsibilty

  • January 28th, 2009

What powers do Ministers have to direct or govern the performance of public servants in their departments?

I’ve recently had to think about this professionally. Public servant independence from "political interference" is seen as unquestionably good. State sector "reform" has entrenched distinctions between governance and management. Such theories tend to insulate staff from senior bosses in both the public and the private sector

But for every legislated theory there are costs. One cost may be the loss of Westminster conventions of Ministerial responsibility for things that go wrong. To me its loss is not necessarily part of a generalised erosion of political conventions and  standards. It is a rational response to a change in the practical authority of Ministers. 

How fair is it to hold any manager responsible for the bad administration of people they can’t hire or fire, and can’t effectively direct or discipline. Officially Ministers have little practical influence on the selection of staff, at least below Chief Exec level. Don Hunn’s report on the Madeleine Setchell case shows the dangers for Ministers of even expressing fears.
Holding Ministers strictly to account for faults in day to day performance of "their" officials was the reciprocal of loyalty from those officials. National Ministers inherit a public service that experienced increasing disloyalty from Labour Ministers. It is scarcely surprising that some officials have developed qualified loyalty themselves.
This cultural shift has not been helped by the erosion of expectations of life-long career progression in the state services. In the past public servants were marinated in a mental climate of loyal duty. In return for their loyalty to the Minister of the day they could expect the state to maintain their security of employment.
These shifts coincide with the exit of grey hair from advisory teams, and the arrival of generation Y, said to regard loyalty as a quaint and faintly stuffy notion. Lack of life experience is compounded by absence of time outside the public sector. Small wonder that some Ministers over-rely on the people in their offices, including of course their political appointees, if they suspect their departments have too many zealots, or the over-confident products of university grade creep.

These things matter.  "Yes Minister" is now the law. Democracy loses when good democratic leaders are legally confined to general nudges and pointed questions to change their departments.

Leadership is generally best demonstrated by practical interventions, where the leader shows exactly how they do something. We correctly pay far more heed to decisions in action than to exhortation. We know that statements are poor indicators of what leaders actually value most. Behaviour in practice shows leaders’ real priorities.

Yet our democratically elected leaders are at least theoretically not permitted to show their real priorities in the practical way that all organisations watch for – in who they promote, and what attracts penalties. 

Perhaps the bias of this error is for the best in government. We want our dopey or sinister leaders strait-jacketed, so we accept as a cost the nobbling of the good ones. Better to frustrate the good leaders in a Cabinet (and we voters who’ve elected them) than to risk giving full reign to the more numerous unsuitable Ministers thrown up by the accidents of democracy.

Unfortunately silly law is driving the same precautionary principle through private sector work-places throughout New Zealand where diminished leadership has everyday costs. Employment law is in conflict with company law.

The law still describes company directors as the managers. Thankfully the governance theorists have yet to re-write the Companies Act. In insolvency, governance theories will not protect directors who claim they had no mandate to "intervene" or to "usurp management".

Research confirms old wisdoms. Good leaders act intuitively. They lead by consistently upholding their key values in action. We seek out organisations where values are intuitively and continually reinforced. Abuse of power is constrained mainly by followers’ freedom to leave the leader.

But employment law throws sand in these finely balanced mechanisms. The insulation of officials from Ministers is not exactly paralelled in the private sector. But there are similar inhibitions of good leadership in employment law’s holding that corrective interference can be constructive dismissal. An insistence that managers not react without proof of unsuitability or disloyalty, in practice means that lawyers get paid for solemnly second guessing decisions that should be taken swiftly.

An eventual consequence may be that we will refuse to hold directors and managers fully accountable, because we know it would often be unfair. Power without responsibility, and responsibility without power are equally bad. Lawyers are usurping the clarity of both power and responsibility. .



Excellent post, Stephen. You might also add that when law (often judge-made) effectively requires all involved to routinely lie and dissemble, eg. in terminations for under-performance and/ restructuring, then the law is clearly wrong.

[…] and ex-MP Stephen Franks has written a thoughtful piece on the erosion of ministerial responsibility, not only because of political opportunism in shifting blame to public servants, but also due to […]

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