Parliament and ministers kept in dark: two issues, two investigations

A second investigation is being opened by Parliament into claims that senior Immigration officials kept MPs in the dark over a failing IT project. The Public Service Commission have already begun an inquiry into whether information was withheld from ministers, but Parliament has now initiated its own investigation into whether a Parliamentary select committee had information withheld from it.

This issue has been the first business on two successive Parliamentary sitting days. The week began with an urgent debate over claims that officials may have misled multiple government ministers. That debate spilled over into whether Parliament had also, separately been misled.

There is understandable anger that officials may have kept ministers in the dark. Withholding information from Parliament is different, but would be equally bad.

The background

In Tuesday's urgent debate, Labour's Phil Twyford (a former immigration minister), gave a useful background to the ministerial element of the case.

"Last week, Minister Erica Stanford came along to Parliament's Education and Workforce Committee and dropped a report that set out multiple, compounding failures by MBIE-the Ministry of Business, Innovation and Employment-in managing a project known as the Biometric Capability Update, a project that had been running since 2018.

"The report contains a litany of poor governance, mismanagement, over-optimism, and inadequate decision-making, but even more shocking than the incompetence on display in this report, to my mind, are the integrity issues that have been exposed: repeated selective and misleading advice to a succession of Ministers, creative accounting to keep the project below the $35 million threshold that would have triggered Cabinet oversight, and reports that MBIE employees who criticised or raised questions about the project were moved sideways or moved out."

Current minister Erica Stanford ran the House through her efforts to match up the ministry's reports to the project's rising spending.

"The first paper that I can find that had been delivered to Ministers to alert them to anything was in November 2021-two years after the original business case-where it simply said, 'To Ministers, note that the whole-of-life cost is now $30 million', and then, 'approve another $22-odd million from baselines to keep the project going,' which was approved.

"That was, as far as we can see, the first time that Immigration …said it has exceeded …the original whole-of-life cost of $19.49 million. You will note, from what I'd said earlier, by November 2021, when I can find this first paper, it had already exceeded the whole-of-life cost and had already been at $30 million since July 2020."

Stanford is justifiably unhappy that ministers may have been kept in the dark by officials under their purview, despite strict rules about project management, cost reporting and permissions. Ministers work at a remove from their ministries, and rely on ministerial secondees and executives to keep them informed.

Informational failings can erode ministerial trust in ministry apparatus, and public trust in the wider government. Those are both serious issues.

Equally serious is the second claim, that parliament has been misled.

Government accountability to Parliament

Twyford also referred back to the Annual Review hearings, when Select Committees (on behalf of Parliament) investigate the performance of government entities. This is an aspect of government being accountable to Parliament - a core aspect of our democratic structure, and one often not taken seriously enough by governments.

"On 4 March, senior officials from the ministry came along to Parliament's Education and Workforce Committee during the annual review hearings… [I asked] about a number of reports and independent reviews that I understood had warned about delivery risks. …what the key risks were that were identified and whether any milestones had slipped in the implementation of the project, and what I got can best be described as flannel: a long answer that, in my view, was dissembling. No facts that we would now recognise about the project were delivered."

This is not a political issue, it is a matter of cross-party concern. The chair of the Education Committee is National MP Katie Nimon. She outlined how the committee's highly structured Annual Review agenda forewarned officials what issues and lines of questioning they needed to prepare for.

"Now, there was sort of a little bit of answering in the committee-not substantive-and I think this is the point where I say they were very much aware, in the structured agenda, that they would be asked about new IT systems. There was some light answering of the question…

"I think the point that I want to make very, very clear is that they were very well aware in that hearing that they would be asked about the new IT systems. They were asked about the new IT system. In fact, it wasn't actually that new, as we've made very clear-seven years-and they… weren't able to answer extensively. Then [they were again] asked in follow-up questions, and did not answer in depth. Look, there may be reasons for that, reasons that we would quite like to find out. We will discuss that as a committee."

An official misleading a committee is as bad as misleading their minister, possibly worse. A minister is a Ministry CE's boss, but Parliament is their boss's boss.

A number of speakers in the urgent debate were especially troubled by this second, parliamentary issue.

"It is fundamental to Parliament's purpose," Twyford said, "to be holding the Executive accountable for the spending of public money and the implementation of policies. This isn't about an IT project and it's not about some officials who have said this or that; it's about whether our institutions remain worthy of the trust that people place in them… The villain here isn't the individuals involved; it's the erosion of accountability and the erosion of public trust in government."

"Our committee takes this very seriously," said Nimon. "We need to be able to trust the advice that we are given. We also need to trust that when we are scrutinising agencies, answers to questions that are genuine questions that require substantive answers are answered... So the committee will discuss how we deal with that going forward."

Next steps

There are now two distinct issues and two separate complaints against senior officials from MBIE's Immigration group. Both are over the integrity of communications; one with government (ministers), the other with Parliament.

As public service employees ministerial officials fall within the disciplinary purview of the Public Service Commission. The commission has brought in Michael Heron KC to investigate this case on its behalf. The terms of reference for that inquiry lean into communications with ministers (parliament and committees are not mentioned). The terms do mention the Public Sector Code of Conduct which does highlight honesty and accountability, but again, focuses particularly on public servants' responsibilities to government.

Results from that investigation are likely to take some months. No timeframe has been set, other than "as soon as practicable", but it is very possible it will not be complete prior to the House rising in late September for the election. That inquiry is important and may satisfy the government's desire for a response.

Parliament though, has to protect its own role and integrity. This second aspect relies on MPs, the Speaker (as head of the Legislature), and the Privileges Committee.

When the House began its Wednesday sitting the Speaker announced he had received two privileges complaints. One from Twyford, the other from the Education and Workforce Committee.

Nimon had indicated the committee would discuss how to proceed. It has apparently delegated Nimon as chair to take a privilege complaint to the Speaker (such complaints must come from an individual MP, not a group).

Separately, Twyford (also on that committee, and a former Minister of Immigration), "raised a matter of privilege". Any MP can do so, and the alleged equivocation was to his questions.

If a complaint is made, the Speaker initially determines whether the issue alleged "could amount to a breach of privilege" or falls within the definition of contempt. This can take time, but on Wednesday the Speaker was able to both inform MPs that the matter had been raised and then immediately refer it to the Privileges Committee for investigation.

That committee has the power to investigate and to recommend punishments to the House, including fines.

Any Privileges Committee investigation would be guided by the new Attorney General, Chris Bishop. (Note: as this Committee has not met to appoint a new chair since he took over as Attorney General; he isn't yet officially its leader).

The rules of privilege

Parliament's handguide, Parliamentary Practice in New Zealand (PPNZ) deals with various aspects of privilege and various contempts at length.

The Speaker didn't have to inquire deeply to find that this current case may constitute a breach - PPNZ specifically addresses breaches of privilege by witnesses to select committees.

"Witnesses giving evidence to select committees are under an obligation to be truthful, whether or not they are under oath. The expectation that witnesses will be truthful in giving evidence is so compelling that evidence is not usually taken on oath. Witnesses have been held in contempt where they deliberately misled a committee, wilfully suppressed evidence, or knowingly provided false information. Even to prevaricate before a committee might invite questions. A finding of contempt of Parliament brings reputational damage and public disapproval, which is naturally to be avoided. Allegations of such contempt by witnesses are rarely made."

In general, it is a contempt to "obstruct or impede the House in the performance of its functions" including by actions that would have "a tendency, directly or indirectly, to produce such a result."

Punishment

Misleading a committee is not automatically a criminal offence. Lying under oath could be, but it is incredibly rare for select committee witnesses to take an oath.

Parliament does, though, have the power to determine a punishment, separate to any judicial process. PPNZ notes that: "The power to punish for contempt is not a power to punish for its own sake. It may justifiably be used only where it is necessary to vindicate the authority of the House when confronted by some obstruction or impediment to the transaction of its business."

A late amendment to the recently passed Parliament Bill clarified that Parliament can not imprison those found guilty of a breach. This clarification was added after one Privileges Committee member raised incarceration as an option during the Te Pāti Māori haka inquiry.

There being two inquiries into aspects of the same alleged behaviour is not problematic. Different parts of Parliament can even separately sanction. PPNZ says the "double jeopardy rule applying to courts of law does not apply to the House."

PPNZ also says "the exercise of the power to punish is vested exclusively in the House. It is so important that it must be used with such deliberation that the House may not delegate it. No committee (including the Privileges Committee) has ever been delegated the House's power to impose punishment for a breach of privilege or a contempt. Whatever investigative, preventative, punitive, or other coercive action the House may choose to take, it must avoid acting in a disproportionate or unreasonable way."

For a final word on the importance of this issue, during Tuesday's urgent debate on this issue Labour's Shadow Attorney General Vanushi Walters said: "I come back to the issue of public trust, because… I think democracy is a very fragile institution and that there's an obligation on all limbs of our democratic architecture to perform their functions with integrity. Now, in New Zealand, I believe we're actually very fortunate in that when people have been surveyed about their personal interactions with the Public Service, there's a very high positive rating on that, in terms of people's personal experience.

"However, in terms of their perceptions of how those public institutions function, we are seeing a divergence, and that is a huge problem whenever we hit one of these issues, because the Public Service brand is actually quite fragile in itself, very easy to damage, and very complex and difficult to restore."

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