The House: The 'not my circus' defence versus the rules

Ministers are required to answer to Parliament for their own actions and those of their agencies. Sometimes their defence is that what has happened is outside their control, and not their responsibility. That was Tama Potaka's stance this week.

Cabinet's rules may support Potaka's argument, but Parliament's rules leave very few escape hatches for a minister looking to avoid responsibility. We background the homelessness targets story and then explore the relevant rules.

The background: MSD staff "incentivised to say no"

A focus of parliamentary questions this week was performance measures for government staff. TVNZ's Q&A show last Sunday revealed that managers at the Ministry of Social Development (MSD) can face "disciplinary action" for failing to achieve expectations across a suite of performance measures that include achieving the government's monthly targets for reduced job seeker benefits and emergency housing assistance.

Helen Robinson from Auckland City Mission told Q+A "decision makers are incentivised to say no". Jill Hawkey from the Christchurch Methodist Mission said "I don't think anybody should be rewarded for denying somebody their human right to shelter, and that's essentially what's happening."

The Government wants a 75 percent reduction in the number of people in emergency housing. Managers' only performance measure in the Housing Services Effectiveness category is "Monthly phased reduction target achieved."

Managers' performance measures in the Job Seeker Reduction category are "Monthly phased reduction target achieved; Monitored via placements, exits, prevention". What constitutes prevention is not specifically defined.

If targets are not met, managers are "required to develop and implement targeted improvement plans to address gaps and restore performance." Performance assessments can occur every four to six weeks.

On Q+A Jack Tame asked Tama Potaka (National MP and Minister responsible for Social Housing) whether he was comfortable with this. Potaka responded "No, that would be something I would ask the CE at MSD about." But he also said "Those are operational matters that I leave [MSD] to undertake."

Ducking in Question Time

It was inevitable that this would be raised in Question Time this week, and it was by multiple MPs to multiple ministers.

Labour MP Kieran McAnulty's questions and Te Tai Tokerau MP Mariameno Kapa-Kingi's questions focused specifically on the performance measures. Tama Potaka's catch-all response to both was variations on "I've spoken with the CEO to confirm that she has that operational responsibility." He did not repeat his indication during Q+A that he was not comfortable with the situation.

Kieran McAnulty complained to the Speaker that this 'not my job, guv' style response is against the rules.

"Sir, Speakers' Ruling 181/5 makes it very clear that even where there is no legal responsibility on a Minister, they are responsible to the House to answer to the actions and decisions of Government departments they are responsible for."

The Speaker, Gerry Brownlee agreed, but also ruled, "I don't think that the answer that was given by Tama Potaka in any way stepped aside from that. He said in a conversation that he had established with the chief executive what the various roles were."

Cabinet rules: Beyond my control?

Was Tama Potaka correct in stating that how a ministry enforces the achievement of targets is the responsibility of its chief executive and therefore beyond his control?

As we are focusing on government and parliamentary rules regarding responsibility not the tactics of Question Time, we will ignore the question of whether the issue of responsibility is itself a red herring in this instance (Potaka refocusing his argument to what powers he doesn't have and ignoring the policy direction control that he does).

The Cabinet Manual and Speakers Rulings both have relevant rules. The Cabinet Manual, which guides the behaviour of ministers, says: "Ministers are ultimately responsible for setting the government's policy priorities and objectives and are accountable for them in the House."

Ministers control policy direction (what an agency is trying to achieve), and can direct its priorities. But there are other things that a minister specifically does not control.

The Cabinet Manual also says: "Chief executives must act independently in matters such as the appointment, promotion, or disciplining of individual employees. They are not responsible to their Minister in such matters."

So, Tama Potaka is correct that some HR matters are not in his domain. However, it isn't clear whether this case falls within that exception. Formalised discipline for entire groups of staff (via performance management) could fall outside the descriptor "individual employees".

Note: Operational independence for day-to-day decisions is broader for some agencies, which have wider, statutorily specified independence to avoid political meddling in things like police investigations, prosecutions, or a public broadcaster's news agenda.

Parliament's rules: Beyond my control but my responsibility

Ministers must also abide by Parliament's rules, because governments are responsible to Parliament.

Parliament's rules are called Standing Orders. The interpretation of them (specific precedents) are collected in Speakers' Rulings.

Kieran McAnulty referred to Speakers' Ruling 181/5, but two related rulings are also relevant.

So, Potaka is responsible to the House for all of his ministry's actions, regardless of whether he has specific control over them.

When McAnulty complained that Potaka was outside the rules, Gerry Brownlee ruled that Potaka reporting he had clarified their separate roles was sufficient. Speakers' Ruling 182/3 appears to disagree.

182/3 Although a reply that something is an operational matter is strictly not out of order, I agree that on its own it is neither informative nor helpful. In practice, a wider view is taken of ministerial responsibility. There is no convention that Ministers are not answerable to the House for operational matters in the departments or agencies falling within their portfolio areas. Even though a Minister may not have legal control, the Minister assumes the political responsibility to the House to answer such questions. Legal responsibility and political responsibility are different things. (2003, Vol. 611, p. 8243. Hunt. 2005, Vol. 627, p. 21957. Wilson. 2013, Vol. 690, p. 9927. Carter.)

Speakers' Ruling 182/5 specifically addresses questions about staff disciplinary matters.

182/5 Under [section 54 of the Public Service Act 2020], a question relating to one of the staff matters set out in that section, as it relates to an individual employee of the public service, is not in order. That does not prevent questions relating to employment policies generally as they are followed in each Government department, but the Minister will not be answerable for personnel actions taken in respect of any identified member of staff. (1989, Vol. 501, p. 12467. Burke.)

Discussing the discipline of "specified individuals" is not allowed. So Ministers can't be asked to comment on why Matilda Murgatroyd was fired.

But ministers are responsible for "questions relating to employment policies generally as they are followed in each Government department". So, they should answer questions about "employment policies", which might include a policy of using negatively incentivised performance management to encourage the achievement of government-mandated KPIs.

Not a new issue

Issues related to operational independence come up periodically in Parliament, regardless of who is in government. For example, the parliamentary Hansard for March 1, 2018 has something of a mirror image of the current dispute.

Melissa Lee [as National's spokesperson for Broadcasting]: "Would the Minister consider a State-owned broadcaster to be acting independently if a ministerial staff member featured as an independent commentator on a Radio New Zealand programme discussing Government policy?"

Clare Curran [as Minister of Broadcasting]: "State-owned broadcasters, as do any other broadcasters, make their own decisions about who they have on their programmes."

Gerry Brownlee [as Shadow Leader of the House]: "I raise a point of order, Mr Speaker. This is a very serious and important question, in fact, and I think that the Minister might want to think again about the answer that's just been given-perhaps even the question asked again, so the Minister can be quite clear about what has happened here."

In summary

Under cabinet rules, a minister is not allowed to get into the minutiae of departmental operations, including the disciplining of "individual" employees. Whether this covers policies that might lead to the disciplining of groups of staff for failing to meet policy-oriented targets is not specified.

As far as Parliament is concerned, everything an agency does falls within the purview of its minister, and the minister is answerable to Parliament for that - even if the minister did not or cannot direct that action.

Regarding whether ministers must answer questions about employment matters, there is a carve-out for questions relating to individual, identified employees, but ministers are still responsible for the employment policies that might lie behind any employment, disciplinary or performance management issue.

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