28/03/2023·4 mins to read
Nash’s own goal: tripping up on the Cabinet Manual
Minister Stuart Nash is now the lowest ranked Minister in Cabinet, at number 20. He has lost his Police portfolio. He keeps the Oceans and Fisheries, Forestry and Economic Development portfolios. For now.
As you will have seen in the media, much of the controversy has turned on Nash’s alleged breaches of the Cabinet Manual.
The Cabinet Manual is a fundamental, but perhaps obscure document. So – just what is it, who does it apply to, why is it important and, most importantly – who enforces it?
To recap – you will have read or seen, Newstalk ZB's Mike Hosking interviewing the (then) Police Minister Nash on Wednesday 15 March.
In that interview, Nash talked about two things:
- he criticised a judge's sentencing decision; and
- he revealed he had phoned Police Commissioner Andrew Coster to discuss whether the Police would appeal the decision.
While segments of the voting public may share the Minister’s views, pundits considered he had breached two cardinal rules contained in the Cabinet Manual: Ministers are not to comment on judicial decisions, to respect the separation of powers, and Ministers are not to improperly influence or interfere with officials (including Police) in their operational decisions.
The Cabinet Manual and its rules
The Cabinet Manual is the authoritative guide to government decision making for Ministers, their offices and those working within government. It is a primary source of information on New Zealand's constitutional arrangements from an Executive branch view and is binding on all government Ministers. And it’s long, at 172 pages.
Despite this, like Cabinet, the Cabinet Manual is a work of legal fiction. It is not based in any statutory or common law basis, other than constitutional convention. As Michael Webster (the then Secretary to the Cabinet and Clerk of the Executive Council in August 2017) observed, the Cabinet Manual’s authority is derived from its adoption each Cabinet at the beginning of every administration.
The Manual sets out the rules that govern the relationships between Ministers and others within and outside of government. Some rules, such as collective responsibility (that Ministers must ‘toe the party line’ once outside of the Cabinet room) last for their professional lives.
It is subject to updates from time to time. Bill English’s National government last amended it in 2017.
Despite having no formal basis, the Cabinet Manual is often at the heart of political controversy, including Judith Collins and her connections to Orivida, Nanaia Mahuta failing to consult her colleague Kiri Allan over entrenchment, Winston Peters revealing Cabinet discussions, and Simon Bridges’ Northland one-lane bridge announcement, among many more.
The broken rules
In this instance, there are two areas of broken rules.
First, rules 4.12, 4.13 and 4.14 all consider the separation of powers between the Executive and Judicial branches of government. Ministers "must not express any views that are likely to be publicised if they could be regarded as reflecting adversely on the impartiality, personal views or ability of any judge."
A long established principle is that Ministers do not comment on or involve themselves in the investigation of offences or the decision as to whether a person should be prosecuted (or appealed). They should also not "comment on the results of particular cases or sentences handed down by a court".
Nash criticised a sentencing decision, in a particular case. This brought the decision into the political arena. Where Ministers are political actors, judges are not and this rule is intended to reinforce that.
Second, rule 3.22, which refers to the relationship between Ministers and officials. Rule 3.22(c) states plainly that it is improper for Ministers to give any direction that could be construed as an "improper intervention in administrative, financial, operational or contractual decisions that are the responsibility of the Chief Executive".
Here, Andrew Coster is the "Chief Executive" of the New Zealand Police. Nash calling Coster and discussing whether the police would appeal is an improper intervention in the administrative and operational decisions of the New Zealand Police. While 3.22 applies to all departments, prosecutorial independence is particularly important.
Underscoring this point, rule 3.22(i) explicitly cautions Ministers that while they have the capacity to exercise considerable influence over the public service, they should take care to not "influence officials inappropriately, or involve themselves in matters that are not their responsibility."
So what does this mean?
The Cabinet Manual is a political document. Any breaches of it may include process errors on a Minister’s part, but any opportunity to review it would be independent of the Cabinet Manual.
Instead, the arbiter of breaches to the Manual is the Prime Minister. Despite its constitutional importance, no court can directly enforce the Cabinet Manual. Ultimately, two things drive consequences from any breach of the Cabinet Manual: the Prime Minister’s own views and political pressure on the Prime Minister to act.
Minister Nash is on his "final warning" according to Prime Minister Hipkins and so long as he has confidence in Nash, Nash will continue to hold his Ministerial portfolios.
Many thanks to Amarind Eng for his assistance writing this article.