An exercise in realpolitik

I've seen more than a few people recently wondering about whether there is any mechanism for the Hon David Seymour to be held to account for his recent characterisation of prominent critics of the Regulatory Standards Bill as "Victims of the Day".

If a senior executive in a public service department or a large corporation says something that you consider offensive or inappropriate, you can complain to their chief executive, board or minister. So it seems intuitive to many people that you should be able to complain to the Prime Minister about the behaviour of a minister. And you can. Just don't expect anything to come of it in this case.

To explain why, we need to dive into a peculiar bit of bureaucratic rule-making: the Cabinet Manual. The purposes of this document are many and varied. It is a fascinating blend between a "how-to guide" for Ministers, a rule book with detailed procedures for everyone engaging with Cabinet decision making and a description of longstanding constitutional arrangements.

Not surprisingly, the Cabinet Manual has quite a bit to say about the conduct and interests of Ministers of the Crown. Or more precisely, the Cabinet manual has quite a bit to say about how Ministers of the Crown should avoid and manage actual or perceived conflicts of interest, particularly financial interests, along with a single clause about how they should conduct themselves generally. That clause is:

"In all of these roles and at all times, Ministers are expected to act lawfully and behave in a way that upholds, and is seen to uphold, the highest ethical and behavioural standards. This includes exercising a professional approach and good judgement in their interactions with the public, staff, and officials, and in all their communications, personal and professional. Ultimately, all Ministers are accountable to the Prime Minister for their behaviour." (clause 2.56, Cabinet Manual 2023).

On face value, that's a really high bar for ministerial behaviour, and one that plenty of ministers have failed to live up to. Whether a minister has failed to meet this standard is a decision for the Prime Minister. In many cases, ministers who are judged not to have upheld this standard are expected to resign, with recent examples including Hon Michael Wood in 2022 and most recently, Hon Andrew Bayly, who resigned in February. In fact, you’d be hard pressed to find a government that hasn’t lost at least one minister for reasons of conduct.

But of course, the Member for Port Waikato was a relatively junior minister and not a major force in the current Government. That's a far cry from the Deputy Prime Minister, who has arguably been the most prominent and influential member of the National-led coalition government, despite not being a member of that party.

The fact of the matter is that the Cabinet Manual gives the Prime Minister extremely broad discretion in making decisions about what constitutes acceptable ministerial conduct. However, the political circumstances of the Government leave the Prime Minister with only one realistic option.

The Prime Minister cannot ask the Deputy Prime Minister to resign his ministerial warrant for fear of breaching National's Coalition Agreement with ACT. Clause 25 of this agreement explicitly specifies the appointment of Hon David Seymour as Deputy Prime Minister from 31 May 2025. The consequence of this could be the withdrawal of ACT from the present government, which would severely hamper the ability of the National Party to implement its policy programme, likely derail any hope of National controlling the political narrative for the remainder of this term and may very well lead to a change of government.

Since the Prime Minister cannot impose consequences on the Deputy Prime Minister, it becomes impossible for him to acknowledge that there has been misconduct deserving of consequences, irrespective of his personal views. To do so would require that he explains why a different standard should apply to the Deputy Prime Minister than to other ministers. This is not to say that the Prime Minister does believe that there has been misconduct. You'd have to ask him, maybe in 20 years, at that pleasant stage of life when retired politicians tend to say what they really think. The point is that, right now, his hands are tied.

The long and the short of it is that despite, on face value, having almost unlimited power to determine what is acceptable conduct by ministers, the Prime Minister actually only has one feasible option when it comes to the Deputy Prime Minister: ignore it and try to move on. So it shouldn't be a surprise that, rather like children who turn up to school to find a substitute teacher with little talent for classroom management, the leaders of both ACT and NZ First have been doing quite a bit of boundary testing with their behaviour this term.

But surely, I hear you say, there should be a consistent expectation of behaviour from Ministers of the Crown? And you're probably right. But our present constitutional arrangements won't provide it. It is rather ironic that the adoption of the multi-member proportional electoral system – sold to New Zealanders as a choice that traded stability for accountability – has led us to a situation where the current Prime Minister is forced to sacrifice accountability to ensure a "strong and stable government".

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