Tag Archives: Yes Minister

Following suit: why political conventions matter

The Conversation

Richard Mulgan, Australian National University

Conventions are accepted practices that don’t have the authority of law but depend instead on the force of shared values and expectations. They are more fluid and contestable than legal rules and tend to evolve over time.

All political systems make extensive use of conventions as part of their political culture. But such conventions are particularly important in systems based on the United Kingdom’s Westminster model.

Wacky Westminster

The United Kingdom has no formal, written constitution – though it does have much legislation that is constitutionally relevant. It relies on conventions to define some of its most fundamental constitutional principles. These include the democratic principles that elected governments should be accountable to their citizens and respect their rights.

Though the Australian Commonwealth has a formal constitution as part of its federal settlement with the states, it still follows Westminster in allowing key principles of democratic accountability to operate according to convention.

Many of these conventions are contested. Even the most fundamental democratic convention underpinning the electoral process – that the governor-general acts only on the advice of the prime minister with the support of a majority in the House of Representatives – was successfully challenged in 1975.

The governor-general at the time, Sir John Kerr, acted on his own initiative and dismissed the Whitlam Labor government. That opened the way for the election of the Fraser Coalition government. This highly controversial decision influenced subsequent political attitudes towards the importance of constitutional conventions.

In general, the political left has tended to be in favour of strict observance of constitutional conventions as a matter of independent principle. The political right, though also respectful of established conventions, has shown itself less squeamish about breaking conventions in the name of the national interest as defined by the government of the day.

Polity and policy

Conventions of ministerial responsibility underpin the daily accountability of ministers to parliament and the public. Broadly speaking, ministers are obliged to take responsibility for the conduct of their portfolios in the sense of responding to parliamentary requests for information or imposing remedies when faults are brought to light. They are also required to answer directly to the public by taking questions from the media.

Ministers are expected to take the blame for actions for which they are personally responsible, but not for those that are clearly the fault of officials. Oppositions – and commentators – commonly claim ministers should resign both for their own mistakes and for those of their officials, but this has never been accepted practice.

By convention, misleading parliament is one of the few offences that can precipitate a ministerial resignation. This unfortunately encourages ministers to be evasive and economical with the truth. Otherwise, ministers decide how much information they reveal to parliament or the public – the only sanction being political accountability to voters.

As the Mal Brough case underlines, the convention is flexible in application, which largely depends on the prime minister’s judgement of the relative political costs of retaining or discarding a minister. Even if Brough remains in parliament, however, the damage he has sustained shows the continuing force of the convention.

The sacking of Gough Whitlam brought condemnation for its
clear challenge to previously respected political conventions.

National Archives of Australia. NAA: A6180, 13/11/75/33

Ministerial responsibility has also been used to protect the anonymity of public servants, on the ground that only ministers should answer for their departments and agencies. A number of structural reforms, such as the development of Senate estimates committees and the establishment of the ombudsman, have opened public servants up to direct scrutiny of administrative actions, while maintaining ministerial responsibility for matters of “policy”.

The boundaries between “policy” and “administration” are inherently contestable and a common cause of friction. If ombudsmen or auditors-general venture into criticising the substance of government policy (instead of its implementation), for instance, they are likely to face objections from ministers on the ground that the elected government has the right to impose its own policy direction.

At the same time, ministers surrender their democratic accountability obligations when they choose to devolve responsibility onto others. An example is outsourcing implementation of controversial policies to private sector contractors not subject to the same accountability regime as government officials.

Yes, minister

Relations between ministers and the public service are also subject to shifting conventions. Westminster-based traditions support a politically neutral public service appointed on merit and loyally serving the government of the day.

But since the early 1990s, heads of departments (secretaries), who are appointed by the prime minister, have been employed on limited-term contracts terminable at any time. In 1996, the incoming Coalition prime minister, John Howard, broke the convention that incumbent secretaries would serve out their terms under a new government, by immediately replacing six secretaries.

The convention was restored by the next Labor prime minister, Kevin Rudd, but broken again by the Coalition’s Tony Abbott. Labor seems to see the value of trusting the professionalism of the public service, while the Coalition, being more doubtful of the capacity and loyalty of public servants, seeks to vigorously impose its own political control over the machinery of government.

All recent governments have emphasised the importance of media management and have increased the number and influence of political advisers. This has weakened the close relationship with public servants on which Westminster public service conventions depend.

Other areas in which conventions are both important and controversial include relations between the executive and judicial branches of government, the extent of political patronage in government appointments, and the use of public funds for political campaigning.

While conventions have the general advantage of being free from legalistic rigidity, they can be open to abuse for partisan reasons. The fact that they depend on political sanctions for enforcement places a particular onus on conventions surrounding transparency of government information as a safeguard of democratic accountability.

This is the first in a series on breaking political conventions. Look out for more articles exploring various political conventions in the coming days.

The ConversationRichard Mulgan, Emeritus Professor, Australian National University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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Yes minister: how political appointments tip the scales of fearless advice

The Conversation

Chris Aulich, University of Canberra

Some regard the Westminster tradition of a politically neutral public service as a self-serving fiction. Others see it as an ideal to which governments and their civil services should aspire, though may never quite attain.

There are few hard and fast conventions involved in cultivating an independent government administrative system. Yet there are traditions or principles that many see as fundamental to good governance, or even to an effective democracy.

Straying from these leads to accusations that the government is politicising the public service. But what that means isn’t exactly clear. It might suggest the appointment of party-political representatives to public positions; the appointment of known government sympathisers to public positions; or some other way of preventing professional civil servants from providing “frank and fearless” advice to ministers.

Despite the lack of agreement about what politicisation means – and its significance – there’s almost universal criticism of governments that stray from the principles that underpin neutrality.

In practice, the accusation of “politicisation” often accompanies appointments made by an incoming government. These may be to departments; to government agencies, such as the ABC; to integrity agencies, such as the ombudsman; and, more often, the appointment of former politicians to diplomatic postings.

Obedience and integrity

The Australian Public Service operates near to the model of a professional public service where it serves successive governments without fear or favour. Changes of government typically mean that experienced, professional secretaries have remained to pilot their new ministers through.

There have been aberrations, such as the 1996 “night of the long knives” that dispatched six departmental heads. But most governments in past decades have relied on a cadre of professional civil servants to head departments and agencies even after power changes hands.

Max Moore-Wilton was appointed as Australia’s top public servant
by John Howard. 

It is this cadre that enables the public service to remain as neutral as possible, especially when incoming governments are determined to implement their “mandates”. This reflects a fundamental principle that governments need to be “responsive” to their electors.

But problems can arise when appointees pay little attention to “frank and fearless” and see their role largely as doing the minister’s bidding. That’s stretching the notion of responsiveness too far.

The civil service is traditionally required to act in an impartial manner – that is, not to privilege particular interests over others and to behave in a politically neutral way. This is especially significant in relation to government agencies that investigate and adjudicate on complaints about and mistakes made by government.

Simple improvements

Integrity agencies, such as the Office of the Information Commissioner or the Human Rights Commission, are required to investigate citizen complaints about government behaviour. They need to be seen to be at arm’s length from government.

Other agencies, such as the Electoral Commission, the Auditor-General or research bodies such as CSIRO or the Productivity Commission, also need to be at arm’s length so they can operate credibly in providing balanced advice.

Much more can be done to promote the independence of these agencies. A fundamental problem is that they rely on funding through the budget process. Some governments, at both Commonwealth and state levels, have used this as a lever to constrain agencies from following their remit when governments are unhappy with their activities. The Human Rights Commission is a recent example.

Making these agencies responsible to parliament, rather than to the government of the day, would mean that funding, and accountability, would be delivered through bipartisan bodies, such as the Public Accounts Committee. This would protect integrity agencies from direct government interference.

Governments are expected to represent a diversity of interests. That becomes less likely with a politicised public service.

Public agencies with responsibilities to consider the impact of policy on broad community groups, for instance, or to manage grants programs, need to have appointments that reflect community diversity. These appointments need to be treated with care to ensure they remain free of accusations of favouritism, cronyism, nepotism or vote-buying.

Avoiding cynicism

Cynical observers may be concerned about the politicisation of policy advice, especially that provided by public inquiries. When chaired by appointees with known views on the subject they rightly engender public cynicism about the likely outcomes of these ostensibly independent inquiries.

This was the case when noted climate sceptic Dick Warburton handed down a report on the Renewable Energy Target, and when education conservative Kevin Donnelly reviewed Australia’s national curriculum. These reports usually find their way to the rubbish bin once governments of a different hue assume office.

In contrast, more broad-based and less politicised inquiries – such as the Gonski review of school funding – may well retain their currency for longer.

There are arrangements in place that may dull the excesses of political appointments – such as the Public Accounts Committee, the Senate estimates process, codes of ministerial conduct and independent audits.

But unlike the United Kingdom, Canada and New Zealand, Australia hasn’t appointed an independent commissioner for public appointments. An independent appointments body may help ensure that the government of the day cannot directly influence appointments to agencies and programs that specifically require diversity of interests and arm’s length from government.

The public service has gradually become more politicised in recent years. But this is a bigger problem for agencies broadly described as integrity agencies and for bodies where public perception of neutrality are important to their operations, such as the ABC or the Electoral Commission.

Institutional change, along the lines of what’s already operating in other democratic systems, might produce independent appointments and reduce the public angst each time a “political” appointment is made to such boards or commissions. In these cases, governments might finally accept that arm’s-length governance is preferable to public cynicism and diminution of the standing of important agencies that serve to uphold democratic standards.

This article is part of a series on breaking political conventions. Look out for more articles exploring various political conventions in the coming days.

The ConversationChris Aulich, Visiting Professor, Institute for Governance and Policy Analysis, University of Canberra

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.


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