You probably already know that Stuart Nash lost his role as Minister of Police on Wednesday. It was hard to miss.
There are two aspects of it that are worth noting. Something trivial but structurally important, and something quite crucial. Let’s quickly be pedants first.
Some discussion of the affair suggested that the PM can sack ministers. That’s not quite how it works. Anyway, in this case Mr Nash jumped rather than being pushed, but let’s talk more generally.
Labour MP Stuart Nash speaks in an urgent debate on travel bubbles Photo: ©VNP / Phil Smith
The Prime Minister is the boss of the other ministers, but he isn’t really their employer (to use a terrible metaphor). The person who gives ministers their warrants, and the only person who can take them away is the Sovereign, or more usually the Governor General in their stead. So the Governor General removed the Minister of Police.
The reason we give credit for this sort of thing to the Prime Minister is that the Sovereign acts on the advice of the PM. It’s not likely the Sovereign would demure. Doing so would likely be a much larger crisis.
An unexpected ‘debate’
As a result of Stuart Nash quite extraordinarily outing himself as having broken the rules for ministers (and the particularly strict rules for Police ministers) the House paused its usual business on Wednesday and spent an hour debating it.
‘Debate’ is a misnomer because no-one was arguing this was okay. Despite the fact that opposition MPs are always calling on police ministers to ‘step in and do something’, everyone also agrees that following that advice is a very bad idea, and indeed can be illegal.
Wednesday’s debate was not an urgent debate (of the kind that the Speaker can agree to). The resignation timing would have made that wait a day.
Instead MPs agreed unanimously to add a debate to the Order Paper. Yes, unanimously. That means that all the Labour MPs agreed along with the opposition that this act of their own colleague was a thing worth some extra and harsh scrutiny.
Pile-on or not?
And here’s the main reason to focus on this topic today.
Listening to opposition MPs in the debate you might conclude that this was a political pile-on. It wasn’t really, or not entirely.
Labour MP’s were in agreement with ACT and National ones about the fault and the philosophy behind it (Green and Te Te Pāti Māori MPs didn’t speak).
Of course it wasn’t devoid of politics. This was an election-year opportunity, it would be unusual not to look for some advantage. So, opposition MPs demanded more blood than had been offered and tried to reflect Mr Nash’s fault on the Prime Minister.
But the underlying philosophical argument was shared across the House; except possibly by National’s own Justice spokesperson Mark Mitchell who missed the memo and took the opportunity to criticise the Commissioner of Police just when everyone else was saying how important it was that the Police were independent (he wasn't acting against the rules, just at odds with the messaging).
Government MPs were less pointedly political but some took the opportunity to note that National ministers have also fallen from grace in the past. To his credit National's Chris Bishop noted past breaches in the opening speech.
The politics question misses the point
However, weighing the politics of the to-and-fro misses the point.
We are so used to seeing MPs endlessly slapping at each other that we forget one key aspect of their job in Parliament –and I don’t mean getting re-elected.
One core function of Parliament, once it has chosen an Executive from amongst its number is to watch them like a hawk.
Because the only group who can sack a government, who are best equipped to make sure an executive doesn’t run roughshod over the norms of responsible government is the Parliament.
At elections we get to choose a parliament but only parliament gets to make and unmake governments. It is heartening to see is that MPs across the House apparently take this part of their job pretty seriously.
So, yes, you might say that the Prime Minister holds his team of Ministers responsible for keeping within the bounds of the Cabinet Manual (and the law). That is part of his job.
But making sure he does this is the job of all of Parliament.
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Some background, care of the Attorney General
While we’re at it, in his speech David Parker (as Attorney General the Executive’s legal advisor) added some interesting history. Along with others he also added some explanation of the rules that were broken. Below are both:
“The separation of powers is a constitutional model which democracies such as New Zealand hold dear. It separates government into separate branches, each of which has separate and independent powers which they exercise independently.
“The doctrine of the separation of powers is sometimes attributed to the French political philosopher Montesquieu, who, in the mid-18th century, said, and I quote: ‘there is no liberty, if the judiciary power be not separated from the legislative and executive.’
“Essentially, he is saying that if you merge prosecutorial decisions with legislative or executive decisions, there will be no liberty. It is an absolutely fundamental principle of democracy and the rule of law in countries such as New Zealand that those separations of power be respected, and I agree with comments made by all those who have spoken today that it is an absolutely central principle of our system.
“It is, of course, given voice in the Cabinet Manual, which says, at paragraph 4.12, ‘Ministers must exercise judgement before commenting on judicial decisions, whether generally, or in relation to the specifics of an individual case (for example, the sentence).’ Paragraph 4.13 goes on to say that ‘Ministers should 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. If a Minister has grounds for concern over a sentencing decision, the Attorney-General should be informed.’, and then paragraph 4.14 follows that by saying, ‘Following a long-established principle, 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 on what charge. Similarly, they should not comment on the results of particular cases, on matters that are subject to suppression orders, or on any sentence handed down by a court. Ministers must avoid commenting on any sentences within the appeal period, and should avoid at all times any comment that could be construed as being intended to influence the courts in subsequent cases.’ ”
