The assessment of the relevance of the doctrine of collective responsibility under coalition government required a determination of its constitutional effect. Some parts of New Zealand’s constitution were entrenched in Statute and not easily amended. Conventions are different from laws as they cannot be tested in the courts and so are often open to interpretation. In a similar way, constitutional conventions could not amend the law and as a further complication there was no easy way of recognising how to identify a convention (Joseph, 2001). Conventions coordinate Government practices and sometimes restrain legal powers and there have been attempts to codify conventions in statute and other documents. Examples of these included the Cabinet Manual, Letters Patent Constituting the Office of Governor-General and (some parts of) the Standing Orders of the House of Representatives (Joseph, 2001). Although conventions have been described as possessing various characteristics, there has been a great deal of uncertainty surrounding them (Dicey, 1985; Joseph, 2001; Marshall, 1993).
“Their application can be a matter of intense political debate…Their very existence may be denied or their relevance disputed. And when all the dust settles, no one may be the wiser” (Joseph, 2001, p. 271).
What seems certain was that conventions were obeyed through the belief that it was proper to do so and because they were viewed as precedents in how things were done. So conventions became just that, because the actors believed that they both were and should be bound by them (Marshall, 1993, pp. 10-12).
121
The doctrine of Cabinet collective responsibility is outlined in the Cabinet Manual which lists a number of laws, the Treaty of Waitangi/Te Tiriti o Waitangi, documents and conventions as forming the basis of New Zealand’s (largely unwritten) constitution (Cabinet Office, 2001). The Manual does not list itself as an item that forms part of the constitution. It describes the administrative practices and usages of governmental practices rather than being a document of constitutional substance (McGrath, 1999). Any obligation for a Minister to resign upon a breach of Cabinet unanimity cannot be found in any of the documents mentioned by Rt. Hon. Sir Kenneth Keith in the Cabinet Manual (2001). This principle forms part of the basis of New Zealand’s constitution if the obligation was seen in terms of a constitutional convention.
There was a changing emphasis on the doctrine between the 1996 edition and the 2001 edition. Previous to 1996, the Cabinet Office Manual explicitly stated that collective responsibility was a convention (Cabinet Office, 1996, p. 36). The 1996 edition of the Cabinet Manual continued to require ministers to support decisions collectively regardless of their personal views. Ministers who wished to publicly dissociate from the decision had to first resign from the Cabinet (Cabinet Office, 1996, p. 36).
By 2001, the Cabinet Manual described the idea of collective responsibility as a “principle” instead of a convention (Cabinet Office, 2001, p. 44). This was an amendment inserted by the Labour-Alliance Coalition Government. The coalition between the Labour and the Alliance parties had agreed to work under the convention of collective responsibility (Coalition agreement, 1999). The coalition agreement also went further and stated that where a distinctive policy matter raised an issue of importance to a party’s political identity then the issue might be identified as one of “distinctive party identity ” (NZPD, 1999c, 580). Upon such an event, the party leader was to raise the issue with the Coalition Management Committee as established in the coalition agreement. This committee met only once during the term and that was on unrelated matters. Issues that required agreement between the coalition partners were more easily dealt with between the party leaders or their political staff. If such an issue had been formally identified then disagreement would not be considered a breach of the convention. The amended Cabinet Manual reinforced the principle of Cabinet collectivity and required Ministers to accept it but omitted the reference to any
requirement to resign, if breached. The Cabinet Manual outlined the procedure allowing Ministers to maintain separate party positions in public (Cabinet Office, 2001, cl. 3.23). However Cabinet Secretary, Marie Shroff,42 did not believe these provisions to be a departure from the concept of Cabinet collective responsibility. In the interview, she stated:
The ‘agree to disagree’ provisions, by their very name, tell you that they are not as radical as they appear to be because they provide for agreement to disagree. Cabinet has agreed collectively that there will be an ability to ‘agree to disagree' between coalition partners although this was intended to be used rarely, and for major cross party issues.
The revised Cabinet Manual also directed that the ‘agree to disagree’ processes “may only be used in relation to different party positions. Any public dissociation from Cabinet decisions by individual Ministers outside the agreed processes is unacceptable” (Cabinet Office, 2001, cl. 3.24).
The former Solicitor-General, John McGrath (1999, p. 16) argued that mere amendment of the Manual did not “alter existing conventions in any way”. It followed that any amendment to the Cabinet Manual reflected a change of administrative practice rather than a constitutional change. McGrath differentiated between conventions of the constitution and constitutional law and supported the view that conventions were habits, understandings and practices and were not enforceable by the courts. Laws came into being in a recognized way but “there is no recognisable signal that a convention has come into existence” (McGrath, 1999, p. 3). Coalition agreements came into being by a political agreement but the Cabinet Manual was not the determinant of Government practice. Therefore, the Cabinet Manual was descriptive rather than prescriptive and as such it derived its authority from the Cabinet and provided “enduring, authoritative, high level guidance” (Cabinet Office, 2000b, p. 2) and the Manual’s provisions did not override Cabinet decisions (Shroff, 2001, p. 12). This concept was reflected in the adoption of the Cabinet Manual as the first (or one of the first) items on the agenda of each new Cabinet.
42 Former Cabinet Secretary Marie Shroff was interviewed for this research on 5th April 2005. Unless
otherwise referenced, all quotes or comments attributed to Ms. Shroff arose from this interview. Refer Appendix A: List of Interviewees.
123
Because New Zealand did not have a written constitution, the Cabinet Manual became an immensely important document in terms of the legitimacy of the way that government operated. Former Cabinet Secretary Ms. Shroff advised me that the normal procedure was for the Secretary of the Cabinet to place the status of the Cabinet Manual on the Cabinet agenda as item number one at the first Cabinet meeting after every election. The Cabinet then voted to adopt and endorsed the Cabinet Manual as the basis of procedure for the incoming Government and the doctrine of collective responsibility seemed implicit in the comment that “the most important conventions arise from the democratic nature of our constitution” (Cabinet Office, 2001, p. 2). Therefore, new practices initiated by an amendment to the Cabinet Manual could only be considered a convention when developed and accepted over time.