The Beehive in Wellington on a gloomy lockdown day (Getty Images)

Why is a bill proposing to shift power to unelected officials getting an easy ride?

Our elected representatives are being worryingly complacent about the Public Service Bill, writes Tony Burton, but it’s part of a trend that should concern them.

Public management systems determine what really happens when governments make policy decisions. It’s the boring, process-between-bureaucrats bit, of issues like education and health. Despite the Public Service Bill proposing to change our system to shift power away from elected representatives, it has had a strangely quiet path through parliament – part of a worrying trend where those employed by our elected representatives challenge democratic checks on their actions. We should probably care a lot about that, however boring it seems.

Up to the 1980s, the State Services Commission (SSC) was the public management system. David Lange, Labour prime minister and education minister in the late 1980s, gives a sense of the culture they created in his autobiography when one day he walked to the Ministry of Education and found it deserted except for a receptionist. The ministry had decided that when teachers were on holiday, the ministry was as well, regardless of the ministers who nominally employed them. 

Lange’s government split the public service into separate entities and put democratically elected ministers firmly in charge. In the jargon, public servants advise and ministers decide. The reforms largely worked. For instance, the UK Treasury takes three times as many people to do the largely same job as its New Zealand equivalent, while the superiority of New Zealand’s response to Covid-19 has been noted throughout the world. 

On the other hand, there is still unnecessary bureaucracy. The government budget process takes an entire year to generate a bookshelf of largely unread documents, while departmental chief executives use adult jargon like “appropriations” to have preschooler arguments about “S’mine!”, “S’not!” and “Tis!”. Reform is needed because there is no naughty corner for CEs. 

David Lange (right) and Mike Moore eating satay lamb kebabs in 1984 (Photo: John Nicholson for Evening Post via National Library)

The Public Service Bill

The Public Service Bill is the rump of the old SSC calling “S’mine!” on the public service. More formally, it claims “better outcomes and better services” will be delivered if it:

  • establishes the purpose, principles, and values of an apolitical public service, as well as its role in government formation, 
  • recognises the role of the public service to support the Crown in its commitment to its relationships with Māori, 
  • provides a more flexible set of options for organisational arrangements to support the public service in better responding to priorities and joining up more effectively, 
  • increases interoperability across the public service workforce and preserves the future public service as an attractive and inclusive place to work, 
  • strengthens leadership across the public service, and provides for system- and future-focused leadership. 

This is waffly even by Wellington bureaucracy’s standards. The meaningful part is in the “strengthen[ed] leadership of the centre” implemented by a public service commission of chief executives and chaired by their employer, the state services commissioner. 

Yet another committee in Wellington is rarely front page news. This committee should be different. 

The public service is replete with “leaders”. The hierarchy starts with elected ministers and works its way through five to 10 layers of executives, directors, principals and managers before any work that might deliver a service. The system as a whole is led by the elected government through the Department of the Prime Minister and Cabinet and, more politically, the Prime Minister’s Office. The response to Covid-19 shows how well the system works when leadership is crucial. So what exactly is being strengthened?

The clue lies in how often the bill “provides” or “requires” actions of the new public service commissioner. These add up to replacing leadership by democratically elected ministers. As such it reverses the part of the 1980s reform that unambiguously improved democratic accountability. It has been correctly noted this takes the New Zealand system closer to the UK civil service by one Victoria University professor, though he misses how this empowers unelected officials. The human rights commissioner was more perceptive when he notedthe public service … acting with a spirit of service to the community sounds hollow when the public service’s only explicit human rights commitment is to those of its employees”. 

A state house in Auckland (Photo: Brendan Kitto)

What does the bill mean in practice?

To understand the risks, think what would happen if a minister and this uber-commissioner disagreed, say the minister wanted state house doors painted blue while the commissioner wants them green. (If this example is too silly for you, consider a minister who wants local iwi to have more say than Wellington public servants for how funds for children in poverty are spent.) 

The commission’s catchphrase of “spirit of service” will be rolled out as the minister is promised action. The commissioner will meet his or her commission of people whose six-figure salaries depend on the commissioner’s opinion of them. They will then be given a more practical explanation of what spirited service means. 

The report will duly be produced. One department will find it costs millions to enter blue paint in computer systems; toxins in blue dyes will be flagged by another; and an obscure researcher will be disinterred to show indigenous birds are at risk from the minister’s colour choice. The solution will come when yet another ministry finds a green-looking paint that has been labelled cyan. Faced with a stonewall of officials’ advice, and the risk a passing journalist is told “ministers are ignoring the collective advice of the public service”, the cabinet will announce all new doors are blue, however green they seem to the rest of us.

Of course ministers can, and sometimes will, put their foot down and demand their preferred option. However a minister who does not want their ideas to be delayed because they are all “more complex than they first appear” will try hard to stay in the uber-commissioner’s good books. The Public Service Bill makes this new relationship law. 

A changed culture 

In the debate on the Public Service Bill, Judith Collins thought the parliamentary debate “sounds awfully as though peace has broken out” between parties. The transcript of the debate shows she was right about the debate, but we should be asking hard questions about why our elected representatives are being so complacent. This bill is part of a trend that should concern them.

For instance, in 2017 the auditor general, the person in charge of giving “parliament independent assurance that public organisations are operating, and accounting for their performance, resigned when it was found that while he was chief executive of the Ministry of Transport, three quarters of a million dollars had been stolen by one of his deputies and that the fraudster, Joanne Harrison, had been able to have those who raised suspicions about her sacked. The investigation into what happened found Ms Harrison’s fraudulent behaviour would have been prevented had the ministry’s internal controls been upheld and not subverted by Mr Matthews’ misplaced trust in a senior colleague”. 

The parliamentary speaker and MPs from across the political spectrum felt the consequence for Matthews needed to be far more than the naughty corner, and said so publicly. Matthews did the adult thing and resigned. A couple of years on, the public service culture has changed and he now feels empowered to drag high-powered lawyers to parliament to twerk their knighthoods while arguing what happened was a “constitutional disgrace” and parliament should consider paying him compensation and consider law changes to provide more protections.

The public management system is the kind of detailed and hugely important topic that independent working groups and royal commissions consider precisely because it is hard and needs time to be thought through. It is difficult to understand why the Public Service Bill has avoided such scrutiny. Or are the people we elected showing a preference for the playground of politics to the dull task of overseeing how policy talk might deliver improved lives for their electors?



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