Publishing ministerial advice 'does democracy a disservice'

By David Donaldson

September 8, 2016

Andrew Kibblewhite at public hearing.

The publication of public servants’ advice to ministers under freedom of information threatens to undermine good government, the head of New Zealand’s Department of the Prime Minister and Cabinet has warned, in comments echoing several senior Australian bureaucrats.

Speaking to the Institute of Public Administration New Zealand last month on the issue of “free and frank” advice, Andrew Kibblewhite argued that while “more transparency almost always improves the conditions for democracy to flourish”, he also believes “if the free and frank advice officials provide to support ministerial deliberations were routinely released, it would pre-empt some options.”

Like counterparts in Australia, the Head of the Policy Profession says he’s witnessed a decline in the provision of written advice over his career. This concerns him — written advice cannot be adequately substituted with oral advice. “It is more accurate, more considered, less likely to be misunderstood and ultimately serves ministers better in making their decisions,” he notes.

Yet he is no opponent of transparency. In fact, Kibblewhite praised NZ’s freedom of information system for its high level of transparency, which allows much more government information to be released than Australia’s — notably including Cabinet documents.

“We have no such blanket ban here [on releasing Cabinet documents] and that is a good thing because it has resulted in New Zealand having much greater transparency of government decisions,” he says, arguing the trend to proactively publish Cabinet papers that set out the rationale behind decisions supports “a robust public policy debate”.

But allowing the publication of advice to ministers has significant potential to curb free and frank advice. The Act regarding FOI in New Zealand “is clear that there is a public interest in protecting information when its release could threaten the provision of free and frank expression of opinions between ministers and officials,” he points out.

Video: Kibblewhite giving evidence concerning the release of ministerial emails to the David Henry inquiry in 2013.

Confidentiality is a key element in the provision of candid advice. “Officials would be less likely to provide innovative blue skies ideas, which, if prematurely released, could be shot down before we have a chance to turn them into something more robust,” he argues.

“Officials don’t want to become the story — it doesn’t help us to loyally serve future governments if we’ve become part of the political contest. So the threat of premature release risks pressuring officials to soften our advice, avoid controversy, or not expose risks. This does democracy a disservice.

“I think it would be a mistake if the progressive opening up of official information were to further erode the private space that officials need for robust debate with ministers. As Peter Shergold, said in his report, it is imperative that governments be allowed a measure of confidentiality in the policy-making process. ‘Without the free and uninhibited exchange of views between ministers and senior public servants, good public policy is jeopardised.’

“Uncertainty about what can and can’t be withheld has not helped the relationship between ministers and officials. And it doesn’t help build trust in the operation of the Act or in government more generally.

“I think there is an opportunity to provide guidance to departments on how to interpret the trickiest provisions of the Act. We could revisit Nicola White’s 2007 suggestion of a centre of expertise in the central agencies that will work with the Ombudsman to help clear up some of the more ambiguous parts of the Act. I think this could be done without losing the flexibility that is one of the Act’s strengths.”

Read more at The Mandarin: Andrew Kibblewhite’s full speech: mastering the art of free and frank advice

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