Mallard and Robertson in constitutional tug of war
By Richard Harman (author)
A meeting of Parliament’s Officers of Parliament Committee late yesterday turned into a constitutional tug of war between the Speaker, Trevor Mallard, and Finance Minister Grant Robertson over how the proposed Parliamentary Budget Office would be set up.
Mallard suggested the Office could report to him; Robertson forcefully resisted the idea.
National's Leader, Simon Bridges, has already made his opposition to the Office clear claiming he could not trust it to be independent.
Now Mallard, who chairs the Officers of Parliament Committee has emerged as another sceptic.
He wanted to know why the PBO had to be an Office of Parliament anyway; why it couldn’t be modelled on the Australian Parliamentary Budget Office and whether it wouldn’t simply reinforce the drift of power away from ordinary MPs to Party Leaders.
Robertson told the Committee that the PBO proposal would fill a gap in the country’s overall fiscal framework.
In particular, there was currently no independent assessment of the government's fiscal performance, and no public institution existed to cost the policies of political parties.
“It is fundamentally about accountability and transparency and making sure that the government not only is accountable for its fiscal strategy and that we get better information to Parliament but that we get better information for parliament and the public on the overall work of political parties and improve public policy debate,” he said.
“In terms of the decision about the kind of Office and how we come to be in front of this Committee today, it is really about trying to find the highest degree of both real and perceived independence for such a body.
“We think we need to find the position within the broader system of our government arrangements that provides the highest level of independence and we believe that an Officer of Parliament fulfills that role."
Robertson said he and Greens Co-Leader James Shaw, who originally proposed the office in his party's Confidence and Supply Agreement, believed the proposal met the criteria to be an Officer of Parliament.
“It gives it the appropriate status; it will build more credible and independent analysis, and it will support the work of parliamentarians.”
An Officer of Parliament has statutory independence, like a Judge.
That was not enough for Mallard who cited two of Parliament's three Officers; the Auditor General and the Ombudsman, as examples of what the role was about.
“The Auditor General and the Ombudsman who are our long term officers have effectively got powers very close to the House itself," he said.
“The Controller (the Auditor General) can cut the money off.
“And while the powers of the Ombudsman are reccommendatory I am not aware of any case where in the end, when it has been crunched, that has not been accepted.”
However, Mallard was clearly not so enthusiastic about the Parliamentary Commissioner for the Environment being an Officer of Parliament.
“The commissioner for the environment is a separate case, and I think it was very well argued in my time (1986),” he said.
“I think they shouldn't have been a Parliamentary Commissioner because the powers don't actually parallel Parliament at all
“There was a debate in which it was (Sir Geoffrey) Palmer versus (David) McGee (the former Clerk of the House), and Palmer won.”
So, asked Mallard, why did the PBO have to be an Officer of Parliament rather than a creature of Statute. (i.e. A Government department or entity).
“We went looking for the place in the system with the highest degree of independence from the executive, and we decided that was within the area of an Officer of Parliament," replied Robertson.
“If it was part of Parliament, then that's you; that’s you who ultimately would be deciding if it was within the Parliamentary Service or the Office of the clerk.
“You are immediately involved more directly.”
Mallard interrupted and suggested that the Australian model (which reports to the Speaker)might be suitable.
“Yeah but it's still within the budgetary process of the parliament .”
Robertson reminded Mallard that the PBO would have two roles; to undertake the costings of political party election promises when (and only when) requested by those parties and also to maintain a check on the executive and whether it stuck to the fiscal costings and forecasts and whether they were accurate.
“ And so having decided that that's what we wanted, that level of independence, this is the best model.
“We then looked at the criteria around the establishment.
"I know you don't approve of the fact that there is a Parliamentary Commissioner for the Environment as an Officer of Parliament but they are.
“And so are the others.
"But they are not all exactly the same.
“They do all have slightly different roles, and again you've made the point yourself that in law, the Ombudsman makes recommendations.
“So if you look at the criteria, it is it must be created to provide a check on the arbitrary use of power by the executive.
“What we believe is that particularly in the case of the costings of the fiscal strategy, then it is discharging functions which the House if it so wished, might carry out. “
Robertson stressed that the PBO would not have an advocacy role and that when it costed party policies, it would be up to the parties themselves to decide whether to make those costings public.
The debate continued for some 10 minutes with Mallard coming back to the idea that the New Zealand office could resemble the Parliamentary Budget Office in Australia which is a Parliamentary entity reporting to the Speaker much like Parliamentary Services or the Parliamentary Library in New Zealand.
But it was clear Robertson did not want the Office reporting to the Speaker.
“The the biggest difference would be the fact, that it would be accountable to you as the Speaker," he said.
“And that is not and does not deliver as great a level of independence as patently evident in an Officer of Parliament.”
Mallard also wanted to know whether the way the Office would work, with parties submitting policies for costing, would not continue the ongoing process of the centralisation of power around Leaders versus backbenchers because the Leaders would decide what policies were costed by the office.
It would mean the office could not help during he development of policies.
Shaw said that would probably be up to each party to determine how it would do that.
“I can imagine some parties where the views of the leader have minimal impact anyway,” he said.
“And I’m not speaking for anybody else here .... “, a comment that was greeted with guffaws from Green MP, Chloe Swarbrick.
National's main concern was whether the Office would mean that the Executive would be able to gain access to Opposition election material by gaining access to material held by the Office.
Robertson said that the only jcontact he Office would have directly with the executive would be an assessment of the executive’s fiscal strategy.
“The only job it will do in relation directly to the executive is an assessment of the fiscal strategy of the executive," said Robertson.
“So it's not working for them---. It's actually checking them.”
The Opposition has also raised a fear that the PBO would be dependent on Treasury to supply staff during an election year to cope with the demands of costing election campaign policies.
But outside the Committee, Shaw said that designed into the Office would be reasonably stable staffing.
“One of the ways to manage that if that you make the costing service available over the full three-year period,” he said.
Robertson said it would need to work with the parties to find out when they wanted to use it so that it could plan its staffing requirements.
Robertson and Shaw and Treasury officials left the meeting, but the MPs and Mallard continued on behind closed doors.
They will report back to Parliament, and Robertson hopes to have a version of the Office running next year.