Thursday, November 12, 2015

How the Ombudsman has undermined Ministerial accountability to Parliament

One of the things you notice when watching Question Time is how Ministers only know what it is politically convenient to know. Whenever they're asked a specific statistical question where the answer would be embarrassing - say, how many New Zealanders currently detained on Christmas Island currently have convictions for rape or murder (zero), or how many eligible children did not receive an early intervention service within 90 days of referral last year - they refuse to answer and profess ignorance. Even when it is unbelieveable that they have not been briefed and do not have the number right in front of them. Even when they have that very day provided that very answer to the member asking the question in an OIA response or response to a written question.

They do this because they know they can get away with it. And they know they can get away with it because this abuse is specifically protected by the Ombudsman.

Let me explain. When Ministers are asked a question in Question Time, they are given the primary question in advance. That's part of the basic procedures of the House, and it ensures that the Minister can prepare and have appropriate information to hand. What this means in practice is that their departments prepare a briefing of relevant information, which includes information on possible supplementary questions that may be asked. Ministers use these briefings (as well as other material, like whatever has come down from Crosby-Textor) in deciding how to answer in the House.

These briefings are Official Information in terms of the Official Information Act. They are held by Ministers and by departments. They can be requested. but they will never be released. That's because of a ruling by the Ombudsman - summarised in this 2002 Ombudsman's Quarterly Report - that says that there is almost always good reason to withhold them:

In the first case [of a request to a department for draft answers], s9(2)(f)(iv) of the OIA was found to apply. This was because Ministers must be free to make their own decisions as to the most appropriate manner in which to answer a question. They are then accountable to Parliament for the response actually given.

Any advice tendered by officials to assist Ministers prepare answers to Parliamentary questions is advice tendered in confidence. Releasing draft answers would undermine the ability of Ministers to determine the manner in which questions should be answered.

If draft answers were released, it was considered that Ministers would be less likely to seek the advice of their departments in the future, which would diminish the quality of information provided to the House.

For these reasons, draft answers from departments will usually be protected by s9(2)(f)(iv).

[Link added]

And so the OIA's most dubious clause - the sniffy, feudal "can't have dirty peasants looking over our shoulders" confidential advice clause - effectively gives Ministers licence to lie to Parliament, and to the public, with impunity. They can profess ignorance to any inconvenient fact, because the Ombudsman has granted them protection from being shown to be liars.

This is inconsistent with the purposes of the Act. It does not promote the accountability of Ministers of the Crown and officials. It does not promote the good government of New Zealand. Beyond the purposes of the Act, it does not enhance our democracy or respect for Parliament.

If a Minister does not know the answer to a clear question connected with the primary, there are two possible reasons: either they are lying, or their department are incompetent and have failed to brief them. Either way, this is something we deserve to know, and which we would be manifestly better off by knowing. The Ombudsman needs to rethink their decision, the sole effect of which is to protect deceitful Ministers and incompetent departments. And to give them a chance to do so, I'm filing some OIA requests today for draft responses to Parliamentary questions, with the specific intention of complaining when refused. I'll keep you posted on the results.