‘No surprises’: principle or unprincipled?

Ministers need to be properly informed, but not all surprises need to be forewarned, says former government statistician Len Cook

What public services do is full of surprises, and it always has been. The nature of those surprises varies with the function of the organisation. 

It is difficult to ignore the growth in expectations by the media of an immediacy of response when things go awry or differ from promised outcomes.

This highlights the normalising of a major cultural shift from past generations, and the breadth of its acceptance within the public service. 

It is possible that the traditional invisibility of the mandarin meant that senior public servants were less prepared for any such increased public scrutiny where it straddled the political/ professional boundary, whereas Ministers created a 'political adviser' class, following the model set by Tony Blair’s Alistair Campbell.

These advisors could ride roughshod over Ministers as much as officials, to manage down a political risk, ensuring that an agreed 'line to take' was never contradicted by conflicting facts. Political advisers need a constant flow of information, and 'no surprises' is their food supply. The very looseness and uncertainty of 'no surprises' widens the flow of information. It has also removed from connection with the media and the public those directly knowledgeable of the work of the public service.

In New Zealand, a local police constable is among the few operations staff in the whole public service who addresses media enquiries without a press officer as intermediary.  

Public servants whose leading roles in the public service have occurred during the last two decades have publicly endorsed 'no surprises' during the course of the recent legal challenge by the Deputy Prime Minister. 

This highlights the normalising of a major cultural shift from past generations, and the breadth of its acceptance within the public service. 

It is a shift away from any mandarin-like model of public service leadership that was present before 1988. As practised, 'no surprises' challenges fundamental elements of the rule of law which requires that those who deliver services have to operate independently of direction from those that make policy. 

A first reading of the Public Sector Bill does not help clarify how this ongoing tension will be managed, and as no mention is made of the rule of law in the draft Bill, this would seem an affirmation of executive over-reach.

The electoral cycle means that Ministers and public servants often work to different time frames and operate in different markets.

'No surprises' makes public servants more cognisant of the pressures faced by Ministers, but their management of these pressures must meet principles central to our democracy, including the rule of law and an apolitical public service.

It is not the constitutional role of public servants to support ministers with strategies that they should adopt to avoid potential political embarrassment, or to generate it for opponents.

Public officials are responsible managers of risk and stewards of public trust and cannot be expeditious conduits of privileged information to fuel political discourse and positioning. 

Where 'no surprises' has changed behaviours, we need to be able to judge whether those behaviours retain these principles.

Public officials cannot be prescient about how the media, politicians or the public will react to something, so that in a politically risk-averse environment, there may be insufficient incentives to hold back on passing on information of anything that might in some circumstances come to a Minister’s attention in other ways. 

In the political market, every battle must be won regardless of the cost others bear, while for the public servant, the long-term integrity and trustworthiness of the service of which they are custodians will often involve the early acknowledgement of faults. 

Burning the scrub to save the forest has little place in the political market where every day is one day closer to the next election. Political resolution of operational and professional tensions should be regarded as more likely to bring costs rather than benefits.  

Why did we acquire a need to now elevate all surprises to Ministerial attention? Has the quality and trustworthiness of government improved as a result?  

Wisely and sometimes erroneously, information has long been shared with Ministers by officials. One well publicised failing of the political/ professional boundary was the leaking to Prime Minister Muldoon in 1976 of the circumstances when a senior opposition member Colin Moyle had been spoken to by police.

In 2009, Social Development Minister Paula Bennett disclosed details of two solo mothers’ benefits to media, after they criticised government policy.  In response to a Human Rights Commission judgement that she breached the privacy of the two beneficiaries, the Minister later said that she was not ruling out revealing private details of beneficiaries in the future.

Although such cases are infrequent, they linger long after the event, and they cause uncertainty about the authority of privacy and other legislation and of public sector ethics. They open up the question of whether we need to rethink Parliamentary accountability rather than pretend that Ministers should know all, given the spread of activity for which governments are responsible?

Why did we acquire a need to now elevate all surprises to Ministerial attention? Has the quality and trustworthiness of government improved as a result?  

One possible view is that 'no surprises' was a delayed reaction against the flexibility managers obtained from the public-sector changes of the late 1980s. These reforms of the 1980s provided a much-needed lift in the integrity of the public finance system and the management of public assets, made it possible to define more explicitly (and often limit) the role of the public service agencies, and required Ministers to be explicit about their expectations.

The reforms were aimed at significantly changing the contest for scarce resources. The reforms also expected to engineer more opportunity for innovation and flexibility in practice. However, after just one decade this was increasingly followed by a heightened political aversion to any risk taking in operational matters, and that risk aversion seems to have snowballed.

While 'no surprises' was not generally known as a rule in 1999, by 2005 it was an unchallenged mantra.  The introduction into the cabinet manual of the so-called 'no surprises' principle encapsulated this unfortunate shift well.  

The Cabinet manual states:

5.17    Careful planning, good faith, and a “no surprises” approach are key to making the arrangements work effectively. All Ministers and chief executives need to be familiar with the current arrangements and ensure that they have processes in place to implement them. Managing the consultation processes and other aspects of the relationships may take some time. Ministers and officials should factor the time required for consultation into their planning on each issue.

The SSC directive of 2014 notes:

“Representatives of a Crown entity appearing before select committees have an obligation to manage risks and avoid springing surprises on the Minister. This applies even when they appear on matters which do not involve ministerial accountability, such as when exercising an independent statutory responsibility or appearing in a personal capacity. Board members and employees who wish (or are invited) to make a submission to a select committee on a bill on behalf of their entity are expected to discuss the matter with their responsible Minister.”

Ministers need to be properly informed, but not all surprises need to be forewarned.

Until 1986, all press releases for official statistics were provided under embargo to relevant Ministers in advance of their public release. Minister of Finance Muldoon was often observed to use his early access to be impressively prescient about the CPI before its release. All embargoed access was finally stopped by the Government Statistician after a blatant leak by the then-Housing Minister Phil Goff of the housing component of the CPI after it had risen by over 20 percent during one quarter of 1986.

Since that time, Ministers have not received early access to official statistics, and on rare occasions when the Government Statistician has judged that advance notice could be justified, the public will be told in the associated new release. The Government Statistician in 1986 had to respond to concerns of market integrity that Ministers had been ignoring but could no longer do so in a deregulated economy. In the United Kingdom, where embargoed access of 48 hours occurred until just recently, all those receiving early access were listed on the Office for National Statistics website.  

More generally, giving Ministers advance notice of not only the existence but content of research findings increases the chance that they will wish to decide when they are released, if ever, or set the form of release. 

There are always a few ministers who are impervious to the fact that when as politicians they play a part in any element of the release of scientifically produced work, the work itself will be less trusted by many. Few departments now publish as many pieces of scientific work as they did a decade ago, despite evidence-based policy becoming well established as a public service commitment. These different experiences exemplify the limits to which officials whose actions are not underpinned by simple but strong statutory obligations will find themselves continually tested to protect the political professional boundary.  

Some distinct tests for when Ministers need to be informed by the public service on matters normal protected by statute or the rule of law would probably take the following form:
-    Would giving information to the Minister be consistent with any existing basis for the protection of the information, including the Privacy Act?
-    Would availability or non-availability result in a loss of trust in government, either of laws, processes or roles?
-    If the confidentiality or privacy of an individual were protected by statute, convention or public commitment, has the Minister accepted liability for meeting those obligations when placed on them as well, and any other person they consult about the information?
-    If there is an unintended leak, can Ministers and their offices also be held to account by an appropriate investigating authority
-    If the information is intended for release in the public domain, will the release by the Minister change normal practice in the timing and process of release. (e.g. Research reports, Embargoed information releases)
-    For the information that is passed over to the Minister to be then released by them, at a time and manner that they determine, would it build or reduce trust by the public and Her Majesty’s opposition, in the organisation and the statutes that determine its practices?
-    Would the immediacy of a proper and timely response to the public be seriously affected by the referral process? (e.g. local police responses to emerging events)
-    Is the agency ready to deal with the media in a manner which reflects its responsibility and accountability, as well as enabling the Minister to respond to Parliamentary scrutiny?

Might a new set of Ministers that are fresh from opposition benches be ideally placed to rethink the need for bringing some principles into a rule whose very looseness puts pressure on the constitutional boundary between Ministers and career public servants?

Len Cook was New Zealand Government Statistician from 1992 to 2000, then National Statistician of the United Kingdom from 2000-2005.  He has worked at the highest levels of public service for close to twenty years, through the Lange years, the Bolger era, then in the UK civil service at the height of the Blair/Brown government and Alistair Campbell’s influence. An earlier version of this article was published in the December 2017 issue of the Journal of the NZ Institute of Public Administration.

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