Author: Eve Bain
With the text of the TPP having just been released, all eyes are now on Parliament as the agreement goes through the international treaty examination process. This will draw attention to the scrutiny function of select committees and especially their ability to hold the Government accountable for its activities in foreign affairs and trade. The TPP negotiations were often criticised for their lack of transparency. So it will be interesting to see what information about that process will be made available to the committee – and whether the committee will insist on being informed in this way.
The Legislature and the Executive have distinct roles, even within New Zealand’s somewhat blurred version of the separation of powers. Parliament is the "Grand Inquest of the Nation" and the Executive is the "Defender of the Realm". Both are necessary, but what happens when these roles conflict? Does national security or trade negotiation confidentiality limit parliamentary sovereignty?
With the text of the TPP having just been released, all eyes are now on Parliament as the agreement goes through the international treaty examination process. This will draw attention to the scrutiny function of select committees and especially their ability to hold the Government accountable for its activities in foreign affairs and trade. The TPP negotiations were often criticised for their lack of transparency. So it will be interesting to see what information about that process will be made available to the committee – and whether the committee will insist on being informed in this way.
The Legislature and the Executive have distinct roles, even within New Zealand’s somewhat blurred version of the separation of powers. Parliament is the "Grand Inquest of the Nation" and the Executive is the "Defender of the Realm". Both are necessary, but what happens when these roles conflict? Does national security or trade negotiation confidentiality limit parliamentary sovereignty?
Foreign affairs and defence are unique areas of government policy, conducted via prerogative power and often involving questions of great sensitivity. There is no equivalent of the parliamentary scrutiny which occurs before a statutory power is created under legislation. Thus scrutiny of foreign policy is primarily carried out in by the Foreign Affairs, Defence and Trade Select Committee, usually retrospectively. Despite having, at least in principle, the unlimited inquiry powers of the House in order to fulfil its scrutiny function, FADT and equivalent committees in Australia, the United Kingdom and Canada have all experienced challenges in accessing official documents and summoning ministers to give evidence.
FADT is responsible for: customs, defence, disarmament and arms control, foreign affairs, trade, and veterans’ affairs. The Executive might have good reason for wishing discussion of some of these matters remains outside the public forum of a committee evidence hearing. Indeed, security concerns have been cited by officials to justify non-disclosure. These restrictions have no application to the functions of the House yet remain largely unchallenged by members. Up until now the mechanisms used to address this tension - adverse comments, minority reports or media coverage - are political. These are unsatisfying given the constitutional nature of the problem.
Over the past decade FADT and New Zealand’s Parliament more generally has developed a more active role in foreign affairs oversight through the international treaties examination process. Yet annual reviews still provide the most important opportunity to scrutinise the performance and current operations of each department. Select committees send more than one hundred written questions to the ministries under review, the responses to which are provide as evidence to the respective committee. However, this process can be impaired by the non-disclosure of information.
For example, questions regarding the waiver of the diplomatic immunity of the Malaysian Defence Attaché were not answered because the issue was sub judice. While matters sub judice are listed in the Official Information Act as possibly justifying hearing the evidence behind closed doors, officials are expected to be as helpful as possible in responding to committee requests and so they should have applied to give the evidence in secret rather than simply decline the request.
Moreover, a copy of advice provided to the Executive regarding the deployment of personnel to Iraq was not given to FADT as it was subject to legal professional privilege. While this can constitute a good reason for withholding information under the Official Information Act, that legislation does not apply to select committees. There is great public interest in committees being able to effectively scrutinise Government decisions in their subject areas. In the absence of a statutory provision that explicitly binds the House, limits on the constitutional role of the House should not be implied.
Information regarding the risk assessment of deployment of personnel to Iraq and also operations in the Gulf of Aden was not provided to the committee for fear of compromising operational security. The consequence of FADT being precluded from scrutinising these matters is to put certain Executive activity beyond accountability.
The issue is two-fold: the restraint from the Executive and its agencies but also the failure of the committee to press for disclosure. A committee could request a summons from the Speaker, however New Zealand committees have only invoked their full constitutional functions once, and in that case only partially.
The committee can include adverse comments regarding lack of cooperation in the committee's report to Parliament. However, since such reports are rarely debated in the House, it is worrying if this represents the highpoint of Executive accountability in foreign policy. It is certainly not the robust and systematic scrutiny envisaged by the 1985 reforms.
In practice, there seem to be real restrictions to the information the committee can access, as evidenced by the written answers in FADT's annual reviews. This question is particularly pertinent to FADT, not only because the issues under inquiry tend to be sensitive, but also because the Executive has an effective monopoly over the provision of defence or foreign affairs-related information. The greater use of secret evidence may cut across the objective of direct public engagement, but it would allow Parliament to better accommodate the Executive's role as "Defender of the Realm".
In New South Wales there is a process for independent arbitration of public interest immunity claims, which may serve as a model for breaking the stalemate between the Legislature and the Executive. In Canberra the Commonwealth Senate Standing Committee on Procedure is currently considering adopting a similar process. New Zealand should watch this development closely.
The experiences of our own Parliament and that of comparable jurisdictions have shown that there are inevitable tensions between the Executive's claim to confidentiality and the Legislature's right to know. Public interest is being pulled simultaneously in opposite directions. But sensitive Government activity that concerns national security must still be scrutinised. The idea that the level of investigation into foreign affairs is to be determined by the Government’s own political judgment is antithetical to democratic accountability. Parliament has a duty to scrutinise the Executive and must reform itself to enable the realisation of its constitutional function.
Eve Bain is a Bachelor of Laws (Honours) student at Victoria University of Wellington and an Assistant Editor of the European Journal of International Law. She can be reached at baineve@myvuw.ac.nz
FADT is responsible for: customs, defence, disarmament and arms control, foreign affairs, trade, and veterans’ affairs. The Executive might have good reason for wishing discussion of some of these matters remains outside the public forum of a committee evidence hearing. Indeed, security concerns have been cited by officials to justify non-disclosure. These restrictions have no application to the functions of the House yet remain largely unchallenged by members. Up until now the mechanisms used to address this tension - adverse comments, minority reports or media coverage - are political. These are unsatisfying given the constitutional nature of the problem.
Over the past decade FADT and New Zealand’s Parliament more generally has developed a more active role in foreign affairs oversight through the international treaties examination process. Yet annual reviews still provide the most important opportunity to scrutinise the performance and current operations of each department. Select committees send more than one hundred written questions to the ministries under review, the responses to which are provide as evidence to the respective committee. However, this process can be impaired by the non-disclosure of information.
For example, questions regarding the waiver of the diplomatic immunity of the Malaysian Defence Attaché were not answered because the issue was sub judice. While matters sub judice are listed in the Official Information Act as possibly justifying hearing the evidence behind closed doors, officials are expected to be as helpful as possible in responding to committee requests and so they should have applied to give the evidence in secret rather than simply decline the request.
Moreover, a copy of advice provided to the Executive regarding the deployment of personnel to Iraq was not given to FADT as it was subject to legal professional privilege. While this can constitute a good reason for withholding information under the Official Information Act, that legislation does not apply to select committees. There is great public interest in committees being able to effectively scrutinise Government decisions in their subject areas. In the absence of a statutory provision that explicitly binds the House, limits on the constitutional role of the House should not be implied.
Information regarding the risk assessment of deployment of personnel to Iraq and also operations in the Gulf of Aden was not provided to the committee for fear of compromising operational security. The consequence of FADT being precluded from scrutinising these matters is to put certain Executive activity beyond accountability.
The issue is two-fold: the restraint from the Executive and its agencies but also the failure of the committee to press for disclosure. A committee could request a summons from the Speaker, however New Zealand committees have only invoked their full constitutional functions once, and in that case only partially.
The committee can include adverse comments regarding lack of cooperation in the committee's report to Parliament. However, since such reports are rarely debated in the House, it is worrying if this represents the highpoint of Executive accountability in foreign policy. It is certainly not the robust and systematic scrutiny envisaged by the 1985 reforms.
In practice, there seem to be real restrictions to the information the committee can access, as evidenced by the written answers in FADT's annual reviews. This question is particularly pertinent to FADT, not only because the issues under inquiry tend to be sensitive, but also because the Executive has an effective monopoly over the provision of defence or foreign affairs-related information. The greater use of secret evidence may cut across the objective of direct public engagement, but it would allow Parliament to better accommodate the Executive's role as "Defender of the Realm".
In New South Wales there is a process for independent arbitration of public interest immunity claims, which may serve as a model for breaking the stalemate between the Legislature and the Executive. In Canberra the Commonwealth Senate Standing Committee on Procedure is currently considering adopting a similar process. New Zealand should watch this development closely.
The experiences of our own Parliament and that of comparable jurisdictions have shown that there are inevitable tensions between the Executive's claim to confidentiality and the Legislature's right to know. Public interest is being pulled simultaneously in opposite directions. But sensitive Government activity that concerns national security must still be scrutinised. The idea that the level of investigation into foreign affairs is to be determined by the Government’s own political judgment is antithetical to democratic accountability. Parliament has a duty to scrutinise the Executive and must reform itself to enable the realisation of its constitutional function.
Eve Bain is a Bachelor of Laws (Honours) student at Victoria University of Wellington and an Assistant Editor of the European Journal of International Law. She can be reached at baineve@myvuw.ac.nz
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
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