PM’s real GCSB appointment problem – no constitutional confidence
It's interesting to see even the sophisticated Peter Cresswell parrotting the establishment line that ministers should stay out of appointing their own direct reports.
Disconcertingly, he casually throws in "separation of powers" as if John Key has infringed some constitutional principle with his phone call to alert Ian Fletcher to the GCSB director job.
Peter, that convention/principle urges separation and mutual respect and a balance between the Executive, the Judiciary, and the Legislature.
The Prime Minister is the leader of the Executive. He should have a vital interest in who reports to him, in every portfolio.
The current convention that Ministers get a veto power after an independent vetting process is not prejudiced by a Minister shoulder tapping candidates to suggest they put themselves forward. Separation of powers is an important constitutional protection. It is cheapened by attempted application to criticise actions entirely confined to the Executive.
The weak link in our defence of appointment quality is the SSC. If the SSC does not have enough mana to insist on its standards in the vetting and short-listing there is ample room for the appointment of incompetent cronies whatever the formal restrictions on Ministers.
The media lapping up the opposition line should think to ask Mr Robertson "what would stop a future government ensuring that a third party does the shoulder tapping of favoured candidates, if it was true that a Minister should not do it directly?".
Our media promote pathetic debate.
The PM may or may not have a political problem over the GCSB appointment, made awkward because that body's constituting law did not authorise its Dotcom surveillance.
But there is no reason for him to bow to the media consensus that it would be improper for him to have shoulder tapped someone he knew and trusted to head that body, provided (as appears to be the case) that independent scrutiny confirmed the candidate's credentials. A PM confident in his knowledge of the constitution (or confident in his advisers on such matters) would simply dismiss the media parrotting of the left allegations of cronyism, and counter-attack, with a list of the awful fellow traveller appointments made by the previous government.
He would be doing us all a service too, if he counter-attacked the theory that politicians should not be choosing their key administrators and advisors. That theory is a not-so-subtle attempt in the eternal establishment campaign to nobble democracy. Academics, professionals, and others who worm their way to high salaries and influence by promoting complex procedure, are naturally hostile to the crude changes that democracy entails. We dump the powerful at elections because we want change. We want to upset the status quo.
The establishment are instinctively threatened by that. So lawyers and bureacrats and priests and journalists find ways to make it improper for democratically elected leaders to change very much beneath them.
It is futile and unfair to expect any leader to be effective without the power to select managers and advisers they can trust to act on their programme. It is trite knowledge from business that few can ever reform themselves from within, even in the face of complete collapse. Real change almost invariably requires the injection of new executive management, and implict trust between the leaders and those who must develop and implement detailed action plans.
So the theory that politicians should somehow eschew influence on the appointment of their primary agents to implement the policies for which they are elected, almost guarantees a high degree of frustration and failure for all but the most charismatic and determined elected leaders.
Of course it is justified by high-minded objectives. Cronyism can be a curse. It is useful in our system to give the bureacracy the power to slow and to temper democratic swings of policy. Independent vetting and opportunities to block demonstrably unsuitable appointments will maintain those protections.
But we badly need a PM with the mana and the knowledge and the confidence to put constitutionally dangerous elite ninnies firmly back in their boxes.
Former ACT MP turned National Party candidate Stephen Franks is principal of commercial and public law firm Franks and Ogilvie. He blogs at www.stephenfranks.co.nz.