Executive and Conventions

Five parts of the Executive

Sovereign/GG, Ministers, Cabinet, Executive Council, government departments

Who does the GG represent?

King Charles III

How is the GG appointed?

On the PM's advice

GG's role by convention

Ceremonial and politically neutral

Who is head of government?

The Prime Minister

How is the PM appointed?

By the GG once satisfied they have the confidence of the House

Who appoints and sacks Ministers?

GG on the PM's advice

Ministerial accountability

Individually accountable; their legal powers are reviewable

Legal status of Cabinet

Creature of convention – no statutory basis

Is the Cabinet Manual binding?

No – soft law, non-justiciable

Cabinet Manual example

Stuart Nash removed as Minister for breaching confidentiality

Cabinet confidentiality

Discussions/documents kept confidential to allow free and frank debate

Collective responsibility

Cabinet speaks with one voice

Define a constitutional convention

Practice that defines how constitutional actors should act, hardened through repetition

Are conventions legally enforceable?

No – politically binding only

Consequence of breaching a convention

Political unpopularity, possible constitutional crisis

Non-legal remedy for breach

e.g. GG removing the executive from office

Can statute override a convention?

Yes – conventions can be codified, replaced or restricted (parliamentary supremacy)

Where are many conventions written down?

The Cabinet Manual

Jennings test – element 1

Precedent (followed before; one strong example may be enough)

Jennings test – element 2

Sense of obligation – actors feel bound

Jennings test – element 3

Rationale – a reason, e.g. upholding representative democracy

Ministerial advice convention

GG exercises royal powers only on advice of PM and Ministers

Exception to the ministerial advice convention

When PM/Ministers lose the confidence of the House

Why is ministerial advice the most important convention?

It transferred power from the sovereign to elected government

Who sorts out coalition arrangements?

The parties themselves

What does the GG consider when appointing a PM?

Parties' public statements of who they support

Resignation of a Ministry convention

Government resigns if it loses confidence of the House

When does the caretaker convention apply?

After an election or when the government loses confidence

Caretaker – clear who forms next government

Incumbent acts on incoming government's advice on matters of importance

Caretaker – unclear who forms next government

New policy decisions deferred

Caretaker – unclear and decision can't wait

No permanent decisions; if unavoidable, consult all possible government parties

Caretaker convention origin

1984 constitutional crisis – Muldoon refused to act on Lange's advice; Cabinet forced him

2023 caretaker example

Hipkins couldn't call for Israel ceasefire as PM, so did it as Labour leader – shifting hats

Who sits at the top of the public service?

Ministers – they instruct the ministries under them

How are public servants appointed?

On merit – public service is apolitical

Public service role 1 (PSA 2020 ss 11–12)

Serve the government of the day

Public service role 2

Serve the public good by giving free and frank advice

Chief executives are…

Permanent, independent heads of agencies

Chief executives are accountable to…

Their Minister, Parliament and the Public Service Commission

Carltona principle

Officials exercise a Minister's powers in the Minister's name, treated as the Minister's decision

Why Carltona matters

Basis of ministerial responsibility for their department

Statutory delegation to a CE

Public Service Act 2020 Sch 6 cl 5 – in writing; CE can delegate further