Appointing an Acting Governor: what the documents show

I had an email the other day suggesting that I should reduce my coverage of Reserve Bank issues.  No doubt the topic isn’t that interesting to that particular reader, but the main criterion for coverage here is what I’m interested in, and as I noted in response I’m interested in Reserve Bank issues, know something about them, and am fortunate to be much less constrained in what I can say than many other economists (often employed by entities the Reserve Bank regulates).   (As it happens, for any Wellington readers interested in monetary policy issues, I will be speaking briefly as a discussant responding to a presentation by Grant Robertson at Victoria University next Monday lunchtime.)

Which is by way of introducing a post which may not be of great interest to some readers.

For much of the time this blog has been running I had been pointing out, every few months, that the Governor’s term was due to expire almost three years to the day since the last election, and thus any replacement would normally be taking up the role right in the middle of a possible change of government.   As the Governor is the most powerful unelected public official in New Zealand, and there is currently no political consensus on monetary policy and Bank issues, it seemed inappropriate for the current government to be making an appointment to take effect just around the time of the election, materially tying the hands of a possible alternative government.     I’d suggested asking the current Governor, Graeme Wheeler, to stay on for, say, one more year (it was widely understood that Wheeler was not seeking a second full term).     There would have been no doubt about the lawfulness of that option, and had he been offered and accepted such an extension there would have been a new Policy Targets Agreement signed, as the Act provides.  Ever since 1990, the PTA has been the centrepiece of monetary policy arrangements in New Zealand, and the benchmark against which the Governor’s performance is to be assessed.

On 7 February, the Minister of Finance announced that (a) Graeme Wheeler would leave office at the end of his term, and (b) that because of the election the current Deputy Governor Grant Spencer would be appointed acting Governor for six months, allowing a permanent appointment to be made under whichever government takes office after the election.  It was also confirmed that Spencer would not seek appointment as permanent Governor.

In my post that day I welcomed the fact that the Board and the Minister had recognised the significance of the issue around the election, and raised no concerns about Spencer personally (he was my boss for two periods earlier in my career and I always got on well with him).   But I raised questions about whether such an appointment was lawful, under the terms of the Reserve Bank Act.

The Act allows for the appointment of an acting Governor –  and it has been done once before, when Don Brash resigned with immediate effect to go into politics –  but it appeared to provide for such an appointment only to cover a vacancy that arises during a Governor’s term, not to allow the Minister and Board to delay making a substantive appointment at the end of a Governor’s term (such an option would increase potential  political leverage over the Bank).     Consistent with that reading of the law is (a) that the Act makes no provision for agreeing a PTA with an Acting Governor (in a case like that when Rod Carr temporarily replaced Don Brash there was already a PTA is place –  which there will not legally be once Graeme Wheeler leaves office) and (b) that the PTA plays such a central role in the governance provisions around monetary policy (even in the event of a ministerial override of the Bank, a new PTA still needs to be put in place quickly.    But, technically, Grant Spencer will be conducting monetary policy with no PTA, and thus no (formal) checks and balances.

I was curious about (a) how this appointment came to be, and (b) how confident officials and ministers were of their legal ground.  So I lodged OIA requests with the Bank’s Board, with the Minister of Finance, and with the Treasury.   I didn’t really expect them to release the legal advice each agency might have obtained (although the Ombudsman has made clear that legal advice is not always absolutely protected, and (eg) this isn’t a matter of contractural dispute etc) but I assumed that the insights from that advice would be reflected in the policy advice and analysis that officials provided.

The Reserve Bank was about as obstructive as ever.   It took them seven weeks to release a single two paragraph document, the short letter from the Board chair to the Minister recommending the appointment of Spencer as Acting Governor.     There is no mention at all in that letter of the legal issues, not even a specific reference to the provision of the Act governing acting Governor appointments.  Clearly, and perhaps not unexpectedly, a lot else had been going on behind the scenes.

I had asked for

copies of all papers of the Reserve Bank Board relating to the end of Graeme Wheeler’s term as Governor, the process for appointing a permanent replacement, and the appointment of Grant Spencer as acting Governor.   This request includes papers on the Board’s agenda, minutes of relevant discussions, papers/letters sent to the Minister of Finance or Treasury, and filenotes of any relevant meetings.

The Board’s response suggested that the only other relevant material was (a) some advice from the Bank’s Human Resources, and (b) some internal legal advice.

It is simply incredible that there are no minutes of the Board meeting (even if it was just a teleconference) at which they made the recommendation to the Minister of Finance, and highly unlikely (as we shall see) that there are no minutes of earlier discussions, or even email filenotes of discussions that, for example, the Board chair might have had with the Minister of Finance on the forthcoming appointment.    If any of this is written down, it was covered by my request.  And if it is not written down, it might be operationally smart in the short-term (bureaucrats often say to each other, “be careful what you put in writing”) but it is particularly poor governance.  Both the head of the Prime Minister’s Department and the Ombudsman have been explicit that the provisions of the Official Information Act don’t justify taking a slapdash approach to documenting advice, decisions etc.

As I’ve come to expect, there was a much more helpful and fuller response from the Treasury.  It took some time, but there was 63 pages of material.    They haven’t yet put the response on their website – I’ll link to it when they do, and if anyone wants the material sooner just email me.  (Link to the released documents.)

I won’t bore readers by attempting to step through every paper, but what is clear is how late in the piece the decision was made to go the Acting Governor route, and that credit for that decision goes to the new Minister of Finance Steven Joyce.

The first papers are from August last year.  At that point, Treasury was aware that the expiry of the Governor’s term would fall in the period not far from the likely date of the 2017 election.  They didn’t seem to see the issue as a substantive one, and advised the Secretary to the Treasury that it might just mean that the appointment of a new Governor should be announced quite early (eg May 2017), which  in turn would mean the Board would have to begin the search process relatively early.

A month or so later they were specifically highlighting the convention under which governments are quite restrained in making significant appointments in the three months prior to the election. By this time, it is clear from the documents that the Bank’s Board was already actively planning their search and recommendation process.  Treasury note that it would be desirable to have an appointment announced by the end of May, but to do that a recommendation from the Board would have to be available by early-mid April, but “their current timeframe is to provide a recommendation to the Minister in May”.

By mid November, Treasury had taken formal advice from Cabinet Office, whose “legal and constitutional adviser” informed them that simply announcing an appointment early would not get around the pre-election conventions.  What mattered was the effective date of the appointment, not when it was announced.    That prompted an approach to staff in the Minister’s office highlighting the potential problem.  They note that one way around it would be to extend the current Governor’s term, or appoint an acting Governor for six months, but there is no discussion of whether the Act really allows for that latter option. (The other option was simply to barge ahead and make an appointment anyway, with or without consultation with opposition parties).

On 29 November, the Minister of Finance (still Bill English) held a meeting with Neil Quigley, chair of the Reserve Bank Board.  Treasury provided a briefing note.  It noted that “the Board is running the process….we understand that the recommended candidate for your consideration will be provided in May 2017” but flagged the issue around the pre-election period, and noted the possible options (as above).  Suggesting that they still hadn’t looked that carefully at the details of the legislation, they advised the Minister that a new PTA would be required, even if an acting Governor was appointed.

Among the documents is a note for the new Minister of Finance, which was in the end not sent.  But it states that “the previous Minister of Finance met with Professor Quigley on 29 November 2016 and indicated comfort with the Board continuing their appointment process as outlined to him”, and noted that Treasury had no further advice planned on this appointment.

Things seemed to move quite quickly from late December.  In a 20 December note to Gabs Makhlouf, staff pass on reactions to the news that “Hon. Joyce might look to delay the appointment of a new RBNZ Governor until after the election”

Staff themselves remain “neutral” about such an approach –  it is not at all clear what credible alternatives they saw there as being –  but noted the need to engage the Board quite quickly, noting “the Board’s original plan was to put out a job advertisement in late January, the Board has already engaged headhunters, and the previous Minister had signalled a preference for proceeding to appoint a new Governor next year”.

Christmas holidays intervene, and the next paper is a briefing for the Minister in advance of a 20 January meeting with Neil Quigley, which again notes the options of extending the current Governor’s term or appointing an acting Governor for six months (again, incorrectly noting that either option would require a new PTA).  Even at that meeting, the Minister does not appear to have communicated a decision, as there is then a (not very informative) note suggesting another discussion on the issue with Treasury officials on 24 January.   Only by 1 February is there a formal Treasury report providing the information to facilitate the Minister’s preference to appoint Grant Spencer as Acting Governor (which, according to the paper, had not yet been discussed between Spencer and the Minister).  Only at this point is Treasury uncertain about the PTA position, noting that they were seeking Crown Law advice.

It all went to Cabinet on 7 February –  with no hint of any issue as to whether an acting Governor could legally be appointed –  and was announced later that day.

I’m not usually a big fan of Steven Joyce, but as far as I can tell from these papers (and a very similar set I got from his office) he is the only one to emerge from this process deserving credit.  The Bank’s Board had seemed to see no problem at all in making an appointment pre-election to take office in the midst of a possible change of government.  The Treasury didn’t either –  they would have been happy, if they could, simply to have had an appointment announced early.  And as late as the end of November, the then Minister of Finance (now Prime Minister) was apparently happy to carry on towards appointing the most powerful public official to take office just (as it turns out) a few days after the election.    It was only very late in the piece that Treasury realised that there was no provision for a PTA with an acting Governor (Crown Law presumably confirmed that, as there will be no PTA with Spencer) and there is no sign that any officials ever seriously considered whether an acting Governor appointment was strictly legal.

But shortly after taking office, Joyce seemed to cut through most of this, eventually presumably instructing/requesting the Board not to proceed with the planned process that had already begun, and instead to recommend him an acting Governor appointee.   In a sense (whatever the formal legalities) they were lucky to find Spencer willing –  I have heard that he was planning to have left the Bank by now.

To repeat, my concern isn’t that something will go badly wrong in the six months Grant is in charge.  It is a practical solution to a problem that is made so severe by the fact that so much power is vested in one person’s hands.  That should be changed by whoever becomes the Minister of Finance after the election (and the role of the Board in making appointments should also be revisited).   But the practical outcome they have adopted still looks rather dubious on legal grounds, and we are supposed to be ruled by laws, not by what is opportune.   I’m not a lawyer, and some of the doubt could have been resolved if the Board and Treasury had pro-actively released any legal advice they obtained on the points, but it doesn’t look clear-cut that the chosen path was strictly lawful.

And perhaps as concerning is that key figures – including the current Prime Minister –  saw no problem in an outgoing government making a long-term appointment to such a powerful position, to take office in the midst –  or immediately after –  an election campaign, especially one where there is the potential for material changes of policy emphasis and legislation in areas directly the responsibility of the Governor.