Deal with Cabinet outsiders ruled legal

Winston Peters, Helen Clark and Peter Dunne - here pictured with Governor-General Dame Silvia Cartwright - are at the centre of a row over how the new government was formed. Marty Melville / Getty Images

The Prime Minister's impartial constitutional adviser has given a cautious thumbs-up to Helen Clark's partial exemption of Winston Peters and Peter Dunne from the longstanding convention of collective ministerial responsibility, leaving them free to attack Labour policies.

The Secretary to the Cabinet, Diane Morcom, has advised the Prime Minister that this change in the convention is "legally possible" but raises "quite complex" management issues needing early clarification.

National's deputy leader, Gerry Brownlee, has accused Helen Clark of trampling over the constitution in appointing her two support partners as ministers with the precedent-setting latitude to criticise Government policy outside their portfolios.

Mr Brownlee argued that the Prime Minister had no right to alter the constitution "at any cost" just so she could form a Government.

After Mr Brownlee's criticism, which included an attack on the Governor-General, the Weekend Herald asked the Prime Minister's office for copies of any advice provided by Government officials on the new arrangements.

In reply, Helen Clark issued a copy of a two-page paper written by the Cabinet Office, whose job includes giving impartial constitutional advice to the Prime Minister.

Under their separate confidence and money-supply agreements with Labour, Mr Peters and Mr Dunne agree to fully represent the Government's position and be bound by collective ministerial responsibility in their respective foreign affairs and revenue portfolios.

They are otherwise free to criticise the Government.

Normally, ministers are obliged to publicly support all Cabinet decisions even if they disagree privately. The change is designed to give the two minor partners the means to differentiate themselves from Labour and preserve their identity.

In her paper, Diane Morcom said it was helpful to think of Mr Peters and Mr Dunne as wearing three hats - MP, minister and party leader.

When they spoke about Government business outside their portfolios, they could be seen as speaking as political party leaders and MPs, rather than as ministers.

However, she said the broad sweep of the foreign affairs and revenue portfolios might make the arrangement complex to manage.

For example, a matter with a foreign policy "dimension" might be decided by the Cabinet. The question then arose whether comments by Mr Peters on that decision represented the Government position or NZ First's position.

"Government is necessarily interconnected, and it is not really possible to compartmentalise these policy areas."

She suggested that guidance be provided to both ministers and mechanisms established to ensure there was consultation and no surprises.

Helen Clark said guidelines would probably be written into the Cabinet Manual.