A National MP joked this week that the Opposition didn't want things to get so bad under Jacinda Ardern's maternity leave that the country was desperate for her return - they just wanted a medium level of dysfunction.

That threshold was almost reached this week even before the big event, and things got worse as the week wore on.

Ardern's faith in Winston Peters being able to manage the inevitable bush fires that will flare when she is away must be seriously undermined given that he and his party have caused many of them.

A series of accidental and deliberate mishaps has raised questions about a series of important issues including basic coalition management, ministerial conventions, the application of the "No Surprises" policy, and when a minister is not a minister.


Peters' contempt for the No Surprises principle is no surprise given that he believes it was ultimately responsible for the media getting hold of information about his pension overpayment in the election campaign.

It was perhaps perversely fitting then that he failed to alert Ardern in advance of filing legal proceedings on Monday to sue the Government, senior public servants and former ministers.

It's unforgivable. But Ardern will forgive him because she forgives him everything. The absence of any explanation or contrition from Peters makes her look inconsequential.

Peters' backing Shane Jones after his attack on Fonterra and after Ardern had rebuked Jones was another case of sloppy coalition management rather than undermining her.

Had Peters known what Ardern had said, he would not have contradicted her, but he didn't know.

The wheels are not coming off the coalition but there a few loose nuts which require some immediate maintenance.

No one is questioning Peters' right to take legal action but he failed to exercise common sense. In a smoothly functioning coalition, and as a matter of courtesy, Ardern had a reasonable expectation to hear it from him, not her own ministers and civil servants being sued.

The Peters' law suit has also drawn in Attorney-General David Parker who appears to have stretched the Cabinet Manual this week close to breaking point.


Parker and Peters have a mutual respect going well back to before the coalition. That has been enhanced in their roles as Trade and Foreign ministers respectively. Parker's reflex is to back Peters to the hilt.

His cheerleading for Peters on Thursday in trying to get to the bottom of the "skulduggery" was clearly made wearing his hat as coalition partner and close ally to Peters, not the principal legal adviser to the Government and senior civil servants Peters is suing.

Skulduggery is Parker's word, not Peters – Peters used much worse during the election campaign.

The Cabinet Manual has a special section for the role of the Attorney-General because it is a very important position in the Government. It says: "By convention the Attorney-General is not influenced by party political considerations and should avoid appearing to be so influenced."

Illustration / Guy Body
Illustration / Guy Body

Such is the importance of the role that when acting in the law officer capacity, he is not bound by collective Cabinet responsibility.

Parker acted impeccably as Attorney-General in determining that the Defence Force be treated fairly in accusations made against it in the Hit and Run book.

The senior public servants Peter Hughes and Brendan Boyle and their agencies deserve the same consideration. Parker wears many hats but arguably his most important one is Attorney-General.

Peters also wears many hats: former lawyer, private litigant, leader of New Zealand First, Foreign Minister speaking for the Government, Foreign Minister with private views (as he did on several subjects at select committee this week), Deputy Prime Minister and soon to be Acting Prime Minister.

His law suit is clearly being made in his capacity as a private citizen, although it will impact on his job as a minister. It could be argued that he is at all times Deputy or Acting Prime Minister.

Peters and Parker could do worse than taking the advice of specialists in the Cabinet Office about their conduct going forward in what are unprecedented circumstances.

Despite the appalling timing of the case - in the week Ardern left the Beehive - it could provide an excellent basis to get some clarity around the No Surprises principle, and the circumstances in which ministers need to be given private information.

Peters' statement of claims suggests it is a convention imposed by a National Government in order to acquire information for political purposes.

It has been developed under successive Governments including Helen Clark's Labour one.

At the moment it is set out in the quasi constitutional document the Cabinet Manual – and is as general as covering controversial issues or ones that might become public.

Peters' statement of claim attempts to set a framework under which the No Surprises principle should not apply, namely if a matter has been resolved by a department, and if the matter requires no action by the minister or Cabinet.

If the case doesn't get to court, and even if it does, it is one area of Government that deserves a close look by a working group and one that National should welcome.
Brian Henry is running the case for Peters.

They have been running cases together for almost 30 years.

One of the most significant cases was getting the findings of the Winebox Commission of Inquiry overturned by the Court of Appeal.

They also worked together on the unsuccessful electoral petition against the 2005 Tauranga result - which was funded by a big donation from Sir Owen Glenn, which led to a privileges committee hearing over the donation for his legal fees.

Peters gets bloody-minded about legal cases. His career has been intertwined with pursuits of legal action literally from day one.

The day a court overturned the 1978 Hunua election result in May 1979 and ordered that Peters was elected, Malcolm Douglas was applauded by Labour as he left the chamber - and moments later Peters was booed as he walked in to be sworn in.

It may be the day he became an MP, but he has never quite stopped being a lawyer.