Te whakatū komiti tohutohu minita Establishing a ministerial advisory committee
Ministers can set up committees to provide them with advice on particular issues. Such committees usually consist of suitably qualified people from outside the Public Service, although officials may also be involved.
Defining ministerial advisory committees
Ministerial advisory committees provide ministers with external advice on particular issues. While often established for a particular time frame, they may exist for long periods of time, and even serve several successive Governments (for example, the National Advisory Council on the Employment of Women, which was established in 1969).
Ministers do not need legislative authority to set up such a committee, although some legislation does provide for them.
Ministers may seek Cabinet agreement before establishing such a committee, particularly if a minister is seeking extra resources or if the committee’s work may have implications for other portfolios.
Ministerial advisory committees are usually funded through and administered by the minister’s department. As a result, departments are usually involved in the establishment of ministerial advisory committees, subject to the instruction of the minister responsible. The department is also responsible for ensuring accountability, record-keeping and official information requirements are met.
Providing independent advice to ministers
Terms of reference should be drafted for any ministerial advisory committee. These should cover the role and purpose of the committee, its membership, any appointment process including fees and term of appointment, how the committee will engage with other agencies and its reporting arrangements.
The quality and independence of the advice from ministerial advisory committees is protected by:
- the quality of the people appointed
- the terms of reference
- the fact that such committees are usually not responsible to the chief executive of the department, and report directly to the minister.
Ministerial advisory committees have several qualities which make them attractive (and frequently used) to provide external advice to the Government:
- they are easily established and disestablished, with little requirement for formal process — no legislation or regulation is necessary
- they are a relatively easy way of involving outside experts in the supply of advice direct to the minister
- they provide a measure of independence, but ultimately clearly exist to provide advice to the Government
- they are usually relatively inexpensive.
They are not generally suited to roles beyond advice because:
- their lack of legal personality and strong formal accountability makes them unsuited to service delivery, purchase or ownership roles
- the lack of a statutory basis makes them unsuited to regulatory roles
- their informality may give them a relatively lower profile than, for example, a statutory body such as the Law Commission
- their informality may not provide a strong sense of permanence (even though there are examples of committees which have existed for long periods of time).
Ministerial advisory committees should be considered as a serious possibility for providing independent advice to the Government. If it is to exercise public powers directly or needs to have the powers of a legal person, then a ministerial advisory committee would be inadequate.
As an advisory body, a ministerial advisory committee should not undertake activities that cut across the responsibilities of the minister or the departmental chief executive, or it does not have the legal authority for. It is important, for example, that there is proper authority for the expenditure of public money. However, there is scope for a ministerial advisory committee to act under delegation from a departmental chief executive with the written approval of the minister within the legal authority provided by the Public Service Act 2020. This may be appropriate for a time limited period but is not the primary purpose of a ministerial advisory committee.
Setting up a ministerial advisory committee
The responsible minister should work with the relevant portfolio agency to develop and consult with other affected agencies and ministers on any terms of reference for the ministerial advisory committee. Typically, the responsible minister will take a short paper with attached terms of reference to a related Cabinet Committee (or direct to Cabinet depending on timing and level of confidentiality) for discussion with ministerial colleagues.
Although a ministerial advisory committee is less formal than a Crown entity, the same principles apply to the appointment process as to that of a Crown entity board member.
The terms of reference for the ministerial advisory committee will identify the skills and qualifications required of members. The selection process is generally managed by the agency on behalf of the minister. Ministers must be able to certify that an appropriate appointment process has been followed.
Members of a ministerial advisory committee are subject to the Cabinet Fees Framework for any remuneration and allowances. The fees are set by the appointing authority — in this case the minister responsible. A Cabinet Office Circular [CO (22) 2] covers the Fees Framework and how to apply it. Ministerial advisory committees are considered within ‘Group 4: all Other Committees and other Bodies’ for the purposes of determining the right level of fees.
Appointments will generally be considered by the Cabinet Appointment and Honours Committee. Even although an appointment is the responsibility of a particular minister, it is important that it is raised with colleagues to ensure wide input into the appointment process. This will also allow consideration of any exception to the fees proposed by the Cabinet Fees Framework.
Along with establishing terms of reference and appointing members, determining the secretariat and reporting arrangements for a ministerial advisory committee is important. It is expected that the committee would report directly to the responsible minister. Depending on the role and purpose set out in the terms of reference, the committee may have access to agreed information from an agency, meet regularly with officials and work closely with an agency chief executive. This may include utilising officials seconded to the secretariat to develop advice that is independent from the agency perspective. Where this occurs, the terms of reference should specifically provide for it.