Ken­neth Lal­la

The le­git­i­ma­cy of Jack Warn­er's ap­point­ment as Min­is­ter of Works and Trans­port while si­mul­ta­ne­ous­ly hold­ing the po­si­tion of vice pres­i­dent of Fi­fa and di­rec­tor­ship of Con­ca­caf has raised con­tro­ver­sial po­lit­i­cal and con­sti­tu­tion­al is­sues of some mag­ni­tude. In a let­ter re­cent­ly ad­dressed to the In­tegri­ty Com­mis­sion, Mem­ber of Par­lia­ment and Leader of the Op­po­si­tion Dr Kei­th Row­ley sought the guid­ance of the com­mis­sion on the is­sue and in re­sponse the com­mis­sion is­sued a press re­lease in which it re­ferred to the Code of Con­duct in Sec­tion 23 of the In­tegri­ty in Pub­lic Life Act and the Code of Ethics for par­lia­men­tar­i­ans in­clud­ing min­is­ters adopt­ed by Par­lia­ment in Ju­ly 1988.

The In­tegri­ty Com­mis­sion was es­tab­lished by The In­tegri­ty in Pub­lic Life Act 2000, the pur­port and in­tent of which is to pre­vent the cor­rup­tion of peo­ple in pub­lic life and a per­son in pub­lic life as de­fined in the sched­ule of the Act in­cludes, in­ter alia, mem­bers of the House of Rep­re­sen­ta­tives and min­is­ters of gov­ern­ment

The role and func­tion of the com­mis­sion are set out in Sec­tion 5 of the Act and is ba­si­cal­ly to re­ceive and ex­am­ine de­c­la­ra­tions filed un­der the Act and re­ceive and in­ves­ti­gate com­plaints made to it in re­spect of any per­son in pub­lic life. How­ev­er, Row­ley's let­ter was clear­ly not a com­plaint but sim­ply seek­ing guid­ance on whether Warn­er's ap­point­ment as a min­is­ter while hold­ing the po­si­tion as Fi­fa's vice pres­i­dent un­der­mines pub­lic trust and con­fi­dence in his in­tegri­ty.

The ques­tion of whether Warn­er's ap­point­ment as Min­is­ter of Works and Trans­port and his cur­rent sta­tus as vice pres­i­dent of Fi­fa con­sti­tute or would con­sti­tute a con­flict of in­ter­est un­der the pro­vi­sions of the Act would seem to be con­tin­gent on the pro­vi­sions of Sec­tion 29 of the Act, which pro­vides in Sub-sec­tion: (1) That a con­flict of in­ter­est is deemed to arise if a per­son in pub­lic life or any per­son ex­er­cis­ing a pub­lic func­tion were to make or par­tic­i­pate in the mak­ing of a de­ci­sion in the ex­e­cu­tion of his of­fice and at the same time knows, or ought rea­son­ably to have known, that in the mak­ing of the de­ci­sion there is an op­por­tu­ni­ty ei­ther di­rect­ly or in­di­rect­ly to fur­ther his pri­vate in­ter­ests or that of a mem­ber of his fam­i­ly or of any oth­er per­son. (2) Where there is a pos­si­ble or per­ceived con­flict of in­ter­est a per­son to whom this part ap­plies shall dis­close his in­ter­est in ac­cor­dance with the pre­scribed pro­ce­dures and dis­qual­i­fy him­self from any de­ci­sion-mak­ing process.

Sec­tion 24 (1), (2) and (3) of the Act im­pos­es du­ties and oblig­a­tions on a per­son in pub­lic life to per­form his func­tions and ad­min­is­ter pub­lic re­sources for which he is re­spon­si­ble in an ef­fec­tive and ef­fi­cient man­ner and shall be fair and im­par­tial in the ex­er­cis­ing of his pub­lic du­ty; af­ford no un­due pref­er­en­tial treat­ment to any group or in­di­vid­ual; arrange his pri­vate in­ter­ests whether pe­cu­niary or oth­er­wise in such a man­ner as to main­tain pub­lic con­fi­dence and trust in his in­tegri­ty; not to use his of­fice for im­prop­er ad­vance­ment of his own or his fam­i­ly's per­son­al or fi­nan­cial in­ter­ests or the in­ter­est of any per­son or en­gage in any trans­ac­tion, ac­quire any po­si­tion or have any com­mer­cial or oth­er in­ter­est that is in­com­pat­i­ble with his of­fice, func­tion and du­ty or the dis­charge there­of or use pub­lic prop­er­ty or ser­vices for ac­tiv­i­ties not re­lat­ed to his of­fi­cial work or di­rect­ly or in­di­rect­ly use his of­fice for pri­vate gain. Sec­tions 25, 26, 27, pro­hibits a per­son in pub­lic life from us­ing in­for­ma­tion gained in the ex­e­cu­tion of his du­ties to fur­ther his pri­vate in­ter­est or us­ing his of­fice to seek to in­flu­ence a de­ci­sion made by an­oth­er per­son or pub­lic body to fur­ther his own pri­vate in­ter­est or ac­cept­ing a fee, gift or per­son­al ben­e­fit ex­cept au­tho­rised by law etc.

Sec­tion 29 on the oth­er hand states in sub­sec­tion: (1) "For the pur­pos­es of this Act a con­flict of in­ter­est is deemed to arise if a per­son in pub­lic life or any per­son ex­er­cis­ing a pub­lic func­tion were to make or par­tic­i­pate in the mak­ing of a de­ci­sion in the ex­e­cu­tion of his of­fice and at the same time knows or ought rea­son­ably to have known that, in the mak­ing of the de­ci­sion, there is an op­por­tu­ni­ty ei­ther di­rect­ly or in­di­rect­ly to fur­ther his pri­vate in­ter­est or that of a mem­ber of his fam­i­ly or of any oth­er per­son." (2) "Where there is a pos­si­ble or per­ceived con­flict of in­ter­est a per­son to whom this part ap­plies shall dis­close his in­ter­est in ac­cor­dance with the pre­scribed pro­ce­dures and dis­qual­i­fy him­self from any de­ci­sion-mak­ing process." In this con­nec­tion it would seem that the Code of Con­duct rel­e­vant for con­sid­er­a­tion is whether Warn­er as min­is­ter has ac­quired any po­si­tion or has any com­mer­cial or oth­er in­ter­est that is in­com­pat­i­ble with his of­fice, func­tion and du­ty or the dis­charge there­of–Sec­tion 23 (2) (b).

It would ap­pear that Warn­er has, pur­suant to the par­lia­men­tar­i­ans Code of Ethics, dis­closed to the Prime Min­is­ter and to the pub­lic his po­si­tion as vice pres­i­dent of Fi­fa. How­ev­er, the is­sue in ques­tion is whether he is in breach of the Code of Con­duct un­der the Act or the Code of Ethics for par­lia­men­tar­i­ans and min­is­ters or whether there is like­ly to be a con­flict of in­ter­est vis-a-vis his port­fo­lio as Min­is­ter of Works and vice pres­i­dent of Fi­fa. At this point in time, there ap­pears to be no ma­te­r­i­al ev­i­dence to es­tab­lish that Warn­er has done any act or thing that could be held to un­der­mine pub­lic trust and con­fi­dence in his in­tegri­ty or that he is in breach of any pro­vi­sions of the Act. It is sig­nif­i­cant to note that there is no pro­vi­sion in the Act which pro­vides for the dis­qual­i­fi­ca­tion of a per­son per se from hold­ing the of­fice of a min­is­ter if he were to al­so hold some pri­vate ap­point­ment (such as vice pres­i­dent of Fi­fa), un­less it can be es­tab­lished that there is or is like­ly to be a pos­si­ble or per­ceived con­flict of in­ter­est with his of­fice or his func­tion and du­ty.

Sec­tion 37 of the Act em­pow­ers the com­mis­sion on its own ini­tia­tive to con­sid­er any mat­ter with re­spect to the du­ty or oblig­a­tion of a per­son un­der the Act where in its opin­ion it is in the pub­lic in­ter­est to do so. How­ev­er, the com­mis­sion may not in­voke this pow­er in the ab­sence of some ma­te­r­i­al to jus­ti­fy such course of ac­tion. It would seem that the func­tion of the vice pres­i­dent of Fi­fa is not of a pro­fes­sion­al na­ture and con­se­quent­ly does not in­volve the prac­tice of a pro­fes­sion or the rou­tine work of any busi­ness. As a con­se­quence it would seem that there is a re­mote like­li­hood that Warn­er's po­si­tion with Fi­fa would in­hib­it his fair­ness and im­par­tial­i­ty in the ex­er­cise of his pub­lic du­ty or erode pub­lic trust and con­fi­dence in his in­tegri­ty as a min­is­ter. Un­der the Min­is­te­r­i­al Code in Eng­land, min­is­ters must en­sure that no con­flict of in­ter­est aris­es be­tween their pub­lic du­ties and their pri­vate in­ter­ests, fi­nan­cial or oth­er­wise, since min­is­ters wield ex­ec­u­tive au­thor­i­ty.

In the case of Sci­ence Min­is­ter Lord Sains­bury, it was al­leged that there was a con­flict of in­ter­est be­tween his busi­ness hold­ings in ge­net­i­cal­ly mod­i­fied food and his po­si­tion in Gov­ern­ment but Prime Min­ster Tony Blair held that "there was no con­flict of in­ter­est what­so­ev­er and that the min­is­ter had fol­lowed the rule to the let­ter as he should do"–Feb­ru­ary 16, 1999, BBC News.

In an­oth­er case, David Carter, Min­is­ter of Agri­cul­ture, had pro­mot­ed a bill for the con­struc­tion of a dam on the Hu­runui Riv­er but it was al­leged that there was a con­flict of in­ter­est since the min­is­ter owned a farm in the area and that he would ben­e­fit from it fi­nan­cial­ly if he did. More­over, Carter had failed to de­clare the po­ten­tial con­flict of in­ter­est in Cab­i­net and the Prime Min­is­ter knew noth­ing about it. Fur­ther, the Prime Min­is­ter had done noth­ing about it even when it was brought to his at­ten­tion, there­by ex­ac­er­bat­ing an al­ready volatile sit­u­a­tion–press re­lease by Green Par­ty, 2010.

The ques­tion for con­sid­er­a­tion in my opin­ion is whether and if so to what ex­tent would Warn­er's vice pres­i­den­cy with Fi­fa im­pinge or be like­ly to im­pinge on his func­tion as a min­is­ter so as to give rise to any per­cep­tion of con­flicts of in­ter­est or the ero­sion of pub­lic trust and con­fi­dence in his in­tegri­ty as pro­vid­ed for in Sec­tion 24 of the Act, hav­ing re­gard to the re­mote­ness of in­ter­est be­tween the Gov­ern­ment and Fi­fa. In any event, as­sum­ing there was to be some trans­ac­tion be­tween Warn­er as min­is­ter and Fi­fa he would be ex­pect­ed to de­clare his in­ter­est in Fi­fa to the Prime Min­is­ter and Cab­i­net and re­frain from tak­ing any de­ci­sion there­of. Ac­cord­ing­ly for the present pur­pos­es and more par­tic­u­lar­ly in the ab­sence of any ev­i­dence to the con­trary, it would seem pre­ma­ture to pos­tu­late that Warn­er's min­is­te­r­i­al ap­point­ment is in con­flict with his sta­tus as vice pres­i­dent of Fi­fa.