The sordid saga of Jevon McSkimming reminds us of the inherent tension between two largely unspoken axioms of democratic politics. These are the “no surprises” and “plausible deniability” rules. Infrequently formalised in written instructions and more commonly shared as unwritten understandings between government officials, these axioms require delicate juxtaposition in order to strike the right balance between institutional accountability, individual responsibility and partisan fortunes. Balancing the oft-counterpoised understandings speaks to the vertical and horizontal dimensions of institutional and individual accountability as well as issues of institutional self-preservation, bureaucratic “capture,” individual and partisan interests. It is a tough mix to get right and yet if democracy is to be served, that is exactly what must happen.
What will not be addressed here are the specifics of the McSkimming case or whether this balancing act occurs in authoritarian regimes. The former has been covered extensively by political commentators detailing the chronology of and participants in events leading to recent revelations. The latter usually do not concern themselves with addressing matters of public accountability so do not place as much emphasis on the axioms in question. They may not like surprises and tend to deny responsibility when called out on failures or misbehaviour, but authoritarians mostly discount the governance implications of their actions because mass contingent consent is not the basis of their rule.
In contrast, mass contingent consent and attendant faith in institutions, leaders and policies constitute the foundation of the social license that is given to political leaders and government institutions to perform their duties and responsibilities in democracies. That is the foundation of the vertical accountability that lies at the core of democratic governance–both leaders and institutions are accountable to the people that they ostensibly serve. Several mechanisms ensure vertical accountability–elections being the ultimate adjudicator of government performance–including entities like inspectors general of agencies, comptrollers, auditors, boards of inquiry, independent commissions, parliamentary committees and in-house regulation enforcement of institutional and personal standards of conduct. Electorates vote for governments to carry out a given policy agenda, and the institutional apparatus is responsible to the electorate via independent means as well as through the mediation of that government for implementation of that agenda within the framework of the law.
Unfortunately in practice many oversight agencies like the Independent Police Complaints Authority (IPCA), the Inspector-General of Intelligence and Security prior to the Zaoui case and various parliamentary committees developed reputations for having been the subjects of “bureaucratic capture” whereby the entities that they are supposed to monitor wind up controlling what they can see and do when it comes to their oversight and investigation functions. In some instances they and Royal Commissions of Inquiry have been suspected of being “whitewashing” devices at the service of the government of the day or the agencies they oversee or investigate. This erodes public trust and promotes insularity, unethical behaviour and organisational defensiveness within public bureaucracies, especially those in the security and intelligence arenas.
Whether they are subject to bureaucratic capture or not, where institutional traditions in NZ government agencies and amongst some parts of the political class reward unaccountable practices, there may exist the sense that there will be limited to no consequences for untoward behaviour because the agencies in which they serve or depend on close ranks and shield them when things “hit the fan.” If vertical accountability mechanisms are weak or rigged against honest and transparent scrutiny and responsible exercise of duty, then the institutional culture in government agencies may develop forms of self-preservation that usurp legitimate public accountability.
This organizational pathology is known as a culture of impunity. Officials and agencies get away with misbehaviour because they are protected by their peers and political superiors, and the more that happens and the longer a tradition of doing so exists within any given agency, the more likely that, absent major institutional reform, that will be the default response when individual and organisational problems arise.
It is in this context that the tension between the “no surprises” and “plausible deniability” axioms come into play. The “no surprises” policy is simple: subordinates inform superiors in advance of problems or trouble (personal, political, institutional) that may be coming their way. This provides government leaders the opportunity to prepare contingency plans for what they know is coming. That involves more than crisis management and PR spin campaigns that “get out in front” of the emerging story. It may or may not involve diversion tactics and “flooding the zone with s**t.” It also offers leaders the chance to engage in proactive reforms that are already underway when the issue in question reaches the public domain.
“No surprises” is a discrete foundation of vertical accountability in democracies that is critical to informed decision-making and government stability. It prevents smaller problems from metastasizing into institutional or political crises and reassures and reaffirms public faith and trust. It has a horizontal accountability dimension in that warnings embedded in the “no surprises” (or “head’s up) policy can be shared with other agencies not specifically involved in the matter at hand. For example, the Police could have shared information about the Christchurch terrorist that was derived from investigations into criminal matters with their intelligence counterparts had they not been governed by a “siloed” inter-agency information-sharing policy. In other words, there was an institutional antipathy towards horizontal accountability between the NZ Police and other security agencies that prevented proactive action that might have prevented the March 15 mosque attacks.
Conversely, the intelligence community warns the Police about potential foreign government involvement in criminal enterprises targeting NZ. In may instances this is part and parcel of inter-agency information sharing, but it also is clear that does not always happen and that in NZ accountability between agencies (again, the horizontal dimension of public accountability) is not a commonly observed standard in practice.
Tension in governance occurs because there is another side of the coin when it comes to institutional and political accountability: “plausible deniability.” Modern democratic leaders have learned that often the best way to deal with crises is to deny any knowledge or involvement in them and to that end ensure that no evidence can come to light tying them to any specific event, order or action. Instead, the problem is blamed on people or entities further down in government organisational charts. Reagan and George H.W. Bush denied any involvement in the Iran-Contra affair even thought the plotting and scheming was done down the hall from the Oval Office in the West Wing. Donald Trump denies knowing who the people are that he pardons or consorts with (consensually or not) before they become controversial, and instead uses diversions and personal character assassination to shift attention onto others. Helen Clark knew nothing about the Urewera raids before they happened and John Key knew nothing in advance about the Kim Dotcom raids or assorted acts of cabinet misbehaviour. They were then “surprised” when these events hit the public eye but could plausibly deny that they were involved in them, thereby escaping responsibility for the excesses committed in each case (in which the NZ Police were heavily involved). Although McSkimming rose to senior rank in the NZ Police during the Ardern/Hipkins government, Mr. Hipkins apparently knew nothing about his problematic proclivities, as is the case with the current government leadership, including the Minister of Police.
I have experience with this axiom. During my stay in the US Department of Defense I was advised to make sure that the paper trail ended at the desk of someone above me in the Pentagon pecking order. Otherwise I would be made the scapegoat should controversial actions that I was involved with became a matter of public interest. It did not matter that these actions “came from the top,” that is, were ordered by people much higher up in the US security policy-making food chain and way above my pay rate. Instead, senior officials made sure that should things hit the fan, so to speak, on some policy issue in my field of responsibility, that the lowest ranking subordinate would take the blame/be blamed and those giving the orders would get a free pass on the accountability scales because there was no evidence specifically connecting their orders to subsequent actions taken further down the chain of command.
Those were the days of physical paper trails. Today they are email trails or even text trails, but their evidentiary worth is the same. The buck stops not with the higher-ups but with some schmuck further down the bureaucratic line. As it turns out, I was lucky. My immediate superior, a military man, told me that so long as he was kept informed about my “grey zone” activities, he would take responsibility for them should things go awry. In other words, he was combining “no surprises” with “plausible deniability” on my account. He was an honourable man dealing with difficult and complex situations involving security policy, bureaucratic practice, partisan politics and national interests.
Closer to recent events in NZ, revelations that emails directed by McSkimming investigators were re-directed to the Police Commissioner’s office on the latter’s orders raises the question as to wether plausible deniability outweighed the no surprises axiom in the handling of the investigation. It opens the question of retrospective accountability with regard to the Ardern government (what it knew and when it knew about McSkimming’s behaviour while it was in power). It raises questions about the possibility of outside influences and pressures on the investigators and their work, and if there were any, in what form and by who. In other words, both vertical and horizontal accountability appears at cursory glance to have been compromised in the handling of the matter.
To its credit, the IPCA pulled no punches in its assessment of the handing of the McSkimming case. It remains to be seen what consequences derive from its report, or whether a line will be drawn on the affair in the interests of–you guessed it–organizational reputation. Much will be made of the need to “move on” from this unfortunate episode, and already the civilian and uniformed leadership speak of a “few bad eggs” spoiling the otherwise good reputation of the NZ Police. You can insert your Tui ad here.
Again, it is very worth detailing the specifics of the IPCA report findings and the details of other potential acts of institutional coverups by the NZ Police (for example, handling of the investigation into the Roastbusters rapist gang that included the son of a police officer). But those are incidents that of themselves do not address patterns of institutional behaviour and the implications that they have for democratic governance. For that, dots must be joined and trends analysed in order for broader syndromes to be. identified and addressed.
In the end it appears that deeper reflection on accountability mechanisms, institutional culture, organizational practice and individual responsibility within official settings needs to be undertaken. Getting rid of a few “bad apples” from public institutions does not stop organizational pathologies from reproducing and infecting public agencies as a whole, especially when they are the product of long-standing traditions of institutional impunity in which the balance between “no surprises” and “plausible deniability” is tilted in favour of those who dishonour the public trust contingent consent given to them.

