Not wrong

At the weekend I blogged agreement with Fran O’Sullivan that the Police inquiry into Don Brash’s stolen e-mails was a disgrace (and headed by the same officer who cleared Labour of ther $400,000 overspend in 2005 despite it being an offence of strict liability!).

However I disagreed with her that John Key and Judith Collins were somehow being unhelpful by not ordering an inquiry, pointing out the Police Act explicitly prevents the Minister of Police from giving directions over the investigation and prosecution of offences. You can be sure if that clause did not exist there would be new inquiries into Labour’s 2005 overspending!!

Whale Oil originally agreed with me, but now has done a backflip, saying that in a word first, he is wrong. He says:

In fact, Fran was right and I was wrong.

According to the Cabinet Manual and the Department of Internal Affairs’ very useful document “ Setting Up and Running Commissions of Inquiry“, any Minister, including the Police Minister, can set up a Commission of Inquiry. Commissions of Inquiry can inquire into any matter of major public importance or concern to the government of the day. Any Minister may propose an inquiry, but must consult the Prime Minister and the Attorney-General first, prior to submitting the proposal to Cabinet. Before giving its approval, Cabinet should seek advice form the relevant Minister’s office, the relevant department, DPMC and the Crown Law Office. …

PS. Over at Kiwiblog, Farrar made the same mistake. Will he admit he was wrong, and join WOBH’s call for an inquiry?

But I disagree with Whale. Neither the Police Minister nor the Prime Minister can set a Commission of Inquiry. The Cabinet as a while has to agree.  Fran said “It is within Key’s powers to direct an independent review of the police investigation” and it simply is not. The PM is not the Cabinet, and Cabinet have been known to over-turn PMs (except Muldoon). Lange for example often lost at Cabinet.

You can argue that Fran was right in saying [Police Minister Judith Collins] “has not asked for a review” but this implies her status as Police Minister allows her to do so. It does not. Sure she can ask the Cabinet for a commission of inquiry, but if you take it literally, and member of the public can ask for a review. The implication was that Collins had some special power to get a review. She does not.

Now people may say, why not a full Commission of Inquiry? Well 4.83 of the Cabinet Manual says:

While it is appropriate for inquiries to investigate instances of impropriety, they should not cut across the role of the police or the role of the courts in determining criminal or civil liability.

Now you could argue for a Ministerial inquiry – but they have no powers to compel witneses to tell the truth, so would be useless.

So I stand by my original post – neither Key nor Collins have the power to inquire into the Police investigation. I have little doubt both would love to know who stole the e-mails.

Nicky Hager has said that he got the information from six National party sources, all concerned about the party under Brash. I have always thought that beyond improbable. No one from National would choose to give e-mails to Hager, as oppossed to say the media. And while one can never rule out one disaffected staffer, the fantasy of six people all leaking to Hager is well a fantasy.

But here’s a challenge to Nicky. If he stands by his story, why doesn’t he agree to do a Deep Throat and pledge he will reveal how he got the e-mails in x years, or have the so called sources reveal it in their wills. Then one day the truth will be known.