Lord Peter Mandelson, former UK Cabinet Minister and dismissed UK Ambassador to Washington DC, and Andrew Mountbatten-Windsor, the former Prince Andrew and sometime UK trade envoy, were both arrested earlier this year on suspicion of committing the offence of misconduct in public office. Both have been released on bail. Neither has yet been charged. Neither may be charged. The common feature of the charges is the alleged sharing of sensitive government information they received in official capacities.
The UK Law Commission in making recommendations for law reform in this area, described the offence:
The criminal offence of misconduct in public office may be committed by a public office holder, who, while acting in the role of the public office, wilfully neglects to perform his or her duty or wilfully misconducts him or herself, to such a degree as to amount to an abuse of the public’s trust in that office. It is a common law offence, dating back hundreds of years, and therefore its terms have been established through case law, rather than in legislation.
The Commission recommended legislation to codify the offence. The Public Office (Accountability) Bill was introduced in September 2025 and is still progressing through the UK parliament.
New Zealand does not have criminal offences defined only by the common law. They were specifically abolished by the Criminal Code Act 1893, s 6.
There is no offence of misconduct in public office in New Zealand, at least since 1893. We make do with offences concerning bribery and corruption in sections 100-106 of the Crimes Act 1961. These offences are directed at interactions with judicial officers, ministers of the Crown, members of parliament, law enforcement officers, and officials. Their essence is a bribe being corruptly offered or accepted. The essence of corruption is the misuse of office for private gain.
In the UK, the common law offence could include misuse of confidential information even though not involving corruption in the sense just mentioned. Thus, in considering an appropriate name for the replacement statutory offence, the Commission stated:
5.150 We did not specifically ask consultees for views on their preferred term for this replacement offence, but, since consultation closed, a number of individuals have suggested that common understandings of the term are indeed largely concerned with bribery and favour. While this describes a significant portion of the conduct the offence is intended to capture, it may not be as well suited to certain forms of behaviour, such as … misuse of confidential information, that fall within the offence. The current term – “misconduct” – is arguably a better fit in these contexts.
5.151 Instead of the label “corruption in public office” therefore, government may wish to consider another label for the offence, including retention of the label “misconduct in public office”.
From this it can be seen that if Mandelson or Mountbatten-Windsor had disclosed confidential information received in an official capacity, they might be guilty of misconduct in public office at common law, even if the disclosure was not for pecuniary gain or favour, so long as they acted “wilfully” and their behaviour was of “such a degree as to amount to an abuse of the public’s trust in that office.”
The arrest of a Lord and a former prince on suspicion of committing misconduct in public office through sharing sensitive government information shows that it is a serious matter.
Now consider this announcement from the Beehive on 28 March 2023:
* Rt Hon Chris Hipkins
* Prime Minister
This evening I have advised the Governor-General to dismiss Stuart Nash from all his ministerial portfolios.
Late this afternoon I was made aware by a news outlet of an email Stuart Nash sent in March 2020 to two contacts regarding a commercial rent relief package that Cabinet had considered.
In the email he sets out both his opposition to the decision Cabinet reached and the position that other Cabinet members took.
This is a clear breach of collective responsibility and Cabinet confidentiality.
Stuart Nash has fundamentally breached my trust and the trust of his Cabinet colleagues and his conduct is inexcusable.
In addition the two recipients of the email were donors; Troy Bowker and Greg Loveridge, via GRL Holdings Ltd, have both donated to Stuart Nash.
They are also commercial property owners who had an interest in the Cabinet decision.
That crosses a line that is totally unacceptable to me.
I expect Ministers to uphold the highest ethical standards and his actions raise perceptions of influence which cannot stand.
In recent weeks I have sought and been given assurances from Stuart that there were no other instances or allegations of misconduct that I should be aware of.
While Stuart was on a final warning, I want to be clear that this incident would have resulted in his dismissal in its own right. I consider the matter to be a very serious one.
Minister Megan Woods will be Acting Minister for Economic Development and Acting Minister of Forestry, and Minister David Parker will be Acting Minister for Oceans and Fisheries.
Meka Whaitiri will lead the Hawkes Bay Cyclone response on an acting basis.
This should be emphasised: “While Stuart was on a final warning, I want to be clear that this incident would have resulted in his dismissal in its own right. I consider the matter to be a very serious one.” Hipkins stated that the donors were “also commercial property owners who had an interest in the Cabinet decision.”
Next, consider this:
New Zealand First leader Winston Peters says he sees Nash as a Cabinet minister in a future Government, telling the Herald Nash has learned from his mistakes while revealing Nash’s comments about women did make Peters question whether Nash could achieve a political comeback.
That quotation is part of the 25 May Herald report, Exclusive: Ex-Labour minister Stuart Nash returns to politics with NZ First, accepts some women won’t forgive him for ‘disrespectful’ comment. Later the piece records:
The NZ First leader remained convinced Nash was given a raw deal when he was sacked from Cabinet, saying he wouldn’t have sacked Nash or taken away ministerial portfolios, believing it only warranted a telling-off.
“There are always parameters when wrongful behaviour shades into rightful behaviour because the circumstances demand it,” Peters said.
“If you can avoid it publicly, yes, but I’d rather some enthusiastic minister get it wrong now and again than a blasé, no-performance minister getting it wrong all the time by doing nothing.”
Nash’s comments to The Platform crossed a line in Peters’ eyes. The party leader, renowned for his disapproval of bad language, admitted it had concerned him but he was now comfortable it had been resolved.
“That’s the one that would have concerned me, whether that was a redeemable matter, and I’ve got no doubt it is.
One reason this astounded me was the dubious standards Peters displayed. Nash’s comment in a discussion with Sean Plunkett on The Platform was certainly crude and disrespectful to women, but to say it crossed a line but giving confidential Cabinet information to people who had donated money to him was something that didn’t, is extraordinary.
Peters is also reported as telling the Herald that what Nash did was rightful as demanded by the circumstances and that Nash got a raw deal, that “he wouldn’t have sacked Nash or taken away ministerial portfolios, believing it only warranted a telling-off.”
If that’s what Winston really thinks, it calls his own standards into question.
But then I thought of Myth, Memory and the BNZ, where just four days earlier I had said, “I expect I’m going to refer to Harris’ aphorism again in other contexts.”
Harris had said: “Such is how myths are made in modern Britain. Europhilia is similar to Thatcherphobia – it’s less about actual policies and empirical evidence than about feelings, and the less you remember about it, the stronger you feel.”
Inverting Harris’ point, perhaps Winston feels so strongly that Nash’s selection may be politically advantageous to NZ First that he has completely forgotten that Nash got booted from Cabinet for inexcusable misbehaviour, behaviour that in the UK would likely have precipitated an investigation about possible misconduct in public office, and even in New Zealand may have warranted investigation concerning the linkage between the donations Nash had received and his opposition to the Cabinet decision.
The Herald article concluded with a quote from Peters:
“Potential coalition partners have to live [up] to a thing called political reality or what is known as realpolitik, [which is that Stuart Nash] is going to be a New Zealand First MP and Cabinet minister.”
Potential coalition partners ought to make it a bottom line in a coalition agreement with NZF that Nash is not a Cabinet minister as his previous conduct shows he is completed unfitted to occupy such an important position of trust. If Peters does not understand, he forfeits any entitlement to be in a position of influencing the decision.
Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.
No comments:
Post a Comment
Thank you for joining the discussion. Breaking Views welcomes respectful contributions that enrich the debate. Please ensure your comments are not defamatory, derogatory or disruptive. We appreciate your cooperation.