Lobbying Contract Clauses Removed
27 November 2003
Lobbying Contract Clauses Removed
Lobbying clauses in Ministry of Health contracts with five organisations have been removed following a review of the Ministry's public health non-government organisation contracts.
One clause in a contract with a further organisation has been suspended where although the clause does not require lobbying, it funds submissions from a non-government organisation (NGO) on relevant legislation.
Director-General of Health Dr Karen Poutasi today released the report on the review of 'Contracts with NGOs - Compliance with Public Service Standards'.
The review's recommendations include developing guidelines for future contracting with NGOs, noting that the Ministry cannot contract for lobbying, setting out precise descriptions of the services purchased and ensuring staff are appropriately trained and contracts regularly audited.
Dr Poutasi says the review states that the Ministry's information and health promotion role has in these cases become entangled with the advocacy and lobbying role of NGOs.
She agrees with the review's finding that this is unacceptable under public service standards and could compromise the Ministry's political neutrality.
Dr Poutasi says the situation arose from a concentration on achieving health goals rather than from a deliberate involvement in politics. She says the review recognises the enthusiasm and energy of public health staff has coloured the approach to contracting with NGOs. This desire to engage and help resolve key public health issues is described in the review as commendable but it does not make lobbying any less unacceptable.
"The Ministry has a clear role in terms of public health promotion. In a public health context the Ministry is guided by documents such as the Ottawa Charter which include advocacy as part of the internationally agreed practices to improve public health. This of course has to be limited by the Ministry's obligations under the Public Service Code of Conduct."
The review accepts that precise definitions of key public health concepts such as advocacy can have a broad range of meanings ranging from promoting to lobbying where meanings can be blurred and practical distinctions unclear.
It recommends that to avoid advocacy being interpreted as lobbying the Ministry should replace its use within contracts with precise descriptions of the services purchased.
Dr Poutasi says in all cases reviewed, replacing advocacy with a precise description of the services being funded would have prevented ambiguity and still allow the organisations being contracted to achieve the Ministry's objectives.
"The Ministry takes very seriously its obligation to be scrupulous in maintaining political neutrality. This means not seeking to influence the opinions of Members of Parliament, nor arranging for NGOs to undertake this function on its behalf."
The Ministry has already reviewed approximately 1400 contracts without finding any other clauses requiring lobbying. This represents around 70 per cent of the Ministry's NGO contracts. The Ministry prioritised the order of the review and the remaining contracts are very unlikely to contain lobbying clauses. However if any further lobbying clauses are found in the remaining 600 contracts, they too will be suspended and publicised on the Ministry's website.
Dr Poutasi says the Ministry and the review team accept that lobbying and advocacy by NGOs is an important role NGOs undertake and that the Ministry will not be trying to limit that role. What the Ministry will be doing is ensuring that no public funds through Ministry contracts are used for that purpose.
"The contracts that gave rise to the concerns in the first place were inherited on 1 January 2001 from the Health Funding Authority along with a number of other NGO contracts. Although the contracts have been subsequently rewritten and rolled over by the Ministry, the basic appropriateness of these lobbying clauses was not questioned and in some instances similar clauses have been added to new contracts."
Dr Poutasi says that concerns have also been expressed that the contracts included a clause which limited public criticism. The clause at issue is similar to those in many standard business contracts and is intended to assist in dispute resolution rather than stifle debate.
"The Ministry has a history of encouraging robust debate on all health issues. However, these clauses will be revised to clarify their intention and remove any ambiguity."
Copies of the report on the review, and excerpts from the contracts, will be available on www.moh.govt.nz under Publications by Date.
What are the five organisations with contracts that have clauses that have been removed?
Lobbying clauses in contracts with five organisations - Action Smoking and Health, Aparangi Tautoko Auahi Kore, Smokefree Coalition, Alcohol Healthwatch, Manukau City Council - have been removed by mutual agreement. The contracts were suspended by mutual agreement. No other contracts with NGOs that require lobbying have been identified. A sixth clause in a contract with the Obesity Action Coalition has also been suspended where the clause funds an NGO to prepare submissions on relevant legislation.
Who did the review?
The lead reviewer was former State Services Commissioner Don Hunn C.N.Z.M. assisted by the Ministry's Chief Internal Auditor Steve Brazier and Audit Manager Leanne Arker.
What has been involved in preparing the review?
The review team has checked the contract relationships that were initially of concern, discussed them with Public Health Directorate managers and assessed the appropriateness of the clauses in question. Meetings took place with the Public Health senior management team, the Deputy Director-General Public Health, the Controller and Auditor-General, Deputy State Services Commissioner, Treasury and the Solicitor-General. Subsequently, discussions were also held with representatives from the Ministry?s NGO Forum and the Chair of the Public Health Advisory Committee to the National Health Committee.
How many contracts were reviewed?
The Ministry estimates that approximately 1400 of the Ministry's estimated 2000 contracts with non-government organisations have been reviewed. This includes all relevant public health contracts. The remaining contracts are being reviewed now and are expected to be completed within a month. Any further clauses that are found will be added to this report documenting any additional inappropriate contracts and placed on the Ministry?s website adjacent to this report.
How can the Ministry prevent this from happening again?
Any contracts entered into by the Ministry of Health with any NGOs from this point must exclude the funding of lobbying activities on behalf of the Ministry. The Ministry will work with the central public service agencies, in consultation with the Ministry?s NGO Forum and others, to establish clear guidelines on political neutrality and these guidelines will inform future contracts. This work has commenced in parallel with the contract review.
Will the Ministry change contracts that currently use 'advocacy'?
A small number of contracts reviewed so far have been found to use the word ?advocacy?.
These contracts do not breach political neutrality requirements. The table below gives examples of how advocacy is used by the Ministry in contracts. In each case, the Ministry has specified the services it wants the NGO to deliver. There is no intention to change these contracts now, but as they are renegotiated more specific wording will be used - unless there are some specific circumstances where this cannot occur without affecting the meaning or intention of the contract. The Ministry will be discussing this proposal with NGOs.
Here is an excerpt from the report showing where advocacy is used in Ministry NGO contracts:
Output Service description / component Training and networking for the development of healthy public policy and advocacy Organisation of submissions and advocacy on health issues Advocacy The provider will advocate on nutrition and physical activity issues with key agencies both within and external to the health sector. Measure: Advocacy activities undertaken with a minimum of five key agencies per contract year.
The provide will include advocacy for smokefree homes, churches and workplaces in existing ? projects and encourage collaboration with organisation within and external to the health sector. Measure: Agencies to undertake smokefree advocacy activities with to include Housing New Zealand, Waitakere City Council ? Health Homes and with churches.
The service will work alongside community households, individuals and groups to assist them to access their entitlements or facilitate their access to the broad range of services they need. Service staff may need to advocate on behalf of clients when providing this assistance and where there are language and cultural barriers that exist.
Establish a contact point and forum for a national voice on home birth issues in order to advocate on behalf of Home Birth Associations and groups and individual consumers
The home visiting services seeks to reduce inequalities in health status and the impact of disabilities ? by providing information, education, support, advocacy and facilitated access to other services. Activity: Lobbying and advocating for change.
Outputs: encourage the inclusion of Destigmatisation issues within organisations, orientations, job descriptions and interviewing processes Increase adoption of policies and environments that counter stigma and discrimination associated with mental health.
How will the Ministry ensure its contracts continue to meet its new guidelines?
Contracts will be selectively reviewed as part of a regular review cycle to ensure compliance with good contracting practice. There are also a series of internal projects to improve contracting processes to ensure the Ministry gets value for money and progressively reduces administrative work for itself, the DHBs and providers.