The Speaker says Hone Harawira has to say the magic words that make you an MP in the right way, and he only gets one chance to do it each time. Is this taking legal formalism just a bit too seriously?

Since being dragged to the Speaker's chair after the 2008 election - a quaint tradition going back to the days in which Speakers of the UK House of Commons legitimately had reason to fear the Sovereign's wrath, so MPs genuinely didn't want the job - Lockwood Smith has done some good things to the House.

Under his stewardship, question time works a lot better as Ministers are actually required to make some sort of an effort to answer the question posed to them. He's clamped down on MP's silly practice of trying to table documents that already are freely available in the public domain. Parliamentary expenses have become a little more transparent (albeit after a lot of pushing from the media and public, as well as not-so-subtle hints from party leaders). All these innovations are an improvement to how the House works.

It is less clear whether his latest move in refusing to allow Hone Harawira to make a political statement prior to swearing the oath necessary to becoming an MP should be as welcome.

The complete story is here, but in a nutshell Mr Harawira chose to use the occasion of his swearing in as an MP to make his own declaration of commitment to the Treaty, his constituents in the Tai Tokerau and to "do my utmost to help all Maori people become full and valid citizens of this land, and ... whatever I can to reduce the inequalities in this country." I have no doubt he meant his words sincerely, but unfortunately they don't meet the Constitution Act's requirement to swear an Oath (or make an Affirmation) of Allegiance in the particular form laid out in the Oath and Declarations Act 1957. So the Speaker told Mr Harawira to go away and come back in a couple of weeks when the House sits again, and this time do it properly.

Obviously Mr Harawira's personal oath was not enough to fulfill the legal precondition to his sitting or voting in the House. So I'm not sure it is quite fair for him to say that the Speaker "denying the Treaty as part of my affirmation is a signal of exactly where we are and where we go as a people"; it's the fact that the law requires MPs to have to mouth a pretty antiquated form of words before being able to do their job that really is to blame for that.

(As a brief aside, until last year there was before the House an Oaths Modernisation Bill that included this new parliamentary oath;

I, [name], swear that I will be faithful and bear true allegiance to Her (or His) Majesty [specify the name of the reigning Sovereign, as in: Queen Elizabeth the Second], Queen (or King) of New Zealand, her (or his) heirs and successors, according to law, and that, as a Member of Parliament, I will be loyal to New Zealand and will respect its democratic values and the rights and freedoms of its people. So help me God.
Tēnei au, a [ingoa], e kī taurangi nei, ka pirihonga ahau, ka maupono hoki ki a Ia Arikinui [tohua te ingoa o te Arikinui kei runga i te torona, pērā ki a Kuini Irihāpeti te Tuarua], Kuini (Kīngi rānei) o Niu Tīreni, me ōna uri whakaheke, e ai ki te ture, ā, i ahau e Mema Paremata nei, ka pūmau taku pono ki Niu Tīreni, ka kauanuanu hoki ki ōna uara manapori me ngā mōtika me ngā pātea o tōna iwi. Nō reira, āwhina mai i ahau e te Atua.”

However, even if it had passed into law I suspect this new oath wouldn't have satisfied Mr Harawira - and anyway, the National Party members of the Government Administration Committee don't like it as "There is a lack of robustness in regard to the proposed changes and little evidence of any need to change current oaths, with an overall lack of support by submitters for the proposed changes", (report available here) so hardly surprisingly it disappeared from the House's order paper before receiving a second reading. [NB: Original post updated on this issue in response to Phil Lyth's helpful comment below])

But in what way did Mr Harawira's failure to follow the correct wording of the Oaths and Declarations Act 1957 "abuse the law", as the Speaker asserted? Yes, it failed to comply with the form of the law, so it meant Mr Harawira could not perform the functions of an MP (in terms of sitting or voting in the House) as a result. But there is nothing in the Constitution Act or the Oaths and Declarations Act to say "MPs can't make another oath before swearing the proper one." And in practice, past MPs have done just this - had their little moment of "here's what I really believe" before saying the magic words that lets them get on with being MPs.

Now, you may say that this sort of behaviour cheapens the Oath of Allegiance by making it clear that the person swearing it is just doing so as a formality and without any real belief in the sentiment expressed - but note that the Oaths and Declarations Act itself accepts that what matters is the form and not the intent, when it says that a lack of religious belief does not invalidate an Oath taken in God's name. Alternatively, you may say that this sort of behaviour is cheap political theatre that undermines the solemnity of parliamentary proceedings - which is fair enough, but it has nothing to do with the legal requirements.

My point being, the decision to stop Mr Harawira and tell him he needs to come back on another occasion to take the oath/affirmation properly was not legally required in any way; it was a decision that the Speaker has taken of and by himself. I have no doubt that he thinks there are good reasons for it in terms of upholding the traditions and standards of the House. (Seen this way, it is in line with his asking Clare Curran to leave the debating chamber for wearing a Highlander's rugby jersey.) And it appears Mr Harawira was warned what would happen if he did not swear the oath/affirmation in the proper form, so to an extent he chose his martyrdom (and cheated those in the public gallery of the opportunity to see him take his seat) of his own free will.

But still, I think it is a bad call on the Speaker's part. While not endorsing every aspect of I/S's views on this matter, I think he's pretty much right when he says this:

To claim that it is somehow "disrespecting Parliament" to symbolically refuse to take the affirmation in its proper form (and then do it) is an exact reversal of the truth. It is disrespecting Parliament, disrespecting our democracy, to forbid it. And it is disrespecting the people of New Zealand to try and erase our differences and enforce a monolithic culture upon those who represent us.

Just what was so wrong with the emerging parliamentary convention that lets MPs say who they see themselves as having reponsibility to serve before formally commiting their allegiance to New Zealand's Head of State? A bit messy, sure - but who says Parliament is all about nice, clean and tidy processes? Alternatively, might the House have another look at that Oaths Modernisation Bill and the proposed parliamentary oath contained therein, and craft a "do it yourself" oath that must contain certain commitments - allegiance to New Zealand and its laws, or whatever - as well as any additional commitments an MP may wish to include therein? Why, after all, does there have to be just one set of magic words applied to MPs? In fact, why is there any requirement to make them say magic words at all?

One last point. An obvious criticism of Mr Harawira is that he has shown scant regard for the traditions and customs of the House as an institution, an approach he would condemn if it took place on a Marae. I don't think that works here, simply because the House is a place where traditions and customs have to be open to challenge and renegotiation by all the various members who are chosen by the people of New Zealand to sit in it. So, this isn't an outsider entering into a place and saying "I don't care how you do things, I'll do it my way". This is a member of the place saying "we need to change how we act". You may not like his proposed change - but he's well within his rights to push for it.

Comments (23)

by Dean Knight on July 15, 2011
Dean Knight

Perhaps he should have just headed to Government House (or, perhaps, the nearby hospital) to ask Sir Anand to administer the oath?!! (See s11(2) of the Constitution Act 1986)

PS I think I'm with Lockwood on this one. The words and ceremony matter here (even if I think the oath is a little daft, for a number of reasons). At the end of the day, I don't think the manner it is dealt with is disproportionate, with Harawira able to return the next sitting day to swear the oath. And, also, I think the point that sometimes protest and civil disobedience sometimes is more effective if their is a personal cost, rather than mere impunity for defiance...

by Andrew Geddis on July 15, 2011
Andrew Geddis

Dean,

Reasonable people may disagree, so it's hardly surprising a manifestly contrarian figure such as yourself should think differently about this. And, yeah - Hone probably won more from this exercise than he would have had the Speaker just let him do his stunt, then said "please do it properly". But I wonder if, on purely pragmatic grounds, that might not point to future problems with Lockwood's decision.

I also see from today's Herald that the Maori Party is suggesting that perhaps a new oath might be in order. But when Tariana Turia criticises Harawira's behaviour and says "whether you have a right to redefine the oath completely, that's a matter for Parliament, not individuals", she apparently cannot remember what she herself was up to back in 2005.

by Dean Knight on July 15, 2011
Dean Knight

Hehe. Not merely being contrary. But given part of my public law course uses the ceremonial oaths as anchor-points, I think my position might have been predictable...

I suspect that part of the difference here is that the Speaker was presiding. At most (but perhaps not all?) previous instances, the governing officer was the Clerk, not the Speaker (as the Speaker is elected after MPs are sworn in). In that context, I can see why the appointed official might have been more accommodating, compared to the Speaker who carries the electoral mandate of all MPs. And, of course, argues of consistently and expectation were addressed through the prior warning and advice.

But, in the end, maybe something for the (doomed) constitutional review?

by Andrew Geddis on July 15, 2011
Andrew Geddis

" But given part of my public law course uses the ceremonial oaths as anchor-points..."

What - you swear your students to be obedient and faithful servants of the great God Cooke? You VUW folks really need to get out more ...

I think may be right with regards the Speaker's role viz-a-viz the Clerk's. But note that it isn't what previous Speakers have done - see here - and so (again) it's a Lockwood move, not a Speaker's move.

by Dean Knight on July 15, 2011
Dean Knight

Haha. Seriously. Only the 20 to 25 office-holders appointed and elected (through an MMP election) in the Realm of Public Law... Hmm, that really doesn't make it sound any better, does it?

Yes. No doubt someone (perhaps, Edge?) will tally all the instances. I think most were with the Clerk, and a few with the Speaker (Tanczos and perhaps Delahunty?)

by Bruce Thorpe on July 15, 2011
Bruce Thorpe

The Speaker is responsible for the conduct of the house and I think he did pretty well under the circumstances.

I have a problem with Harawira's declaration, as he makes a point, he consistently maintains, that he is dedicated to representing Maori and acting in the interests of Maori.

it is my understanding that an essential element of our democratic system is that our elected representatives undertake to represent the interests of all citizens and not only their specific supporters.

I am pretty sure that at other levels of government such a statement would certainly draw objection from fellow representatives and perhaps even censure.

It bothers me that a member of government can declare he or she will only work for the good of some.

by Phil Lyth on July 15, 2011
Phil Lyth

The Oaths Modernisation Bill was discharged under Standing Order 71 over 12 months ago.

by Andrew Geddis on July 15, 2011
Andrew Geddis

Bruce,

Who MPs should serve is a vexed issue that doesn't have one clear answer - certainly an MP who says "I will only help out people who assure me that they voted for me" would draw blanket condemnation. But an MP who says she/he will put her/his constituents interests and desires ahead of party or national considerations? Think Michael Laws, or Phil Heatley on the issue of alcohol reform. And as Hone Harawira represents a Maori electorate, then obviously his saying "I will serve my constituents" means "I will serve Maori" (which is not the same as saying "I will serve Mana Party voters".) Of course, whether there should be Maori seats at all is another kettle of fish altogether ...

But on the point of "our elected representatives undertake to represent the interests of all citizens ...". The actual, formal oath they swear is "I, ..., swear that I will be faithful and bear true allegiance to Her [or His] Majesty [Specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second], Her [or His] heirs and successors, according to law. So help me God." So, in fact, the only formal commitment our MPs have to make is to kowtow to Liz, and Charlie thereafter ... unless he decides to let Will step up in his place.

by Andrew Geddis on July 15, 2011
Andrew Geddis

Thanks, Phil.

Does that discharge prevent the measure being placed back on the Order Paper at any point in time (even if in practice this is unlikely)?

by Phil Lyth on July 15, 2011
Phil Lyth

On the substantive matter: Lockwood recently indicated in public session of the Standing Orders Committee that the matter of non-standard oaths concerned him. He stated he would not hesitate to use his authority - although that would not necessarily have got back to Hone. And he indicated his support for explicit powers for the Clerk to be able to address non-standard oaths when swearing in members  -  before the election of a Speaker.

I am concerned that yesterday Lockwood, while he might have had some private communication with Harawira, did not give the House any public signal that he intended to overturn if necessary the "emerging parliamentary convention."

 

 

by alexb on July 15, 2011
alexb

I got the sense from reading the media coverage on the day in politics last night that Lockwood's pedantry might have been a cynical attempt to deny Labour's capital gains tax announcement oxygen. Reading Stuff.co.nz last night, the two headlines became "Harawira's crazy return to parliament", which is always going to be a much more interesting read than "hodge podge tax grab", which sounds completely meaningless. The Harawira story is really a non-event, the CGT announcement is huge, yet for some reason, we are talking about Harawira.

by Chris Webster on July 15, 2011
Chris Webster

Hone's opening words were telling and compare favorably to that of the parliaments daily prayer:

'do my utmost to help all Maori people become full and valid citizens of this lands ... and whatever I can to reduce the inequalities in this country ... ''

how and why locky found those words 'unacceptable' is queer - to say the least -

more importantly  had hone been 'permitted' to continue locky would have heard those sweet words of acquiessence to queen liz - at the very end - freedom from unnecessary regulation - right Dean?.

by Phil Lyth on July 15, 2011
Phil Lyth

The discharge of the oaths bill means it is no longer before the House (or its committees.)

Standing Order 260 addresses the 'previous question': a bill cannot be put up if a bill that is the same in substance has been voted on in the same calendar year. (See also SO172 and 203 re a vote in select committee or Committee of the Whole.)

That was why Lianne Dalziel discharged her Members' Bill on provocation, because Power's Government bill had just been progressed.

The short answer is, a new oaths bill could be introduced today. And even if the first oaths bill had been voted down this year, a new bill could be introduced in 2012.

by Phil Lyth on July 15, 2011
Phil Lyth

alexb, tempting as though it is to agree with you, I have to say Lockwood was consistent with his statements at Standing Orders Committee a while back.

I do wish though he had made a clear statement of his intention to overturn the emerging convention.

by alexb on July 15, 2011
alexb

Phil- I suppose it is a bit conspiritorial. However, the end result was much the same, so even if it wasn't Smith's intention, that is what happened.

by Andrew Geddis on July 15, 2011
Andrew Geddis

Phil,

Thanks.

by stuart munro on July 15, 2011
stuart munro

"So, in fact, the only formal commitment our MPs have to make is to kowtow to Liz, and Charlie thereafter ... "

I will be loyal to New Zealand and will respect its democratic values and the rights and freedoms of its people.

Not just Liz and her offspring. Serious, dutiful MPs might pause for example, before raffling off the accumulated public wealth of the postwar generations. Though clearly to the current assemblage of representatives, as to you yourself Andrew, the oath is meaningless.

by Carol Jess on July 15, 2011
Carol Jess

This reminds me of the first affirmations of the Scottish Socialist MSPs at Holyrood (back in the day before they imploded). Rosie Kane took her oath, as prescribed, but with a clenched fist turned towards the cameras/gallery with the words "My oath is to the people" written on it.

In the end if you are elected to represent a constituency of people who want to change the system into which they've been elected (eg republicans) it is nonsense to them to swear/affirm an oath to the Crown, except for form's sake.  They don't mean it, their constiutents don't want them to mean it and the ceremonial part of it is just that, ceremonial.

Stuart - I like that paragraph you've quoted, and think that while the oath to the monarch means nothing to me, the second encapsulates what I believe the true duties of an MMP in New Zeland are.

by Daniel Jackson on July 15, 2011
Daniel Jackson

Apropos Phil's comments, I recall the Clerk was also concerned about whether the making of political statements whether taking the Oath or Affirmation was consistent with the dignity of the House. I don't share the concerns, but the real question is whether it is appropriate for the Speaker to enforce his view of what is appropriate when there is nothing in the law or the Standing Orders that requires it and when it is contrary to past practice. I think not because I regard the Speaker as the servant, not the master, of the House and thus take a fairly limited view of his proper authority (for the same reason I think Lockwood Smith's rulings on answering questions and tabling publicly available documents were inappropriate, even though I like the results). Lockwood Smith seems to have an unfortunate tendency to do what he thinks is sensible, rather than following Standing Orders,  Speaker's Rulings, and the past practice of the House.

by Rich on July 15, 2011
Rich

"I will only help out people who assure me that they voted for me" - an advantage of MMP is that's less of a problem, as if the MP for Waikikamukau is not to ones political liking, there's always the list MPs from various parties who've allocated themselves to the region.

Besides, the MP usually wants to get re-elected - helping people who *might* vote for them is fairly necessary in achieving this.

Also, I think the Speaker should be elected by a means that requires cross-party support (in the UK, this is a secret ballot with 50% majority requirement.

 

by Graeme Edgeler on July 15, 2011
Graeme Edgeler

Also, I think the Speaker should be elected by a means that requires cross-party support.

Under MMP, no party has received more than 50% of the votes, or 50% of the seats. The appointment requires an absolute majority in New Zealand, and multiple ballots are taken until someone gets an absolute majority.

by on July 17, 2011
Anonymous

Having to swear the correct oath (or use the right magic words) strikes me a Diceyan nonsense. Parliament is a corporate with a job to do. Does a particular set of words have more than ceremonial effect? If it's only pomp and ceremony it strikes me has having little bearing on the business of Parliament.

by Geoff Fischer on July 18, 2011
Geoff Fischer

The conflict between Hone and Lockwood Smith over the oath of allegiance has far-reaching implications. Fundamentally it raises the questions of whether the people of Tai Tokerau have the right to choose their own political representative and whether their elected representative should be allowed to stand by the principles on which he was elected.

Hone was elected by the people of Tai Tokerau on the basis of his commitment to the Treaty. Lockwood Smith says that Hone must put the monarchy before the Treaty if he is to sit in the House of Representatives. Therefore this has now become a matter of of democratic principle which affects not only the Hone, not only the people of Tai Tokerau, and not only the Mana Party, but all people of the motu, of all ethnicities, all classes, and all political persuasions.

If Hone is not free to abide by his own principles, and if the people of Tai Tokerau are not free to choose him as their representative, then none of us are free.

The story of the Swiss struggle for independence from Austria tells of how the Austrian tyrant Gesler placed his hat on a pole in the market place and demanded that the people of Switzerland bow before before it. After the patriot William Tell refused to bow to a hat on a pole he was seized by Gesler's troops and ordered to shoot an arrow into an apple which Gesler had placed on the head of Tell's son. This story may be apochryphal but it contains at least two important truths. The first is the importance of symbols in a people's struggle for freedom. The second is that freedom is always hard won, and the struggle for freedom brings with it sacrifice and risks for those dearest to our hearts.

For one hundred and seventy years British monarchs have placed their Crown on a pole, and demanded that the people of Aotearoa pledge allegiance to it. When in 1860 the tangata whenua of Tuakau peacefully refused to do so, they were driven out of their homes and off their land by British troops.

Now Lockwood Smith says that Hone Harawira must pledge allegiance to the British Queen, or suffer the consequences. He says it is "the law of the land". It is not the law of the land. It is the law of the British crown, and it is sheer wickedness. No human being should be bound in allegiance to any other. Our duty as a people is not to the British Crown, but to truth, justice, and human dignity. If Hone decides to stand his ground in two weeks time, he will not stand alone.

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