We shouldn't use Brendan Horan's political execution as a reason to reintroduce bad law.

Following Brendan Horan's rather summary casting out from the New Zealand First caucus - or, at least, so Winston Peters has told the House ... and the assumption is that if Peters says something will happen within New Zealand First, then it will happen - there's been some mutterings about the need to revisit the now lapsed party/waka-hopping law.

In some ways, such mutterings are a bit strange. It's not as if Horan is the first MP in recent memory to leave his party caucus (willingly or otherwise) to sit as an independent MP. Here's a list of such post-2005 refugees from off the top of my head, without having resort to DuckDuckGo.com (yes - you heard about it here first!) 

  • Gordon Copeland
  • David Garrett
  • Chris Carter
  • Philip Field
  • Hone Harawira
  • Tariana Turia
  • Anyone else who may have slipped my mind but should be listed here (and I'm sure some busybody know-it-all will be along to remind me of just who that is).

I guess Horan is a different kettle of fish in that he is a list MP (unlike Carter, Field, Turia or Harawira) who has indicated he intends to remain in Parliament despite NZ First wanting rid of him (unlike Garrett). Thus the only relevant comparator is Gordon Copeland, and even he quit the United Future Party rather than get kicked out by it.

That being so, perhaps Horan does pose in quite stark terms the fundamental problem of a list MP's "mandate": why should a person who gets into Parliament purely because of the voters' support for her or his party be permitted to remain there after that party decides it wants her or him to go?

That's the question asked on RNZ's Morning Report of three MPs - Peter Dunne, Meteria Turei and Grant Robertson. Their discussion is summarised here:

It is a "quirk of the system" which allows a list MP to stay on in Parliament even though they have been expelled from the party which brought them there, Peters says.

It's a quirk Labour deputy leader Grant Robertson would like reviewed and he says now is the time to do it.

"I understand the complexity of the situation but I do think for the credibility of Parliament we need to make sure there are clear rules which uphold that," he says.

"If someone has been elected as a list MP for that party and then is no longer part of that party, then their credibility to stay on as an MP is in question."

It was a different situation for MPs voted in by an electorate.

 "It gives them a particular mandate but the mandate the list MP has comes from their party."

The Government is currently reviewing the MMP system and Robertson would like to see it extended to include a review on rules for list and electorate MPs who are either expelled or leave their party on their own accord.

Loathe as I am to correct a Prime-Minister-in-waiting (albeit, I quickly note, long after David Shearer has lead the Labour Party to Government in 2014 and presided over a much-loved and highly successful administration, before choosing to step down and hand Grant the mantle of power in an orderly and completely voluntary manner), there's a couple of points that Grant needs pulled up on.

First of all, there already is "a review on rules for list and electorate MPs who are either expelled or leave their party on their own accord" in train. This is one of the issues that the Government's ongoing Constitutional Review has been tasked to tackle and report back on by the end of next year. (I wrote about that review here, so there is no excuse for anyone not to know about it in full ... I mean, why do I bother if you people aren't going to commit my every word to memory?)

Second, I am strongly of the opinion that the apparent enthusiasm Grant shows for reintroducing some sort of party hopping law is misplaced. 

It's worth noting that we don't yet know whether Brendan Horan's case even indicates such a law is necessary. After all, we don't know why he's been kicked out of the NZ First caucus - all we have is Winston Peters' word that there are reasons good enough to justify this action. If it turns out he's wrong about that, then we may see the picture change. And even if Peters' conclusion about Horan is correct, we don't know what Horan will do. Sure, at the moment he is vowing to stay on in Parliament ... but whether that early bravado translates into long-term commitment remains to be seen.

And even if the worst transpires - Horan is revealed to have behaved in an (at least) ethically dubious fashion justifying NZ First's decision to dump him, but nevertheless refuses to resign his seat - the issue will resolve itself in 2014. As all MPs who have left their party under a cloud (rather than on a point of principle) have discovered, independents do not get elected to New Zealand's House of Representatives. They just don't.

But nevertheless, in this worst case scenario we do still have Horan continuing to sit in the House (and draw a nice little salary with perks) for near-on two years, whilst NZ First (and all those who supported NZ First at the election) is reduced from 8 MPs down to 7. Surely that can't be right?   

And I agree - no, it can't. Such behaviour would be indefensible from an ethical point of view. But just because there is a bad thing happening does not mean that legislation is needed to fix it. In some cases, a law designed to cure one ill may create others that actually are worse in nature.

That's my view of party hopping laws. And I think an examination of how the law that we did have in New Zealand between 2001-2005 actually played out in practice bears out my view.

First, those who think we need "clear rules" about the fate of party-hopping MPs in order to uphold "the credibility of Parliament" might care to cast their minds back to how such a party-hopping law operated in the context of the Alliance's implosion.

The anti-defection legislation failed within a few months of it being implemented. In fact, New Zealand's Prime Minister, Helen Clark, effectively used its failure as an excuse to call the 2002 election, scheduled for November, four months early.

The Alliance, Labour's coalition partner, fell apart in a row over the group's relationship with Labour. As a result of the wrangling, the Alliance split the party's leadership. Jim Anderton, who had formerly been both the parliamentary and the national leader of the party, remained the parliamentary leader (even though he no longer commanded majority support of the party members at large) because he retained the support of five of the Alliance's 10 MPs. Another Alliance MP, Laila Harre, became leader of the party outside parliament. Anderton made it clear that he would lead another party into the election.

In announcing that he intended to form a new party, Anderton - ironically, one of the main proponents of the anti-party-hopping legislation - should have been hoist with his own petard, invoking the provisions of the Act and resigning from parliament. However, in a demonstration of how one can follow the letter of the law, while defying its spirit, Anderton managed to avoid being caught in the anti-defection law because he retained control of six of the Alliance's MPs. That is, his five supporters plus himself gave him the two-thirds of the party's parliamentary members that the law mandated to have control over whether or not a party member could be expelled.

Such 'outrageous' and 'hypocritical' manipulation of the technicalities of the Act provoked considerable derision from the legislation's opponents, who raised numerous points of order in the House over the 'real' leader of the Alliance. Clark said the time spent on such points meant parliament had become a 'farce' and an election was the only option.

Say what you want about how the public might view the ethics of an ousted list MP who will not resign, at least the actions of such MPs have not brought Parliament to such a stand-still that an election is required to resolve the problem! 

Note also that this outcome wasn't the result of bad drafting or the like. Rather, it was the unavoidable consequence of the legislation's basic intent. A party-hopping law seeks to freeze representation as it is apportioned at the time of the last election, by saying that any reason an MP may have for wanting to leave (or any reason why an MP is forced to leave) his or her party is irrelevant and so the MP must also leave Parliament. That basic intention means that where you have a genuine, irreconcilable clash of ideology within a party - as took place in respect of the Alliance, and as (allegedly) took place within United Future in Gordon Copeland's case - there is no way to resolve that split neatly by separating the party into new, clearly distinct political organisations ... unless one or the other disaffected groups is prepared to walk out of Parliament altogether.

Second, the one occasion that the old party hopping law actually was applied resulted in a court case that went all the way to the Supreme Court. We might put aside the general desirability of turning political matters into legal ones that then drag the courts into the mix and instead focus on what the Supreme Court said about how the party-hopping law was to be interpreted and applied.

In a nutshell, the Supreme Court concluded that if an MP was no longer a member of a party, then that fact in and of itself justified a party leader having the MP removed from Parliament altogether. In other words, the Supreme Court collapsed the right of an MP to remain in Parliament into the right of a person to be a member of a particular party. And so, if a party chooses to use its own internal rules to expel an MP from it, that action thereby enables the party leader to get the MP kicked out of Parliament altogether.

Well, if the MP has done something really bad - as it turned out Donna Awatere Huata had, and as (apparently) Peters believes Horan has - then fair enough. But note that this approach puts an awful lot of power into the hands of a party leader (assuming that she or he still has the backing of her or his party). And where there is power, then there is the temptation to use that power in ways bad as well as good.

So let's take a reasonably recent example of inter-party conflict: the alleged coup being plotted by David Cunliffe against David Shearer. (Whether or not this was ever going to happen is irrelevant here; what matters is that it was talked about publicly and so drew a response.) I don't think anyone (outside of camp Cunliffe) has a problem with a party leader being able to respond to perceived disloyalty by demoting an MP in the caucus ranks. That's a part of normal inter-party power politics.

However, what if David Shearer went a step further and sought to have David Cunliffe expelled from the Labour Party altogether for his (alleged) behaviour - as happened, you may remember, to Chris Carter? Should that decision - that Cunliffe is no longer considered fit to be a member of the Labour Party - then automatically translate into a power for Shearer to have Cunliffe kicked out of Parliament altogether? Are we comfortable giving party leaders that degree of coercive authority over the rest of their caucus?

(Incidentally, just a quick word on the list-vs-electorate MP issue here. It may be argued that electorate MPs (like Cunliffe) shouldn't be subject to party-hopping laws because they were voted into Parliament as individuals, not due to their party affiliation. To which I say ... bollocks. Electorate MPs owe their place in Parliament just as much to their party as do list MPs. Or, to put it another way, is there any electorate MP in New Zealand confident enough of their individual, personal mandate to say "if I stood as an independent at the next election, my electorate would still vote me back in because it's me as a person that they really love." Anyone? Anyone? Bueller? Robertson?)

So for these reasons, I've predicted (again, here) the following about the outcome of the Constitutional Review:

[A party hopping law] will be deemed unnecessary (unless there is a meltdown within a party between now and 2013). Since the "Waka Hopping Law" disappeared in 2005, this problem has largely resolved itself (Chris Carter being the present exception, and 2011 will solve that).

Nothing I've seen in Brendan Horan's (admittedly still very early) case is causing me to revisit that prediction.

Comments (8)

by Steve on December 05, 2012
Steve

You left out; Neil Kirton, Alamain Kopu, Tau Henare, Tuku Morgan,Rana Waitai,Tuariki Delamer and Tu Wyllie.

A large number of them seem to be Winston associates.

by Andrew Geddis on December 05, 2012
Andrew Geddis

@Steve,

"Here's a list of such post-2005 refugees from off the top of my head ..."

But we should remember it was the names you list that lead to the perceived need for a party-hopping law in the first place ... was well as noting that there were more such cases in the first term of MMP than there has been in the past 7 years!

by Bruce Thorpe on December 05, 2012
Bruce Thorpe

A falling out within a party should not automatically result in the outcast being the one assumed to  have lost the voters' mandate.

If a member behaves badly cannot parliament request the G-G to dismiss for "misconduct"?

 

by Andrew Geddis on December 06, 2012
Andrew Geddis

@Bruce,

If a member behaves badly cannot parliament request the G-G to dismiss for "misconduct"?

The G-G doesn't dismiss MPs - it is Parliament itself that would expel any member (under its historical privilege to determine its own composition). The problem is, Parliament has now laid down in statute a set of conditions upon which an MPs seat automatically becomes "vacant" (i.e. the MP is no longer an MP). The only one of these relevant to "behaving badly" is:

if he or she is convicted of a crime punishable by imprisonment for a term of 2 years or upwards, or is convicted of a corrupt practice, or is reported by the High Court in its report on the trial of an election petition to have been proved guilty of a corrupt practice

So bad behaviour that falls short of criminal, or criminal behaviour that doesn't attract a potential sentence of more than 2 years, isn't one of the statutory grounds for an MPs seat becoming vacant. And then the question is - can Parliament still expel an MP for reasons other than those that have been expressly set down in statute? Which is a question we just don't know the answer to, because Parliament has not tried to do this.

by Marcelo Rodriguez Ferrere on December 06, 2012
Marcelo Rodriguez Ferrere

Well argued, Andrew. What's your perspective on the criticism that Winston Peters' decision to expel Horan from the New Zealand First caucus was too hasty? Russel Norman and Tariana Turia have both termed it a breach of natural justice and that he needed to be "innocent until proven guilty". Yet surely leaders have the untrammeled right to govern their caucus (e.g. David Shearer's demotion of David Cunlfiffe)? 

It seems that this is just a further confusion over the distinction between of membership of caucus, party and Parliament, each of which governed by different rules. 

by Andrew Geddis on December 06, 2012
Andrew Geddis

Marcelo,

I don't know what the rules of membership of the NZ First caucus are - it wouldn't surprise me if the only rule was "whatever Winston says"!

I also think Rusel and Tariana are using the natural justice reference euphemistically, rather than legally ... in the sense that it's "not fair" to kick Horan out without letting him tell his side of the story. Which may well be true - but since when has "fairness" mattered a jot in politics?

by Tim Watkin on December 07, 2012
Tim Watkin

Pass the popcorn!

Poor old Grant. First he's unsuccessfully doing the numbers to roll Shearer, now his own mates are turning on him...

Good point about the power given to the party leader, but I'm not sure where I sit on this one.

by danniel on September 17, 2013
danniel

This makes sense. Obviously I have so much to catch up with about laws and politics. I think I'll just start with this Holzberg NY source to stay informed. My aim is to enrich my whole background so I can make responsible decisions about my political choices.

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