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.