Suspending MPs

Contempt of Parliament in the spot light

Late last week, the Privileges Committee released its final report on the issue of privilege arising from the haka performed during the vote on the first reading of the Treaty Principles legislation.

The report recommends suspension from the service of the House for 21, 21 and 7 days for three Te Pati Māori members of Parliament.

By international standards, the proposed suspensions are not especially harsh. Boris Johnson faced a contempt of Parliament complaint following his Partygate lies. The Commons Select Committee of Privileges recommended a 90-day suspension, which led to Johnson resigning as an MP.

But the proposed consequences here are the harshest recommend for a contempt of the House ever proposed in New Zealand, with the previous highest suspension following a contempt finding being 3 days, and no suspensions for contempt of any length since at least the introduction of MMP.

I happen to think that suspension for contempt is a consequence that should be imposed and should probably have been considered for some of the other contempts that have been raised and considered by the Privileges Committee in recent years. There is an unjustified disparity between the consequences of being named by the Speaker in the House, which results in an immediate vote on a suspension, and the consequences that have followed recent referrals to the Privileges Committee and findings of contempt, which have – until now – only been of the wet bus ticket variety. The first time an MP is named and suspended in the course of debate the suspension is 24 hours. The second time in the same Parliament, it’s 7 days. Such 1 day suspensions happen occasionally. The 7 day suspensions are more rare, but have been known as well.

But there is a difference between forming a view that MP misbehaviour should be taken more seriously, and supporting the particular recommendation in this case. Deciding to start increasing penalties for contempt in this one case, well beyond the penalties that have been imposed in any recent case – and any historical case – has the obvious whiff of arbitrariness.

Whatever one thinks in isolation would be a proper penalty for what has happened here – even if you think it a serious breach of Parliament’s codes – the fact is that other similarly serious-ish breaches of similar rules simply have not resulted in very serious consequences at all. Starting now, without any pre-warning of a change in approach raises questions left entirely unanswered in the Privileges Committee’s report.

There was an option open to the House if MPs felt that consequences that applied to certain misconduct should be higher than it has been. Either the Standing Orders Committee or the Privileges Committee could have held an inquiry, sought views of MPs and others, and either suggested changes to standing orders, or just announced a new approach, taken with some level of agreement or consensus from other MPs.

That did not happen, so even if you are someone who wants to see change in this area, the way it occurs here is simply not the way to go about it.

The explanations given by the Privileges Committee to date are unimpressive, and despite taking around six months to deal with its report and statements about it contain notable errors. The explanation by the chair about the distinction being the interference with the vote of other parties is – as noted by In The House – untrue. And the Committee report even mistakenly suggest that a suspended MP loses all their salary, which is not true (they lose 73% of their salary, in this case a bit over $8k for each of the co-leaders, if the 21 days is approved by the House).

Given that the Privileges Committee has not given a particularly full explanation of why it has recommended a consequence so markedly different from any previous recommendation by any Privileges Committee of the New Zealand House of Representatives, we’re at somewhat of a loss as to whether they are intending to signal a substantial change in practice, or if they really feel that this was so anomalous as to be vastly more serious than any previous contempt by a member of Parliament.

The former seems so very unlikely. The same committee ruled only very recently on other issues referred to them, and even one matter arising from the same facts, without any indication they considered greater consequences were something they were even thinking about.

What then is the best argument for this particular recommendation? I don’t think there’s a particularly good one in light of the history and lack of forewarning of a change, but there are some matters that that make this different, if not particularly more serious, so here’s the best I can come up with:

The actions of the Te Pati Māori co-leaders here suggest they consider their actions not merely justified by, but perhaps even compelled by, tikanga. This implies – in a way distinctly different from previous matters before the Privileges Committee – that specific deterrence is called for. If it is not made clear that this is not something the House is prepared to accept as within bounds, it is going to happen again. In a way that is different from any of the recent issues that have come before the Committee, they are concerned that this or something like it will happen again and indeed will happen through the same MPs. And this justifies a suspension that shows that the House will take this seriously in the future.

Add to all this a belief I suspect is present in at least some member of the Privileges Committee that the Co-Leaders of Te Pati Māori actually think a suspension is to their political advantage, and you get a result where some members of the Committee feel a suspension of some length is required to make the cost worth it.

Or something like that.

Except then we have to compare is to other instances where MPs have acted contrary to accepted rules of behaviour in part to cause the reaction to them (eg the ACT leader driving a vehicle up Parliament’s steps). Now, that didn’t interfere with the functioning of the House in the way that the haka did, so it was (appropriately) never going to get referred to the Privileges Committee, but the actions were similar in their calculation, and in the perceived need to specifically deter a repeat. To be honest, if I was the Speaker, I would have considered trespassing – for a short period – Seymour from Parliament’s forecourt: allowing him to work as an MP in the buildings, but having to enter and leave by some back route (with an allowance to seek particular permission to go onto the forecourt if necessary for his duties as an MP, eg to accept a petition). And leave the rest up to the criminal law if he tried to chance a breach.

What is the solution? I suspect Speaker Gerry Brownlee’s warning to the Government that it risks losing a day of legislative time will see cooler heads prevail. Exactly how, I don’t know. The obvious possibility is that a Labour MP puts forward an amendment to the motion proposing the suspensions to substantially reduce the suspensions, perhaps to the 1-day that would have applied had the members been named in the House, which National could then support. Another, perhaps less likely alternative, could be a suspended suspension. If certain MPs really are concerned about a repeat of the haka, they could try to impose the full 21 days (or some lesser amount), but suspend the suspension in the manner of a suspended sentence: declare that only 1 days of the 21 days suspension need to be served, but that if there is a further contempt in the course of this Parliament, then in addition to whatever consequence may be imposed for that new offence the remaining 20 days of this suspension will be reactivated. I’m probably making this too complicated though.

But what is the actual solution? Because there should be changes to ensure that this doesn’t happen again in this way. Whatever the consequence that results here, the use of the Privileges Committee – acting without forewarning, and using a narrow majority to make unprecedented recommendation well outside historical precedent – should be avoided. One obvious option would be to adopt the UK practice of having the Chair of the Privileges Committee come from the opposition.