Politicians in New Zealand are traditionally well behaved.
We don’t have regular brawls inside the chamber (surprisingly common elsewhere), or a history of duels (like the US and UK), or even MPs stealing the mace.
We do have a history of drunkenness, lechery, and one or two bully-boy Prime Ministers but we’re pretty tame by global standards.
That’s just not cricket
New Zealand’s constitution and society is kept together in part because MPs, civil servants, police and the armed forces follow rules and expectations, even unwritten ones.
Possibly this is a hand-me-down from the English ‘play with a straight bat’ attitude (Boris Johnson notwithstanding). Maybe we just don’t have many poor examples to follow (yet).
So what happens when an MP flouts the rules and dares punishment?
Without much history of really poor behaviour there is sparse local precedent for how you deal with a serious contempt of Parliament. And you might think that the Speaker and Parliament are a bit powerless. You’d be wrong.
In 1865 Parliament adopted the accepted powers of the British parliament (mostly), and their precedent is relevant to us as well. Parliament has also given itself significant powers but hasn’t tested them.
What is contempt?
Usefully it’s not specifically defined. It covers anything that Parliament decides it covers. The Standing Orders (Parliament’s rule book) lists 25 examples but specifically notes that the list isn’t exhaustive, only illustrative. Examples include various kinds of disobedience, or interfering with Parliament’s rights, or anything that “obstructs or impedes the House in the performance of its functions”, or its officer’s ability to discharge their duty.
So is ignoring a direct order from the Speaker a contempt?
Well, that’s up to the House to decide; but it would be unusual if the House decided that ignoring the rules and refusing to obey a Speaker’s ruling didn’t impinge on the rights and powers of the House or its officers.
It’s worth noting (when you listen to commentary) that getting stuck into the speaker is itself a contempt, regardless of who does it. “Being the embodiment of Parliament, reflections upon [the Speaker’s] character or conduct directly attack the very institution of Parliament itself, and have been dealt with accordingly...” In investigating such attacks the “why” for the offense has been ignored entirely and the only question is “whether” it occured.
The Speaker processes into the House following the mace which is the symbol of his authority. The mace is carried by parliament's 'policeman', the Serjeant-at-Arms. Photo: VNP / Phil Smith
How is a contempt decided?
Deciding that a specific instance of behaviour is a contempt is a three-stage process, plus sentencing.
-
The Speaker determines whether a contempt of Parliament might have occurred and is worth investigating. He refers it to the Privileges Committee.
-
The Privileges Committee (10 senior, cross-party MPs, but not the Speaker) investigates and reports recommendations to the House.
-
The House votes on whether a contempt exists.
-
The House agrees the punishment.
What is the punishment for contempt?
Let’s presume that the House found one or more MPs in contempt for brazen ill discipline and flouting the conventions, rules and authority of Parliament. What's possible?
What can’t happen:
- MPs cannot be expelled from Parliament (i.e. have their MP-ness taken away).
- Parliament doesn’t have the power of impeachment (a formal trial held in an upper House was one of the things NZ’s Parliament didn’t take from the UK).
- Punishments have to abide by the NZ Bill of Rights so any punishment has to be reasonable and proportionate.
- Some school students visiting Parliament last week suggested that naughty MPs might be flogged, put in the stocks or executed. Uhm, no. Kids are brutal!
What can happen:
- MPs can be censured. A formal rebuke is probably the least serious outcome.
- MPs can be suspended from the House (losing their pay, their vote, their right to attend or to ask questions).
- MPs can be fined.
- MPs are not immune from outside prosecution (not really relevant here).
- MPs can be imprisoned.
From the House to the big house
That last one is the surprising one. Parliament can imprison people. It’s never happened in New Zealand (though they thought about it once), but in the UK Parliament apparently imprisoned nearly 1,000 people between 1547 and 1810.
The beginnings of Parliament are similar to the beginnings of law courts (both come from the roles and functions of the king's courtiers). Parliament is a bit like New Zealand's grandest court with a 120 jurors chosen by us. Holding permanent inquiries is a reason it exists.
And just as a judge can jail you for contempt, so can Parliament. Indeed Parliament even has a ‘policeman’ to help with the task. He’s called the Serjeant at Arms and is the person who carries the mace into the chamber each day (as a symbol of the Speaker’s authority).
While a converted storeroom in the basement of Parliament House is technically possible it’s very unlikely. In the UK the actual prisons have incarcerated people on Parliament’s behalf.
Interestingly, in the UK, bail is not available for anyone arrested by Parliament, but habeas corpus still applies (so no secret imprisonments).
Simon Bridges appeals to the Speaker Photo: VNP / Phil Smith
So what will actually happen?
Well, that’s up to the House, the Privileges Committee and the Speaker but there are lots of options.
Prison is highly, highly unlikely. Really unlikely. Ignore that potion.
A fine might be possible. It would require the full process and agreement by the House.
Censure is certainly possible.
The suspension (without pay or voting rights) of one or more senior National MPs might be possible; it could last as long as they don't comply. This would need the House to vote on it.
Or the Speaker could circumvent a formal process by using his own powers - he has quite a few. He can even suspend Parliament for disorder.
This term the Speaker has used his discretion in awarding supplementary questions as both carrot and stick. Denying National supplementary questions until they comply is possible, and wouldn’t need a formal finding of contempt. However this would impinge on Parliament’s check on Government and the speaker may look for other sticks to wield.
He could also choose other privileges to curtail.
But in this kind of situation, which is as political as is it Parliamentary, there is no perfect response.
