National's attacks on the Speaker over his incorrect 2019 claim of rape at Parliament, and costly defamation settlement, have ratcheted up tensions in Parliament. But a political law expert says it would be difficult to get him out of the job unless he decides to quit.
Trevor Mallard settled the case last year. It cost taxpayers more than $330,000, and came with an apology for the distress and humiliation his incorrect comments had caused.
But National is digging in, with claims Mallard is not a fit and proper person to hold the office. It is calling for a vote of no confidence in the Speaker, after obtaining a statement of claim in the defamation case.
Today Stuff senior political reporter Thomas Coughlan takes The Detail back nearly two years to the start of the saga, while Otago University law professor Andrew Geddis explains the role of the Speaker, how they are chosen and the special rules that protect them.
The latest flare-up in the house is more serious than the standard complaints from opposition MPs, says Geddis, but unless Mallard decides to resign it would be difficult to get him out of the job if he continues to have the majority of MPs backing him.
"If the Speaker's Labour Party colleagues and in particular if Jacinda Ardern as the leader of the Labour Party was to lose confidence in the Speaker...then the Speaker would have to quit."
Couglan says that's unlikely because the senior Labour MPs who could replace Mallard, including Nanaia Mahuta, David Parker and Damien O'Connor are either too busy as ministers, or in the case of O'Connor, you'd be replacing "someone who's a bit loose with another person who's a bit loose".
National's Gerry Brownlee has the experience and is well suited but an opposition MP is very rarely chosen for the Speaker role.
"It would be a bit embarrassing if Jacinda Ardern were to say, look I've got this enormous majority in the House but you know, I actually just can't find any of them to be Speaker so we'll take one of yours National."
Coughlan says the politics around the case are fascinating, such as the "Hutt Valley derby" rivalry between the various MPs, why Act has pulled away from the matter and National MP Chris Bishop's extraordinary speech in the House last week outlining details of the statement of claim, with Mallard listening from the chair.
Andrew Geddis says the House of Representatives, where the Members of Parliament all meet and do their business, runs under its own rules, Standing Orders.
The House of Representatives cannot be dictated to by any outside bodies, for instance the courts are not allowed to examine what the House of Representatives does and pass judgement on that.
"So that then raises the question of who then makes sure that the House of Representatives is following its own rules and who decides what those rules are, who applies them and so on."
That role falls to the Speaker, who both represents the House of Representatives as its head, also acts as the umpire for the internal practices of the house.
The Speaker is chosen after an election and the role is open to any MP. If more than one name is put up, it is put to the vote of all MPs. However, says Geddis, usually one MP wants to do the job and everyone is happy for them to do it. Trevor Mallard was the only nomination in both the 2017 and 2020 elections.
Speakers are experienced MPs who have relinquished the chance to be a minister. But unlike other Westminster-style parliaments where the Speaker is not allowed to vote, Mr Mallard votes along with all other MPs, which means the government wants to have one of its MPs in the role.
"That can cause real problems because the person who is meant to be mutually dispassionate saying, these are the rules and this is how they apply, also is nowadays a member of government and is still meeting with the government caucus still meeting with parliament. So that does cause tension and can lead to accusations of bias and so on but it is just inbuilt to the role.
Geddis says it’s a "bit of a black hole" when it comes to agreement between the parties on who will do the job.
"I imagine there's a lot of behind the scenes negotiation, the government talking to the opposition, would you be happy with this guy doing it, do you have objections and so on ... but all we know is names go forward and a process is followed."