Behind the door at a parliamentary privilege hearing

Phil
Smith, Editor: The House

Parliament’s
Privileges Committee has been a major source of news over
the last few weeks. The committee is Parliament’s own ersatz
court, where a cross-party group of senior MPs consider
whether their colleagues (or even non-MPs), may have broken
Parliament’s internal rules – something called a breach of
privilege.

This week’s stories involved a stoush
between Te Pāti Māori and the Privileges Committee, over
how a privileges hearing should be conducted. It culminated
in three MPs, who had been summoned, failing to turn up to
their hearing, and instead announcing that they
would hold an alternative hearing.

The boycotted
hearing was to look into events occurring during the first
reading debate for the Principles of the Treaty of Waitangi
Bill – when those MPs, at the point when their party could
vote, instead contributed
a haka on the floor of the chamber. Some might consider
that a pretty definitive vote, but not necessarily one
within the rules.

For background on the Privileges
Committee, privilege itself, and what breach of privilege
would mean in practice; I asked David Wilson, the Clerk of
the House of Representatives. He runs Parliament’s
Secretariat, the Office of the Clerk, a role that includes
advising MPs on Parliament’s rules. He even wrote the manual
on how Parliament works – Parliamentary Practice in New
Zealand.

Phil Smith: Parliament and
the MPs that form it have special legal rights and
protections called privileges. They exist to help MPs do
their jobs without risk of legal consequences. But that
privilege is balanced by Parliament’s own rules for what
they can and can’t do – based on honour and good
form.

David Wilson: The key sort of
privilege that members have, in debate in the House and
select committees, is the right of free speech – in that no
legal action can be taken against them for anything they say
in those settings.

Balancing that, Parliament has
agreed some rules, some limits around that. There are a few
things that you can’t say. You can’t make offensive
reflections against the monarch or the judiciary, for
example; you can’t accuse another member of being a
liar.

So although the right of free speech is very
broad, it’s not absolute, because the Parliament as a whole
has, by consensus, agreed to put some limits on it. The
other thing they’ve agreed is that there needs to be a body
to investigate apparent breaches of those privileges and
rules. And that is the Privileges Committee, which is a
multi-party committee, with representation from every party
in Parliament. Generally it’s chaired by the Attorney
General [currently Judith Collins] and most of the members
on it are senior members from the various
parties.

Phil Smith: How does the
committee receive a complaint and what
happens?

David Wilson: The Privileges
Committee gets its work by being referred things by the
Speaker – Questions of Privilege, so things for it to decide
on: When the Speaker says ‘on the face of it, there looks
like there might be a breach of Parliament’s rules here’,
and it’s [deemed] serious enough to want to ask the
Privileges Committee to look at it.

[The Committee]
gets that referral from the Speaker, thinks about what to
do. Typically that will involve inviting the party that’s
accused of breaking the rules (and I mean “party” in the
broad sense of person or people, not just political parties,
but anyone who might have been alleged to have broken the
rules), to appear before the committee, [explain] that, and
answer questions.

Sometimes, they will do it just in
writing – where it seems quite straightforward, or if it’s
an MP who already… accepts they’ve done something wrong,
they might deal with it just on paper.

But otherwise
they’ll have a hearing (which is open to the public, and is
generally reported by the news media), where the member or
members will be questioned.

It’s not only MPs that go
to the Privileges Committee though. Anyone can be referred
there, but more often than not, it is MPs because they’re
the ones who work within the framework of Parliament’s rules
and so are more likely to infringe on
them.

Phil Smith: And often work
closer to the edge because that’s just what their job
involves.

David Wilson: Yeah, that’s
right.

Phil Smith: It’s a committee
where the government would normally have a majority, isn’t
it?

David Wilson: There’s no
requirement that they will, but they frequently
do.

Phil Smith: Historically
speaking, has any government in the past …sort of
privileged themselves in the hearings or ‘unprivileged’
others, if you know what I mean?

David Wilson:
That … is always a risk where, you know, most
things in Parliament can happen by a majority and the
government always holds a majority or it ceases to be a
government. But that’s not what’s happened in the Privileges
Committee, either in my direct experience or my knowledge of
what’s happened previously.

The members of it tend to
work collegially, as a whole, for the good of Parliament.
It’s very rare for them to vote on anything. If they were to
– a majority rules, but they don’t. They tend to try and
reach a consensus agreement that everyone – even if everyone
doesn’t love – that everyone is happy
with.

Phil Smith: I’ve watched them
working in the open part of it, which is when they’re
hearing witnesses. Select committees are not as
party-political as the House is, and the Privileges
Committee (and the Standing Orders Committee for that
matter), are even less so. They’re much more kind of working
together for the good of the general Parliament. At least
that’s been my observation.

David Wilson:
Yeah, I think that’s a fair reflection. And
although both of those committees you mentioned (Privileges
and Standing Orders) could decide things by majority, in
practice they don’t, because you really need to have the
huge bulk of Parliament, or ideally all of it, agreeing that
what’s happening is the right thing.

Phil
Smith: And that takes us to the point that actually
MPs all do agree to what the rules are when they turn
up.

David Wilson: They do. The rules
are theirs. They’re made by MPs at the end of the previous
Parliament, and they’re agreed by consensus across the
House. So they’re very much the rules of all members of the
House.

Phil Smith: So, a Privileges
Committee outcome – they vary
enormously…

David Wilson: There are
a range of penalties. There are some that are typically
applied, requiring someone to apologise to the House, or
censuring them. Those have been penalties usually applied to
MPs. They could [also] be applied to other people
though.

Suspension from the service of the House,
which is time where a member can’t take part in any of the
proceedings, they can’t vote, and they’re not
paid.

There is the ability to impose a fine of up to
$1000, and there is a theoretical power to imprison that’s
never been used in New Zealand. It was inherited from the UK
because these privileges that we talked about came from the
UK Parliament in 1865, and that was one that was usable and
in use in the UK at the time, and it never has been in New
Zealand.

Phil Smith: They’d done it
thousands of times in the UK, but mostly a few hundred years
before that.

David Wilson: That’s
right, and it’s difficult to imagine something like that
happening in a modern environment.

Phil
Smith: There’s another [penalty] that was, in
theory, picked up from the UK, but has never been considered
to be true here. In fact, I think it’s been ruled out-and
that is sacking an MP. The House cannot sack MPs, can
they?

David Wilson: No. In fact, when
legislation was passed in 2014 (the Parliamentary Privileges
Act), it explicitly said that the House can’t do that. Only
voters can choose who’s going to be an MP and ultimately,
voters choose if someone’s not going to be one
anymore.

There are a few other ways [an MP can leave].
Of course, an MP can resign. If they’re convicted of a
serious offence they can lose their seat, and there are a
few other things that can cause them to lose their seat. But
very much it’s rooted in that Democratic principle, that the
voting public chooses who MPs are.

Phil Smith:
We’re a little bit unusual in that. Westminster can
get rid of people. The American [House], they can vote on
getting rid of someone. You know, it’s actually not uncommon
around the world, but not here.

David Wilson:
No, that’s right, not here.

Phil
Smith: I was reading your Parliamentary
Practice and there are four chapters on privilege and
the Privileges Committee, but there’s no outline of exactly
how they do their job. Do they just decide that as they go,
or go with tradition and convention?

David
Wilson: I think that’s true of all committees and
not just the Privileges Committee.

In Parliamentary
Practice in New Zealand there isn’t a description of
exactly how committees work because it is up to them within
the framework that’s provided in Standing Orders
[Parliament’s rules], and each develops their own way of
working.

But for the Privileges Committee, I think it
would be fair to say the normal way of operating would
be:

• to receive a referral from the
  Speaker,
• to consider how to approach
  it,
• generally then to hear evidence,
• to
  think about what, if any breaches of privilege or contempts
  of Parliament have occurred,
• apply a test to decide
  if that thing has happened or not,
• and then if it
  decides it has [happened] – to report that, along with some
  recommended penalty usually, or if it decides it hasn’t
  [happened], then to report that. Either way, it needs to
  report the matter back to the House.
• If those
  findings are going to be damaging to the reputation of the
  person concerned, they give them a chance to respond before
  they report to the House.

Ultimately the
Privilege Committee’s job is to report to the House and make
recommendations, like any other committee. It’s the House
that decides whether to accept that report. So – if someone
is guilty of a contempt or a breach of privilege, and if so,
whether to apply the recommended penalty.

It is often
reported that the Committee is powerful and can do those
things. It can’t. The only power it actually has that other
committees don’t have is it can compel people to appear
before it.

Phil Smith: Although it
almost never does that either.

David Wilson:
It doesn’t need to. People usually come, I don’t
know if ‘willingly’ is the right word, but they agree to
come. And the only people it can’t compel to attend are
other Members of Parliament. Only the House can do
that.

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