Brash Demands Simpson Correspondence
Don Brash has demanded that Labour release the full correspondence between Heather Simpson and the Parliamentary Service that was released in part to me and published here yesterday in the Parliamentary Service’s defence.
“Meanwhile, evidence presented in a court case against Helen Clark suggests Labour bullied Parliamentary Service into making Labour’s pledge card payment - which the service rightly resisted because it was against the rules.”
Dr Brash is referring to a terse letter from Helen Clark’s chief of staff, Heather Simpson, to the service on 17 November demanding that ‘the payments are made without further delay’.
“Labour has previously argued that the service approved such payments. But Heather Simpson’s letter seems to contradict that claim,” says Dr Brash.
“Labour should release the full letter and other correspondence with the service.”
Labour claims that the Parliamentary Service approves everything. The Parliamentary Service says that all approvals for payments come from members of Parliament and it just signs the cheques. Releasing the full correspondence would really help us figure out this apparent mystery in how Parliament operates.
September 22nd, 2006 at 4:41 pm
Its now clear members or their agents approve the spending. The statement from Heather Simpson strenghens Labour’s legal case although it looks politically bad.
You maybe interest in the following post of mine from Mr Farrar’s blog:
This funding in the House of Commons (“Short Money”) and House of Lords (“Cranborne Money”) is affected by a resolution of each House and provided for through a House of Commons Members Estimate.
They also have an Act dealing with the Administration of the Parliament which establishes a Commission much like here. However there it covers Parliamentary staff and services and support of Select Committees but not (as I can work it out) the Short or Cranborne Money. It is funded from a House of Commons Administration Estimate. The other difference with here I think is that the Clerk of the House of Representatives provides the staff for Select Committees in New Zealand.
The major point is however that oversight (aside from auditing) for Short and Cranborne Money is provided by Parliamentary Commissioner for Standards and the Committee on Standards and Privileges (same as our Privilages Committee). In the UK it is clearly considered to be a matter of Parliamentary Privilege.
Whether the Short Money is covered by Parliamentary privilege has been considered in the in High Court of Justice of Northern Ireland. Sinn Fein refused to take the Parliamentary Oath and as a consequence were denied all parliamentary allowances including Short Money by a Speakers Ruling. Regarding the allowances Ker J ruled that this was a matter for the Speakers authority as a delegate of the House and on behalf of the House. He observed: “control of its own internal arrangements has long been recognised as falling uniquely within Parliament’s domain and superintendence from the Courts intervention is excluded.” He further went on to observe obiter that even thought it wasn’t pleaded and therefore unnecessary, had it been necessary he would have held that the Speakers actions relating to allowances was a proceeding under Article 9 of the Bill of Right and therefore non reviewable in the Courts.
Mmmm not looking good for Mr Darton.
September 23rd, 2006 at 7:03 pm
InnocentIII you have succeeded in completely baffling me !
September 24th, 2006 at 1:03 pm
Kim
I am sorry I thought the post was reasonably clear.
Mr Darnton’s case raises the issue about the extent to which the Courts can supervise Parliamentary matters. This is a separation of powers argument and involves the common law doctrine of parliamentary privilege.
Mr Darnton is claiming that a statutory power is being exercised by MPs when spending their support allocation and that means the Court has jurisdiction to declare the meaning of that law – to provide clarity as to what the law is.
The Labour Party and the Attorney General (on behalf of Parliamentary Service) have responded by claiming at a statutory power isn’t being exercised but rather rights under parliamentary rules and therefore the matter is not susceptible to supervision by the Courts – although they are not as blunt as this as one must take a care where asserting that a judge has no jurisdiction. That is why they concede that Parliamentary Service (which has a statutory corporation for legal relations with the world) only administers the payments - the MPs decide what is done and spent according to speakers directions and parliamentary guidelines.
They will I guess be arguing why he should decline jurisdiction for the good of New Zealand’s constitutional arrangements. They will assert that there are other review and supervision mechanisms available that do not raise separation of powers issues – the Auditor General who is an independent officer of Parliament is the prime example, plus one can always vote the MPs out. They also respond by saying that even if it is a statutory power being exercised the judge should decline to hear the matter as it is subject to a review by the Auditor General. So here they are saying even if the judge finds that he has jurisdiction he should decline to exercise it because of other review systems and because it involves Parliamentary matters.
In both arguments ( no jurisdiction because of privilege or jurisdiction but use discretion not to exercise it) the classic ‘floodgates’ argument will probably be run i.e. this will the first of many such cases which will detrimentally affect New Zealand’s constitutional arrangements and the functioning of the Legislative Branch of government. Mr Darnton will be suggesting that this is unlikely given the particularly graven nature of the pledge cards and that maybe such supervision by the Courts will enhance confidence in New Zealand’s constitutional arrangements i.e. in relation to spending public money MPs are not immune from supervision by the Courts.
Interestingly a Parliamentary privilege (in this case immunity from supervision from the Courts over the allocation of resources and how those resources are spend by MP’s) is not inconsistent with a statutory involvement as new privileges post 1865 (I think) must be statutorily created anyway. Thus matters of privilege in New Zealand can be found in the common law as it stood pre 1865 in the UK, UK statutes incorporated into New Zealand law – Bill of Rights 1689 (which outlines a privilege for speech and procedures) and statute law and common law in New Zealand. In New Zealand there appears to be no statutory statement one way or the other about whether privilage attaches to MP’s actions regarding resources. Thus it will be a matter for finding some common law, developing it or not as the case may be.
Looking at how the UK courts have acted in regards to the resources of MPs will help guide judges here on how they might view this case. The Labour Party and the Crown I guess will be suggesting that the High Court follow the reasoning of the High Court of Justice of Northern Ireland. Mr Darnton will be arguing that the reasoning is wrong or why his case is different. As far as I am aware the issue of MP’s resources and how they are spent has never been considered here.
What is interesting about the High Court of Justice of Northern Ireland case is how expansive the judge was prepared to be by suggesting that he would hold if necessary that issues of the allocation of resources it a “proceeding” of Parliament for the purposes of the Bill of Rights of 1689 and therefore immune from questioning in the Courts. If followed in New Zealand this would be an interesting extension or clarification (depending on one’s point of view) about the common law understanding of the Bill of Rights and parliamentary privilege here. And because the Parliament of the UK and many other commonwealth parliaments rely on the Bill of Rights privileges, it will be cited in any future case that involves these questions overseas.
I hope this helps.
September 25th, 2006 at 9:48 am
Innocent is a labourite fool. The whole case simply hinges on whether public monies must be expended according to the law of the land…or not.
September 25th, 2006 at 10:44 am
“Innocent is a labourite fool”
Wrong on both counts.
“The whole case simply hinges on whether public monies must be expended according to the law of the land…or not”
Parliamentary privilege is part of the law of the land.
One of the questions in this case is whether use of resources by MP’s can be supervised by the Courts. Simply put if there is no statutory power exercised but rather it is all Parliamentary then there is no statutory law to declare and it may or may not be covered by privilege. Or a mixture of statutory power and parliamentary rules then the judge may find that the matter is privileged particularly if parliamentary side determines how the resources are utilised.
Therefore according to law you might have to look to Parliament to remedy any wrongful (in breach of the rules but not illegal as in a breach of statute) use of these funds and take what remedy is made into account when voting next time.
September 25th, 2006 at 10:03 pm
innocent - I would have thought your argument falls at the rather obvious point that parliament passed laws constraining its own activity. The definition of electioneering is met and the case succeeds.
The flip side of your argument is that politicians can ignore and laws and spend any amount of public money on themselves providing they can get a cheque of of PS is simply too fatuous to be plausible as a government defence.
September 26th, 2006 at 12:31 pm
Sagenz
You raise some interesting issues.
Remember this case isn’t brought under the Electoral Act 1993. There has not been Court judgment that the pledge cards are in fact party electoral activities of Labour for the purposes of the Act. There is an opinion of the Chief Electoral Officer and the Electoral Commission. The Police considered the matter and concluded that there was a prima facie case of a corrupt practice but didn’t prosecute the matter. Some clarity would have been provided if a Police prosecution occurred or an electoral petition that would have indirectly got to the issue of the characterization of the pledge cards for Electoral Act purposes.
A declaration case under the Electoral Act 1993 that considers something already done in last election or the three months up to it would be difficult, as the Act limits the way and timeframes in which an election (including electoral activities) can be questioned.
Probably a judge would say that despite all the difficulties of framing an electoral petition to get at party electoral activities, that this is what should be done as Parliament has put a high store on getting these disputes considered quickly and in the absence of that there should be high certainty as to the results of an election.
A declaration might be taken for something that is yet to be done so long as this wasn’t hypothetical or moot. One might run the argument that party electoral activities cannot be directly considered in an electoral petition because these relate to the return of electorate candidates. Thus the only way one can direct a direct legal view on the characterization of whether the thing is or is not a party electoral activity is to seek a declaration prior to doing it. I guess National or the Libertianz could do a mock up of the pledge card that is exactly the same as Labour’s but in National/Libertianz or livery and seek a declaration from the Court. That would be interesting. Perhaps it is unlikely that National will do this because of their previous use of Parliamentary resources.
Even if Mr Darnton cannot proceed with his declaratory judgment case because the Court finds it has no supervisory jurisdiction because the matter is Parliamentary and therefore enjoys a privilege, he might consider a declaratory judgement under the Electoral Act for a proposed pledge card, he can even stamp it with a Parliamentary Crest as he intends to contest and win any upcoming By-Election (in Mangere say) and thus might be an MP with a support allocation.
Finally remember that rule against “electioneering” and soliciting members, money and votes that is relevant in this declaration case is a parliamentary one in the members Handbook. There are also various statutory provisions cited but not the Electoral Act 1993.