Select Committee submission on the waka-jumping Bill
April 30, 2018
I have previously posted about the 'waka-jumping' Bill. Yesterday I gave oral evdience to the Justice Select Committee arguing against enacting the Bill in its current form. This oral evidence was based on my written submission to the Committee, which I set out below.
My name is Dr Edward Willis. I am an academic at the University of Auckland’s Faculty of Law. My research specialisations include New Zealand public law issues and am widely published in that field. I have an LLM (with Distinction) from Victoria University of Wellington and a PhD in Constitutional Law from the University of Auckland. Prior to taking up an academic appointment I was a senior practising solicitor with experience advising both private and public sector clients on public law issues.
This document is my submission to the Justice Select Committee on the Electoral (Integrity) Amendment Bill (Bill). The submission is based on my research into, and experience working with and advising on, New Zealand’s constitutional arrangements. I wish to appear before the Committee to speak to my submission.
The integrity of our electoral system is of the utmost importance to society. It is central to the legitimacy and effectiveness of our government, and to the proper exercise of public power. The Bill provides an opportunity to consider how the integrity of our electoral system can best be promoted. I thank the Committee for the opportunity to make this submission.
I note that I have read the submission of Professor Andrew Geddis, Professor Claudia Geiringer and others. While I do not necessarily oppose the enactment of the Bill outright as that submission does, I broadly echo the concerns with the Bill detailed in that submission.
My submission can be summarised in terms of the following points:
the Bill appears to incorporate an assumption that the maintenance of the proportionality of political party representation in Parliament as determined by electors on election day is coextensive with the integrity of the electoral system, which is unlikely to be true;
political parties are already very powerful within the electoral system, and erecting another blanket barrier to Members of Parliament acting on their individual conscience in favour of party loyalty is unlikely to be necessary or desirable; and
the Bill will have the effect of extending legal regulation to quintessentially political questions about political party membership of Members of Parliament, which undermines electoral integrity.
The underlying purpose of the Bill is to achieve a specific, narrow goal: maintaining the proportionality of political party representation in Parliament relative to the views of electors as formally expressed on election day. The drafting of the Bill, and the proposed new section 55AAB in particular, appear to assume that this specific goal is co‑extensive with promoting the integrity of the electoral system. However, while proportionality of political party representation is important, it is not the goal of our electoral system.
The goal of our electoral system is to ensure effective representation on a proportional basis of the diversity of views of electors. Proportionality of political party representation in Parliament is a proxy for this more fundamental goal. In reality, in‑term changes to the proportionality of political party representation relative to the views of electors on election day may either promote or harm electoral integrity depending on the particular circumstances in question. The Bill, as currently drafted, is not sensitive to these differences in circumstance, and therefore may actually harm public confidence in the integrity of the electoral system overall.
Targeting the specific goal of proportionality of political party representation rather than seeking to promote electoral integrity in the round might be justifiable if there was clear evidence:
that the overwhelming concern of electors when voting is to support their preferred political party over and above the individual members of that party who are standing for election; or
that there is a widely‑felt and strongly‑held belief within the general population that the proportionality of political party representation in Parliament is of acute concern, and that special protections are needed to address that concern.
The Committee may hear evidence in support of these propositions in the course of the submission process. However, unless that evidence is compelling, it is not clear that either of these propositions hold true.
In respect of the voting preference of electors, there is no simple way of distinguishing in the minds of electors between the political party in an abstract sense from the candidates who make up the party membership. It is more plausible that electors vote both for the party in an abstract sense (including the promised or anticipated policy position and perceived values of that party) and for the individuals on the ‘list’ produced by the party. This means that both the individual Members of Parliament and the parliamentary party have responsibilities to the electorate. These responsibilities may diverge (or be perceived to diverge) without any kind of impact that we would usually associate with undemocratic government.
On that basis, I would argue that electors do not vote on an assumption that Members of Parliament will be governed by absolute loyalty to the political party they are associated with. If that proposition is accepted a reasonable, then it follows that specific regulation designed to promote absolute loyalty of individual Member of Parliament to their political party risks inhibiting the democratic function of our electoral system and the proportionality of diverse views that sustain it.
In respect of political party representation in Parliament being of acute concern to the New Zealand public, I consider it relevant that there is no public groundswell of support for the kind of reform proposed by the Bill. The fact that the public has not been significantly moved on this issue suggests either:
that maintenance of the proportionality of political party representation in Parliament is not a serious concern, and that other factors relating to electoral integrity are more relevant; or
that existing political sanctions for perceived breaches of electoral integrity are effective and sufficient.
If the Committee does not receive clear evidence to refute these points, then it is difficult to understand what the rational justification for the Bill might be.
My point is not that proportionality of political party representation in Parliament in unimportant. It clearly is. However, even well‑intentioned attempts to enhance the maintenance of proportionality understood in this limited way risk diminishing other aspects of proportionality and representation that are essential to the public’s confidence in the integrity of the electoral system. As a result, the Bill is likely to fail to achieve its own objective of promoting electoral integrity.
The vibrancy of our democracy depends on diverse representation, and this includes a healthy tension between Members of Parliament demonstrating loyalty to their political party and exercising their individual conscience where those two imperatives come into conflict. Intra-party dissent is an important aspect of the political process, and is just as valuable as inter-party dissent. Healthy democracies tolerate this kind of political dissent. While party loyalty is important, open disagreement and (in some cases) defection can be a principled and pragmatic way of ensuring effective and proportional representation of the multiplicity of views of electors.
The main effect of the Bill is to empower the political party establishment to force dissenting Members of Parliament out of the House. This facilitates the ability of party hierarchies to use party rules and party disciplinary procedures to stifle debate within the party. In some circumstances managing debate and dissent in this way could be appropriate. However, a breakdown in trust and confidence between a Member and their party is not equivalent to a defection in all cases. Under the provisions of the Bill the party leader (with additional support from the party) will determine that the Member should leave Parliament. There is no guarantee that this power will not be exercised in situations where dissenting views are expressed in good faith and to the advantage of the electorate overall.
The concern here is not simply that a section 55A(3)(b) notice risks being misused by a political party’s parliamentary leader in practice. A broader concern also exists, which is that the very presence of this expulsion regime might inhibit effective debate and dissent among the parliamentary members of a political party. This has a direct impact on the range of views on an issue that are able to be discussed and debated in a public forum, which harms the democratic and representative nature of our most important political institution. It therefore risks harming, rather than promoting, electoral integrity.
Leaving the maintenance of the membership of Parliament as determined by electors to the discretion of the political party is to privilege the views of that political party over the views of electors. This transfer of power away from voters can only occur at significant risk to the democratic integrity of the electoral system. Further, taking this risk seems to be a disproportionate response to a discrete and relatively minor issue given that political parties are already very powerful entities within the political system. A number of factors suggest that the electoral and political system already emphasises party loyalty to a significant and effective degree:
the party whip system promotes a high degree of party loyalty;
government accountability is largely addressed along party lines;
only political parties (with the support of other parties, if necessary) are able to credibly present alternatives to the current government and its policies; and
as a free association governed by its own rules, a political party will usually have wide freedom to determine its own membership.
Of course, in addition to these advantages, a political party also has at its disposal the most effective means of addressing the problem of disagreements and defections ─ candidate selection prior to an election. It is not inappropriate that a political party should face some political cost if it puts forward a candidate for election that turns out to be (from that political party’s perspective) a poor choice.
For a Member of Parliament to prioritise their individual conscience over party loyalty in this context and publicly express a contrary view to the official line of their party suggests that the issue will be deeply felt and will likely be of significant political moment. As currently drafted, the Bill gives insufficient weight to the individual choices and conscience of Members of Parliament in such circumstances. To erect another blanket barrier to the public expression of these views is unlikely to materially add to the integrity of the electoral system.
Role of law
Under our present electoral system, the consequences of a departure of an elected Member of Parliament from their political party is primarily a political question. There are good reasons for this to be the case. A defection can occur for a multitude of reasons. While it may be cynical or opportunistic, it may also be politically justified in certain circumstances. Whether this is the case or not cannot be pre‑determined, and is a matter of political judgement ultimately taken by the electors (as is appropriate in an electoral system committed to the principles of democracy). This point ─ that the consequences of a political ‘defection’ is primarily a political question ─ is a reflection of the fact that the proportionality of political party representation in Parliament is only a proxy for the broader goal of ensuring electoral integrity through the effective representation of a diverse range of political views.
The Bill will result in greater juridification of these quintessentially political questions. There are at least three avenues for a section 55A(3)(b) notice to be legally contested:
the correct interpretation of the provisions of the proposed legislation (for example, whether the requirements of proposed section 55D have been met);
the natural justice elements relevant to the parliamentary leader’s decision to deliver a section 55A(3)(b) notification; and
the terms of the rules of association for the political party in question.
The benefits of this increased juridification are contestable, but even if they are accepted they will nevertheless be outweighed by the clear disadvantages. The only realistic benefit is that the initiation of a legal process allows a contested question of ongoing membership of a parliamentary political party to be determined by an impartial body (the courts). However, any benefit associated with that impartiality will almost certainly be outweighed by the perception that the courts are being used to determine inherently political questions that are best left to popular accountability mechanisms. This serves to undermine the political neutrality of the courts, and could give rise to a perception that electors are being disenfranchised at the hands of legal processes.
I recommend the following specific amendments to the Bill in order to mitigate the concerns raised in this submission:
amending the proposed section 55AAB to better clarify that the maintenance of the proportionality of political party representation in Parliament is not co‑extensive with the integrity of the electoral system in all circumstances;
amending the proposed section 55C to better allow for political realignment immediately ahead of a general election, where the desirability of this realignment can be directly tested by the electorate; and
amending the proposed section 55D to require the party leader to expressly consider electoral integrity separately from the issue of the proportionality of political party representation in Parliament, and to give reasons for his or her views.