The latest opinion polls raise the prospect of a scenario that's new to modern New Zealand politics – the party that comes second leading the government. And it's something we need to front early

Two polls this week show support for National slipping, reinforcing my belief that not only has National missed out on any sort of honeymoon after November's election, but its popularity has likely peaked under John Key, never again to reach those heady days of 2009, or even late last year. Given the weakness of other parties on the right, that means we may have to confront a new constitutional reality heading into the 2014 election – the potential for the country's second most popular party to lead a government.

Don't get me wrong. I'm not pretending to predict what might happen between now and the next election or that John Key isn't leading a popular government right now. Electoral cycles have a certain rhythm to them, however, and in some circles Key is himself admitting that, all other things being equal, he's only got a 50/50 shot at a third term.

So let's take a look at those polls.

TV3's Reid Research poll has National hogging most of the vote on the right, as the party consistently has under John Key. It sits on 47.5 percent, almost exactly what it got at the election. But Labour's up a little, so it's interesting to consider the left and right blocs. According to the TV3 poll, support for ACT and United Future is negligible.

Add together the opposition vote – Labour on 29, the Greens on 13 and New Zealand First on five. Mana has 1.3 percent, should Labour change its policy on supping with Hone Harawira. But even without Mana, the left and right blocs are neck and neck given the margin of error, and that's before any assets are sold and public services are (more substantially) cut. The Maori Party could well have the balance of power.

The latest edition of the Roy Morgan poll – considered a little less reliable than Reid, but more frequent – has National down to 45.5 percent, Labour on 31, the Greens on 11.5, New Zealand First on six, ACT on one and United Future on 0.5. As pollster Gary Morgan points out:

“Overall support for the full National-led Government has dipped to 48.5% (down 0.5%), trailing the Opposition Parties (51.5%, up 0.5%)."

Which opens the door to the fascinating scenario mentioned – that the largest party may not be able to command the confidence of parliament. Assuming no leadership changes, John Key may be leading the most popular party and may still be preferred Prime Minister, but it could be David Shearer heading off for a chat with the Governor-General about leading the country.

While that possibility lies well into the realms of uncertainty, it would cause a huge commotion. So it's something we should start getting our heads around asap.

For those who spend their working days in the political world, it's not such a radical notion; it's Pol. Sci. 101 that the government has to command a majority in the House. But most voters would be shocked.

To be honest, even now I suspect that the bulk of voters look at politics and still see a first past the post world. It's National or Labour, just with their respective add-ons (there to keep the buggers honest or act as some ballast).

TVNZ and Colmar Brunton polled on just who should get to form the government in the 2008 campaign. From memory, Chris Trotter went off his nut about the question, seeing it as a pro-National set-up. But the fact is, we should be discussing this topic and guaging the public mood.

It was a legitimate question and the results were fascinating. To quote from the story at the time:

"...nearly 80% of people think that the party with the most votes should be the one that gets to lead the government, with just 15% disagreeing."

John Key said:

"All of the last four MMP elections have reflected that the largest party formed the government and I think that just reflects the will of the people. It's called democracy."

Which is kinda true as far as it goes. But that's not very far. What parliamentary democracy actually requires is the confidence of the House and the numbers to keep the cash flowing. If "the will of the people" doesn't give the largest party enough votes to do that either directly or via known coalition partners, then the will of the people ain't in its favour.

Whilst we have no written constitution saying as much, there's no doubt that would be our constitutional reality.

But if over three-quarters of voters think otherwise, isn't it a good idea to start talking about this, rather than confronting it in the heat of political battle? Yeah, I think so too.

Perhaps it should take a place in the MMP review, because if voters were to feel surprised or duped in any way by such a turn of events, it could seriously undermine support for the system.

As it stands, you can expect more sympathy from the left for this position, because with two strong-ish parties it's to their advantage. National, if it has any sense, will already be pondering how to get around this issue. For a start it may seek more actively to pump life into ACT or United Future, although that may be a forlorn hope. It may look to boost the Conservatives or nurture more carefully its relationship with the Maori Party.

Of course it may not be a problem; one or other major party may comfortably control the numbers. Voters, if they see this scenario coming and think it unfair, may vote strategically. Or it may just be a matter of letting the largest party try to form a government, fail and be seen to have failed, and then let the other parties come together.

Either way, it'd be wise for us to adopt a no surprises policy by nutting out the rule and making it clear to voters sooner rather than later.

Comments (25)

by Rob Salmond on February 24, 2012
Rob Salmond

Tim, do you have the wording from that CB question in 2008? I think a fair wording of this kind of question would be:

Which party should be invited to lead the government after an election?

A: The party that won more votes than any other party in the election, regardless of whether it has majority support in Parliament

B: The biggest of a group of parties that has majority support in Parliament, regardless of whether it won more votes than any other party in the election.

C: Other (please specify)

Looking at the results, my own guess it that this is not the question CB asked.

 

by Tim Watkin on February 24, 2012
Tim Watkin

No Rob, don't have that question. Was before my time there. Of course asking "should the biggest party lead the government" would be rather biased. You'd think there'd have been at least some acknowledgement of the issue at play, such as adding "even if it doesn't command a majority in parliament" or something. But don't know.

But a quick online search offered this discovery... a rather insipid editorial from the Herald in 2008 discussing the issue, but making no mention of gaining a majority in the House. It says its survey also found around 80% of voters would expect the biggest party to lead the government and "Parties trifle with that result at their peril."

It's not precise about the wording of its question, but says it was roughly:

Would a government led by a party that "lost" the election be recognised as legitimate?

Which could hardly be more leading if it tried!

As for your one I don't think we tend to do A/B/C questions in polls here, do we? 

by Ian MacKay on February 24, 2012
Ian MacKay

Your whole post hangs on the belief that 80% of the people believe that the biggest party should lead Government. I must mix in the wrong crowd because no one that I know believes that. Surely all those computations by various pundits during the last election highlighted the various possibilities and had there been any misunderstanding, then those 80% people would have vented their outrage long and loud. And since the last election there was much discussion on how narrow was the diminished National victory. For instance had 10,000 Christchurch people  voted differently then 28% Labour would have lead Government.

Maybe the 80% thought that the largest party should get first choice to form a Government?

by Chris Trotter on February 24, 2012
Chris Trotter

Better late than never on this matter, Tim. (Pejorative asides about people "going off their nut" notwithstanding).

It was never simply the question asked that was at issue in 2008 but Guyon Espiner's interpretation of the resulting data. That, and his failure to inform TVNZ's viewers of the constitutional facts of the matter.

 

by Tim Watkin on February 24, 2012
Tim Watkin

Wasn't meant to be pejorative Chris, just the vernacular. As for being late, well, our business is all about being timely, as you know. So I've been sitting on the point, waiting for a couple of polls to justify kicking off the discussion (once more).

Of course while you and I agree on the constitutional aspects, it's fair to say that they're not written down anywhere. So while it's a matter of logic and fairness, can we describe it as fact? While the Herald editorial was bizarre for not even mentioning the matter of a majority, its point about percevied legitimacy is worth considering. People my not like it and seem to expect something other.

Ian, I suspect you just mix with the wisest of the wise!

 

by Graeme Edgeler on February 24, 2012
Graeme Edgeler

I predict that the public disquiet with a post-2014-election coalition of runners-up will not be as great as it otherwise might be.

Had Winston gone with Labour/Alliance in 1996, it would have surprised no-one and we'd all have thought that "well, that's MMP". Had Labour been able to cobble together the numbers after 2008, I think there would have been much more of a backlash.

A coalition of runners up that defeats an incumbent government is going to be more politically acceptable than a coalitions of runners-up that prolongs a government that was previously lead by the major party, irrespective of the constitutional niceties (where, for the record, I agree with y'all).

I will note, however, that while we appear to think that this is all very simple from a constitutional standpoint, the not terribly dissimilar Canadian system does appear to have a constitutional convention that the largest party gets to govern, irrespective of whether it actually has majority support in the lower House.

It's not media types and constitutional law people who need to be talking about this. If Labour, the Greens and New Zealand First, and whomever else wants to be in on the next non-National government, want the public to be willing to accept the legitimacy of the coalition government in which the party which got the most votes plays no part, then voters have to be told well before the election that that is what they are voting for. If people go into the election deciding between a National Government and a Labour Government, they may be a little miffed to get neither. If voters are told by the parties themselves that they are choosing between a National Government and a Labour/Greens/NZF government, they may be more willing to accept one if they get one.

I blogged on this before the election. And if you do read my post, you may wish to read the reply from Chris Trotter, and the apology to him that its comments thread contains.

by Graeme Edgeler on February 24, 2012
Graeme Edgeler

Rob - I'm not sure your question is fair either. I suspect most people - if they really thought about it - wouldn't want to biggest group of parties with a majority, but the smallest group of parties with a majority (which, to date, is pretty much what we've got).

by Tim Watkin on February 24, 2012
Tim Watkin

Rob, following Graeme's link, Chris says that the question was: "Should the party that wins the most votes get to lead the government?"

Which seems insufficient to me.

Graeme, what you seem to be saying, which I think is something that needs to be discussed, is that there seems to be some conflict between the politics of the situation and the accompanying constitutional law. Chris argues that ignorance of the law is no defence. And in individual cases that's indisputable.

But if the ignorance is en masse, that's something quite different. While it may not be desirable, it may be a defence. Because if the vast majority of the population believe the law to be A, even when it's B, then you've got to respect the people's will enough to at least recognise that A may have some value.

I'm not arguing against myself or against the supremacy of having a majority in parliament... I guess what I'm stressing is the importance of getting this part of the constitution, if we can call it that, into people's heads and testing whether most people accept the wisdom of the principle. If that's not achieved, rightly or wrongly, we will have questions about legitimacy.

by Graeme Edgeler on February 24, 2012
Graeme Edgeler

That's pretty much it. An important part of the health of a democracy is the extent to which it is veiewed as healthy by the people. If a lot of people think that it would be illegitmate for a coalition of runners-up to enter government, when that happens, we may have to deal with a loss of public respect for the political process.

I still consider the following quote from my post to be valid: 'however illegitimate a political scientist may consider such an objection, if people generally have the concern that it is somehow wrong for the party that gets the most votes in an election to miss out on government then it is important we know. That any backlash might have been ill conceived in the minds of some, would not have made it less of a backlash, and it could have had a profound impact on the New Zealand political landscape.'

I said to Chris: 'My post was not principally about the legitimacy of coalitions of runners-up, but about exploring the concerns some people seem to have with them, and addressing the circumstances in which they may be more likely to arise. These concerns, at least among some, appear to be firmly held, and I recognise, and share, the concern about what might happen (perhaps "people power" protests, but more likely, a loss by some in respect for the political system, more cynicism about politicians' motives and a decrease in civil society, and loss of support for MMP).'

I hypothesise, however, that discontent within the sector of the population that does not like the idea of a coalition of runners-up, or thinks it unfair or undemocratic that the largest party may not get to be in government, will be less if:

1. the first time this happens unseats a government, rather than prolongs one;

2. the coalition is clearly signalled before the election by those involved;

3. the coalition is small: if Labour + Greens can govern because it has more seats than than National + ACT, people won't be surprised. If the coalition is Labour + Greens + New Zealand First + Mana + Maori Party, people may feel more cheated;

4. if the two largest parties are reasonably close in support.

I might add now that it probably wouldn't hurt if the first coalition of runners-up involved a second-placed National Party governing instead of a first-placed Labour Party :-)

by Tim Watkin on February 24, 2012
Tim Watkin

Graeme, I think points 3 and 4 are stronger than 1 and 2. Yes, 2 would help, but I think it unlikely. Certainly unlikely well in advance. And 1? Well, I'm just not sure. Actually changing the governent could be seen as more unfair by some. Especially if it's a close run thing (which perhaps undermines point 4. Could be that if it's really close, the heat is more intense).

But tell me this – could the MMP review rule/express an opinion on this? Or usefully make some statement to clarify what the electoral system/constitution expects in such a case?

by Dean Knight on February 25, 2012
Dean Knight

Tim

Thankfully, the suite of constitutional resources make the point plain in New Zealand.

As Sir Michael Hardie-Boys said in 1997:

"In a parliamentary democracy, the exercise of my powers must always be governed by the question of where the support of the House lies. It is this simple principle which provides the answer to those who sometimes suggest that in situations like that encountered by New Zealand after the last election, the head of state should simply call on the leader of the largest party to form a government. Size alone provides no reason to prefer a party if its leader does not appear to have the support of a majority of the House. It is better to wait for negotiation among the parties to produce a majority."

(Harkness Henry address; http://gg.govt.nz/node/471)

And each Governor-General has repeated the clear and singular statement that the process of government formation is a political process for them to stay out of, until a group of parties can clearly and publicly demonstrate they can command the confidence of the House (ie, majority vote on matters of confidence and supply).

On the legitimacy point, I've always thought it's much like a game of rugby (something my simple brain can cope with). The ultimate goal is to win by scoring more points than the other team.

Sometimes a losing team grumbles and says "But we scored more tries - we're the better team!"  Or, in other words, we're the more legitimate victor.  However, rightly, our response is to say "Meh. Tough luck. You still lost. No trophy for you."    

by Graeme Edgeler on February 25, 2012
Graeme Edgeler

But tell me this – could the MMP review rule/express an opinion on this? Or usefully make some statement to clarify what the electoral system/constitution expects in such a case?

The MMP review? No.

The Constitutional Review? Maybe.

Of course, the constitutional point is accepted by pretty much everyone. It's the political point that isn't, as for, example, in Canada.

Dean - the rugby analogy in this example is more: imagine a game of rugby, which, before it starts, some supporters think is won by the team with the most points and others think it is won by the team with the most tries. And where the captain of one of the teams has advised everyone watching that the team with the most tries is the winner. That the referree, after the game, calls the team with the most points 'victors' may not mollify everyone who was playing for one of the other teams.

There is then a riot.

by Dean Knight on February 25, 2012
Dean Knight

Graeme: lol.

But, thankfully, we have a wise referee who prior to the game made a public statement to all teams and spectators clarifying and confirming the rule about who wins...   

Maybe he should issue white cards to players who try to suggest otherwise?!?

by Christopher Bishop on February 27, 2012
Christopher Bishop

Dean - you seem to have missed the point. Nobody here disputes the constitutional reality that government is made up of parties that command the confidence of the House.

As I have pointed out to you before, the trouble is, most New Zealanders do not accept this, or believe it to be fair or appropriate.

If we get into a situation where Labour forms a government after the next election, but has, say, 15 fewer seats than National, then it will be very interesting politically. And that in turn has constitutional ramifications.

People will not be placated by references to speeches given by the Governor-General in 1997.

by Michael Appleton on February 27, 2012
Michael Appleton

I think another factor in public acceptance of a post-election coalition is how support for the various parties changes during the course of an election campaign. Momentum during a campaign, as phoney a concept as that may seem, is important in framing public perceptions of the outcome. (If you watch the first couple of episodes of Borgen, a sort of Danish version of The West Wing, this point is made quite eloquently, when the third-highest polling party emerges as providing the Prime Minister, largely because it did *much better than expected*.)

My recollection of 1996 is that public acceptance of a Labour-led government as a legitimate option stemmed in part from the fact that Labour had done *better than expected* through the election year/campaign, and National *worse than expected*. (That is, Labour rising from being in the teens in the polls to getting a result in the high 20s was seen as a "victory" of sorts.)

I suspect that if National had shed another (say) five points in last year's election campaign, and Labour had gained five points - then the media would not have described this as a clear victory for National (even though National would still have out-polled Labour by ten percentage points). Indeed, such a result would have given Labour + Green + NZF a clear majority of votes, and I think National and its supporters would have been hard-pressed to grumble about a Labour-led government. Especially as National had made clear it considered votes for the Greens and NZF to be votes against a National-led Government.

by Tim Watkin on February 27, 2012
Tim Watkin

Graeme's right with his rugby analogy, as the problem is one of expectations. But on top of the public reaction re legitimiacy, there's a greater degree of political risk here re strsaight out power – what happens to the smaller parties that end up governing.

If the rules aren't clearly established, the smaller parties with 50% could take power and then be punished three years later by a public that feels cheated. Any controversial policy during the term could be undermined by the 'legitimacy question'. Opposition leaders could make hay with the idea that this government has an imparied mandate than therefore shouldn't do X or Y.

It could freeze a government or even have long-term implications for their ability to win power again down the track. And that would be unfair.

But Dean, thanks for the quote. Nice to have the facts to underpin the principle.

 

by Tim Watkin on February 27, 2012
Tim Watkin

Michael, you have a point, and one in sympathy with Graeme's (that he thinks it'll be ok in 2014, should this pan out). But to me your point argues the other way. That is, for all the theory that it will be less controversial in certain situations (such as with an outgoing government), politics can be so fluid and a campaign so messy, that there are too many variables to be able to predict what lens the public will view this through.

Some other un-thought-of scandal or resignation or lack of electorates or surge or whatever in the next 2.5 years may have more of an influence on public opinion that the more obvious ones Graeme suggests.

Campaigns especially change so much and are so intense, you don't want to be having this conversation that late in the piece.

by Dean Knight on February 28, 2012
Dean Knight

Chris:

There will always be political ramifications from coalition arrangements. Rightly so. If the electorate thinks poorly of a support party's decision to enter a coalition and support a particular lead-party (for whatever reason), the electorate will punish them at the next election.  Of course, that's nothing new - as Tim and others have said.

But constitutional ramifications?  The point I make is the constitutional position is clear and grounded in democratic principles.  If the electorate don't think that's fair, then what then do we do?  Go down the path of the Canadian path?  

The counter-factual is dreadful. Unstable. Lost confidence votes. Frequent elections. (The Canadian convention arises in part, I think, due to a due antipathy towards coalitions - something that is now the norm in NZ.)

Yes, there is work to be done to ensure the public understand the rules of the game.  But that's not helped by some of the self-interested spin we have seen from some politicians where they try and cast doubt on the constitutional legitimacy of some types of coalition groupings. And, as folk above recount, the media haven't helped either.

But kudos for Tim prompting some discussion on this at an early stage.  Maybe Sir Jerry might consider speech before the next election...*

* PS The core principles of government formation are also recorded in the Cabinet Manual (http://cabinetmanual.cabinetoffice.govt.nz/node/37#6.37).  It doesn't explicitly rebut the winner takes all rule - but the overarching principles implicitly suggest no preference to the highest polling party.

by Graeme Edgeler on February 28, 2012
Graeme Edgeler

If the electorate don't think that's fair, then what then do we do?  Go down the path of the Canadian path?

Why would we have to go down that exact route? Winston Peters has talked about the Constitutional Convention that the largest party gets the first opportunity to govern. How is it Consitutional Conventions get started? If every MMP election in the first 40 years of MMP results in the largest forming government, does it start to become a convention? The first 60, or 80? Not saying I support this becoming a convention, it just might.

This is why I think the first time it happens is important. If the first time it happens, it happens in circumstances where it is publicly accepted (National 42%, Labour 38%, Greens 14% and a couple of stragglers), then that acceptance will help the next time when the circumstances might otherwise be less kind.

If the first time it happens is National 50.2%, Labour 32, Greens 8%, NZF 8%, Mana 1% with three seats and an overhang, expect near-permanent damage to MMP.

by Dean Knight on March 01, 2012
Dean Knight

Graeme: I'm a little lost? Isn't the only alternative to the present Kiwi approach to adopt (however we do that) a constitutional convention like the Canadians that the largest party has the first right to form government?

In doing so, we need to accept that some or all of the natural Opposition parties will reluctantly provide at least supply - and probably confidence as well.  But imagine that if Lab had a couple more seats and Nats a couple fewer.  Difficult to see how the Opposition forebearance woud continue when a contentious policy item like SOE sales is progressed through Parliament 3 months after the election.

 

by Graeme Edgeler on March 04, 2012
Graeme Edgeler

First right to form a government does not equal right to govern, which seems to be how the Canadians do it. One way of doing it, would be to not have confidence motions. 

And yes, that is difficult to see, but perhaps that's because we don't have that constitutional convention.

There have been times in the recent past when the government hasn't had the numbers to enact a policy it supported, Labour couldn't get enough support for Darien Fenton's bill to extend the minimum wage to contractors, so it languished on the order paper. I suspect the odd thing like asset sales could just be something like that. The Government puts up a budget, and there's a motion to amend it before it goes through. The motion passes, but no-one says the government's lost confidence.

by Dean Knight on March 06, 2012
Dean Knight

I'm not convinced by any difference between "first right to form" and "right to govern".  That seems to be merely a procedural question of who either gets the first crack a coalition negotiations or face the first confidence vote.  I don't see how either really deals with the likely scenario that on key policy matters, more MPs in the House support those measures than support them.  Governments can, of course, lose votes without losing confidence.  But there comes a point where losing votes on central matters in their policy programme means they are a dead duck.  I would have put the partial asset sales in that class...

 

by Graeme Edgeler on March 06, 2012
Graeme Edgeler

Perhaps a new constitutional convention would just see us become more like a presidential system: the GG appoints a PM and Ministry from the largest party, who do the things that PMs and Ministers do, and the House decides what the budget will be, which the Ministers must act within. Why does a executive need the confidence of the legislature anyway?

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