A firm prediction about what will happen on September 21

Or, rather, some speculative ruminations on what will happen if Winston Peters holds the balance of power and won't commit to supporting either bloc in the House. 

Imagine, if you will, a scenario on September 21 where the provisional election results deliver a Parliament where National cannot form a majority even with ACT/United Future/Maori Party support, Labour cannot form a majority with Green/Mana-Internet Party support and Colin Craig's Conservatives fall short of the threshold. The National/ACT/United Future/Maori Party bloc, while not a majority, is larger than the Labour/Greens/Mana-Internet Party one. Further, let's stipulate that special votes won't appreciably alter this situation. Finally, let's assume that New Zealand First has made it over the 5% threshold, and so effectively gets to determine who will govern the country; or, more accurately, Winston Peters gets to determine who will govern the country.

There's lots of amateur Winston-watchers who believe that they can predict confidently what will happen in such a case. Winston won't want to be second fiddle to the Greens, so he'll go with National! Winston wants one last chance to leave a policy legacy, so he'll go with Labour! Winston is his own man, so he'll sit on the cross benches! Winston will demand to be PM and require other parties to support him in that office!

But, in truth ... I don't think anyone really would bet their house on what would happen in these circumstances (and I tentatively include Winston Peters in that statement). 

So it was interesting to see Liz Owen press John Key about just this scenario on some slapstick comedy show that screens at an ungodly hour in the weekend. (Sorry, Tim, sorry ... it was, of course, on New Zealand's leading current affairs programme, The Nation, which is compulsory viewing for all who consider themselves "politically informed".) You can watch for yourself what he had to say here.

Key's interview then led Chris Trotter to write a foreboding Op-Ed in the Christchurch Press, reading all sorts of foul intentions into Key's statements:

Key told TV3's The Nation on Saturday morning that if he felt that Peters was mucking him around, he'd advise the Governor-General to summon the new Parliament.

He also signalled his intention to continue governing as a sort of pro tempore Prime Minister until defeated by a motion of no-confidence - at which point he would advise the Governor-General to dissolve the House and call a new general election.

Faced with the prospect of being punished by the voters for forcing them into an unnecessary and unwanted snap election, Key clearly believes that Peters would blink first and get in behind a National-led Government.

I think this badly misstates what Key was saying. Of course, if Peters is in a kingmaker role, then he can make a King. That is to say, if Peters were to agree to affirmatively support either National or Labour-Greens on confidence and supply, then they would get to govern straight away. If his choice is Labour/Greens, then John Key would no longer be Prime Minister, so that would be that for him.

But what if Peters doesn't support either side and instead chooses to "sit on the cross-benches", refusing to affirmatively support either National or Labour-Greens on confidence and supply? This is the situation Key was asked to address. And what Key did was simply recognise the reality that, in the scenario outlined, without Winston no-one has an outright majority. And if that is the case, there are only two alternatives:

  1. Someone governs in a minority capacity until defeated at a vote of no-confidence; or,
  2. Parliament is dissolved and new elections are held.

All Key then said was that he would be prepared to carry on as Prime Minister in the first circumstance - a role he holds unless and until he must resign it because either another individual (David Cunliffe) can demonstrate that he or she enjoys the confidence of the House, or a majority of the House vote no-confidence in him.

Note, then, that these are not necessarily the same thing. 

If Peters (and the rest of New Zealand First, of course) were to vote “no confidence” in Key as Prime Minister without then agreeing to affirmatively support some sort of Labour-Green bloc alternative, then that means that no-one would be able to gather a majority of MPs in the House. And if no-one can do so, it's new election time.

So Key is betting that if Peters is in a position where he won't positively support either National or Labour-Greens in office, he'll have to at least abstain on motions of confidence and supply in order to allow the National-led bloc to govern ... otherwise (as I've just said) there will be no option but to have a new election. And in such a scenario, Key asserts, New Zealand First would likely be blamed for "instability" and be heavily punished.

That analysis leads me to another mistake in Trotter's Op-Ed:

Key's reference to the Canadian constitutional crisis of 2008 is deeply worrying. The Canadian PM's claim to possess a "moral mandate" to continue governing without a parliamentary majority was accepted only because the Canadian Governor-General unconstitutionally allowed herself to be guided by a Prime Minister whose right to govern she refused to put to the test.

Again, this doesn't accurately reflect what Key said on The Nation. He didn't invoke the 2008 prorogation crisis at all in the interview - which, as Trotter correctly argues, would be an inappropriate example for the New Zealand context. 

Rather, Key was pointing to the example of Stephen Harper's governments between 2006-2008 and 2008-2011, each of which held a minority of the seats in Canada's Parliament but nevertheless were able to continue in office because opposition parties abstained on confidence and supply votes. And, said Key, this proves that you can have a functioning government in a Westminster system without having the affirmative support of an absolute majority of the MPs in the House.

So, if Trotter has misunderstood (or, just maybe, misrepresented) what John Key was saying, then what will happen in the initial scenario outlined?

Well, one thing that may happen is that Peters makes a deal and agrees to support one bloc or the other. In which case, that bloc immediately gets the right to govern. John Key either becomes PM again as leader of a new Government, or David Cunliffe takes over as the leader of a new Government.

But unless and until Peters does so, John Key and the National Party continue in Government under the "Caretaker Convention" - they provide the Ministers who advise the Governor General and continue to run the show, albeit in a very restrained and limited manner.

Then, under the Constitution Act 1986, Parliament must be summoned within six weeks of the election. When Parliament is summoned, after the formal niceties are squared away, there is an immediate opportunity to "test the confidence of the House".

While a Government has generally already been formed, it is important that ‘confidence’ in the Government can be tested in the House. The Address in Reply debate provides this opportunity, taking precedence over other government business. ‘Address in Reply’ refers to the need for the House to adopt an address to the Governor-General in reply to the Speech from the Throne. This is a 19-hour debate, during which new members deliver their maiden statements. During the debate a ‘no confidence motion’ can be moved. This provides an opportunity for the confidence of the House to be tested. At the end of the debate a vote is taken. If the Government survives the ‘no confidence’ vote, its right to govern is confirmed until that support is withdrawn or until the electoral cycle again comes to an end.

So at this point, if Peters is still playing coy and refusing to affirmatively give his support either bloc in Government, the rubber hits the road. 

If Peters votes against Key's minority Government, then it falls. And assuming that Peters won't affirmatively support the Labour-Greens bloc in Government - a reasonable assumption, or else he'd have done so well before the vote is held - there is no other viable governing option. The Labour-Greens bloc cannot govern as a minority even if New Zealand First abstained because it will be outvoted by the National-led bloc ... meaning that we have to have an election, which Key thinks would be a disaster for New Zealand First (and he's probably right about that).

But if Peters abstains on the vote of confidence, then the National-led bloc will win it (because in the stipulated scenario, it has more votes in the House than the Labour-Greens bloc, and all you need to win is a majority of MPs who vote on the issue, not an absolute majority of the MPs). Meaning that the National-led bloc now can govern in its own right (i.e. free from the Caretaker Convention) - albeit as a minority government that will have to seek Winston Peters' support (or other help) in order to pass every single legislative measure it wants to become law.

And this is all I think that John Key was trying to say. Which actually seems quite reasonable to me.