Can bias be in the eye of the beholder - and can you call it like you see it?

Parliament's powerful Privileges Committee (P3C!) is going to have to decide the boundary of fair criticism of the House's Speaker. This should be fun!

According to Phil Lyth on Twitter (hey - it's how you know News is new!), Andrew Little and Chris Hipkins have been referred to Parliament's Privilege's Committee (or, as I've had cause to call it before, P3C) after a complaint from National's whip, Tim MacIndoe. What's he so upset about, you ask?

Well, back in the middle of October, Andrew Little successfully had his "Healthy Homes Guarantee Bill (No2)" pulled out of the members Bill ballot. The details of the Bill aren't that important for this post (although they matter a lot for people living in rental housing!). Three facts are important, but.

First, a Bill very, very similar to Little's (in the name of Phil Twyford) had been debated and defeated at First Reading on a tied 60-60 vote back in March of this year. (Note that a tie is the equivalent of a loss in the NZ House ... unlike Sweden, where they toss a coin to decide whether or not to proceed!)

Second, since that event, Winston Peters won the Northland by-election and so shifted the numbers in the House to 61-60 in favour of the Bill (assuming Peter Dunne doesn't change his vote on it). 

Third, after the Bill had been drawn from the ballot, the Speaker of the House, David Carter, made a ruling that the Bill was in breach of Standing Orders as it "is the same in substance as a bill that received or was defeated on its first, second, or third reading" in the same calendar year. As such, if the Bill came up for debate before the end of 2015, the Speaker would rule it out of order and knock it off the Order Paper. 

This ruling was the subject of, shall we say, some raised eyebrows, as it appeared to contradict previous parliamentary practices. The Labour Party raised these concerns with the Speaker the day after his ruling, but he remained unmoved. And if that was all that had happened, then there the story would rest.

However, it wasn't all that happened and so the story goes on. Because in addition to complaining to the Speaker in the House, Little and Hipkins went to the media with allegations that the Speaker's decision was taken purely to avoid the National Government suffering an embarrassing legislative defeat.

Here's Chris Hipkins:

"[National] have clearly done the numbers and worked that out, and now the Speaker is interfering on their behalf to ensure the Government does not face that embarrassment," Hipkins said.

"This is massive political interference in the parliamentary process by the Speaker." 

 And here's Andrew Little:

"Instead of helping to push the legislation through quickly National has clearly had a word in the Speaker's ear, leading him to make an unprecedented decision to stop the bill being read this year," Mr Little said.

"The ruling raises serious questions about political interference."

Well, so what? The Speaker is (also) a National Party MP. And politicians are always slagging each other off. Why exactly are these comments bad enough to get you hauled before the Privileges Committee (P3C!), when Kelvin Davis can call John Key "dumb" on RNZ's Morning Report without any consequences?

The answer to that question lies in the House of Representatives' powers of contempt - or, to put it another way, the sword it may use against those who would threaten to harm its functioning. In particular, Standing Order 410(o) says that the House may treat (and punish) as a contempt statements "reflecting on the character or conduct of the House or of a member in the member’s capacity as a member of the House". In other words, if you say something publicly that may lower the estimation of Parliament or individual MPs in the public's eyes - assuming such a feat is possible - then the House may choose to punish you for doing so.

Furthermore, it traditionally has been accepted that this rule applies with far greater strength in respect to the Speaker of the House, whose ability to function depends upon everyone accepting (or, at least pretending to accept) that he or she does his or her job in a non-partisan, even-handed, quasi-judicious fashion. This traditional understanding was spelled out by the Privileges Committee (P3C!) in a report issued just this September:

Reflections against the Speaker or other presiding officers, and in particular any comment that alleges that they have been biased in performing their duties, are among the most serious reflections that can be made about members. The rule that it is a potential contempt to make a serious allegation against the Speaker that reflects on his or her impartiality derives from the longstanding practice and tradition of the House of Commons. The rule serves to protect the reputation of the office of Speaker and the institution of Parliament.

Reflections on the Speaker have been censured in New Zealand on only six occasions, the last of which was in 1998. Standing Order 410(o) has therefore been used only on rare and serious occasions. The rules about reflections on members have constitutional significance, and there is no evidence that they are being misapplied to inhibit the free speech of members, the media, or the public. Accordingly, we believe that the rules should be retained in their current form. 

Note that this report was signed off by members of the National, Labour, Green and NZ First Parties ... including by one Chris Hipkins! So it isn't as if this complaint is some shock, out of left field manoeuvre using rules long forgotten by everyone except weirdoes like Graeme Edgeler.

What will be interesting, however, is exactly how the complaint is going to be adjudicated by the Privileges Committee (P3C!). As I wrote in September when the Committee's report came out:

[P]unishing such messages requires that a privileges complaint be laid, that the Speaker thinks it important enough to send to P3C, and that P3C then decides that the message has the particular effect outlined above. And in that assessment the right of freedom of expression - in particular, the right to be pretty scathing of the actions of elected representatives - will be an important consideration. So it's really an extreme, back pocket sanction that will be used very rarely (if at all) in the future.

Turns out the issue came up a little more quickly than I anticipated, but now we get to see just how it gets dealt with. A few brief thoughts:

First of all, it will be interesting to see whether Little and Hipkins run a "truth" defence here - to the point of seeking to question David Carter as to how he made his decision. Because the Privileges Committee is bound by the NZ Bill of Rights Act s.27(1) right to natural justice. Doesn't that include allowing those accused of making statements "reflecting on ... a member in the member’s capacity as a member of the House" to get the evidence needed to validate those statements?

Second, if such a defence is attempted, it will be interesting to see if it is allowed. Because the contempt traditionally isn't in falsely accusing the Speaker of bias or the like, but rather in making the accusation at all. So might the Committee's chair (backed by the Committee's National MP majority) rule that a "truth" defence is irrelevant and refuse to allow it to be put?

Third, the hearings will be polarised on partisan lines - that's a given. You only need to look back at how Harry Duynhoven's case was handled by the Committee back in 2003 to see how this happens even is pretty black-and-white circumstances. Given the rather febrile atmosphere prevailing in the House just at the moment, I think that partisan split will be even wider.

And finally, for all that the Privileges Committee always gets called "powerful" in the media (P3C!), there's really not that much can be done to Little and Hipkins. The Committee can recommend to the House that they be required to apologise for their remarks. It can even recommend fining them up to $1000 for making them. But that is it in terms of actual hand-slapping. The theoretical power the Committee posses to recommend jailing Little and Hipkins for their words will never, never, never be used against them. Never.

So my prediction? We're going to have a theatre performance from Little and Hipkins, where they play out their martyrdom for fearless truth-telling on a very public stage. We'll have the Committee Chair, Chris Finlayson, trying to run the proceedings with a "nothing but the facts, ma'am" approach and getting very snarky with the opposition members for trying to use the occasion to do something different. Grant Robertson and he will come near to blows on at least one occasion, as they trade insults in latin for hip pop-culture references.

And at the end of the day National, David Seymour, Peter Dunne  and maybe the Maori Party will vote in favour of the Committee's recommendation to require Little and Hipkins to apologise to the House (not to David Carter, mind!), while Labour, the Greens and NZ First will vote against it. Following which, Little and Hipkins will say sorry, which will then put the matter to an end.

But I suspect we'll have some fun and games on the way!