When the umpire commits the foul

If Parliament's rules say you aren't even allowed to refer to the existence of a particular court case, then how can the Speaker enforce those rules without letting everyone knows that the court case exists?

The following interchange with the Speaker took place today in the middle of Andrew Little's reply to the Prime Minister's statement to the House.

ANDREW LITTLE: ... What about the standards of Government? What about the promise of 2008: “The Government I lead will be a Government of good standards.”, and its chance to do something; its chance to demonstrate that they actually are a party of standards in Government. They were confronted with it at the end of last year. One of their MPs is under a police investigation. One of their MPs is under a police investigation.

Mr SPEAKER: Order! I invite members throughout this debate to be very careful. We know there was a court case, and we know that all details were suppressed. [Interruption] Order! There is Standing Order 115. Should any members think I should consider this matter differently, I invite them to use that Standing Order and write to me. At this stage no member has done so. I invite Mr Little to continue.

ANDREW LITTLE: Thank you, Mr Speaker. I understand and appreciate the caution you are expressing. I make no reference at all and make no comment beyond the fact that it is on the record that an MP was under a police investigation. He is not the first. That Government well knows, because they have drawn the attention of the public to other MPs under a police investigation—a police investigation that led to no outcome at all. But here is the point. We had an MP under investigation, who was then allowed by this Government to chair the parliamentary committee—

Mr SPEAKER: Order! I have given a ruling that I had given considerable consideration to. If the member continues in this vein, I will have no choice but to terminate his speech. I have given a ruling whereby we acknowledge there is a court case of which all details were suppressed. [Interruption] Order! This is a time when this Parliament has a responsibility—a duty—to respect the jurisdiction of the court, and I expect that to occur today. I invite Mr Little to continue.

ANDREW LITTLE: I absolutely understand the principle of comity between Parliament and other branches of Government. That is absolutely crucial. I have made no reference to any core process. I just want that to be on the record—none whatsoever—but standards of public life are important. Standards of public life are important. ...

I'm not going to embellish this report with any further comment on its subject matter. In particular, I'm not going to speculate which particular individual might be the subject of the discussion. (And note carefully - any such speculation in the comment thread will attract immediate editorial intervention and suspension of commenting privileges!) All I will say about the exchange between Mr Little and the Speaker is that it conveys information of a nature that no news organisation has felt able to report on, no doubt because of the particular nature of the judicial order that "details were [to be] suppressed" referred to by the Speaker.

And yet here I am, communicating it to you now. How can I do so? Am I risking the wrath of the courts through this action?

Well, hopefully not. Up until August 7 last year, I wouldn't have done it. Because up until then there was no legal protection available to someone who reported something said in Parliament that might breach a "suppression" (really, non-publication) order issued by the courts. The person who said it in Parliament had absolute legal protection, but those who repeated what was said outside of Parliament didn't have any.

However, with the coming into force of the Parliamentary Privileges Act 2014, such  legal protection does exist. Under section 20 of that legislation, this post qualifies for a "qualified immunity". And under section 18, the nature of that protection is an "immunity from any civil or criminal liability for the relevant communication". Sure, that protection would be lost if a prosecutor were able to prove that I had "abused the occasion of communication" - in particular by acting in "bad faith", or with "a predominant motive of ill will". But I have been careful not to say anything beyond what a bald transcript of the words in the House says, have deliberately refrained from speculating on the identity of any individuals involved, and have cautioned anyone wishing to comment to do likewise. So I'm confident I haven't abused the occasion.

Furthermore, there's an important point I want to make by way of reproducing the exchange between Mr Little and the Speaker. Note that the Speaker was trying to do the right thing in this exchange. He was trying to make sure that Mr Little did not, whether deliberately or by accident, say something that the courts had ordered not to be published. In so doing, the Speaker was seeking to uphold the House's own rules:

Matters awaiting or under adjudication in, or suppressed by an order of, any New Zealand court may not be referred to in any motion, debate, or question, including a supplementary question, subject always to the discretion of the Speaker and to the right of the House to legislate on any matter or to consider delegated legislation.

That rule exists for good reason - it is not healthy for MPs to use the privilege they enjoy in parliamentary proceedings to talk about live court proceedings, lest such discussion be seen to influence (or attempt to influence) the outcome. And it is just as bad for MPs to use their privileges to air matters that the courts have determined ought to be kept out of the public arena (especially now that what MPs say in the House can be reported on with legal protection).

But the way that the Speaker did so - himself making reference to the existence of a case that has not been publicly reported - is highly problematic. Which makes me think that the Speaker's office is going to have to think of a new way of dealing with similar issues if and when they arise in the future; a different form of words that allows the MP speaking to know they must exercise discretion (or even must cease speaking altogether) without explicitly detailing the reason why. Otherwise the act of trying to ensure that the House's rules are followed ends up creating the very situation that the rules of the House are designed to avoid.

[Final note: This is somewhat fraught terrain in which to be rambling, so please exercise self-control when commenting. Also, a precautionary approach will be taken to editing comments - so if yours gets pruned/redacted, sorry. But there's a bunch of good reasons why everyone needs to be careful what they say in this situation.]