Behind the door at a parliamentary privilege hearing

Parliament's Privileges Committee has been a major source of news over the last few weeks. The committee is Parliament's own ersatz court, where a cross-party group of senior MPs consider whether their colleagues (or even non-MPs), may have broken Parliament's internal rules - something called a breach of privilege.

This week's stories involved a stoush between Te Pāti Māori and the Privileges Committee, over how a privileges hearing should be conducted. It culminated in three MPs, who had been summoned, failing to turn up to their hearing, and instead announcing that they would hold an alternative hearing.

The boycotted hearing was to look into events occurring during the first reading debate for the Principles of the Treaty of Waitangi Bill - when those MPs, at the point when their party could vote, instead contributed a haka on the floor of the chamber. Some might consider that a pretty definitive vote, but not necessarily one within the rules.

For background on the Privileges Committee, privilege itself, and what breach of privilege would mean in practice; I asked David Wilson, the Clerk of the House of Representatives. He runs Parliament's Secretariat, the Office of the Clerk, a role that includes advising MPs on Parliament's rules. He even wrote the manual on how Parliament works - Parliamentary Practice in New Zealand.

Phil Smith: Parliament and the MPs that form it have special legal rights and protections called privileges. They exist to help MPs do their jobs without risk of legal consequences. But that privilege is balanced by Parliament's own rules for what they can and can't do - based on honour and good form.

David Wilson: The key sort of privilege that members have, in debate in the House and select committees, is the right of free speech - in that no legal action can be taken against them for anything they say in those settings.

Balancing that, Parliament has agreed some rules, some limits around that. There are a few things that you can't say. You can't make offensive reflections against the monarch or the judiciary, for example; you can't accuse another member of being a liar.

So although the right of free speech is very broad, it's not absolute, because the Parliament as a whole has, by consensus, agreed to put some limits on it. The other thing they've agreed is that there needs to be a body to investigate apparent breaches of those privileges and rules. And that is the Privileges Committee, which is a multi-party committee, with representation from every party in Parliament. Generally it's chaired by the Attorney General [currently Judith Collins] and most of the members on it are senior members from the various parties.

Phil Smith: How does the committee receive a complaint and what happens?

David Wilson: The Privileges Committee gets its work by being referred things by the Speaker - Questions of Privilege, so things for it to decide on: When the Speaker says 'on the face of it, there looks like there might be a breach of Parliament's rules here', and it's [deemed] serious enough to want to ask the Privileges Committee to look at it.

[The Committee] gets that referral from the Speaker, thinks about what to do. Typically that will involve inviting the party that's accused of breaking the rules (and I mean "party" in the broad sense of person or people, not just political parties, but anyone who might have been alleged to have broken the rules), to appear before the committee, [explain] that, and answer questions.

Sometimes, they will do it just in writing - where it seems quite straightforward, or if it's an MP who already… accepts they've done something wrong, they might deal with it just on paper.

But otherwise they'll have a hearing (which is open to the public, and is generally reported by the news media), where the member or members will be questioned.

It's not only MPs that go to the Privileges Committee though. Anyone can be referred there, but more often than not, it is MPs because they're the ones who work within the framework of Parliament's rules and so are more likely to infringe on them.

Phil Smith: And often work closer to the edge because that's just what their job involves.

David Wilson: Yeah, that's right.

Phil Smith: It's a committee where the government would normally have a majority, isn't it?

David Wilson: There's no requirement that they will, but they frequently do.

Phil Smith: Historically speaking, has any government in the past …sort of privileged themselves in the hearings or 'unprivileged' others, if you know what I mean?

David Wilson: That ... is always a risk where, you know, most things in Parliament can happen by a majority and the government always holds a majority or it ceases to be a government. But that's not what's happened in the Privileges Committee, either in my direct experience or my knowledge of what's happened previously.

The members of it tend to work collegially, as a whole, for the good of Parliament. It's very rare for them to vote on anything. If they were to - a majority rules, but they don't. They tend to try and reach a consensus agreement that everyone - even if everyone doesn't love - that everyone is happy with.

Phil Smith: I've watched them working in the open part of it, which is when they're hearing witnesses. Select committees are not as party-political as the House is, and the Privileges Committee (and the Standing Orders Committee for that matter), are even less so. They're much more kind of working together for the good of the general Parliament. At least that's been my observation.

David Wilson: Yeah, I think that's a fair reflection. And although both of those committees you mentioned (Privileges and Standing Orders) could decide things by majority, in practice they don't, because you really need to have the huge bulk of Parliament, or ideally all of it, agreeing that what's happening is the right thing.

Phil Smith: And that takes us to the point that actually MPs all do agree to what the rules are when they turn up.

David Wilson: They do. The rules are theirs. They're made by MPs at the end of the previous Parliament, and they're agreed by consensus across the House. So they're very much the rules of all members of the House.

Phil Smith: So, a Privileges Committee outcome - they vary enormously…

David Wilson: There are a range of penalties. There are some that are typically applied, requiring someone to apologise to the House, or censuring them. Those have been penalties usually applied to MPs. They could [also] be applied to other people though.

Suspension from the service of the House, which is time where a member can't take part in any of the proceedings, they can't vote, and they're not paid.

There is the ability to impose a fine of up to $1000, and there is a theoretical power to imprison that's never been used in New Zealand. It was inherited from the UK because these privileges that we talked about came from the UK Parliament in 1865, and that was one that was usable and in use in the UK at the time, and it never has been in New Zealand.

Phil Smith: They'd done it thousands of times in the UK, but mostly a few hundred years before that.

David Wilson: That's right, and it's difficult to imagine something like that happening in a modern environment.

Phil Smith: There's another [penalty] that was, in theory, picked up from the UK, but has never been considered to be true here. In fact, I think it's been ruled out-and that is sacking an MP. The House cannot sack MPs, can they?

David Wilson: No. In fact, when legislation was passed in 2014 (the Parliamentary Privileges Act), it explicitly said that the House can't do that. Only voters can choose who's going to be an MP and ultimately, voters choose if someone's not going to be one anymore.

There are a few other ways [an MP can leave]. Of course, an MP can resign. If they're convicted of a serious offence they can lose their seat, and there are a few other things that can cause them to lose their seat. But very much it's rooted in that Democratic principle, that the voting public chooses who MPs are.

Phil Smith: We're a little bit unusual in that. Westminster can get rid of people. The American [House], they can vote on getting rid of someone. You know, it's actually not uncommon around the world, but not here.

David Wilson: No, that's right, not here.

Phil Smith: I was reading your Parliamentary Practice and there are four chapters on privilege and the Privileges Committee, but there's no outline of exactly how they do their job. Do they just decide that as they go, or go with tradition and convention?

David Wilson: I think that's true of all committees and not just the Privileges Committee.

In Parliamentary Practice in New Zealand there isn't a description of exactly how committees work because it is up to them within the framework that's provided in Standing Orders [Parliament's rules], and each develops their own way of working.

But for the Privileges Committee, I think it would be fair to say the normal way of operating would be:

• to receive a referral from the Speaker,
• to consider how to approach it,
• generally then to hear evidence,
• to think about what, if any breaches of privilege or contempts of Parliament have occurred,
• apply a test to decide if that thing has happened or not,
• and then if it decides it has [happened] - to report that, along with some recommended penalty usually, or if it decides it hasn't [happened], then to report that. Either way, it needs to report the matter back to the House.
• If those findings are going to be damaging to the reputation of the person concerned, they give them a chance to respond before they report to the House.

Ultimately the Privilege Committee's job is to report to the House and make recommendations, like any other committee. It's the House that decides whether to accept that report. So - if someone is guilty of a contempt or a breach of privilege, and if so, whether to apply the recommended penalty.

It is often reported that the Committee is powerful and can do those things. It can't. The only power it actually has that other committees don't have is it can compel people to appear before it.

Phil Smith: Although it almost never does that either.

David Wilson: It doesn't need to. People usually come, I don't know if 'willingly' is the right word, but they agree to come. And the only people it can't compel to attend are other Members of Parliament. Only the House can do that.