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www.mccully.co.nz - 28 July 2006

www.mccully.co.nz - 28 July 2006

A Weekly Report from the Keyboard of Murray McCully MP for East Coast Bays

Speaker in the Gun

Helen Clark’s foolish attempt to bluff her way through the Taito Phillip Field affair claimed another victim this week. Parliament’s Speaker, Margaret Wilson, now faces a vote of no confidence following her decision not to refer the Field affair to Parliament’s Privileges Committee. Earlier, the spotlight had moved onto the roles of several other current and former Clark ministers whose actions had placed them uncomfortably close to events in the Field saga. And when the Speaker ruled that the matter should not be referred to the Privileges Committee, she, too, moved firmly in the firing line.

The Field affair should never have ended up on the Speaker’s desk in this way. Any other Prime Minister would have insisted on the Ingram inquiry ascertaining the facts. Witnesses would have been given protection. The inquiry would have been given powers to compel co-operation. But faced with the blatant Clark cover-up, the Privileges Committee was the obvious place to lance the increasingly septic political boil that the Field affair has become.

No Confidence

The case against Margaret Wilson is quite simple. The vested interests and the pointy-heads will argue fine constitutional precedent. But the words in the Standing Orders have a plain meaning. Wilson had choices, and now she is being judged by the decision she made. As Speaker, she is the gatekeeper to the Privileges Committee process. For a matter to get to the Committee, in the absence of a rare referral from Parliament itself (and Labour has already vetoed attempts to do this in the Field case), the Speaker needs to rule that a prima facie case of breach of privilege has been established.

The key Standing Order (SO) is 399. Anything that “obstructs or impedes” Parliament’s Members, officers or Parliament itself, from discharging their duties may be regarded as a breach of privilege. Even something which has “a tendency, directly or indirectly, to produce such a result” may be ruled to be a prima facie breach, and referred to the Committee. In other words, the Speaker has pretty much an unfettered discretion as to what she sends to the Privileges Committee. Anything that she considers might impede the Parliament, or its Members, in discharging their duties, can be referred.

In the Field case, Wilson ruled that no prima facie case of privilege existed. She based this decision on a narrow and legalistic interpretation of the circumstances under which prima facie breach of privilege could be established. Only where the official procedures of the House (i.e question time or debates) or select committee processes were involved, could a breach of privilege arise, she found.

Fine. Wilson was entitled to adopt this interpretation. In the very nature of broad discretions, there are no rules. The decision was hers to make. She chose to take a narrow interpretation. But she could and should have made a different call.

Having made her decision, she invites Members of Parliament to consider whether she is a suitable and worthy custodian of the discretion contained in SO399 - whether they have confidence in her as the gatekeeper to the Privilege Committee process. Remember, referral by the Speaker is merely the beginning of the process. It is then over to the Privileges Committee, a rather unwieldy entity including representation from all of the parties in the Parliament, to make any decisions - hardly a likely venue for victimisation or precipitate decision-making. In this case, she has ruled that the Committee will not even get to consider it. And that is just not good enough.

So, the argument is not that Wilson is wrong, as a matter of law. Rather that, if this is how she sees the exercise of her discretion as gatekeeper to the Privileges process, then she needs to be replaced by someone who has a different and more fulsome view of their duty to the Parliament. Someone in whom those Members who have lost confidence in Wilson as a result of the Field decision, can indeed have some confidence.

The Ruling

The practical effect of this week’s ruling is indeed serious. If the humble Member for East Coast Bays was to provide copies of confidential select committee papers to a third party, he would, if potted to the Speaker, be routinely sent to the Privileges Committee - even if the papers were totally innocuous, and due for release to the media within days anyway. He would, you see, have impeded the proper operation of a select committee. Even seriously challenging a Speakers’ authority or ruling can get a member sent to the Committee. But Taito Phillip Field has not been sent there. Our Prime Minister and others who seem transfixed by issues of proportionality in the Middle East, seem to have little appetite for the concept at home.

But have a look at the misdemeanors alleged against Mr Field: that he received substantial personal reward for using his office as an MP to make representations to his Ministerial colleague - representations that only an MP could make. That he used his Parliamentary staff and his Ministerial staff to advance the process. That he knowingly misrepresented the position of his constituent to a fellow Minister in order to secure the exercise of a discretion. That he used his Ministerial letterhead to purport to record decisions made by his Ministerial colleague in a meeting, when that colleague insists he had not made those decisions, and then proceeded to attempt to get Immigration officials to act on that letter. And that is just scratching the surface of the Ingram report.

It is simple common sense that the use of the status and office of a Member of Parliament to engage in the activities alleged against Field will clearly obstruct and impede the Parliament. Parliament, its individual Members and its committees are only able to operate because there exists a broad acceptance of their role and their legitimacy. The actions alleged against Field, performed in both Parliamentary and Ministerial office, gnaw at the very foundations of the institution of Parliament, and its constituent parts.

For Speaker Wilson to use a thin technicality to avoid referring Field to the Privileges Committee for the above sins, and many others, is an incitement to the many Members of Parliament who are outraged by the contents of the Ingram report. And even more outraged by its omissions, contrived by Helen Clark.

Those Members are now forced to ask whether a different Speaker, with a more substantial understanding of their responsibilities to the Parliament, its standards and its authority, is now required. And the only way to achieve that is the no confidence motion moved by Don Brash this week, which will appear on Parliament’s Order Paper next Tuesday.

What Now?

Normally, a motion of this sort would be entitled to a lengthy Parliamentary debate. But this Thursday Michael Cullen was in super-slippery mode. First, an indication that he would allow a vote on the motion without debate. Then, an indication that he might be amenable to holding the no confidence debate instead of next Wednesday’s one hour general debate. None of which gets close to the attention that such a serious matter should command.

No doubt Michael Cullen and Helen Clark are finding a confidence motion and all of the other manifestations of Parliamentary angst over the Field affair more than a little inconvenient. Something they both should have thought of before pulling the ridiculous stunt of releasing a pitiful excuse for an inquiry report.

A Select Committee Inquiry

Some legal luminaries have focused on a select committee inquiry as a preferred course of action. And while a select committee inquiry is certainly better than nothing it simply doesn’t hold a candle to the Privilege process.

Standing Order 201 expressly states that “a select committee (except the Privileges Committee) may not enquire into, or make findings in respect of, the private conduct of any member of the House, unless it is specifically directed by the House to do so”.

All of which presents more than a modest challenge to a useful select committee inquiry, and reinforces the fact that the Privileges Committee was the correct place for the Field affair to go.

Appeal Court Beckons

The date has been set. On August 7 the humble Member for East Coast Bays, wearing his hat as National Party spokesman on Conservation, will appear in the Court of Appeal. His mission: to overturn the written ruling of Justice Wild, who has determined that said Member does not possess a "proper or genuine interest" in seeing the Court files in the Whangamata proceedings against Conservation Minister Chris Carter.

Why bother, we hear you ask? The answer is simple. The good Judge, in his infinite wisdom, has determined that while National Party Members of Parliament do not have a "proper or genuine interest" in the case, and may therefore not view the Court files, the nation’s journalists do possess such a “proper or genuine interest”, and may view and copy the file.

The capacity to remain informed as to the current state of particular Court cases is not a daily, but certainly a routine feature of the life of a Member of Parliament. Faced with the Wild ruling, there isn’t a registrar in the country who will now feel comfortable about granting MPs the normal access to a file. Unless, of course, those MPs turn up at Court unkempt, wearing saggy cardigans and humming the "Red Flag", masquerading as journalists. From this prospect, our nation must be saved.

Our Chief Educator

The Government has recently announced the appointment of one Karen Sewell as the new Secretary of Education - the highest and most powerful education bureaucrat in the country. Ms Sewell has previously served as the head of the Education Review Office. During this time ERO, which had previously focused its efforts on pressuring our least successful schools, shifted its focus to criticising some of the nation’s most successful schools.

So delighted was our Government with ERO’s new focus that Ms Sewell was appointed to run NZQA, the organisation that has recently delivered such outstanding and consistent results with the NCEA.

Could this Karen Sewell, by any chance be related to the Karen Sewell who was, between 1985 and 1997 the principal of Green Bay High School? Official Ministry figures reveal that Green Bay High School had a roll of 1038 in 1984. By 1996, the roll of full-time regular students had fallen to 579. Surely one of the least successful track records of recent times as parents, given the choice under the Government of the day, voted with their children’s feet. Just what is our current Government trying to tell us here.


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