Legal Beagle by Graeme Edgeler


Shirking their responsibilities?

The names of former members of Parliament:

  • John Allen
  • Arthur Grigg
  • James Hargest
  • Gordon Hultquist
  • William Lyon

will mean little to most New Zealanders. Along with four other members of Parliament, they saw active service overseas during World War II. Not that uncommon, you might think; there are politicians the world over whose military service has stood them in good stead seeking elective office: from Dwight Eisenhower down. But the list of members of the New Zealand Parliament who had served in World War II is much longer than nine. These five are in a special category, as their names appear on the Roll of Honour. They died on active service, while members of our Parliament.

While noting the passing of three of the former members, one MP remarked that Parliament would not want ‘to ask anything of the people which Parliament is not willing to undertake itself’.

[Several members of Parliament also served in World War I, and another served but resigned after signing up.]

Section 55 of the Electoral Act details when a vacancy arises in a seat (after which a by-election is held, or a new list MP enters office). The first reason why MPs may be declared to have vacated their seat is that they have been absent without permission for an entire session. The House no longer sits in sessions, so the rule is now largely pointless, but there remains an interesting caveat: if that member is absent because they are serving as Head of Mission in the Foreign Service (an Ambassador, or High Commissioner), the seat does not become vacant. Walter Nash was our diplomatic representative in the United States, from 1941-1944, re-winning his seat in the 1943 election. But this bit of the law is now irrelevant too. While members of Parliament are occasionally appointed as ambassadors now, they resign to do it.

The law remains however - largely copied over from earlier incarnations of the Electoral Act - a reminder of a time when what was expected of members of Parliament was very different.

With the annual Register of Pecuniary and Other Specified Interests of our MPs , I had the chance again to reflect on how our expectations of MPs have evolved, and to wonder whether it is good, bad, or indifferent. Dr Bryce Edwards (and others too, but I've tended to have their views filtered by Bryce) has written a lot about the professionalisation of New Zealand politics, including the increasing tendency for those in politics to view it as a career. Our politicians, now, perhaps more than in a very long time, have much more in common with each other, than with those they represent.

In 2005, Senator Tom Coburn (whom some of you may have met on The Daily Show earlier this month - worth a watch) was investigated by Senate Ethics Committee. An obstetrician, Sen. Coburn went home during Senate recesses and delivered babies, which is something he campaigned on doing. But earning significant amounts from employment was prohibited, and despite his time being perhaps better spent than those of his colleagues in fundraising, he was the one in trouble.

Not too long ago, the citizen legislator was somewhat expected, and a number of US States retain citizen legislatures, usually sitting for two months as a block each year. Until very recently, Oregon's legislature only met every second year. For the rest of the time, their legislators do whatever it is else that they do. Such circumstances certainly make the establishment of a professional political class less likely.

And so now I wonder whether we might benefit from adopting a more open approach to outside work by members of Parliament.

In January 2010, Labour MP Lianne Dalziel raised concerns about then ACT-MP David Garrett who was, during the Parliamentary Adjournment, representing Commander Vi, the Head of the Ports of Tonga, at the Royal Commission into the sinking of the Princess Ashika.

We had a bit of a conversation on Labour's Red Alert blog, with me arguing:

In a sense, I suppose this could be seen as a form of foreign aid (particularly, of course, if Garrett isn’t charging, or isn’t charging much). We lend our judges to the Islands (although I assume Warwick Andrew is Australian), and have provided people from TAIC to assist this inquiry. I would have been unconcerned – indeed pleased – had an MP like Bob Clarkson given up some of his summer break to work in Samoa re-building houses or schools after the tsunami, and don’t see too much of a problem with different MPs using their skills to help out our neighbours. This sort of inquiry is rare in New Zealand, so there probably aren’t a great many native Tongan lawyers skilled in this sort of advocacy (and I imagine those that are will be representing others involved). Any assistance we can provide is good, and from the transcript Garrett appears to be performing his task ably.

If this was interfering with his Parliamentary work, there might be a problem, but to be honest, I’m not even sure about that.

Lianne responded:

If Mr Garrett was providing assistance to the Tongan government in a matter where he had a particular expertise then I wouldn’t have this sense of unease, which is all I am questioning at present. He is not assisting the inquiry at all; he is representing one of the witnesses, who has been called to give evidence to the inquiry and I am asking whether that is appropriate as a New Zealand Member of Parliament. I have no idea whether he is being paid by the Ports of Tonga Authority – in many respects that’s not the issue – but even if he is not it could hardly be called a form of foreign aid as he is not there to assist the inquiry.

To which I replied:

And although this isn’t assisting the Tongan Government or people directly, I don’t think we can say it’s not indirect. Just about any New Zealand qualified professional (or tradesman) working in the Pacific Islands – even entirely for profit – is going to be of benefit to the country they’re in. A New Zealand builder who sets up a business in Tonga – even though working entirely for profit – is good for Tonga (providing local jobs, passing on expertise etc.). I’d probably say the same thing if Garrett was defending (or prosecuting) someone in some rare (for Tonga) type of criminal proceeding.

I don’t have too much of a problem, if any, with MPs having outside interests. Indeed, historically it would have been expected. Even now, a number of MPs have farms, and I believe Bob Clarkson still had an operating construction business while an MP, etc. In much the same way as private overseas travel by MPs is seen of being a benefit to New Zealand (MPs with broader understanding of the world, overseas contacts and networks, etc), I think having MPs with a foot in the real world can only open their eyes. That Garrett’s outside interests are in a Pacific nation is only to our and their benefit.

If Garrett starts asking questions in the House about this matter then I’d have a concern, but having someone in Parliament this year who spent a month working in Tonga over summer – understanding the local environment generally, building further networks, etc – can only be good for Parliament. Far from being a concern, it would be great to see other MPs doing the same.

I haven't changed my mind. I think Parliament, and parliamentary parties would benefit greatly from MPs who were more directly involved in "the real world", even if - on occasion - it interfered with a parliamentary duty. I think there is something that can be gained from the regular interaction of employment that is missed with the full-on full-time MP we now have.

Our Parliament now sits for three days a week, starting at 2pm on Tuesdays, Wednesdays, and Thursdays in weeks in which it sits. It might sit for a few weeks in a row, and then take a week or two or three recess, and then MPs head back to Wellington. Historically, our Parliament didn't sit in short bursts of a few weeks, with a week or two recess between them. When MPs had to travel by train and ferry to Wellington, they tended to fit in as much Parliamentary time as they could manage, in largish blocks, which much longer recesses between sittings. Abandoning this practice has had many advantages: MPs are no longer taken away from their constituents for extended periods, but they also don't spend extended periods in their electorates.

Of course, it's not just employment. After Dancing with the Stars, Rodney Hide was changed, and I think by general agreement, for the better. His week as a special ed teacher on Make the Politician Work, seems to have opened his eyes as an Associate Minister of Education (which he took over from Heather Roy when she ceased to be a minister). I think Heather Roy's time in the territorials while a member of Parliament had broader benefits as well.

I think that Parliament's consideration of a great variety of matters is enhanced by its having MPs with a broad range of life experiences, and that it would be enhanced if some of those continued once those MPs were elected: I don't doubt that Katherine Rich's advocacy for the prisoner who was handcuffed during birth had some basis in her recent motherhood.

Richard Worth faces some derision for his thesis "The closer economic relationship between Australia and New Zealand: choices other than quiescence or withdrawal in the face of conflict", for which he gained a doctorate while a member of Parliament, but that avoids the question of whether his work may have benefited from his scholarship. After being replaced as Leader of the Conservative Party, William Hague wrote, what I understand is an excellent biography of Pitt the Younger and another of William Wilberforce which Wikipedia says was short-listed for the Orwell Prize. Winston Churchill received the Nobel Prize for Literature for a life's work as an author, including his History of World War II, some of which was published while he was leader of the opposition. We study history in the hope that learning about the past may help us in the future, but we shouldn't doubt that the study of economics might also help.

What is the objection to a member of Parliament doing outside work, other than they will not therefore be fulfilling their parliamentary duties? There are two responses: first, it's up to voters whether they are happy with the work their MPs are doing, and they can vote accordingly. I would be entirely happy had I been the constituent of one of the nine who served overseas in World War II to have been without direct parliamentary representation for that time. Second, the better question is not "what does my MP do in Parliament?", but "what does my MP bring to Parliament?" Whether it's an appreciation of what it is really like to run a small business, or a tour with a peace-keeping force, a university course, or time spent each Friday on the floor of a freezing works, the answer might be that Parliament, and the people, are better served because one MP or other abandons some parliamentary duty for a while.

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