On Tuesday, Gerry Brownlee barred Chlöe Swarbrick from the House for the ‘rest of the week’. Trouble is, he’s not really allowed to do that. Andrew Geddis explains.
Parliament yesterday held a snap debate on whether the government should recognise Palestine as a state, driven by ever-increasing concerns over the Israeli armed forces’ actions in Gaza. That debate, it is fair to say, aroused heated emotions. And those emotions may have caused the House’s Speaker to get a bit carried away while trying to get MPs to behave themselves.
Among the strongest contributions to the debate was a speech from Chlöe Swarbrick, which concluded with a heartfelt call for MPs from other parties to support a Green Party bill imposing sanctions on Israel for its behaviour. She noted, glaring at the opposing benches, that this proposed legislation could become law “if we can find six of 68 government MPs with a spine”.
Unfortunately, this sort of talk in parliament – saying that other MPs lack spines – is considered “unparliamentary” and so against its rules of debate. Just as other things that we routinely say in everyday life, such as that people are “liars”, also are considered beyond the pale on the floor of our national political debating chamber. Consequently, the Speaker – Gerry Brownlee – stepped in and told Swarbrick that her words were “unacceptable” and she must withdraw them and apologise.
Things then got a little bit unusual. Normally, MPs told to take this action comply with teenager-esque, rolling-of-the-eyes, obvious insincerity. But Swarbrick refused to make this bow to conventional piety, responding with a curt “no” to the Speaker’s requirement. That increases the stakes a lot, because an MP refusing to follow the Speaker’s directives is a no-no in a place that requires someone’s word to be able to control it.
Unsurprisingly, then, Brownlee told Swarbrick to withdraw from the House as her refusal amounted to “highly disorderly” conduct. She would have known that this response was coming; maybe she even intended to provoke it to gather media attention. What was surprising, however, was the fact that Brownlee told her that her actions meant she would have to stay out of the House for “the rest of the week”.
That disciplinary decision on the Brownlee’s part looks … somewhat questionable. Let me take you through why that is.
First of all, the parliamentary rule (being Standing Order 90(1)) that empowers the Speaker to require that an MP withdraw from the House says this:
“The Speaker may order any member whose conduct is highly disorderly to withdraw immediately from the House during the period (up to the remainder of that day’s sitting) that the Speaker decides …”
Note the temporal limit on this punishment: “up to the remainder of that day’s sitting”. That would seem to mean Brownlee only could order Swarbrick out of the House for the rest of Tuesday’s proceedings, not for the rest of the week.
However, after this fact was pointed out to Brownlee by the Green Party’s Ricardo Menéndez March, he returned to the chair to explain his decision. While Swarbrick being ordered from the House for the rest of Tuesday was her immediate punishment, “the requirement for an apology does not lapse”. And so, if Swarbrick were to withdraw and apologise tomorrow (meaning at the beginning of today’s session), she could then come back in and take part in the House’s activities. However, “until there is [an apology], then the status quo will continue.”
This approach is, shall we say, a somewhat ambitious interpretation of how SO 90(1) applies. Because it seems to create an open-ended ban on an MP being able to be in the House chamber (why does it end with this week’s sitting? Why not indefinitely?) unless and until they comply with what the Speaker has ordered. And that simply isn’t a disciplinary consequence that appears anywhere in the Standing Orders.
Furthermore, if “the requirement for an apology does not lapse” after a day out of the chamber, then how do we explain the approach Brownlee took towards Labour’s Willie Jackson during the debate over the Treaty Principles Bill? When Jackson refused to withdraw and apologise for calling David Seymour a liar, Brownlee ordered him to withdraw for the rest of the day. No mention then of his having to apologise before being able to rejoin proceedings.
Which is actually the way the House has proceeded since at least 2001. Because, the then-Speaker at that time – Jonathan Hunt – made a ruling dealing on exactly this issue. As recorded in the Speaker’s Rulings, Hunt decided that:
Where a member has been asked to apologise and has left the Chamber rather than comply, the Speaker always insists that the member return to the Chamber and apologise. Members cannot avoid complying with the Speaker’s direction by just leaving the Chamber. (But where a member refused to apologise and was ordered to leave the Chamber by the Speaker, the matter is at an end at that point.)
Brownlee’s decision on Swarbrick seems to revisit the italicised portion of this ruling and apply a quite different approach. Which is something that isn’t really supposed to happen; today’s Speaker is meant to apply Standing Orders the same way as past Speakers did in order to avoid parliament’s rules meaning whatever the person in the chair at any given time happens to want them to mean.
All of which is to say, Wednesday’s House sitting could be an interesting one. Perhaps Swarbrick will decide that a parliamentary stand-off over rules is a distraction that the people of Gaza do not need and apologise at the start of proceedings. Or, perhaps, Brownlee will reflect on his decision yesterday and revisit it in light of the Standing Orders text and precedent. Or, just maybe, he meant what he said yesterday and if Swarbrick refuses to apologise then he’ll order her out of parliament once again.
