Thread by @drdeanknight

Some are suggestions there might be a constitutional imbroglio today around PM’s call on whether election should or should not be deferred due to the lockdown in Auckland etc. I reckon it will probably turn out to be a bit of a fizzer! 🤷🏻‍♂️

PM has sole right to advise GG to dissolve Parliament for election. The previous process to do so was paused just prior to formal ceremony due to alert level change. We’ll know at 10am today what the PM’s intends to do — or, if she sticks with dissolution, perhaps has done.

Dissolution for an election is not subject to usual Cabinet decision-making deliberation (I understand) but PM will be mindful of views of others - incl views of coalition partner NZ First which wants it delayed. It’s still her sole call though.

As PM maintains confidence of House, she has full right to advise dissolution — even if a majority in Parliament oppose. The House doesn’t have a formal role in dissolution and, as its adjourned until 2pm tomorrow (in anticipation of earlier dissolution), it can’t block it.

While they oppose immediate dissolution, NZF has publicly stated they still have confidence in her. And, of course, withdrawing confidence and collapsing coalition is full nuclear option. It would have huge ramifications beyond just the election date, esp during a pandemic.

If confidence is lost, this may complicate. Cabinet Manual and @GovGeneralNZ speeches signal convention that PM’s power to advise dissolution is subject to caretaker convention if PM has lost confidence.

gg.govt.nz/publications/e…

In other words, a caretaker PM can only advise dissolution if, following consultation, doing so has majority support in Parliament. This maintains demo legitimacy of the election call that would otherwise be presumed due to PM having majority support on confidence.

Although now clearly foreshadowed as the operative convention, some other scholars doubt the caretaker convention should bite in this way, given elections are traditional way to resolve deadlocks like this and suggest GG should still allow PM to unilaterally advise dissolution.

Imv, I see conceptual coherence in caretaker convention regulating power to advise dissolution — and doing so raises political heat, rightly encouraging resolution by politicians. GovGen will want to stay out of fray, as much as is possible — caretaker convention immunises them.

But how a PM might lose confidence remains a debate point. The traditional view has been that it needs to be effected through a formal no confidence vote in the House. And there’s no such prospect arising here.

But based on our experience of govt formation etc, many — incl me — argue confidence can also be lost as a matter of public reality, if extant confidence arrangements are publicly repudiated.

That might be withdrawal from coalition, similar public statements, public announcement of alternative administration, etc.

Imv, @GovGeneralNZ is the sentinel of confidence and will invite clarification of position on confidence if circumstances suggest some change in settings. There’s a good argument that caretaker convention might bite while that is being resolved.

We saw that during the collapse of Nat-NZ coalition in 1998, where GG Hardie-Boys made it clear he expected to be reassured by PM about where confidence lay during necessary process of political settlement (although he did give some breathing space to do so).

Timing also complicated and is also largely unknown. PM may have already advised the GG to dissolve immediately — prior to public announcement of her intentions — as she’s entitled to do so as she has confidence. And GG may feel obliged to accede on that basis.

If GovGen takes view confidence at time of request determines, then it would be practically difficult/impossible to intervene to stop implementation — an alt administration would need to emerge forthwith and, under caretaker conv’n, would need to request PM to cease dissolution.

And there’s a chance the proclamation dissolving could be announced or gazetted before anyone can do move.

If GovGen takes view that confidence after request but before implementation matters, then there’s a bigger window.

Also unknown is whether GovGen soft powers — to advise, delay, etc — might be invoked. Probably bold to invoke here where timing is everything but delay might be used to ensure clarity of position, if the timing of request was cheekily gamed to stymy opposition to request.

suggesting * 🤦‍♂️

The tradition of NZ GovGen is to leave things to politicians to resolve and not to be drawn into the fray. Hence, many of the conventions put the acid back on politicians and avoid the GovGen making any judgements other than determining whether the confidence of the House lies.

Dame Patsy is, I’m sure, having a quiet cup of tea at Govt House — a lot less exercised by this than the twitterati. ☕️

If GovGen needs advice on her powers/responsibilities, that will come through Secretary to Exec Council / Cab Sec — usually drawn from Solicitor-General. But those supporting GovGen are experts in scenario planning and I have no doubt they have crash tested the possibilities.

At the end of the day, I think this is a brouhaha and will end up being a bit of a fizzer.

My guess — and I’m terrible at picking horses — is PM will seek to take political heat out of call, with a short delay, teamed with milestones and assessment criteria for further delays.

Note to self: always have some covfefe before tweeting a serious thread before the sun has risen. #damntypos

For those elsewhere who didn't catch the announcement, the election was pushed back 4 weeks until 17 October 2020.

beehive.govt.nz/release/electi…

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