A quick recap on New Zealand’s constitutional brouhaha this week about the election date, as requested by some abroad. /1
Election day was scheduled for 19 Sep 2020. In accordance with a developing convention (?), the PM had announced this date well in advance, in late January. /2
Despite the pandemic, progress towards that date was going full steam ahead — esp as NZ had avoided community cases of Covid for several months. Campaigns were launched. Arrangements were made for campaigning and voting etc. /3
Last week, the formal arrangements for the election were to be implemented. The House of Reps had wound up the week prior — adjourned in anticipation of dissolution of Parliament. MPs left the capital for the hustings. /4
The GovGen’s proclamation dissolving Parliament was due to be publicly read at 11am last Wednesday — effective once read. And the writ formally setting the election date was due to be issued the Sunday after. /5
But late in evening before planned dissolution, the PM announced that Covid had returned to the community - with a new cluster diagnosed. The Auckland region (~one third of the country) was placed in an alert level 3 lockdown and balance of country elevated to alert level 2. /6
Given the uncertain impact on the election, the PM advised the GG to temporarily delay the dissolution of Parliament and the writ by a few days to give time to breathe./7
Dissolution would have triggered a chain of election milestones and it would have been tricky to change tack.
(a) Chief Electoral Officer has emergency adjourning powers, but only week-by-week (albeit unlimited). /8
(a) Chief Electoral Officer has emergency adjourning powers, but only week-by-week (albeit unlimited). /8
(b) The 3 year term of Parliament is entrenched (Parliament would automatically expire in late October for election anyways) and 75% majority vote in House needed to extend term and defer dissolution/election - some arguing for it to be kicked into next year. /9
But once dissolved, legislative intervention (probably*) couldn’t be relied on.
* There was some debate about whether a dissolved Parliament could be re-summonsed — most thought probably not but a few wondered if it could be reconvened (at least prior to an election). /10
* There was some debate about whether a dissolved Parliament could be re-summonsed — most thought probably not but a few wondered if it could be reconvened (at least prior to an election). /10
However, if Parliament was not dissolved and writ not immediately issued, the PM had some wriggle room. An election could be re-set in her discretion, at the latest for late Nov (perhaps early Dec), in order to meet the constitutional rule about term of Parl etc. /11
Thus, the heightened importance of the PM’s call on the election date, which would then be reflected in the GG’s writ. PM announced she would consider and address the impact on the election date at a press conference at 10am on the Monday. /12
The political mood was mixed but many parties moved to support deferral of the election. The Nats, as main opposition party, expressed concerns about the practically of campaigning during lockdown and suggested deferral into next year (they are also polling poorly). /13
Crucially, NZ First, a coalition partner within Cabinet also came out over the weekend in favour of deferral for a couple of months (legitimate concerns again, but they are also polling very poorly) /14
Hence the space for the hypothetical crisis scenario and the genesis of the constitutional brouhaha. /15
If the PM was adamant she wanted to stick to the 19 Sep election date — against the wishes of a majority in Parliament now wanting a deferral of some kind — could she do so?
Or was there a way other parties could effectively seize control and defer the election? /16
Or was there a way other parties could effectively seize control and defer the election? /16
My earlier thread set out some live-time thoughts. /17
In short, PM’s decision on election is a captain’s call - no involvement of the House, obligation to consult, or deliberation through Cabinet processes. In ordinary times, it’s her sole and personal prerogative to advise the GG on dissolution and election. /18
However, the GG and Cabinet Manual also make it clear that, if a PM has lost confidence, decisions to dissolve Parliament and set an election date are significant decisions that are subject to the (very strong) caretaker convention. /19
In other words, a caretaker PM can only request dissolution for an election if they demonstrate they have consulted other parties and that move has majority support in the House. /20
(Side note: The caretaker convention only arises due to questions of confidence, not proximity to election. Other than via loss of confidence, there is no existing pre-election caretaker convention generally restricting Cabinet decision-making. See thespinoff.co.nz/politics/17-08…) /21
Thus, if the PM was intransigent, could other parties strip her of confidence such that her sole right to request dissolution for an election needed to be democratised by the caretaker convention? /22
Hypothetical at best. Her coalition partner, NZ First, publicly confirmed confidence in PM on Sunday at press conference announcing their preference for deferral. And, of course, collapsing coalition or withdrawing support would have had unthinkable + dramatic ramifications. /23
Beyond the political intrigue, some live constitutional issues. /24
1. Whether confidence can be lost other than via formal loss of confidence vote in House (very probably, but debated by some). House would not sit so no chance of formal no confidence vote. /25
2. Manner in which caretaker convention would bite re dissolution, esp when dissolution is a traditional (but not exclusive) means to enable political resettlement. Cab Man is clear but some doubters. /26
3. Obligations of GG in such situation. Strong, transparent and explicit protocols in place keeping GG out of the fray, other than as sentinel of confidence. But soft power to advise and delay? /27
4. Questions of timing and sequencing. Even if opposition were to move, could it be effected in time? Eg, is confidence assessed when GG receives advice, or any time before implementation? /28
Spoiler: The PM deferred the election by 4 weeks until 17 October 2020. Parliament is back today.
In doing so, she said it wasn’t an ordinary decision re election date so reached out and took soundings from parliamentary parties and others — even if still her ultimate call. /29
In doing so, she said it wasn’t an ordinary decision re election date so reached out and took soundings from parliamentary parties and others — even if still her ultimate call. /29
PS Your shout, @TomRHickman! 🍷
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