There are some interesting issues about Horan’s future. There are four aspects in regard to his future role.
- His membership of the NZ First Caucus
- His membership of the NZ First Party
- His affiliation in Parliament
- His membership of Parliament
With regard to the 1st, the NZ First caucus is the master of its own destiny. They can make their own decisions and rules, subject to any rules laid down by the party itself. But the party does have some rules. Rule 60(a) states:
The Parliamentary Division consists of the members of the Party elected to the House of Representatives.
Rule 60(b) states:
If a member of the Parliamentary Division ceases to be a member of the Party that person ceases to be a member of the Parliamentary Division.
But Horan is still a member of the party. Now you can argue that these rues don’t stop the caucus suspending an MP, or even expelling him. But it seems the caucus has not made any such decision on Horan. It is unclear if they have even had a discussion on the issue. Also Horan claims no allegations have even been put to him directly:
A defiant Mr Horan, speaking through his lawyer, said he would stay on as an independent MP.
“His question was, ‘Why should I quit, what have I done wrong? Just because Mr Peters has expelled me, and I have been convicted in the court of Mr Peters’,” Mr Horan’s lawyer, Paul Mabey, told Radio Live.
“Mr Horan is the subject of unproven allegations which he completely denies. None of the allegations have ever been put to him directly nor has he been shown any evidence to support them.”
It is very unclear that Peters has the power to unilaterally declare Horan has been expelled from caucus, or even that he will be expelled from caucus. However the only people with standing to challenge this are other members of the caucus.
Possibly Peters can argue he has authority under 59(b):
The Leader shall exercise all authority necessary for the effective organization of the Party’s activities in Parliament.
Amusingly the party leader is also the only MP exempt from paying a 10% tithe to the party!
But there is an important point here. Leaders should not have the power to unilaterally expel MPs from caucus. I think it is good that Winston has acted swiftly against Horan, but I assumed he had at least put the issues in writing to Horan, given him a chance to rebut them, and then make a recommendation to caucus. That might take a couple of extra days, but as Peters had known about the allegations for three months, then a couple of extra days wasn’t significant.
The next issue is whether Horan is still a member of the NZ First party. Under the NZ First constitution he clearly is. Rule 10 sets out the process to terminate membership. It is:
- Board receives complaint that a member has had conduct that is offensive, undesirable, or inconsistent with the welfare and interest of the Party.
- Board decides to hold a hearing
- The member is notified, by registered mail, within 14 days of the nature of the complaint, the date, time and place of the hearing, and that the member can be held
- The Board can then after the hearing expel the member.
Now Peters has said Horan’s expulsion from the party will be “automatic”. This is deeply hypocritical and cuts across Horan’s rights under the rules. I’d say it means Peters can’t be part of the Board’s deliberation and opens their decision up to judicial review.
Why it is hypocritical, is Peters himself took National to court in the 1990s over their decision not to approve him for selection, effectively kicking him out of the party. It is a classic case of do what I say, not what I do.
We now have the third scenario, of Horan’s affiliation in Parliament. Standing Order 35(1)(c) states:
A party must inform the Speaker … of its parliamentary membership
All that is needed here is a letter from the party leader. His or her word is treated as authoritative. At this stage it does not appear Peters has written to the Speaker declaring Horan is no longer part of the parliamentary caucus.
Finally we have whether Horan can remain as an MP. The answer is yes, unless he is convicted of a crime with a maximum sentence of two years or more, or resigns.
Some have argued for a return of the electoral legislation that expels an MP from Parliament if they are no longer a member of that party. But what we have seen with this case is exactly why we should not have such a law. A party leader could then expel MPs at whim, without even bothering to have a caucus vote. Muldoon would have loved such a power.
I do believe Peters has done the right thing in acting against Horan if there is substantive proof of wrong-doing that Horan can’t credibly rebut. But the process he has followed has been seriously flawed and dictatorial and for Peters especially very hypocritical.
The final piece of hypocrisy:
He declined to comment further outside the House, saying he had made his statement under parliamentary privilege to avoid possible legal action. “I am not going to be subject to people spraying defamation writs.”
This is the same person who threatens people on a regular basis with defamation writs and has sprayed a few around himself, including against David Carter.Tags: Brendan Horan, Winston First