National says it is considering its options – including whether to use the controversial “party-hopping” law – following rogue MP Jami-Lee Ross’s decision to cling on to his seat in Parliament.
Earlier in the week, Ross had said he would resign from Parliament on Friday and contest a by-election in his Botany seat as an independent.
However, in an interview with Newstalk ZB and subsequent remarks on Twitter, he said National had “changed the rules”, alleging the party’s involvement in a Newsroom investigation into his conduct towards women, and said he would stay on as an MP and “continue speaking out about the internal operations of the National Party”.
Ross’s decision has now raised the spectre of whether National and its leader Simon Bridges will use the Electoral (Integrity) Amendment Act, legislation it has opposed bitterly, to force their MP out before he does further damage.
Electoral law expert Graeme Edgeler said under the legislation it was up to Bridges and the National caucus, not Speaker Trevor Mallard, to determine whether Ross had distorted and would continue to distort the proportionality of Parliament.
If the caucus voted by at least a two-thirds majority in support of using the party-hopping legislation, after Ross was given the required 21 working days’ notice to respond to his potential expulsion, Bridges could then deliver a letter to Mallard which would trigger Ross’s removal from Parliament and a by-election in his Botany seat.
“National could argue that [Ross not voting] will be enough – we had 56 MPs at the election, we’ve only got 55 [votes now] and he’s not coming to Parliament.”
However, Ross could seek an injunction preventing National from expelling him from Parliament, as former ACT MP Donna Awatere Huata did when her leader Richard Prebble sought her removal over fraud charges when the party-hopping legislation was last in effect.
Edgeler said it would be then up to the judicial system to determine whether Ross had indeed distorted the proportionality of Parliament.
While distortion could be defined as Ross voting differently to National, “a reasonable argument could be made” that the MP’s failure to vote – in the likely event that no party would cast a proxy vote for Ross in his absence – could also meet the threshold.
“National could argue that will be enough – we had 56 MPs at the election, we’ve only got 55 [votes now] and he’s not coming to Parliament.”
Edgeler said Mallard’s ruling earlier in the week – at National’s request – that Ross was no longer a member of the party for parliamentary purposes was different from the actions required under the party-hopping law.
Asked whether National would consider reversing its position and use the party-hopping legislation to force Ross out, Brownlee said: “We’ll think about things over the next 48 hours and see where we go from here.”
National’s shadow leader of the House, Gerry Brownlee, said that meant the MP was “still subject to our whip” when it came to issues like leave, questions in the House, and speaking during general debates and on bills.
“He’s not keeping himself a platform – all he’s doing is keeping a seat.”
However, Edgeler believed that was incorrect and was of the view that Ross would be allocated questions and speaking time in a similar fashion to single-MP parties like ACT – albeit with some exceptions on funding and other benefits which only party leaders received.
University of Otago law professor Andrew Geddis said the party-hopping legislation would be triggered if Ross himself had declared he was quitting National and becoming an independent, but the party’s action meant he did not have to do so himself.
Asked whether National would consider reversing its position and use the law to force Ross out, Brownlee said: “We’ll think about things over the next 48 hours and see where we go from here.”
Mallard confirmed he had received no notice from National of its intention to use the party-hopping law.
