If MP Gaurav Sharma breaches proportionality and gives Labour reason to invoke the waka-jumping legislation, it will have to weigh up whether it is worth it politically
Opinion: There are sound practical and political reasons why Labour is not seeking to invoke immediately the so-called waka-jumping legislation against MP Gaurav Sharma.
For a start, the process for doing so is not straightforward. Under the legislation, passed in 2018, the Prime Minister, as leader of the party for which Sharma was elected, would be required to submit a written statement to the Speaker confirming she has reason to believe Sharma “has acted in a way that that has distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election”.
But before submitting her statement to the Speaker, the Prime Minister would first have to confirm that written notice has already been given to Sharma that she considers his actions are distorting the proportionality of Parliament and has provided him with specific reasons for that conclusion. Sharma must then be given 21 working days from receiving the notice to respond in writing to the matters raised. Were she to contact the Speaker, the Prime Minister would have to confirm that, having considered Sharma’s written response, at least two-thirds of the Labour Caucus formally agreed she should approach the Speaker.
The test for breaching proportionality is a high one. Obviously, voting against the party in Parliament, especially on matters of confidence and supply would meet that test. However, it is less clear how thoroughly it applies to other more routine pieces of government legislation, particularly in a situation where the government has a comfortable majority in the House, as at present.
What is clear is Sharma would have to have acted to distort proportionality, not merely threatened to do so, or caused the party to believe he might do so at some point. So long as Sharma votes with the Labour Party, or at least does not vote against it, it will therefore be difficult for Labour to invoke the provisions of the waka-jumping legislation.
Labour and the Prime Minister must be very careful to ensure their actions against him do not give a sliver of credibility to what Sharma has been saying.
Independent MPs, or those who are a party’s sole Parliamentary representative, often leave a proxy vote with another party to exercise on their behalf on those occasions when they are absent from Parliament on electorate or other official business. Sharma could well leave his proxy vote with the Labour Whips, making the distortion of proportionality argument harder to sustain.
But even if the breaching proportionality threshold is reached, there are other factors to be considered before a final decision could be made. MPs are not regarded as employees in the normal sense, and are not therefore subject to general employment law, other than for tax obligations. But that does not mean they are exempt from the rules of natural justice insofar as they apply to employment law.
This raises the issue of constructive dismissal, where a person has been, or feels they have been, forced unfairly to vacate their job. There is no specific provision in electoral law regarding MPs and constructive dismissal. But, given Sharma’s whole case is founded on claims of bullying and unreasonable treatment from the Labour Whips and leadership, it would not be unreasonable to consider that the general employment law view that bullying or undue pressure to resign can amount to constructive dismissal has some relevance in this instance. In the absence of any independent inquiry, there would be at least a moral imperative on the Labour leadership to prove Sharma has not been bullied out because of his criticisms.
Then there is the issue of political perception, which is why Labour is treading warily. Sharma is largely irrelevant from now on – his political fate has been sealed. The question now is how Labour’s (and the Prime Minister’s in particular) actions are perceived. Sharma’s allegations have focused on bullying claims and his wish for an independent inquiry into them, which the Prime Minister has consistently ruled out as unnecessary. Labour and the Prime Minister therefore must be very careful to ensure their actions against him do not give a sliver of credibility to what Sharma has been saying.
Expelling him from the caucus and potentially proceeding to have him dismissed from Parliament without the substance of his claims apparently addressed, or even considered through some independent process, may seem like decisive leadership but it also looks heavy-handed.
That leads directly to the question of a possible by-election, should the Prime Minister seek to apply the waka-jumping legislation. Sharma’s seat is a marginal one, regardless of whether he stands again as an independent. The effort of fighting a by-election at this time and in these circumstances would be a most unwelcome distraction for Labour, trying to put Sharma behind it. Nor would a likely loss to National, just a year before the general election, be a good look. Labour’s talk of sparing taxpayers the cost of a by-election is typical cant – the reality is it does not want to lose the seat to National.
This leaves the cards still heavily in Sharma’s hands, even though he is a political dead man walking. If he chooses to stay on as an independent MP but still vote alongside Labour, thus not disturbing proportionality, Labour will have little option but to grin and bear it, along with any further revelations he chooses to make, through until the next election. But if Sharma breaches proportionality and gives Labour reason to invoke the waka-jumping legislation, they will have to weigh up whether it is worth their while politically and in terms of public perception to do so.
Faced with these uncertainties, it is no surprise Labour has chosen the easier, more prudent option of tolerating Sharma as an independent loose cannon until the next election rather than an unwelcome and potentially damaging by-election.