Monday, August 23, 2004

Separation of Powers

In an earlier posting. I dealt with the questions of a written constitution, sovereignty and conventions. I concluded that we cannot (short of a revolution) avoid parliamentary sovereignty but we can enact (and even entrench) "constitutional provisions" which allow us to specify the mechanics of our system of Government. In this posting I'm looking at some specific ways in which we could fine-tune our current government mechanisms without requiring any revolutionary change to our constitution.

IMHO (for reasons covered elsewhere) we should not look to dramatic constitutional change. The worst problems of "unbridled power" arise from executive dominance of parliament rather than the other way around and are (or can be) largely fixed by MMP and some minor associated constitutional changes which I discuss here. The purpose of these changes is twofold -
(1) To make it much harder for a government to capture parliament
(2) To make it easier for a legitimate government to govern without a captive parliamentary majority.

The changes are -

(1) Lose the threshold. The present 5% threshold gives undue prominence to the outcomes in particular electorates and distorts voting patterns in the party vote. It also creates the risk that parties with substantial (nearly 5%) do not get represented which is undemocratic. (Try National 42%, NZ First 3%, UF 1%, Act 1%, Labour 38%, Green 4%, Alliance 4%, PC 1%, MP 3% with Act, Green, Alliance and MP failing to win electorate seats). If we lose the threshold people can concentrate on voting naturally (ie for the candidate and party they like best) and a genuinely representative parliament will result. The threshold also encourages aggregation to larger parties (eg the split of Greens and the PC from the Alliance COULD have reulted in both Greens and Alliance getting 4% with no electorate seats - OTOH a voter should be able to vote green without having their vote counted as red, brown or electric purple. (Mind you it's even tougher if you want to vote grey).

(2) Formalise parliament's role as an "electoral college" choosing the executive. This could be done by exhaustive ballot to appoint a Prime Minister who would then appoint the rest of cabinet (or we might have parliament directly elect the Attorney General as that is a constitutionally separate positon). The same procedure could be used to appoint the Speaker although this might conventionally be done by concensus. Parliament would hold a ballot following each General election or if the government is defeated on a confidence issue. A lost confidence vote would require a parliamentary ballot for a new Prime Minister but the old executive would remain in office until its successor is elected (or the old executive reelected) at that ballot. This is close to the "Swedish model" mentioned by No Right Turn but specifies a parliamentary voting procedure rather than relying on the speaker's discretion. If we retain a titular HOS (President or Governor General) than the law could specify that, when appointing/replacing a PM, the HOS must act on the speaker's advice that the house has voted to elect the new PM.

(3) Adopt a fixed parliamentary term. The Electoral Act would specify something like "a general election shall be held on the second Saturday of November in the year 2005 and at three-yearly intervals thereafter". This would be the only time general elections can be held or parliament dissolved. (A no-confidence vote simply means that Parliament conducts a new ballot for the Government).

(4) Limit the size of cabinet to (eg) 12. We used to manage with much smaller cabinets (than the present) in the 50s and 60s and the new State Service arrangements should greatly reduce the need for "Departmental" cabinet ministers. "Operational" departments now have CEOs who are supposedly accountable for the performance of their departments and who are directed (in writing) by cabinet to implement specified govt policies. Appointing a minister in charge of each department appears to duplicate the CEOs function and dilutes accountability. If there is a need for ongoing oversight I'd like to try using select committees. The committee chairs would be an alternative career step for MPs who miss out on cabinet. Committees also allow us to tap into the talents of opposition members and retain greater continuity of experience when governments change.

(5) Relax the rules of collective cabinet responsibility. At the very least the rules should not apply to a Minister voting in the house or advocating in caucus. The minister is wearing his or her MP's hat at these times and it is constitutionally wrong for the cabinet manual to override the MP's duty. I have no particular quarrel with barring a cabinet minister from disclosing cabinet proceedings or campaigning against collective cabinet policy outside the house.

(6) Allow parliament to delegate executive authority to the government - particularly with regard to financial appropriations. The notion that the ability of the govt to raise taxes is a major constitutional issue is an anachronism. The full range of political views espoused by New Zealanders (or covered within the greater Blogosphere) encompasses passionate differences as to how much the govt should tax its citizens (or for what purposes) but does anyone deny that the govt has a right to raise taxes or suggest that it ought not to pay its day to day expenses as they fall due? In the 21st century we might reconsider the convention that a govt falls if defeated on a "financial matter". OTOH this is less critical with a single house since a parliament of a mind to play silly buggers with supply would presumably have the numbers for a no-confidence vote anyhow. (At least the "Whitlam scenario" where the upper house blocked supply until the GG dismissed the govt doesn't arise).

(7) Entrench as much of the constitutional arrangements as is possible (basically the bits relating to the electoral system, role of parliament, speaker, HOS, judiciary, etc) along with a Bill of Rights. This could and should include the role of the Treaty provided that the entrenched provisions are securely founded on a broad concensus (which has yet to be built). To entrench (by a simple majority) a strongly contested interpretation of the treaty (or anything else) is to invite a future legislative challenge to those provisions (eg repeal by a simple majority) to the detriment of our entire constitution.

44 Comments:

Blogger Uroskin said...

My preference for changes in the electoral system would be to lose the electorate seats and move to 125 list seats, like they have in Israel and The Netherlands. That would enable us to abolish Maori seats without affecting anyone's ability to get into parliament on pure electoral strength, or be accused of favouring any racial group (be it Maori or non-Maori).

23 August 2004 at 4:41 PM  
Blogger Rich said...

I'd agree with some of your points.

On losing the "threshold", I'd argue that electing one (or more) MPs provides a minority party with less than 5% of the vote with disproportionate influence.

For instance, say the Bogan Party of New Zealand gets 1% of votes and an MP. Even though Labour (say) is generally opposed to (for instance) motor racing on Queen St, they may wind up agreeing to it to keep the Bogans onside. More seriously, Israel in particular suffers from small religious parties dictating an agenda in return for keeping a coalition intact.

Possibly a threshold-free system of PR would work better in a system of "permanent minority government" as you suggest, with coalitions of support building behind particular issues.

It's my belief, however, that the electorate have the right to regularly choose a government and have it (attempt to) pursue a coherent set of policies. If I vote for a major party, I can have a reasonable expectation of what they will do if elected. If I vote for a minor party, I have an idea who they might support and how they might try and adjust the lead parties policies.

Without this, how do you have accountability of a government for the *effects* of its policies?

24 August 2004 at 2:17 PM  
Blogger Greyshade said...

Hans -
A straight list system means that the people lose all ability to vote for individual MPs and makes MPs almost totally dependent on their parties for political survival. This may not matter if you have relatively homogeneous parties but we haven't. My preference is STV which maximizes voters' choice and allows us to express both within and between party preferences but I'm not too hung up on which electoral system we use as long as it's one that gives a reasonably representative parliament.
Rich -
Your argument is the standard one for a threshold. It assumes that it's the bad guys or "extremists" who get filtered out by the threshold but it doesn't always work that way. In practice it's parties that overcompete for a respectable political niche (eg the Alliance) who miss out. But if we do get 1 Bogan (or even 1 Destiny NZ) MP as the price of losing the threshold does it really matter. The British parliament has had MPs aligned to both Catholic and Protestant paramilitary groups elected under FPP without doing any harm. Adolf Hitler got over 30% of the votes in 1931 but even then it was the politicians (not only in Germany) who were prepared to work with him that were the real problem. Obviosuly a threshold would have been no help at all.
I think that MMP (particularly without a threshold) will enable parties to form Governments with support from minor parties but will have more than one option as to who they deal with. The other reforms (fixed parliamentary term, requirement that no confidence vote elects a new government, etc) I suggest should help encourage this.

24 August 2004 at 3:06 PM  
Blogger Uroskin said...

The ability for the electorate to vote for an individual MP (or, conversely, to get rid of a sitting one) is very academic, epecially in "safe" seats. I'd say the power of the voter to elect a particular MP is the same whether under MMP or a one-nation-one-list system. Getting rid of safe seats would be agood aim because it would make party list composers think more of who would appeal to the most people, rather than being a retirement home for unpopular ones.
Minority Government, I think, is a good idea and in tune with political realities, and it gives an opportunity for very minority and new ideas to have a chance in the political arena.

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