UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 747-i

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

Political and ConstitUTional Reform Committee

Constitutional lessons from New Zealand

Thursday 20 January 2011

professor Margaret Wilson

Evidence heard in Public Questions 1 - 55

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Political and Constitutional Reform Committee

on Thursday 20 January 2011

Members present:

Mr Graham Allen (Chair)

Mr Christopher Chope

Andrew Griffiths

Simon Hart

Tristram Hunt

Mrs Eleanor Laing

Mr Andrew Turner

Stephen Williams

________________

Examination of Witness

Witness: Professor Margaret Wilson, Former Speaker of the New Zealand House of Representatives, gave evidence.

Q1 Chair: Margaret, if you’ve had a chance to catch your breath, I welcome you to the Committee. We are a very new Committee in parliamentary terms and setting out an agenda of work for ourselves, and we were very attracted by the fact that you personally, as well as your country as a whole, had gone through an experience in respect to the Cabinet Manual, and that the British Civil Service had borrowed heavily from your experience. We are grateful for the fact that you can spare some time-I know you have to rush, you need to leave about 11.15 am-and can be here today. We are very pleased that you have been able to come in. Margaret, would you like to make some sort of opening statement or a few words, and then I will ask the Members if they have any questions.

Professor Wilson: Thank you very much for the invitation to be here. I do value the invitation, because I always learn so much, I must say, from it. What I’ve done is just very briefly prepared a few notes on the Cabinet Manual, then on the mixed Member proportional system. We’re about to have a constitutional review, so I’ve just very briefly signalled that as well. This shouldn’t take too much time, hopefully, it will give a context, I thought, for what’s happening.

Chair: That would be very helpful.

Professor Wilson: I’ll start with the Cabinet Manual, since I know the Committee is interested. I watched your session, I think it was last week, on it. In the New Zealand context-my comments are totally related to the New Zealand context-the Cabinet Manual is seen as a guide for both Ministers and officials, and it is a document that’s evolved over a period of time. It began in 1948 with the admission into Cabinet meetings for the first time of the Cabinet Secretary. I’m not quite sure whether it was that secretaries write things down or it was seen as being part of the post-Second World War tendency towards slightly more open government, but once that happened, we did start to get the beginning of what we now call the Cabinet Manual.

There was a consolidation of the content of the manual in 1979, but it still had very restricted circulation to senior officials. In 1991, the loose-leaf Cabinet Manual was produced, and it went to everybody. In 1998, it came in a nice bound form, and it went online in 1998 as well. So there’s been that evolution, if you like, from scattered documents being guides to the relationship between officials and Ministers into now what would seem to be like a more formal document. The document itself is supplemented by a Cabinet Guide, which sets out the more administrative details-that is also online-for officials and how they prepare papers for Ministers and for Cabinet.

Now, in the New Zealand context, the Cabinet Manual has no legal status. It’s seen, and been described in several instances, as descriptive and not prescriptive, so there’s no penalty, as such, for not observing the advice in the manual, beyond knowing that others know that you haven’t followed what’s in the manual, and therefore there might be some political consequences for that, in a negative publicity sense.

The manual is drafted by Cabinet Office officials, but it is always approved by the Prime Minister after consideration by the Cabinet. I think I should also say that at the beginning of each new Cabinet-we have elections every three years-the Cabinet Manual is put before Cabinet Ministers at a Cabinet meeting, so it’s formally endorsed, if you like, by that Executive. In any revision of the manual, the draft is prepared by office officials, and it’s submitted to a peer review group of senior public officials from the Crown Law Office, the Ministry of Justice, State Services, and the Treasury; also, specific chapters would go the Clerk of the House or the Ombudsman or Privacy Commissioner. Once that draft is completed, it goes to the Prime Minister, who may change it or alter it and, as I said, it goes to Cabinet. But ultimately, it is the Prime Minister who is the key person who controls the content of the manual.

The Cabinet Manual certainly wasn’t a result of the mixed Member electoral system, which I will refer to as MMP. Some people think it came in at that time. It did not, as you have seen. However, I would say that the complexity of MMP government has made the manual an important source of information of what is the best practice for Government decision-making. So, it removes uncertainty in situations such as Government formation or collective responsibility when you have coalition or minority Governments.

So the Cabinet Manual today is now seen, I think, as an essential element of transparent governance. If we didn’t have it, we would probably have to invent it, as they say. However, I would note the comment of a former Secretary of Cabinet, who said of the Cabinet Manual: "Like good wine and cheese, it takes time". It’s seen as constantly a work in progress, and for it to remain relevant, it has to reflect the reality of whatever the situation is that confronts the Executive at the time. So those are my comments on the Cabinet Manual. I’m not sure if you wish to ask questions or wish me to continue at this stage.

Q2 Chair: No, I’d like to hear all three blocks, if I may, Margaret, and then we’ll come back to each one.

Professor Wilson: No problem. Well, I think the best starting point for saying a few words about the mixed Member proportional system-MMP-is that in recent times, it starts with the 1986 Royal Commission on electoral systems, and it reported on a variety of electoral matters, including its recommendation of a mixed Member proportional electoral system, so it explicitly toured the world, looked at all the systems, came back and said, "We believe this is the best system for New Zealand". There was political commitment from both major parties to hold a referendum to determine whether New Zealanders should or wished to change their electoral system. In 1992, this resulted in the indicative referendum.

The New Zealander voter in this referendum in 1992 was presented with two questions to answer: first, to choose between FPP, first past the post, or a change to another unspecified system. So the first question was status quo or change. The second question asked us to indicate which of the following electoral systems we preferred, if the majority had voted for a change to the first question. So it was saying, "If the first question resulted in a majority, which of these systems would you like?" and the four systems were MMP, STV, PV- preferential vote-and SM, supplementary Member. 52.2% of voters voted in the referendum, which was not held in conjunction with an election. Of those 52%, 84.7% supported a change to the first question, a very clear indication, and 84% of those who wanted that change, in the second question, voted for MMP to be the new system.

It was demonstrably clear that another referendum had to be held, and that was the political judgment of the time, so a binding referendum was held in conjunction with the 1993 election, and it asked one question: "Do you want first past the post or MMP?" On this, 82.2% voted-it was in conjunction with the general election-and 53.9% voted for MMP. Once that vote was taken, that determined our new system. I must say-I won’t go into detail-but in the year between the first and the second referendum, the Parliament did considerable work on the electoral laws in anticipation of an MMP electoral system, but if that hadn’t been the vote, it would have been discarded.

So perhaps to explain a bit about how it works: on election day, the voter is faced with a ballot paper that requires us to cast two votes. The first is for the constituency Member, and the second is for party of your choice. MMP therefore retains a constituency Member, while ensuring that every vote is reflected in the number of seats in parliament, and I guess that’s the key aspect of it: the number of votes translates into the number of seats. Once all the votes are counted, the list seats are allocated in proportion to the number of party votes the party receives, less the number of constituency seats. We have 120 seats in our Parliament. At the moment, there are 70 constituency seats. These are allocated after the census, which is held every five years, and therefore there are also 50 list seats to make up the 120. A party must get 5% of the party vote or one constituency seat to be represented in Parliament in proportion to their party votes.

The number of seats therefore reflects the number of votes a party receives at the election. That’s a little complicated; I’m happy to answer questions. But it’s worked out quite simply in practice, and polling would say that between elections, most people will indicate they do not have a clue how MMP works, but in election year, the majority say they do, so I suppose it means they focus.

New Zealand has elections every three years. There’s no compulsory voting, but there is compulsory registration to vote. We have detailed election laws, but no written constitution or second Chamber. These constitutional arrangements produce a very direct form of democracy, with around 75% to 80% of registered voters voting at general elections. There is a concern, because this has come down from about 90% over the past 10 to 20 years. There will be another referendum on the electoral system, which will be held in conjunction with the general election in November this year. The form of the referendum will mirror the referendum in 1992 and will be indicative. If the majority vote to support MMP, it will be referred to the Electoral Commission for review, because there is a consensus that with experience, some change is required. If the majority do not support MMP, it will go to a second referendum which will be held in conjunction with the 2014 election.

I’ll just briefly make the following observations: the system has produced a more representative Parliament. Supporters of electoral reform and, in particular, proportional representation, had two primary objectives: to ensure Parliament was more representative and to enable Parliament to be a better check on the power of the Executive. In representation terms, 34% of our Members are women. We have 15% who identify as Maori; we have 4% from Pacific descent and we have 5% from Asian descent. It has produced stable Government, which must be a requirement of any electoral system. New Zealand has had five MMP elections. The average time for Government formation is three to four weeks, but it has varied from two months-the first one, when we were learning how to do it-and one week, after the most recent election.

During the time of negotiations, the incumbent Government continues as a caretaker Government under the conditions set out in the Cabinet Manual. This transition has not given rise to many problems. People seem to know the rules and they follow them, and the rules are essentially political, I must say, more than constitutional. Agreements that result from negotiations vary in content, but usually include provisions relating to inter-party consultation and co-operation, ministerial positions, if any, policy considerations and priorities, and collective responsibility. We have "agree to disagree" provisions, confidentiality and various administrative matters as well, sometimes about funding.

Q3 Chair: I wonder, Margaret, if I could move you on to the final part of these three blocks.

Professor Wilson: Absolutely. The final part I wanted to talk about was the constitutional review. Under the relationship and confidence in supply agreement between the National and Maori Parties, who are in coalition at the moment, it was agreed to establish a group to consider constitutional issues, including Maori representation. The purpose is stimulate public debate, seek views from New Zealanders on the Treaty of Waitangi, and also to get an understanding of New Zealanders’ perspective on New Zealand’s constitutional arrangements generally and any other matters. It is led by the Deputy Prime Minister and Minister of Maori Affairs. There will be a reference group of MPs drawn from across the House, and it will recommend an advisory panel that will advise in the process.

The matters that have been identified are the size of Parliament, the length of Parliament, whether we have a fixed term, size and number of electorates, electoral integrity legislation, Maori representation, including Maori seats, the role of the Treaty, the Bill of Rights, a written constitution and other such matters, including whether or not New Zealand should move to be a republic. The group is to report to Cabinet every six months, but there’s a hiatus during the second half of this year to avoid conflict with the general election and the referendum-and the Rugby World Cup-and the final report will go at the end of 2013, with a Government response in six months.

Q4 Tristram Hunt: I’m wondering whether you’d been able to have a look at the UK Cabinet Manual.

Professor Wilson: Not in detail, but I have read it.

Q5 Tristram Hunt: And on first impressions, what sort of similarities or differences or contrasts do you see there?

Professor Wilson: It’s very similar to the New Zealand format, obviously in terms of the issues it addresses; the contents obviously reflect your own experience. The main difference would be the relationship with Europe and your devolved electoral arrangements. They appear to be the two substantive differences.

Q6 Tristram Hunt: And do you regard-it seemed implicit in your presentation-that the necessity for a Cabinet Manual develops with the prospect of coalition Governments, so that the more complicated the terrain after elections, the greater the need for this kind of guidance?

Professor Wilson: I think that’s one factor in New Zealand. As I said, it was there before, although it became more formalised after, but I would say a stronger motivation has been a desire for more transparency in Executive Government, and I think that has come not only from the Parliament, but from the media and from the people, so if it’s there in the manual, people know what the best practice would have been in that particular instance. Also, personally, as a Minister, it was a very useful guide.

Q7 Tristram Hunt: The issue we’ve been slightly wrestling with over the last week is the caretaker status, and there was a particular issue in terms of the British Chancellor of the Exchequer after the recent general election. You suggested in your presentation that these are political decisions rather than constitutional decisions, in a sense. Have you, in the running and use of the manual, come up with any difficulties about that caretaker period, or has it been smooth?

Professor Wilson: I think we had an experience after the 1984 election, where the outgoing Prime Minister, whose party had lost the election, wanted to make some quite serious financial decisions, and we discovered that there was no statutory or clear arrangement as to what happened in those instances. Everyone had assumed that in fact such decisions would not be made, but held over until the new Government. That was under first past the post, I hasten to add.

After that, we had a Constitution Act, which sounds perhaps a little grander than it really is, but it sets out importantly the principal constitutional institutions and it provides under those circumstances that certainly Parliament has to be called within six weeks, but it doesn’t give much more guidance than that. The assumption is that the existing Government continues until a new Government is formed, and that’s formed after a party leader goes to the Governor-General and indicates there’s a majority. The Governor-General then calls for Parliament and a vote of confidence is taken at the end of the first debate.

Q8 Tristram Hunt: So a vote of confidence is taken in the formation of the new Government at the end of the first debate in Parliament?

Professor Wilson: Yes. There’s no requirement that there should be, I hasten to add, but the assumption is that there will be a vote of confidence, which normally comes at the end of the first debate, which is on the statement of the Government.

Q9 Tristram Hunt: And that’s a sort of de facto investiture vote for the new Parliament?

Professor Wilson: Yes, in effect.

Q10 Andrew Griffiths: Thank you, Margaret, that’s very interesting. If I could move you to the second part of what you were talking about in relation to the referendum and the change to the electoral system, which is something that is very relevant to us at the moment, as it is something that we are discussing. First of all, when you had the referendum, was there a threshold for turnout of the population?

Professor Wilson: No.

Andrew Griffiths: So you had no threshold at all?

Professor Wilson: No. And that’s why I gave the percentages of those who participated in the vote, but there was no requirement that you had to have 50% of people voting or whatever.

Q11 Andrew Griffiths: To go from a fairly simple, easy to understand first past the post system to a more complex proportional representation system, it clearly takes some explaining to the public. How do you feel the debate went during the period of the campaign? Do you feel that both sides were able to clearly articulate, or did it articulate the complexities, or did it sort of turn into a bit of a political bun fight?

Professor Wilson: Well, I think all of those. It was an extremely, as I recall, vigorous debate. Certainly, as it went on, quite a large sum of money was spent by some sections of the community in conveying their views, mainly those who supported first past the post. New Zealand is a small country, with quite high-profile business-orientation for that, and there’s been a concern that perhaps for this referendum, there should be some controls on the amount of money that is spent. However, I would say the most influential was the Electoral Commission, which was given the job of explaining to the people of New Zealand how it worked, and they came up with a television campaign and print media campaign in cartoon form, which was both amusing and informative. I guess others may be better at judging but, as I said, people had the idea of two votes and what they meant, and that they can separate their votes, and people do. About a quarter do not vote for the same constituency party Member and the party; they split their votes.

Q12 Andrew Griffiths: If there was a referendum today, would the same outcome happen or are the public satisfied with it?

Professor Wilson: Good question. There’s regular polling. The latest poll would indicate that the move towards supporting MMP has grown. The latest poll was that 51% supported MMP, 40% didn’t and 10% wouldn’t answer the question or didn’t have an opinion.

Q13 Andrew Griffiths: You mentioned the 34% of women in Parliament. Something I’m very interested in is promoting more women into Parliament. Did the change to the electoral system make a difference to that, and was that through the political parties on their top-up list?

Professor Wilson: Yes, there was a fundamental difference. We had about 20% prior to that, and I can give the Committee numbers elsewhere, but looking from the early 1990s through to the first MMP election and then subsequent elections, there was a dramatic increase in the number of women. Why did this come about? There are no quotas or statutory requirements for that to happen. The parties make their own rules, but the Royal Commission had indicated the parties should use their list for this purpose, and I suspect that happened originally. But now I think there is a general sort of understanding that if you wish to attract votes from that section of the community, they must be represented on your list or in your constituency.

Q14 Andrew Griffiths: And just finally about the formation of Government: you mentioned that, I think, the maximum was two months for formation of a Government.

Professor Wilson: That was the first time. I think it was exceptional.

Q15 Andrew Griffiths: What was the general public’s feeling about taking such a long time for politicians to come to a conclusion?

Professor Wilson: I think it was quite negative and, as I said, that was in 1996, and I guess we were trying out the new system and how you negotiate an agreement and all those things. The next time round, I must say, it was all together within nine days. So the experience had been taken on board that you can learn once, but not twice.

Q16 Andrew Griffiths: And does the Cabinet Manual specifically relate to how decisions, particularly key, important decisions, are taken during that period? For instance, if we’d seen another collapse in the economy, how would key decisions like that have been taken during a period where there’s not really a Government in place?

Professor Wilson: Fundamentally, the advice in the Cabinet Manual is that normal decision making is made to keep the country running. If there was an exceptional circumstance, other parties would have to be consulted before any decision was made, and that really would be the accepted procedure.

Q17 Simon Hart: Two questions, one briefly on the Cabinet Manual discussion we had. Last time this Committee met, we were discussing whether the expression "caretaker" was really an appropriate one for that transition period that we experienced earlier in this year. If my memory serves me right, I think we came to a view that the Government remains the Government until the next Government is in place, and it doesn’t really help anybody for there to be a period where the impression is given of a sort of temporary arrangement. Is that a situation that you can endorse and agree with?

Professor Wilson: Certainly I think it’s accepted that the existing Government remains the Government. I think the notion of "caretaker" is that there shouldn’t be any dramatic changes in policies or appointments to positions, so the notion of caretaker, I think, is the implication of using that, and that’s why that term is used.

Q18 Simon Hart: Can we turn to two topics, one of which you did cover in your opening remarks, and one of which you didn’t. I think I heard you right: you have fixed-term Parliaments of three years, is that what happens?

Professor Wilson: We don’t have fixed terms, but we have to have an election every three years. The actual date of the election is a decision for the Prime Minister.

Q19 Simon Hart: I’m going to ask you what’s probably a very unfair question, which is simply to express a view on the five-year fixed-term proposal that we’re currently debating here at the moment, and also to express a view on something that you didn’t touch on, which was significant boundary changes, which we’re currently undertaking. I would also like to try to ascertain from you how your boundary changes are undertaken and the extent to which they are totally dependent on a numerical formula, or the extent to which they take into account cultural and geographical issues that may affect representatives.

Professor Wilson: Whether or not we should have fixed-term Parliaments is a matter for debate in New Zealand, at least amongst some academics and journalists, and I see that it is in our constitutional review. My own view is that you always have to have a mechanism if there’s isn’t confidence, so I don’t feel strongly one way or the other, to be honest, as long as there’s a mechanism so that if, for instance, the coalition or the Government of the day doesn’t have the confidence, you can’t be bound by that, so that seems to me commonsense.

On the term: there is also an argument in New Zealand at the moment we should extend it to four years, as opposed to three. I think five years would be seen as unacceptable, because we do not have a written constitution or any other real safeguards. New Zealand-this is a personal view-is a relatively young country and, like all adolescents, you like to change your mind, given the opportunity to do so quite regularly in an appropriate way, so three years. And we do change Governments quite regularly in New Zealand. I think that is the mechanism and why you get such a high percentage of vote as well. It is the chief way in which most voters keep a check on the Executive. So it will be a very interesting debate to see whether we go to four years or not, but I really couldn’t conceive of us going to five.

Q20 Simon Hart: And on boundaries?

Professor Wilson: Boundaries had to be redrawn when the mixed Member electoral system came in, and that was done in a somewhat rushed way, because there was quite a short period, but it was done. Subsequently, it is done every five years after the census. We use the geographical and community of interest arguments. There is quite a long period of consultation as to exactly where the boundaries will be drawn, but I must be fair and say I think these days there is not as much intensity in the drawing of the boundaries as there was under the first past the post system. As a party president for a few years, you were very anxious to know exactly where the boundary was going to be drawn, because it did determine whether you had a safe seat, a not so safe seat, a marginal seat or you could forget about it. Under MMP, while constituent seats are important, there isn’t such an investment, I think, in that determining almost alone the outcome of the election, because you have the party vote as well. And I think that’s positive, for what it’s worth.

Q21 Mrs Laing: It is fascinating to hear just exactly how your MMP is working. Can I ask you a quick question about that? Because MPs are elected through two different methods, does it create two classes of MP in the House?

Professor Wilson: I think, in the minds of most, no. I think probably there are some, yes, who have been used to the first past the post system, but the Members are treated as equal in all matters, if I can put it like that. The only difference was a slight variation in funding-and that has been contested-for constituency work, because some list Members do have constituency offices and they do cater to particular sections in the community, so their offices will be where their constituents are. Some are in a constituency because it’s important to get the party vote. If I can give you a personal example, I stood in a seat where it was unlikely that a Labour Member would ever be elected. I had been parachuted into the list for the Labour Party, but I won the party vote in that electorate. So we didn’t win the constituency seat, but Labour won the party vote, and that’s because it required, I think, quite a high visibility then to have a connection with the electorate. So if you have the resources, that tends to be what happens.

Q22 Mrs Laing: Does that mean that some Members of Parliament have responsibilities, being elected directly by their constituents, and therefore there is a one-to-one relationship between those who elect them and the actual Member who is elected? Is it that some have that relationship but some do not, because they are list Members?

Professor Wilson: That would be true, and I think it would vary. Some list Members would have quite close relationships with particular constituencies.

Q23 Mrs Laing: But given that, does that mean that the workload of those who are directly elected as opposed to list Members is greater, because they are looking after the problems of their constituents, just the personal everyday problems of their constituents who come to them for advice, whereas the list Members don’t?

Professor Wilson: That’s the recognition in the funding for the electorate office, so the difference in allocation of money is more for the constituent Member in recognition of that role than for the list Member. List parties would argue that they have equal demands from their constituencies. It’s just not often geographically based, so it’s not within a constituency, but they in fact have to cover the whole country.

Q24 Mrs Laing: It’s fascinating. So two questions follow from that: if there is more funding for one set of MPs than there is for another, is there not a suggestion therefore that one set has more work to do than the other?

Professor Wilson: I think there’s a suggestion. I don’t think anyone’s done a performance review, however, on whether that’s factually correct.

Q25 Mrs Laing: All right, I won’t press you further on that. Because it is possibly more responsibility for one set than for another, and because one set is responsible to a party and the other set is responsible directly to constituents, because the nature of their re-election-and let us be honest, politicians are fuelled by the thought of the next election; let’s not pretend it is otherwise-one set of MPs are depending on their party to be re-elected and the other set are depending on their constituents?

Professor Wilson: I don’t know if that really does quite work out, because the party also selects the constituency Member as well as the list Member, and one of the issues in New Zealand is that sometimes people stand both on the list and for the constituency. We’re a small country of just over 4 million people, so you try to get the best possible candidates you can. The party does obviously select the constituency Member and the list Member, so I think there’s an interrelationship. But I think you’re right, if I hear the question correctly, that there is a feeling that the constituency Members have different responsibilities at times from list Members. So, often list Members would carry more work in the House so that the constituency Member might be able to attend an event in the electorate that they were required to attend, sit on Select Committees or have particular expertise in certain areas.

Q26 Mrs Laing: That’s particularly interesting. Although there is no formal division between the two different types of Members of Parliament, you’re saying that in practice, they run slightly different operations in their daily workload.

Professor Wilson: Well, that appeared to be at least what the Whips were doing in terms of allocation of leave, and you could understand the rationale for that. Also, some Members are more in demand to address groups and so on because they have a special expertise. I think too much can be made of the division. That’s the conclusion I came to in the end, but I think there is a difference, and that’s part of acknowledging the diversity and the representativeness of the Parliament. Not everybody’s the same.

Q27 Mrs Laing: When it comes to a whipped vote in Parliament on a controversial subject, is it more likely that a list Member will show loyalty to his or her party because that is how they’re going to get on the list again, than someone who might show loyalty to their constituency?

Professor Wilson: Not in my experience.

Mrs Laing: That’s very helpful.

Professor Wilson: I must say to you, in fact, almost the reverse. That might just have been the particular experiences.

Mrs Laing: Thank you, that’s very helpful. May I move on to the Cabinet Manual?

Chair: Yes, of course.

Q28 Mrs Laing: Thank you. It’s very good of you to come before us on all these different subjects. I know you’ve been to various other meetings around London while you’ve been here, and personally I’m sorry I haven’t been able to attend any of them. You’re giving us a great deal of help in the work that we are doing. On the Cabinet Manual, in New Zealand, is it seen as merely an operating manual for a particular group of people, or is it part of the constitutional clockwork?

Professor Wilson: The former. I think it’s still seen as a practice manual. As I said, it’s an evolving document, but it has to be viewed through the lens of the Executive, and that’s what is constantly stressed. It is a document dealing with the activities of the Executive. In fact, a lot of people probably don’t even know it exists, in one sense-it’s a practice manual.

Q29 Mrs Laing: And you said earlier that it is approved in every version by the Cabinet, but not by Parliament.

Professor Wilson: That would give it a status beyond which it has, really, I think, in our context. I think it would be a very different document if that was the case, and you’d probably have to then reinvent something like a good practice manual, and it probably would move then more into the realms of the constitutional interest in our context.

Mrs Laing: Thank you, that’s very helpful.

Q30 Mr Chope: Thank you very much for coming along. I’m much impressed by the cautious, consensual way in which you go about constitutional change in New Zealand: setting up, for example, a Royal Commission and then coming forward with an indicative rather than a binding referendum and presenting not a choice of two options, but a choice of five options. Can I ask you why among those options you didn’t have AV, which is the only alternative being presented to the people here as an alternative to first past the post?

Professor Wilson: I think AV might be PV. I think AV might be a variation on preferential voting. These systems have different names in different contexts, so I might be wrong, but I have a feeling that the idea, if I understand your AV referendum, would have been incorporated in the explanation that you get the majority. You vote for a preference among the Members who stand in one constituency and whoever gets the majority becomes the elected Member.

Q31 Mr Chope: The overall majority?

Professor Wilson: Yes.

Q32 Mr Chope: And what percentage voted for that in New Zealand?

Professor Wilson: I don’t know. It would be very small, I think.

Q33 Mr Chope: Our understanding is that the only other countries that adopt AV are from the South Pacific-Fiji and Papua New Guinea, which are smaller countries than New Zealand, although they play rugby as well. But do you have any information about why AV is now regarded as rather unpopular even in Fiji?

Professor Wilson: I think it depends on what you want from your electoral system. If you want proportional representation, AV will not give it to you. It will give you something else that presumably you want, but it won’t give you proportional representation.

Since our Royal Commission in the 1980s had examined them all and set them all out in, I must say, an extraordinarily good report, going through AV and PV and the differences there, and SM and what have you, at the end of that it came up with the recommendation of MMP as being most suited for our particular circumstances in getting both a more representative Parliament and providing a greater check on Executive decision-making. Those were the two objectives. At the end of the day, people voted for MMP because they knew it; it had been around, it had been discussed-and don’t forget that in the vote that determined it, 84% voted for it, so there was a very small percentage probably for STV which, from memory, may have been the next most popular area, and there are some STV electoral systems in some local authorities. They had a choice. There is quite a strong but small advocacy group for STV in New Zealand.

Q34 Mr Chope: Thank you. May I ask just quickly about the Cabinet Manual? Do the judges get involved in responding to questions about constitutionality, or activities of setting it up?

Professor Wilson: Not so far, no. However, I will say this: the answer is definitely no, not today. Judicial review is a bit like the Cabinet Manual, constantly evolving, so who knows whether the judges or an advocate one day may draw upon it, but at this stage, it is clearly seen as not being judiciable. It’s not binding. You don’t have to follow the Cabinet Manual, and if you don’t, nothing awful will happen to you, except maybe in political terms or in media terms.

Q35 Mr Chope: And there’s no problem that it’s not been approved by Parliament?

Professor Wilson: None whatsoever. In fact, as I said, I think you’d get a different document. It would give it a status it doesn’t really have, in which case it would probably become a creature of the courts, or there would be a greater possibility, I should say, for that to happen.

Q36 Mr Turner: May I just go back? What was the position before 1994 regarding the size of majorities over the previous 10 years or whatever?

Professor Wilson: In Parliament?

Mr Turner: Yes.

Professor Wilson: Well, one of the reasons, I think, for people wanting a change in the system is that there were very close majorities. Government would have a majority of one, maybe two, and it was not uncommon for, I think, about 10 years, for the party who won the most votes to not get the most seats so, therefore, not become the Government. And that essential feeling of unfairness, I think, you can perhaps tolerate once or even maybe twice, but when it seemed to become part of the system and you had the emergence of third parties that were attracting 10% or 15% of the vote and perhaps, if you took all the other parties, as high as 20% or 25% of the vote, there was a feeling that the Parliament was unrepresentative and that the party that won did not actually have the majority of the people’s support.

Q37 Mr Turner: What is it like being in a unicameral system? I find it quite difficult to envisage detailed work being done, yet there is only one House. Presumably you have other ways behind it, but what are those things?

Professor Wilson: That is a good and very interesting question. We voted to disestablish our Upper House in 1950. We had a Legislative Council, but Members were appointed to it to vote for their own disestablishment, and there’s never been any attempt to review it that has gained any support at all, but I’m sure it will come up again.

How do you do it? Select Committees become absolutely vital for the scrutiny of legislation. I would say there is one step back from that: good policy advice. So, that means good systems of producing legislation that has been scrutinised at least to that level, so it’s more evidence based than perhaps ideologically based, you hope at times.

Then the Select Committee has the task of going through the legislation. There is a Cabinet Legislation Committee that also scrutinises the final product, so to speak. My own experience was that that was useful, but there was too much to really say that that would have given always, for every piece of legislation, the scrutiny that might be required, because that process should have been over by then. And the Committee stage of the Parliament is really where you get the most vigorous debate and scrutiny of the legislation at that point.

Q38 Mr Turner: I wonder if you could just outline what the process is, first, once a Bill is published and, secondly, before a Bill is published. Because I’m not clear that it’s the same or different from that of the United Kingdom.

Professor Wilson: Well, the preparation of a Bill starts, I guess, with an idea and it goes through the various Cabinet processes. It’s then drafted into a Bill and approved by the Cabinet Committee and then the full Cabinet, then it is introduced into Parliament. It sits there, I think, for three days to give everyone notice of the contents of the Bill, and then it takes its turn on the Order Paper and has its First Reading. First Reading goes to Select Committee; Second Reading, Committee stage; and then Third Reading. So, we have three readings of the Bill plus the Committee stage.

With the Committee stage, I must say, being a substantial review of the legislation, we have found-well, I certainly found as a Minister-that often, particularly the Second and Readings, you were reading it for the courts, and there was preparation so it was very clear as to what the intention was behind the legislation. So you were explaining what that was. So I think it’s fairly similar to what you have here.

Q39 Mr Turner: But the most significant change, I would have thought, would be First Reading and then into Committee for Second Reading.

P rofessor Wilson: Yes. Well, the idea is to ensure that there is proper scrutiny of the legislation, and that is why I said to understand the New Zealand system one has to understand the importance of the Select Committee process. Legislation now can come out quite changed from the Select Committee process from when it went in. I wouldn’t say that happens all the time, but on some important areas that is certainly the case, because the Government doesn’t always have a majority on the Committee. The Committees elect their Chair and there’s a negotiation that goes on. Lobby groups, of course, understand that and a lot of their submissions are really very helpful in terms of identifying areas and advocacy that takes place at that point.

Q40 Stephen Williams: Can I go back, Chair, to where Eleanor left off on these differences between constituency Members and national list Members? Is there a great variation in size of the single Member constituencies in terms of electorate, or are they broadly the same?

Professor Wilson: 5% variance in terms of population. In terms of geographic size, there is an issue, and one as Speaker I was lobbied on to try to change the expenses arrangements. Some electorates, particularly some of the Maori electorates, can take up the whole of the South Island plus the bottom of the North Island, which geographically is enormous. Some of the more rural electorates in the South Island are quite large. They have to have 16 seats there to ensure that the South Island is always going to be appropriately represented, but the electorates are quite large because the population is quite sparse in some points. So, geographically, I think there’s a difference and I can’t quite see how else you would do it, really.

Q41 Stephen Williams: So, allowing for that 5% tolerance, what’s the average size in electorate of a constituency?

Professor Wilson: About 60. I think it’s about 60.

Q42 Stephen Williams: 16,000?

Professor Wilson: 60,000.

Stephen Williams: Six zero?

Professor Wilson: 60, yes, I think from memory.

Q43 Stephen Williams: But within that, from what you’ve just said, there is geographical scope for recognising that certain parts of the archipelago of New Zealand have to be adequately represented in Parliament. There are no-oh yes, there is a Welsh member. Sorry, as an émigré Welshman I was about to say that there may well be an argument that parts of the United Kingdom should have at least a floor of minimum membership in our Parliament. You don’t have a constitution, but was the New Zealand arrangement for electing Parliament developed in that way to make sure that no one part of the country was the elephant as opposed to the mouse?

Professor Wilson: Absolutely. I think during the 19th century, in particular, colonisation was often in the south more than the north, and there was a sorting out in the late 19th century and early 20th century as population drift occurred as well. But we had separate Maori seats from 1867. We had four Maori seats designated, and that was part of an arrangement to ensure that the South Island-

Q44 Stephen Williams: Under the Treaty?

Professor Wilson: No, the Treaty, to be honest with you, was not mentioned, that I’m aware of. It was done as part of the political arrangement, if I may put it like that, about how it was organised and-from memory, I think it was the South Island seats as well-to make sure some constituencies were represented adequately. So, for the South Island now, from memory, the Electoral Act says 16 seats, so you’ve got to do the calculations on that basis.

Q45 Stephen Williams: Coming back to where Eleanor was, and the differences between the responsibility and role of the different Members elected in different ways, let’s just suppose there was pressure on school numbers in Auckland North or hospitals being closed somewhere in Auckland. Would a national list member be expected to take an interest in that local issue as much as the member for Auckland North, if there is an Auckland North?

Professor Wilson: Yes, it is an issue, and it was an issue that came up in title: how do you describe your role, in a way? I spent a lot of time as Speaker trying to work out what was the appropriate descriptor for list Members in particular areas, so there was no confusion between the constituency Member, and the list Member who probably lived and worked and had their activities in the same electorate. However, there would be no question but that the list Member, if they had that interest in that electorate, would speak out on a particular issue.

Q46 Stephen Williams: Do list Members, in practice, take a geographical or local interest, perhaps to boost their standing where there were lots of party Members?

Professor Wilson: It’s a bit of both, I think, if there is a particular personal identity with the area, but normally the parties allocate areas to their list Members where they do not have constituency Members, and that ensures that their party’s profile or interests are recognised. Because at the end of the day, the party vote is more important than the constituency vote in terms of determining the Government. So, list Members will be assigned to go to other regions.

Q47 Stephen Williams: And are these national party lists put together by party headquarters in Wellington or do local members in different communities decide who’s on the list and what position they take on that list?

Professor Wilson: I think it varies from party to party. They devise their own rules on it, but with the parties I know most about, the regions tend to send their lists in in priority order, then there’s a national committee or group that then has to weave them in to the satisfaction of everybody.

Q48 Stephen Williams: All I’m trying to get at is: how much patronage could you argue is involved in becoming a list Member, and is there effectively any way a list Member who is near the top of the list for the National Party or New Zealand First, whatever, could ever be removed from Parliament, if they were enormously unpopular with the electorate or they had been involved in some scandal? If they had good standing with their own party members, are they effectively guaranteed a seat?

Professor Wilson: They could be, in that sense. I think lists were devised according to the Royal Commission, and I think this has happened in some instances, where a party has judged they need a particular expertise which is not there in the constituency Members. I was one such person. I was asked to stand on the list in 1999 because the Labour party thought there was a possibility that it might be called on to form a Government, and they’d run out of lawyers.

Stephen Williams: There’s no risk of that here.

Professor Wilson: So they asked me if I would stand, with the possibility that if that was the case I’d take on the job of Attorney-General.

Q49 Stephen Williams: This is on another issue to do with another inquiry that we are doing on the relationship between central and local Government. What is the strength of Wellington City Council, or is there a Mayor of Wellington? How much local exercise of power is there, compared with the national Parliament?

Professor Wilson: If I may say, that’s also a very relevant question at the moment, because it’s not Wellington. Auckland now has what’s called a super city. So, legislation was brought in by the Government to in effect amalgamate four or five cities within Auckland into one city administration. I think it’s fair to say that legislation was reasonably contentious. It has been enacted and the first elections have been held. It is called the alternative Government. Whether it will be or not, only time will tell.

Q50 Stephen Williams: Because it’s so large?

Professor Wilson: It’s enormous. It will be very interesting to see how that works out. With part of the constitutional review, one of the issues was about Maori seats, and one of the contentious issues was that there should be separate seats on Auckland Council for Maori members, for instance. The Pasifika community would probably argue the same in some areas. So it’s a work in progress, but if you are interested in local government, it will be very interesting to see how it pans out.

Q51 Stephen Williams: I can see the argument about size. If there’s a super Auckland authority, it might have a lot of national problems. You could arguably say the same about the Mayor of London in this country, although it has not quite turned out the way that some people predicted. But in terms of the powers that local government has, does Auckland City region have any more power than Christchurch City Council or Wellington City Council?

Professor Wilson: I think perhaps yes. First of all, we did reform our local body legislation not so long ago, and the idea was to move decision-making down to the lowest level, if I can put it like that. So it is, I must say, quite a complicated piece of legislation, but the local authority has more powers than it’s ever had. I think in the Auckland City area, because it’s dealing particularly with infrastructure and resources, it has its own legislation, which probably means that there is more devolved decision making there. But ultimately, of course, it’s about money and the rating base and how much central Government contributes, and I guess that’s where the issues will lie.

Q52 Stephen Williams: What is that balance?

Professor Wilson: I don’t know what the ratio is at the moment. It’s not a lump sum that is put over; it tends to be activities.

Q53 Mr Turner: We’ve got national Members and local Members, but what about the Maoris? Do they have national and local members as well, and do any other groups have local or national boundaries overlapping?

Professor Wilson: There are, at the moment, six Maori seats. The number of Maori seats is determined by the number of Maori on the Maori electoral roll, which is determined every five years. So Maori sometimes go from one roll to the other, and that’s then worked out proportionally. However, there are 15 Maori in Parliament, or Members who identify themselves as Maori. They stand in constituency seats. Some of them hold constituency seats; some are list Members. They’re across parties. So there is the tangata whenua, the indigenous people status of the Maori seats, but it’s not confined to that. They have their own boundaries. As I was saying, they try to work them out, consistent with the general boundaries, in terms of probably iwi interest, tribal interest, et cetera, and to get them proportionally, in terms of population, more or less the same. But geographically they are very different. There is no other specific representation. That’s why MMP was useful, because we have more Pasifika and more Members who identify within Asian ethnicity than we’ve had before.

Q54 Mr Chope: I just want to come on to the Asians, who are not an indigenous population, but what special measures are you making to bring them into Parliament?

Professor Wilson: I think it’s just the efforts that the parties make themselves to attract those votes. 9% of the population in the last census identify as Asian in New Zealand, and there is an increasing number who are standing for various parties, and being elected to Parliament and there is active political interest within the various communities. As yet no Pasifika or Asian political party has emerged that has attracted sufficient support, however, and if MMP is agreed to by the majority, one of the review questions is whether the threshold of 5% should be lowered to 4% or 3% or whatever.

Q55 Chair: Margaret, I’m very conscious of the time-there’s nothing quite as irritating as thinking your flight is about to disappear from Heathrow when you’re not on it. Can I thank you very much for your time, and we do appreciate you coming in today. I’ve learned a lot from your evidence. I hope we can stay in touch, because I think we have a great deal to learn. And if I may say so, from the way in which a Parliament in a smaller area operates-and I look to Wales and Scotland; the way the devolved settlements operated there-it just seems to me that innovation and creativity seem to follow where people have that sense of devolved administration or where the Parliament itself can be quite light on its feet in terms of its democratic settlement. So, we’d like to stay in close touch with you, if we may. Thank you for your inspiration, and we hope you fly safely. Perhaps we may come and visit you one day.

Professor Wilson: Thank you very much and I’m very happy to send any information that anyone wants because we constantly review our constitution.

Chair: Thank you, Margaret. Fly safely.