Imagine being responsible for a workplace, where some senior workers can't legally be sacked, even for awful repeated bullying or creepiness, or anything less than a serious crime.
Imagine a workplace where some supervisors' staff quit frequently but are nevertheless dutifully replaced. And everyone stays schtum.
Welcome to Parliament, or at least Parliament-as-was.
Parliament's current Speaker has been on a campaign for the past few years to change all that. This week another major piece of the plan came into view. One to bring accountability and even transparency to Parliament's unfireable "staff": MPs.
"I think it's fair to say we had a pretty unhealthy culture within the buildings, and I was determined to get some work in place to really modernise it and say 'the sort of behaviours that were accepted (even if they weren't acceptable), in workplaces 20 or 30 years ago should not be acceptable in Parliament,' which should be a leading workplace."
The first major step in this campaign was an external, independent review of workplace culture, including bullying and harassment - the 2019 Francis Review.
The report that resulted from that review made 85 recommendations for workplace change, some of which were minor and some huge. Since then, the machinery under Parliament's hood has been massively reworked, even changing laws to enable management change.
"Well over half of [the recommendations] have been fully implemented, we're making progress on others. And I think we're seeing some cultural change as a result of that."
Training
Each new set of MPs now get training on staff management and conduct expectations, along with the numerous other skills they require.
"I think we're getting better at the training and expectation setting and mentoring, especially of [MPs], but we're also doing a lot of staff training as well."
And that's not just lip-service.
Prime Minister Jacinda Ardern during her walkabout to inspect the protest aftermath with Deputy Prime Minister Grant Robertson and Speaker Trevor Mallard. Photo / Mark Mitchell
"For example, we've had a number of [MPs] who have been required to do some training, exhibit behavioural change, before they're allowed to employ further staff."
The Speaker has basically been (with help from the various organisations that make Parliament function) cracking the whip and setting quite new expectations.
The Speaker is careful to point out a lot of the historically poor behaviour was not just from MPs. It also came from parliament staff, party offices, and the wide variety of other people who inhabit the Parliamentary ecosystem.
But MPs present particular issues.
The no-boss MP problem
Parliament now has a code of conduct - a broad range of behavioural expectations that apply to everyone (even MPs), but there's a hitch.
The some thousands of people who work for Ministerial Services, Parliamentary Services, the Office of the Clerk, caterers, the various media and so on – they all have employers and if they behave egregiously they can all be sacked.
But MPs have no employer other than us voters and we only carry out "performance reviews" three yearly.
And we are unlikely to know whether any given MP is the perfect team member and supervisor or is… misbehaving. There has been no transparency.
"Too often in the past, things have been just swept under the carpet. Very bad behaviour, very, very bad behaviour" says Trevor Mallard (talking I think about both MPs and Parliamentary staff generally).
The difficulty is that MPs can't be sacked for being bullies, or creeps, or outright nasty.
A few specific things will lose an MP their job: being convicted of a crime punishable by two or more years in prison, failing to attend Parliament for three straight years, aligning themselves with a foreign power, ceasing to be a citizen, a corrupt electoral practice, being confirmed to be mentally unbalanced after six months on a compulsory treatment order, or (god forbid) becoming a public servant.
Or we vote them out, and we could use some help knowing whether or not to do so. There is obviously a little room for improvement.
A Parliamentary Commissioner for Conduct
Which all brings us back to the new plan to better hold MPs to account.
Specifically this fulfils recommendations 77 & 78 from the report of the Francis Review (and addresses no. 81).
77. I recommend an Independent Parliamentary Commissioner for Conduct be appointed, with investigative powers for complaints of poor conduct on the part of elected Members.
78. I recommend the Commissioner publish annually a high-level public report of matters investigated, patterns discerned, and changes recommended, while preserving the anonymity of accuser and accused."
Turning those two recommendations (and adapting one suggesting a suite of possible sanctions for poor MP behaviour), into a workable protocol has taken nearly three years of work from groups led by first former Deputy Speaker and National Party Anne Tolley, and more recently Assistant Speaker and National Party MP Jacqui Dean.
The resulting draft protocol was released this week for feedback.
Here are few key points:
The independent person (IP) is actually independent. They are appointed by the Speaker but chosen by the Parliamentary Service Commission.
The IP doesn't report to the Speaker or any MP but are enabled by the three main organisations that staff Parliament.
Only the cross-party Parliamentary Service Commission can recommend the IP's removal for suitably serious misbehaviour.
They serve for five years but stay in the job until replaced. (i.e. a Speaker can't avoid having one via non-appointment).
They cannot be a former MP. (So not "an old-boys club" says Trevor Mallard.)
The IP only investigates complaints that have gone through normal channels without resolution.
They have wide largesse to investigate and to bring on a team as required (but let Police go first on criminal matters).
They can investigate even if a complaint is withdrawn (i.e. pressuring a complainant to withdraw won't automatically end an investigation).
They can report systemic issues to relevant organisation-heads to fix.
They table an annual report on case numbers and resolutions.
Complainant's details are kept private.
Case outcomes are reported to complainants, the accused and the party leader.
Reports on serious cases can be tabled for the whole House (all MPs) and published by it… The protocol says: "If the Independent Person, during their inquiry, discovers conduct that is so serious it should be brought to the specific attention of the House, they may report the matter to the Speaker with the agreement of the complainant."
The Speaker must table reports given to them. A report about a Speaker's behaviour would be tabled in the House via the Deputy Speaker.
On initial reading it appears to be a pretty nifty plan. But suggestions for improvements are apparently welcomed.
Welcomed?
Trevor Mallard notes "it has taken a long time".
"I think that for some people that have been around here for a period of time, the idea of someone else effectively sitting in judgement is foreign and quite hard. …I think people are uncomfortable…. Some still are. A lot of it will get down to the quality of the independent person and the confidence that they can build in the role."
Historically, the idea of adding extra rules and expectations for MPs has at times been unpopular in some quarters.
Prime Minister Jacinda Ardern inspecting the protest aftermath with Deputy Prime Minister Grant Robertson and Speaker Trevor Mallard. Photo / Mark Mitchell
For example, back in 2007 when a proposed Code of Conduct for MPs (developed cross-party) was tabled by Green Party co-leader Jeanette Fitzsimons, the then Shadow Leader of the House National MP Gerry Brownlee "counter-tabled" a copy of the Standing Orders which he said "are Parliament's already accepted code of conduct".
The Standing Orders are rules for MPs' roles in the House and Committees and do not deal with such matters as bullying staff or sexual harassment. Standing Orders do deal with some behaviour, but only very specifically.
For example the rules note that "assaulting, threatening, or disadvantaging a person" would be a breach of privilege, but only if it was because of "evidence given by that person to the House or a committee". Which suggests that threats or assaults for personal reasons would be just dandy under Standing Orders.
Responses to the plan are now being invited until May 10.
Conclusions
Parliament is not about to give itself the power to sack MPs for bad behaviour.
That is the case in the US and the UK, but would be a major constitutional shift. Instead, the Speaker is proposing a system whereby MPs open themselves up to independent review, are made accountable like they have never been and, if they behave despicably we all get to know that and take it into account when we exercise our three-yearly review at the ballot booth.
In short, as Trevor Mallard says: "If [MPs] do behave really badly… they're not above criticism and they're not above transparency."
All of this has two aims, Mallard says.
"First of all we don't want that behaviour to happen… we're trying to influence behaviour. But also to make clear that there are consequences, and for very serious breaches - transparency."
