Dumping 'golden parachute' rule would be a mistake, writes Michael Cullen.
In the examination of the MMP electoral system one suggestion keeps emerging that is both popular and yet completely misconceived. Even some editorial writers have been seduced by its simple charms.
This suggestion is the idea that there should be no so-called "golden parachute" whereby a candidate defeated in an electorate contest is able to enter, or return to, Parliament as a list MP.
In its simplest form the abolition of the present rule would seem to mean that anybody who stood as a candidate in an electorate and did not win would be disqualified from becoming, or remaining, a list MP.
This cannot be what people really mean since in that case few candidates, including almost all of those from third parties, would choose to contest an electorate.
Those in the two main parties who were really seeking to enter Parliament would be prepared to run only in the safest seats. If that were not possible, they would seek the safety of the list.
This would deprive voters of choice, including the choice, which many exercise, of some form of tactical voting. It also ignores the fact that under MMP electorate candidates often act as flag carriers for the party vote in their electorates, hoping thereby to increase their party's representation in Parliament.
The real concern that people have probably arises from the situation where a person who has held an electorate loses it at a subsequent election yet returns to Parliament as a list MP. People tend to see this as meaning that someone who has been rejected by "the electorate" is nevertheless able to "sneak in the back door", to use a phrase often used in this context. On the face of it the objection seems valid and such an outcome should be prevented by amending the Electoral Act. In fact, this would be a serious error, in part because of practical issues and in part because it misunderstands the nature of the proportional voting system and the role of the MP within it.
The most obvious practical problem is defining what is meant by "the electorate". Individual electorate boundaries are reset every five years and the result of these changes varies between abolition of that electorate to no change at all. Both these extremes create no difficulty with respect to the proposed change, but they are not the norm.
A relatively small change can oust an MP because the seat has changed its basic party allegiance. Would losing in that circumstance constitute a sufficient reason for being debarred from Parliament as a list MP? And who would decide such marginal cases?
And if it is decided that someone is not debarred in such a case does that then mean that the converse is true? That is, if someone hangs on to a seat because of favourable boundary changes then they should be debarred if it is determined that they would have lost if there had been no such changes? Again, who would make such a determination?
Very quickly we begin to move to a situation where the courts will have an excessive power to determine the makeup of Parliament, a power they rightly do not seek or want.
Then there are the cases of MPs who have managed to win electorate seats for one party despite the party vote being substantially in favour of another. At a subsequent election they are finally overwhelmed by a further shift in party allegiances. If the new rule were to be adopted they would have every incentive to bail out of their electorate and flee to the safety of the list, clearly a perverse outcome.
The rule also ignores the fact that under MMP people often vote tactically, especially if they believe they can get two candidates elected from their area. This may, and arguably has, resulted in incumbent MPs losing in their electorate.
Another consideration is that being an MP is not one job but many. A person may be a great electorate MP but no star on matters of policy or debate. Equally, the reverse may be true. Thus a candidate may have proved to be less effective in the former role but still may have much to offer in the latter.
Most importantly, "the electorate" that decides who is the local MP is not the same "electorate" that decides how many MPs a party should have. The individual electorate seats are decided on a first past the post basis, whereas the country's overall representation is decided proportionally.
Under first past the post, shifts in party support are generally magnified in terms of the number of electorate seats each party wins. Under proportional representation that is not the case. And under MMP if electorate results are out of proportion this is corrected by the list seats. Thus a party's candidate can lose in an electorate while the party's overall national standing justifies that person remaining an MP in a list capacity.
The examples I have given are not theoretical ones. They have already occurred in the short life of MMP.
Jeanette Fitzsimons was elected in the Coromandel seat against an unpopular National candidate but subsequently lost the seat when National put up a more acceptable candidate. Under the proposed change the co-leader of the Greens would have been excluded from Parliament even though widely respected and representing a party with broad support.
Darren Hughes held Otaki with a slim majority and then lost it when boundary changes moved against him and despite doing better than Labour's performance nationally. Clayton Cosgrove managed to hang on in Waimakariri until the National Party vote in that electorate reached twice the level of Labour's, again still performing better than Labour's national average.
That any of these three should have been debarred from being list MPs in these circumstances would have been a fundamental denial of the principles underlying the MMP system which the public has only recently endorsed.
Electoral law should be as clear and as simple as possible and avoid perverse outcomes. Adopting an anti-golden parachute provision is superficially attractive but would fail to meet these tests. It would bring patently unfair results in some cases, risk losing some people with much to offer the electorate at large, prompt people to avoid the electorate contests, and create whole new areas of potential litigation.