There’s an old lawyer joke: “When the facts are on your side, bang the facts. When the law’s on your side, bang the law. When you’ve got neither, bang the table”. National have a similar tactic, of banging on legal vs. moral tests as it suits them.
When sacking Richard Worth, Key was at great pains to point out that the test was not a legal one, it was a matter only of his “confidence”. In defending Bill English over his lavish accommodation claims, Key is at equally great pains to insist that all that is relevant is that English has met the “legal test”. It’s entirely possible that the Auditor General’s investigation will conclude that this is the case. But the real issue is not legal, it is moral:
There can be few sights more unedifying than that of a politician countering accusations of improper behaviour by claiming that his actions are consistent with the letter of the law. The idea that someone is innocent unless and until he is demonstrably guilty quite properly carries weight in criminal proceedings but for those elected or appointed to high office, the rules are different. Their tenure being the result of electoral fortune, their tenability will always depend on public confidence. And public confidence, as Richard Worth can attest, relies on something more ineffable than precise legal niceties.
It isn’t just editorialists that make this point. Consider the contentious issues of Bill’s pecuniary interest in his family trust. Pecuniary interest arose in the Peters case in 2008, and was addressed in the Report of the Privileges Committee: Question of privilege relating to compliance with a member’s obligations under the Standing Orders dealing with pecuniary interests (Simon Power, Chairperson). Here’s an extract (p15, PDF link) relating to the inadequacy of a legalistic approach:
Initially, the rules for the register were to be set out in statute, which would have left open the possibility of the courts ruling on their application. This proposal was not pursued, and the House instead established its own rules to deal with pecuniary interests, within the Standing Orders. If legislation had been employed, a legalistic approach to registering interests would have been appropriate. However, the House chose to keep the matter within its own confines. This places a stronger moral imperative on members to comply with the requirements, and to do so in the spirit of the House’s own rules.
… Members should follow the approach used in relation to the Standing Orders relating to the declaration of financial interests under Standing Orders 165 to 176â€”if in doubt, declare it.
That seems pretty clear. In this case a legalistic approach will not do, it’s a moral issue. Simon Power knows it. Editorialists know it. We the public know it. Deep down, Bill and John probably know it too…