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Legal vs. Moral

Written By: - Date published: 8:48 am, September 28th, 2009 - 66 comments
Categories: bill english, national - Tags:

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 176—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…

66 comments on “Legal vs. Moral”

  1. Good post.

    I think that even under the legal test Blinglish fails. Why is payment of money to a MP a potential breach of the pecuniary interest rule but the payment to one’s spouse or to a trust set up for the benefit of one’s spouse and children not a breach?

    This sort of differentiation would put even Winston Peters’ attempts to shame.

    • Armchair Critic 1.1

      My last employment contract had a section about bribes in it. Part of this section included a list of people who wold be considered as being capable of being bribed or providing bribes. And partners, children, parents, siblings, in-laws, business associates, ex-partners, neighbours and close friends were all on the list.
      Bribery and rorting accomodation allowances are different things, of course, but I have to agree that the definition of pecuniary interest is very narrow if Blinglish is deemed to not have one because the payment goes to his wife.

  2. RedLogix 2

    The PM’s failure to act decisively on this open and shut case of corruption is fatal. Eventually English will be sacked, but Key’s aquiesence and failure to act decisively will taint him as well.

    When Coney and Bunkle were caught in the identical mistake Clark sacked both of them promptly. That’s the valid comparison here, and Key has failed it.

  3. BLiP 3

    Why not let Blinglish answer this himself:

    The question is not whether he has broken the law, but whether he has behaved according to the standards of a minister.

    That seems pretty clear to me.

    • RedLogix 3.1

      @BLiP.

      Totally off topic, but after getting home yesterday morning I spent the day unwinding watching all the Adam Curtis docos you linked to on YouTube in one hit. I’d seen only a few of them on tv, but absorbing them in one coherent picture of Western social history since the rise of the PR profession, was a moving experience.

      There is undoubtedly a dark side to the PR industry, one that casts a real shadow over the Nats use of Crosby Textor (or is it CT using the Nats?).

      Thanks again for the link.

      • Lew 3.1.1

        RL, if you liked The Century of the Self, it’s probably worth you watching The Power of Nightmares as well, if you haven’t already.

        (Assuming BLiP didn’t link to those, too).

        Curtis is like a thinking man’s Michael Moore. And British, which helps.

        L

        • RedLogix 3.1.1.1

          Lew,

          I overdosed and watched the lot. The Trap is probably the most chilling of them.

          It’s left me feeling like I should go away and have a long hard think.

          • Lew 3.1.1.1.1

            RL, yeah, I know the feeling very well.

            If you want top see how the other side thinks, Obsessions is a good place to start. Short and sharp.

            L

      • BLiP 3.1.2

        No worries, mate. I see Lew has mentioned some other masterpieces but can I also recommend “The Mayfair Set” – makes me wonder if this latest recession wasn’t in fact just another move in the chess game.

        This is a great link and, from there, you can find everything else Adam Curtis has done.

        Spread the word. Download. Duplicate. Distribute.

        • Tigger 3.1.2.1

          BLiP – keep reposting that Blingish quote – nothing like being hoisted with one’s own petard…

  4. Tim Ellis 4

    The Labour Party seem to be backing off on the claims that what Mr English did was illegal.

    r0b as you know the questions around Dr Worth were issues of confidence. Mr Key stated that confidence is not a legal test.

    The issues around Mr English are issues of accommodation entitlement, which are a legal test. Labour would like to muddy the water and make it an ethical test (which is amusing from a party that backed Mr Field for so long and said he was guilty of nothing more than helping people).

    If accommodation allowances are now down to moral tests rather than legal ones, then Mr Goff might have some explaining to do about why he rented out his apartment in Wellington, pocketed the money and took up a Ministerial residence when he was a Minister.

    • Bright Red 4.1

      But, Tim, the question of whether English can remain in his role given he is rorting (even if it isn’t illegal) is one of confidence…. and confidence isn’t a legal test.

      • Tim Ellis 4.1.1

        BR, if the Labour Party want to make “rorting” as you define it the test for confidence, then they might want to open up their own trust and property arrangements. Given the pledge card scandal of a few years ago, they might be on shakey ground.

        • Daveo 4.1.1.1

          What’s the Labour Party got to do with anything Tim? As a citizen and a taxpayer I’m outraged by Bill’s rorting. Is the best you’ve got to offer some distraction about what Labour did back in the day?

          Your dishonest arse-covering for bill is fooling no one.

          • Tim Ellis 4.1.1.1.1

            Daveo I would like to see MPs from all parties held accountable for their rorts. Whether it be accommodation allowances (as with Mr Goff renting out his apartment in Wellington while living in a Ministerial home), rorting leaders budget allowances (as Mr Anderton has done for a non-existent progressive party), rorting parliamentary services (as the Labour did to pay for its pledge card in 2005), etc etc.

            When it comes to ethics, I don’t think the Labour Party is in a good position to be giving any lectures.

            • Daveo 4.1.1.1.1.1

              Interesting though that you prefer not to engage with the substance of the issue, or the point r0b is trying to make.

              No, for you it’s all “look – over there! – some other guys did stuff that I think is bad too!”

              It’s called misdirection Tim. We all know what you’re doing. You’re not fooling anyone.

            • Pascal's bookie 4.1.1.1.1.2

              So just ignore the LP then Tim. Problem bloody solved mate.

              (Unless your problem is that you think your beloved tory party is faring badly, in which case a transparently ad hom distraction might be just the ticket).

            • Tim Ellis 4.1.1.1.1.3

              PB, I think a higher standard of ethics and accountability should be expected from MPs than we have had in the past. If Mr English fails the test then he should be given his marching orders.

              What I do find intersting is r0b’s inconsistency between his defence of the Labour Party’s actions yet insistence that National should be held accountable to a much higher standard than the Labour Party has ever held up to.

            • Pascal's bookie 4.1.1.1.1.4

              So why do you keep talking about how the Labour party should shut up then, rather than what you think about English’s actions? It doesn’t add up mate, and makes you look like a hack.

              Honest advice would be to drop all the repititious bs about the LP, Goff’s house and what have you. The analogy is false in the important repsects, (as I pointed out the other day) and it detracts hugely from what you claim here to be your motivations and concerns. No charge mate.

            • Tim Ellis 4.1.1.1.1.5

              PB I don’t have the facts and with all respect I refuse to rely just on the evidence that Mr Mallard puts up. Mr Mallard is not an independent party in this matter, he is the lawyer for the prosecution.

              If the Auditor General rules that Mr English acted illegally or unethically, then I hope the Prime Minister sacks him.

              It is intersting however that despite the initially furious charge from Mr Mallard, in which he accused Mr English of being a “money laundering hypocrite” and claim to have a water tight case concluding Mr English acted illegally, Mr Mallard appears to be backing off, as r0b is now doing, by talking about the “morality” rather than the legality of Mr English’s claim.

              That’s a fair enough position, I suppose, but morality and ethics are relative. It is a little bit hypocritical in my view to defend the actions of the Labour Party while trying to take the high ground over National.

            • Pascal's bookie 4.1.1.1.1.6

              Just more ad hom Tim. People are putting forward evidence. Who those people are is irrelevant to what the evidence says/points to. Basic stuff.

              It really is pretty weak to say:

              If the Auditor General rules that Mr English acted illegally or unethically, then I hope the Prime Minister sacks him.

              and

              If Mr English fails the test then he should be given his marching orders.

              Surely that goes without saying. It amounts to saying that you think Key should certainly sack English if he has no choice to do otherwise. Awesome.

            • Tim Ellis 4.1.1.1.1.7

              I’ve made it quite clear PB the test is the Auditor General. Unlike Labour who abused the Auditor General when he criticised Labour Party use of parliamentary services funding, where no heads rolled for it, I hope that Mr English does get his marching orders if Mr English is established to have acted inappropriately by the auditor general.

              As much as you might like to think that it doesn’t matter who is putting the evidence forward, you have to be joking. Mr Mallard is the attorney for the prosecution. The auditor general is the judge. I would hope that the auditor general hears both sides of the story before forming an opinion.

              Even Mr Mallard appears to be backing away from his earlier allegations of illegal behaviour. So far, coupled with calling Mr English a “money laundering hypocrite”, it’s fair to say that Mr Mallard has form when it comes to making up smears against other people that later prove to have little substance.

              I’ll await the auditor general’s report. I wonder why Labour is in such a rush to convince people to take a position before the auditor general comes out with hers? Will Labour accept the AG’s ruling, if it is that Mr English acted lawfully and appropriately, or will they return to form and attack the integrity of the Auditor General again?

            • Pascal's bookie 4.1.1.1.1.8

              As much as you might like to think that it doesn’t matter who is putting the evidence forward, you have to be joking.

              Not joking Tim. Like I said, it’s basic stuff. The ad hom fallacy isn’t something I just made up, it’s logic, which ain’t known for its lolz.

              I’ll await the auditor general’s report. I wonder why Labour is in such a rush to convince people to take a position before the auditor general comes out with hers? Will Labour accept the AG’s ruling, if it is that Mr English acted lawfully and appropriately, or will they return to form and attack the integrity of the Auditor General again

              To respond in kind; I wonder why you won’t comment on the substance of English’s actions and how they measure up to the standards you would like to see. It appears that you don’t want to do so because if you call for him to go and the AG says what he did was legal, then you’d be in an awkward position, likewise if you say he should stay and he ends up having to go.

              If you don’t want to discuss the matter untill the AG reports back, that’s fine, but you should perhaps stop discussing it. Like I said, you look like a hack. But hey, your call.

              Honestly, who cares what Labour/Mallard is saying or what their motivations are? You claim you want a higher standard than the last governement, and yet the only guide to what that standard might be is ‘it’s up the AG, if she says it’s legal, it’s sweet”. Which sounds like something Winston might say.

            • Pascal's bookie 4.1.1.1.1.9

              “and claim to have a water tight case concluding Mr English acted illegally,”

              Where/when was that, precisely?

          • burt 4.1.1.1.2

            Tim asked;

            Will Labour accept the AG’s ruling…

            Interesting question. rOb will tell us that the AG has no authority over parliament but I’m not so sure that is how it should be. Labour have demonstrated before that the AG produces interesting reports but that they have no consequence if they say things that you didn’t want to hear.

            I’m loving this.

            [Burt has no authority to state my position on any topic, since he usually has it wrong. Burt, I’ll ask you to stop thanks. r0b]

            [lprent: good to see you’ve found that you can moderate your own posts…. BTW: been enjoying the posts. ]

            • burt 4.1.1.1.2.1

              rOb

              Can I provide liks that support my position or will they be removed ?

            • r0b 4.1.1.1.2.2

              I don’t know Burt – can you?

              Has anything you’ve ever posted here ever been removed? Your comment calling Helen Clark a “lying bitch” is still here Burt.

            • burt 4.1.1.1.2.3

              You never did get over me calling you her that did you. I’ll be back later tonight, much later, because that is how I work. I’ll paste a few links and we can discuss them. Moral vs legal is a debate we have had before, at length.

            • burt 4.1.1.1.2.4

              rOb

              Who is legally responsible if money was improperly spent?

    • Lanthanide 4.2

      “(which is amusing from a party that backed Mr Field for so long and said he was guilty of nothing more than helping people).”

      Given that the Field trial was one of the longest in NZ’s history, clearly the Field case is a lot more complex than Blinglish’s rather simple housing rort, don’t you agree?

      I believe Labour were taking their minister at his word, which is not an unreasonable thing to do – it’s not really their fault that he lied each way from Sunday to cover his ass in the affair. Are you now suggesting that the government should stop what it is doing and thoroughly investigate any charge laid at their MPs before they publicly comment on the matter? Nothing would ever get done if that were how parliament works. So no, Labour in that case spoke on the matter to the best of their ability and didn’t cover anything up.

      Blinglish’s rort is very simple in comparison, and the facts are pretty clear-cut and available to everyone, the question is whether it is appropriate and falls into a moral grey area or not – especially when Labour ministers were sacked for pretty much the same offence back in 2001.

      • Tim Ellis 4.2.1

        Lanthanide that’s an interesting piece of history that doesn’t really stack up given that the Ingram report said that Mr Field’s testimony wasn’t reliable yet Labour still claimed he was doing nothing more than helping people.

        If the Auditor General finds that Mr English has acted inappropriately or raises doubts about Mr English’s integrity, I expect him to be sacked with no equivocation. Labour’s record in investigating its own doesn’t give it a lot of credibility in my view.

        • r0b 4.2.1.1

          yet Labour still claimed he was doing nothing more than helping people.

          Evidence for that claim please Tim.

          • Tim Ellis 4.2.1.1.1

            Numerous quotes from Dr Cullen reported r0b.

            • r0b 4.2.1.1.1.1

              Such as…

            • Maynard J 4.2.1.1.1.2

              Classic, I googled this “Labour still claimed he was doing nothing more than helping people.” meme of Tim’s and all it comes up with comments here, kiwiblog, and this:

              “He was trying to help people in his style, naive in the way he did it…came back and bit him,” says Arthur Anae, former National MP.

            • r0b 4.2.1.1.1.3

              Maynard J – nice catch!

              Folks, Tim likes to live in a world constructed largely of imaginary “facts”. If he says something that doesn’t sound right, ask him for the evidence. He usually then disappears…

  5. Trevor Mallard 5

    And what if she finds a judgement issue? And do you believe he is eligible Tim? Do you think the change in the trust arrangement is an indication of appropriate ethical standards? And do you think he retains the credibility to be Minister of Finance? And why when the pressure came on did you run away from similar questions on Red Alert ?:-
    http://blog.labour.org.nz/index.php/2009/09/28/english-docs-the-a-g-will-consider-ii-the-lease-device/comment-page-1/#comment-11757

    • Tim Ellis 5.1

      Mr Mallard I haven’t been running away from questions on Red Alert. As you know you have been moderating my responses on Red Alert, which creates a time lag to reply, among others.

      You may not have caught up with my responses on Red Alert to those questions. I suggest you do before accusing me of not answering the questions. I’ve made it quite clear that if the auditor general finds an issue with integrity or ethics around Mr English, I expect him to be sacked. That would create an interesting precedent, since the Labour Party didn’t roll any heads when the last Auditor General criticised the Labour Party’s use of parliamentary expenditure. Instead the Labour Party went on the attack against the Auditor General and accused him of bias.

    • burt 5.2

      Ethics training Trevor, that’s all that is required. Some form of distraction about perhaps people need to learn how to not make such mistakes….

      Remeber the need for ethics training – it was never delivered was it.

      • Pascal's bookie 5.2.1

        Maybe Rodney should tell us what he thinks? Has he commented yet? What’s ACT’s position on Ministerial ethics, collective responsibility and the relationship between parties in a coalition?

      • burt 5.2.2

        So what have ACT and Douglas got to do with this? Or are you just getting ready to say ‘others were doing it too and the rules were confusing so we shoud just move on’ ?

        • Pascal's bookie 5.2.2.1

          Nah, I just know how important this stuff was to both yourself and Rodney last year. No biggie.

        • burt 5.2.2.2

          Still important to me, I can’t speak for Rodney and I’m not compelled by some partisan loyalty to support him if he is being self serving. I’ll bag him as quick as anyone if he is being corrupt.

          • Pascal's bookie 5.2.2.2.1

            good for you. What about if he sticks around in a corrupt govt? that was the stndard re Peters I seem to recall.

          • burt 5.2.2.2.2

            If National decide that the AG has no idea what she is talking about and validate English because that is better for them than being accountable then I’ll be surprised if;

            a) It is not supported on this blog like it was last time it happened
            b) ACT accept it unlike last time
            c) I’m not called an idiot for saying it is wrong wrong wrong

            • Pascal's bookie 5.2.2.2.2.1

              eh?

              I seem to rmember people saying Helen should’ve kicked Peters out without anything like that standard of proof of wrongdoing. I was supposng those people would hold ACT to the same standard with regard to this coalition, esp seeing that standard was one ACT was fond of. Am I wrong?

  6. RedLogix 6

    Instead the Labour Party went on the attack against the Auditor General and accused him of bias.

    As did many others who thought the rulings eccentric and flawed. Whether Brady was compromised or not is beside the point, the effect of his rulings (especially the arbitrary three month limit) created a bias in favour of the party with the deep enough pockets to spend up large before that time period.

  7. Tim Ellis 7

    If the Labour Party thought Mr Brady’s rulings were “eccentric and flawed” then they should have moved to remove him from office RL. It is unprecedented for senior government ministers to go on the attack against an auditor general.

    • burt 7.1

      Tim Ellis

      But it was OK to just ignore the AG, parliament know more about the law than anyone. Hell even Trevor voted that the AG didn’t have the authority to constrain parliament when Labour were govt. Bet he thinks the AG has a more authority nowe that National are in charge.

    • RedLogix 7.2

      If the Labour Party thought Mr Brady’s rulings were “eccentric and flawed’ then they should have moved to remove him from office RL.

      You persist in running the line that it was only Labour who was unhappy with Brady. In fact 7 of the 8 parties in Parliament at the time were affected by the arbitrary lines he took.

      Of course removing Brady from office was never an option; that would have been a wholly dangerous undermining of an important Parliamentary Office and would have had very bad long term implications. Instead Labour, and most of the other Parties affected, took the responsible approach and paid the monies back.

      Does this mean that you are suggesting that if the current AG rules against English, and the Nats disagree, that they should have her removed from office? I wouldn’t think so, so why run such a pointless argument?

  8. Tim Ellis 8

    RL I thought the Deputy Prime Minister railing against Mr Brady was appalling behaviour and I hope that New Zealand politics never stoops so low again. Criticising a report of an Auditor General you might as well remove him from office.

    I would hope if the Nats disagree with the Auditor General on the English ruling they take it on the cheek, remove Mr English, and uphold the status of the Auditor General.

    • RedLogix 8.1

      So are you saying that the AG is forever abover criticism? That anyone who disagrees with a ruling from that Office is to be muzzled ‘out of respect for the office’?

      The real respect lay in obeying the ruling.

      • Tim Ellis 8.1.1

        No, the AG isn’t above criticism RL. THere is a difference between saying: “Our interpretation and Parliamentary Services interpretation for years has been different to what the Auditor General has ruled. But we accept the ruling and will obey it”, and attacking the Auditor General as biased.

        The timeline shows that for a long time leading up to the 2005 general election, the auditor general was concerned and warned parties about use of parliamentary services money for election expenses. The ruling of the AG wasn’t a shock. Some parties decided to work within what the AG was saying during the 2005 election, others chose to do what they had always done. Attacking the AG for bias was totally reprehensible in my view.

      • Lanthanide 8.1.2

        Obviously what Tim is saying is that it’s not ok for the *government* to say such things about the AG. Other parties in parliament presumably get free reign to do so, though. Apparently if the government has any beef whatsoever with the AG, the only course of action they have is to sack them – there’s no possible middle ground available.

    • burt 8.2

      It would seem to me that if the AG alleges that laws have been broken then a court would be the logical place to resolve the issues. But I have taken a lot of abuse on this blog for suggesting that in the past. I’m thinking this time the same suggestion will be more acceptable.

  9. Ianmac 9

    News at 12:00 Bill English has not received any payments since July???!!!

    • Ianmac 9.1

      Actually I only half heard that, but did they say that “he” had not received any money rather than the Trust? Odd.

    • toad 9.2

      I wonder why, if he hasn’t been claiming any housing allowance since July, he didn’t publicly state this back in July?

      Now the next question is how much he is going to pay back, given that the Double Dipton rort has been going on for years.

      • BLiP 9.2.1

        Best case outcome all round would be him selling the Wellington house to repay the taxpayer – Blinglish gets to keep his Dipton residence while all his living costs in Wellington have been met so he’s not out of pocket at all – and – the taxpayers don’t get ripped off. Win win.

  10. ben 10

    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.

    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:

    You’re just banging the table. Neither facts nor the law are on your side. So, yeah, play the moral card and keep banging that table.

    And, sorry to harp, but where were you just 12 short months ago when the Cabinet manual was being openly ignored by a senior minister and openly defended by the PM and democracy itself was being re-written to suit the incumbent and penalise its opponents?

    You might almost have a chance at being taken seriously on English if you would acknowledge the rather more serious transgressions of the previous government.

  11. r0b 11

    Oh Ben – are you still cross with me?

    Neither facts nor the law are on your side.

    You should let the AG know, you could save her some time.

    So, yeah, play the moral card and keep banging that table.

    The “moral card” Ben? Just listen to yourself.

    Cabinet manual was being openly ignored by a senior minister and openly defended by the PM and democracy itself was being re-written to suit the incumbent and penalise its opponents?

    You’ve been spending to too much time at Kiwiblog Ben. Remind me again – which party abused the political process so badly that the public backlash forced their leader out of office? Could it have been the National “so long Don” Party?

    • burt 11.1

      rOb

      You missed the most important point;

      You might almost have a chance at being taken seriously on English if you would acknowledge the rather more serious transgressions of the previous government.

      • r0b 11.1.1

        The previous government made mistakes burt, but not nearly as many and not nearly as serious as you slobbering partisan attack dogs froth and rant about. As per felix below burt, were you there holding a sign?

        Goodnight!

  12. felix 12

    …democracy itself was being re-written…

    Really? Missed that.

    Is that you holding the sign, ben? Are you one of those people?

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