Commonwealth Speakers and Presiding Officers Conference

Source: New Zealand Parliament

Trinidad and Tobago

Monday 9th January, 2012

The limited time available for the House to conduct its business places pressure on the Government’s legislative programme. While this tension can provide a safeguard against unfettered legislative activity, governments in New Zealand over many years have sought to supplement the House’s regular sitting hours by taking urgency [1]   to progress their legislative programmes, rather than solely for the passage of particular bills that genuinely need to be fast tracked.

The use of urgency has attracted considerable negative publicity, particularly where it allows select committee consideration to be by-passed. Its impact is potentially to suspend other House business, including question time and members’ business, remove stand down periods between the various stages of the legislative process, and to remove select committee consideration. In examining the concerns raised, the Standing Orders Committee in its review of the Standing Orders in the 49th Parliament had regard to the open and transparent operation of the House and good quality legislative scrutiny – in other words legislative accountability.

It sought to find ways to make government decisions on the legislative process more open and accessible, and for the House’s procedures to work in a way that reflected well on the institution of Parliament – for the House to be following a well established and deliberate set of rules in its law making, breaking from these only in exceptional circumstances.

This paper addresses the package of reforms the Standing Orders Committee recommended in it review of the Standing Orders, the balance necessary to achieve endorsement by the House, and the impact on the role of the Speaker.

Reviews of Standing Orders

The Standing Orders Committee reviews the Standing Orders during each Parliament. [2]   These reviews help ensure the ongoing relevancy of Parliament. They allow the House’s procedures to be adjusted to ensure:

• quality law making
• parliamentary scrutiny that enhances government outcomes
• proper opportunity for members to represent their constituencies, both regional and sectoral, and that these interests are balanced with the public interest
• the Government can advance its programme, and maintain the confidence of the House.

Revised Standing Orders were developed during a review conducted by the Standing Orders Committee in 2011. The Speaker chairs the Committee and presents the Committee’s report to the House. [3]   The revised Standing Orders, recommended by the Committee, were adopted by the House with effect from 21 October 2011, ready for the opening of the 50th Parliament following the general election on 26 November 2011.

Standing Orders – principles of good law making

The Standing Orders are akin to constitutional rules. They reflect the exclusive right of the House to control its own proceedings. The House’s privileges are part of the general law. [4]   The Standing Orders are the House’s own code of practice, which sets out the procedures to be followed. As constitutional rules they have to balance the Government’s need to progress its policy with effective scrutiny of legislative and budget proposals. The Standing Orders establish hurdles over which government proposals must pass:

• Debates to agree the first, second, and third readings of bills

• Time delays for progressing from one stage to the next to allow proper consideration by members

• Opportunities for public participation through submissions to select committees

• A select committee stage and an unlimited committee of the whole House stage where members may propose amendments.

The Standing Orders also set limits so as to ensure progress can be made:

• First, second and third reading debates have limited numbers of speeches (12) and limits on speaking times (10 minutes)

• Closures may be moved in the committee of the whole House

• Amendments that have more than a minor impact on the Government’s fiscal aggregates may be vetoed by a Minister.

In so doing, the Standing Orders balance the Government’s need to progress its legislation against effective scrutiny by Opposition parties. The rights of the Opposition are protected, without making it impossible for the Government to progress its legislative proposals.

The Standing Orders Committee takes this balance into account when reviewing Standing Orders. It does not tinker with the rules. Every change has implications that have to be weighed up carefully. The Committee seeks to come up with a package that will have overwhelming support. It has been criticised for this approach because it is seen as inherently conservative. However, the Committee remains firmly of the view that constitutional rules should not be changed lightly. To get the necessary support for a package of changes there has to be give and take. The Government may not always fully support all changes, but can see merit from an Opposition perspective. It is recognised that there will always be something of a conflict for governments in an effective Parliament.

Public submissions on Standing Orders

The Standing Orders Committee called for submissions from members and the public on its review of the Standing Orders. [5]   From the evidence the committee received two major themes emerged:

• Government’s need for more House time to advance its policy platform with less frequent resort to urgency
• Need to improve the quality of legislative scrutiny, with time for informed and open policy consideration and the observance of fundamental rights and freedoms.

Submitters drew particular attention to the use of urgency by successive governments to supplement the amount of House time available for them to implement their policies. They considered the use of urgency to meet the shortfall in sitting hours to be undesirable.

Standing Orders Committee approach

The Standing Orders Committee’s approach to addressing these themes was to:

• Examine ways to use the existing sitting pattern more effectively, while providing opportunities for members to debate matters that are important to them
• Provide incentives for negotiating the management of House business through the Business Committee. [6]  

The Committee produced a package of reforms that provide extra sitting time for government business, with the aim of using urgency only where legislation actually needs to be fast-tracked, and encourage more effective management of the business of the House through negotiation in the Business Committee. It balanced these with proposals that require instructions to reduce the time for the consideration of bills in select committees to be debated in the House, provide a focus on debating matters of importance to members in the committee of the whole House, along with recommendations to the Government aimed at enhancing scrutiny of legislative proposals before bills are introduced.

In recommending extended sitting hours within the normal House sitting pattern, rather than simply additional hours, the Standing Orders Committee sought to balance all the roles of members. As well as their roles as legislators and scrutinisers of government activity, members face demands as Ministers, party members, and representatives of their constituents and sectoral interest groups. These latter responsibilities, while not as fundamental, all require the time of members, time away from the capital, Wellington.

The Standing Orders Committee also had regard for long standing criticism of the New Zealand Parliament for legislating too much. A previous Prime Minister and academic, Rt Hon Sir Geoffrey Palmer, famously described it in 1979 as the “fastest lawmaker in the west”. [7]   Governments have frequently sought to use legislation to demonstrate they are responding to public concerns, where legislation in terms of additional powers or protections for citizens is not strictly required. To this end, the Standing Orders Committee’s recommendations sought to ensure that all legislative proposals are properly scrutinised for compliance with Cabinet guidelines [8]   and, in particular, with New Zealand’s fundamental rights and freedoms, as expressed in the New Zealand Bill of Rights Act 1990, before they come before the House, and that this scrutiny is made available to the House.

The proposals to provide extra time for government business and to encourage the Government to achieve more open and transparent management of its House business through the Business Committee are discussed further below. This is followed by examination of the Standing Orders Committee’s balancing proposals aimed at enhancing legislative scrutiny and outcomes.

Extended sittings

The Standing Orders Committee’s recommendation for extended sittings [9]   enables the House to sit on Wednesday and Thursday mornings to advance government business on the Order Paper, provided the Government has given the Business Committee notice in the week before. This is not urgency by another name. Only the stage notified on the Order Paper may be taken during a sitting extended in this way. Urgency is still available to the Government to progress urgent business. However, a Minister moving urgency must now inform the House with some particularity of the circumstances that warrant the claim for urgency. [10]  

This requirement should provide greater transparency about the need to fast track particular bills. At the same time there is an incentive to manage non-urgent government business stage by stage through extended sittings, the Government having given notice to the Business Committee in the week prior, making the timing apparent to members and the public well in advance.

Incentives for negotiation in Business Committee

The Business Committee is a formal forum for considering the management of House business. Notice may be required for proposals and both notice and the Business Committee’s determination published, making the process a great deal more open and transparent than the inter-party negotiations behind closed doors that have characterised the management of the Government’s business in the past. [11]   Where the Government proposes to set aside the House’s rules, if it cannot persuade the Business Committee of the merits of its arguments for so doing, it may now have to debate them in the House, enhancing accountability.

The Standing Orders Committee in its recommendations set out to promote constructive engagement through the Business Committee, where all parties are represented. While the Government’s ability to order its business remains largely intact, there are greater incentives for the Government to go to the Business Committee and negotiate the passage of its bills.

The Business Committee now has greater powers to determine extra sitting hours for government business, and also to take a greater role in determining the length, nature and timing of debates in the House, in particular in the committee of the whole House. It can determine that the House sit on a Thursday evening and Friday morning and may also allow more than one stage to be taken during an extended sitting. It may determine bills with related subject matter to be cognate, [12]   thus potentially allowing debates at their first, second and third readings to be taken together. It can give select committees the power to meet during the sittings of the House and set the reporting dates for business referred to them from the House.

However, the Government cannot railroad its proposals through the Business Committee. It must build the support of other parties, for there are certain safeguards built into the Business Committee’s operations. It is chaired by the Speaker, and makes its decision not by majority but by unanimity or near unanimity as determined by the Speaker. To make Business Committee determinations more transparent, they must now be published on the Parliament website once confirmed. [13]   Formal notice to the Business Committee from the Government of extended sittings and committee stages will also be published in this way.

Incentives for better legislative outcomes

The committee of the whole House stage is currently the only unlimited stage of a bill’s passage through the House. Each part of a bill is considered in sequence and members may table amendments for consideration. In order to reduce the number of debateable questions, Ministers frequently instructed Parliamentary Counsel to draft bills in as few parts as possible, the consequence of which was often large two part bills, rather than a logical grouping and arrangement of the legislative provisions.

Now with the Business Committee able to shape the committee of the whole House debate, it is envisaged that Ministers might approach the Business Committee at an early stage, even before a bill is introduced, to get agreement around the debateable questions. Debate might be focused on the major issues, rather than the parts of the bill. It could be shaped to ensure the issues are debated, rather than machinery provisions, and allows for the putting forward of alternative propositions. This way a Minister has some certainty and bills can be drafted to promote the accessibility of the law, rather than so as to minimise debate.

Protecting effective select committee scrutiny

Select committee consideration is critical to the proper scrutiny of legislation. In a unicameral Parliament, such as New Zealand’s, it plays an especially important role providing the opportunity for in depth scrutiny of legislative proposals. It allows the public to participate and influence the legislative process. Participants need time to consider and prepare their submissions. The Standing Orders provide as a standard that select committees have six months to consider and make their reports on bills. [14]   To this end the Standing Orders Committee recommended changes aimed at ensuring committees have adequate meeting time during this period and governments are discouraged from restricting the time available to them to consider legislation.

Instructions to select committees reducing the time for the consideration of bills to four months or less or seeking to give a select committee additional powers to meet at times not otherwise available to it are now debateable. The Government must be open and transparent in its proposals for the consideration of its legislation and weigh up the use of precious House time to debate instructions. Select committees may not meet during extended sittings of the House on Wednesday or Thursday mornings, unless the Business Committee determines accordingly. Here the Government must offset progress in the House against progress in select committees, unless it has been able to negotiate a compromise in the Business Committee.

Bill of Rights scrutiny

Many submissions to the Standing Orders Committee review raised the need to ensure fundamental rights and constitutional principles are given proper consideration in the legislative process. While the Attorney-General is required by law [15]   to report to the House on any inconsistencies with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 in bills on introduction, submitters took the view that the Government should be required to account for inconsistencies at any stage of a bill’s passage. The Committee made recommendations aimed at improving scrutiny both prior to the introduction of a bill and at select committee.

It recommended to the Government that the Regulatory Impact Statement, [16]   which accompanies a bill’s introduction, give more prominence to Bill of Rights and other constitutional issues and that Cabinet guidelines require Bill of Rights reporting on substantive amendments proposed at the committee of the whole House stage of a bill. It recommended also that select committees receive briefings on these reports from government officials and that select committees also invite public submissions on these issues.

Scrutiny of substantive amendments at committee of whole House stage

Substantive amendments at the committee of the whole House stage are another serious impediment to good legislative scrutiny. They can be introduced as late as the day of the committee stage and will not have had the benefit of select committee consideration. Here the Standing Orders Committee drew attention to the power of the Business Committee to determine that a select committee consider such an amendment where a bill has already been reported to the House by the select committee. [17]   Rather than having to use time on the floor of the House moving an instruction, Ministers are encouraged to go to the Business Committee and negotiate consideration of amendments by a select committee, as a potential trade off against time in the committee of the whole House.

Arrangement of committee of whole House

The committee of the whole House stage now allows a broader debate. Debate is focused on the major provisions (each part) rather than the detail of individual clauses. It allows members who have not spoken in the limited first or second reading debates to participate and for alternative propositions to be raised in a public forum. It is the point where the House’s full proportionality is brought to bear on the text of the bill.

In its review, the Standing Orders Committee sought to promote constructive negotiations in the Business Committee about the arrangement of the debate in the committee of the whole House. It also agreed changes aimed at giving greater notice of committee stages so as to encourage earlier circulation of proposed amendments. Where practicable the Government must advise the Business Committee of the committee stages of bills to be taken in the next week. [18]   A schedule of proposed amendments will be published to help inform members for the debate. The Chairpersons of Committees will have the power to group amendments that form alternative propositions and select amendments where there are similar amendments at the same place in a bill. The aim being to maximise debate on issues of significance to members, rather than spending time discussing and voting on every individual amendment proposed.

Conclusions

The package of reforms recommended to the House by the Standing Orders Committee in its recent review included other changes, many of a more technical nature. The changes to provide extra time for government business and mechanisms to encourage more open and transparent management of the House’s business, balanced against protections for select committee scrutiny are the most significant changes made to the Standing Orders since the adoption of new Standing Orders to accommodate the move to a proportional electoral system [19]   in 1996. There has, however, been criticism that these changes are too timid.

Critics consider that by not recommending specific limits on aspects of the use of urgency, the Standing Orders Committee has not done enough to change the long standing use of urgency by governments simply to progress their business. [20]   They believe the use of urgency will continue to be viewed by the public, regardless of whether it is justified or not, as the Government ramming legislation through Parliament without regard to the House’s own rules. A wide-ranging review of parliamentary time was put forward to the Standing Orders Committee as the way of addressing what critics saw as the comparatively low number of House sitting days that require significant augmentation through the use of urgency.

Submitters to the Standing Orders Committee also recommended that the Speaker be given the role of approving urgency where its use would by-pass select committee consideration, in much the same manner as the Speaker approves the use of extraordinary urgency. [21]   The Committee did not agree. It considered the decision to by-pass select committee consideration a political one that would unnecessarily draw the Speaker into the politics. Its preference was to make changes that provide incentives to use extended sitting hours rather than urgency, and penalise the Government in terms of taking time in the House to debate instructions to select committees that significantly shorten the time available to them to consider bills.

Concerns over lack of legislative capacity have existed over a number of years. Submitters to the Standing Orders Committee drew particular attention to the consequences for technical, non-controversial legislation to remedy existing problems or otherwise maintain and enhance the legislative infrastructure. Not surprisingly governments give priority to major policy reforms in their legislative programmes and as a result non-controversial legislation is often not progressed. The Committee took the view that now there is a very good chance that negotiations in the Business Committee will result in this type of legislation progressing through the use of extended sittings.

The remedies put forward to the Committee were to increase the regular sitting hours of the House and to provide for the committee of the whole House stage to be taken off the floor of the House and for it to sit concurrently with the House. Standing Orders Committees have addressed such proposals before.

Balancing the pressure on members’ time is an important consideration. This Standing Orders Committee preferred to see extensions to the current sitting pattern and better management of House business rather than more regular sitting days. Two extended sittings over Thursday evenings and Friday mornings will equate to a whole extra sitting week in terms of hours for the Government. The Committee considered a Main Committee, akin to that in place in the Australian House of Representatives, an expensive option in the current fiscal climate and acknowledged the difficulties it would place on small parties in terms of presence in the House and the committee. A real difficulty in the 50th Parliament where there are four parties with fewer than six members.

Time will tell whether this carefully balanced approach is successful in achieving more openness and transparency in the legislative process and greater government accountability where it is proposed that the House’s legislative procedures be set aside and bills fast tracked. Much will depend on the way in which the Business Committee works in the new Parliament to manage the business of the House. The Speaker as the chair of the Committee has a large part to play in this. The Chairperson must create an environment in the Business Committee where the Government feels confident to bring forward proposals for the management of its business. In determining such proposals, it is the Chairperson who has the challenge of judging whether, on the basis of party membership in the House, a sufficient degree of support has been reached for the Chair, to be satisfied of the fairness of a proposal to all parties. [22]   In so doing the Speaker has a growing role in ensuring an open and transparent legislative process, a role that must achieve a balance between effective Opposition scrutiny of legislative proposals and reasonable progress for the Government’s legislative programme.

1. Urgency is a procedure available to the Government, (see Standing Orders 55 and 56) whereby it can, on motion without notice, extend a sitting for the purpose of advancing Government business. There are virtually no limits on the business. It may include the introduction and passing of bills, or the passing through the remaining stages of bills. The House sits from 9.00am until midnight each sitting day until the business is concluded or 12 midnight on Saturday is reached. A bill introduced and taken through all stages under urgency does not go to a select committee for consideration.   [back]
2. Standing Order 7   [back]
3. Review of Standing Orders, Report of the Standing Orders Committee, September 2011, I.18B, presented 27 September 2011, http://www.parliament.nz/en-NZ/PB/SC/Documents/Reports/4/a/8/49DBSCH_SCR5302_1-Review-of-the-Standing-Orders-I-18B.htm   [back]
4. Section 242 of the Legislature Act 1908   [back]
5. The submissions received by the Standing Orders Committee on its review are available on the New Zealand Parliament website at http://www.parliament.nz/en-NZ/PB/SC/Documents/Evidence/   [back]
6. The Business Committee is chaired by the Speaker and has membership from every party in the House. It makes its decisions on the basis of unanimity or near unanimity, determined by the Speaker. Standing Oder 77 sets out the Business Committee’s main functions.   [back]
7. Geoffrey Palmer Unbridled Power: An Interpretation of New Zealand’s Constitution and Government Oxford University Press, Wellington 1979, p. 70   [back]
8. Cabinet Manual 2008, Cabinet Office, Department of Prime Minister and Cabinet, paragraphs 7.60 – 7.62, http://www.cabinetmanual.cabinetoffice.govt.nz/   [back]
9. Standing Order 54   [back]
10. Standing Order 55(3)   [back]
11. Since the introduction of MMP, minority Governments have been the norm in New Zealand, governing with the support of smaller parties. These smaller parties have on occasions exercised a degree of restraint on the use of urgency, withdrawing or negotiating their support for government urgency motions. However, this restraint has been patchy and commentators do not consider it an effective accountability mechanism.   [back]
12. Standing Order 266   [back]
13. See http://www.parliament.nz/en-NZ/PB/SC/Details/Business/f/8/2/00SCBU_Determinations20111221_1-Determinations-of-the-Business-Committee.htm   [back]
14. Standing Order 291   [back]
15. New Zealand Bill of Rights Act 1990, s. 7 and Standing Order 262   [back]
16. Cabinet Manual 2008, Cabinet Office, Department of Prime Minister and Cabinet, paragraph 7.32, http://www.cabinetmanual.cabinetoffice.govt.nz/   [back]
17. Standing Order 186(3)   [back]
18. Standing Order 297(3)   [back]
19. Mixed Member Proportional System (MMP)   [back]
20. Urgency was first provided for in the Standing Orders in 1903 and has been a feature of parliamentary procedure since that time.   [back]
21. Standing Order 57 requires the Speaker to agree that the business justifies the taking of extraordinary urgency, which allows the House to continue to sit beyond midnight.   [back]
22. Standing Order 76   [back]

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