Review of Standing Orders Submission

October 11th, 2013 at 7:00 am by David Farrar

SUBMISSION OF DAVID FARRAR ON THE
REVIEW OF STANDING ORDERS TO THE STANDING ORDERS SELECT COMMITTEE

 About the Submitter

  1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
  2. I am a former Parliamentary staffer from 1996 to 2004, and write reasonably extensively on parliamentary issues on my blog.

Overall View

  1. The changes to standing orders made in 2011 were beneficial, and generally Standing Orders are working well. However there are a number of areas where further improvement can be made

Urgency

  1. The ability for the House to have an extended sitting, as an alternative to urgency, has worked well. It is pleasing to see the use of urgency has reduced considerably.
  2. Urgency is from time to time still necessary when the Government decides (and the House concurs) that it needs to progress legislation more quickly than is possible under an extended sitting. I note with approval that the current Government has almost always granted leave for question time to occur when the House is in urgency.
  3. I believe it would be desirable to codify this practice and amend Standing Orders so that question time still occurs under urgency. A future Government could use urgency to avoid the important scrutiny of question time.
  4. While it is important the Government has the ability to progress legislation in a timely manner, an hour a day of question time is not a significant detriment from this. It could be stated that only questions to Ministers are allowed under urgency, so that numerous questions to Members can’t occur as a form of filibuster.

NZ Bill of Rights

  1. Standing Order 262 provides for the Attorney-General to report to the House if a bill contains a provision which appears to be inconsistent with the NZ Bill of Rights Act 1990, upon introduction of the bill.
  2. Bills can be significantly amended by a select committee or the committee of the whole House which can change a bill’s consistency with the NZBORA.
  3. It would be desirable to amend SO 262 so that the Attorney-General report on NZBORA consistency to the House prior to the second and third reading of a bill if the Attorney-General believes changes to a bill warrant a further opinion .

Question Time

  1. I propose that Tuesday’s question time to Ministers and Members be replaced with a half hour question time to the Prime Minister, as occurs in the UK House of Commons.
  2. We have almost ended up with a de facto PM’s question time with wide ranging questions to the PM along the lines of “Does he have confidence in all his Ministers” which allows almost any issue to be a supplementary. We also have a tradition that the PM is always present on a Tuesday, normally on a Wednesday and rarely on a Thursday.
  3. I believe a House of Commons type PMs question time would be a good opportunity for the House to question the PM on his or her Government, without the requirement to lay specific primary questions. It would be challenging to a PM, but I am sure recent PMs would be up to the challenge.

General Debate

  1. I believe the General Debate serve little useful parliamentary purpose, if one accepts the purpose of the House is to debate laws, hold the Government to account, debate topical issues or policies or highlight matters of importance.
  2. General Debate is generally a slagfest between MPs, that generates an occasional Jane Clifton column, but generally does little to advance the purposes of the House.
  3. I note, through listening to Channel’s 4 Today in Parliament, that the House of Commons (and Lords) regularly debate specific issues, unrelated to legislation under consideration. In contrast to the NZ General Debates, their more focused debates often provide very interesting and useful insights into issues.
  4. I propose that we retain General Debate every second sitting week (say when it is a Member’s Bills week) and that every other week the time slot be allocated to a debate on a specific issue or policy area.
  5. One would need to establish a mechanism for determining the policy topics, but this should not be overly difficult. It could be done by the Business Committee, or topics allocated proportionally to each party, or have each Select Committee determine in turn a topic.

Financial Procedures Debates

19. Many of the Financial Procedures debates also become little more than slagfests after the first dozen or so speeches. They take up days and days of House time when MPs make speeches with little relevance to the financial bills in questions. That time could be spent more productively debating legislation.

20. I propose that the Budget debate reduce from 14 hours (up to 84 speeches) to seven hours (up to 42 speeches, or more likely 26 – 30 speeches).

21. I also propose the Estimates debate reduce from eight hours to four hours.

Non-Legislative Procedures

22. The Address in Reply and PM’s statement also have the same issue, in which after the first few speeches, there are few contributions that introduce new material, or advance the interest of the House.

23. However I recognize the Address in Reply does provide an opportunity for new MPs to make maiden speeches.

24. I propose the Address in Reply reduce from 19 hours to 15 hours. This would provide three hours for specified party leaders, eight hours for say 32 maiden speeches and four hours for other MPs.

25. For the debate on the PM’s statement, I would propose a reduction from 15 hours to six hours, allowing two hours for party leaders and four hours for other MPs.

26. These reductions in total would free up 24 hours of House time, which is almost two extra weeks of sitting time.

Thank you for considering this submission. I would like to make an oral submission in support, and look forward to appearing.

 

David Farrar

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Dunne now independent for parliamentary purposes

June 25th, 2013 at 2:18 pm by David Farrar

Speaker David Carter has ruled that as United Future is no longer a registered political party, it is no longer eligible to be recognised as a parliamentary party under Standing Orders. Hence Peter Dunne is now classified as an independent MP.

This means he loses $122,000 of annual leader and party funding. Also he no longer has the right to speaks on motions where all party leaders get to speak.

However the Speaker also indicated that if they do get re-registered they will likely again be recognised as a parliamentary party, so he is likely to regain his former status in a couple of months or so.

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Long may it last

June 7th, 2013 at 7:00 am by David Farrar

The Herald reports:

NZ First leader Winston Peters is calling on Speaker David Carter to explain why he went against standing orders in Parliament today and would boycott Parliament until he did.

Excellent. Long may it last.

NZ First MPs and Labour’s Trevor Mallard have walked out of Parliament in protest after Speaker David Carter allowed United Future MP Peter Dunne to keep the extra funding and entitlements that come with being a party leader, despite the de-registration of his party.

Mr Carter announced the decision today but both Labour and NZ First objected, saying if Mr Dunne’s party was not registered then it clearly did not meet the rules required for those resources.

Maybe Winston should pay back the $158,000 he owes taxpayers before he tries to take the moral high ground.

As for whether Dunne is eligible to retain his extra funding, the Standing Orders are not clear on this. What Carter has effectively ruled is that as Dunne was the leader of a party when elected at the beginning of this term – that applies throughout.  I think it an arguable decision either way, but Peters is wrong to say the decision is against standing orders. The standing orders are unclear on what happens if a party is deregistered. Graeme Edgeler has blogged on this at Public Address.

After objecting, Mr Peters said that if Mr Carter did not produce the legal advice he based his decision on, then his party would boycott Parliament until that happened.

But as usual, he lied. They’re back already.

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More on babies in Parliament

May 21st, 2013 at 11:00 am by David Farrar

Kate Chapman at Stuff reports:

Labour MP Nanaia Mahuta wants better provisions for breastfeeding mothers after she was forced to stay in Parliament with her young daughter until midnight on Friday.

The Business Committee, which oversees the running of Parliament, is set to consider the situation at its next meeting.

Parliament sat under urgency until midnight Friday and late on Saturday as the Government rushed through a raft of Budget-related legislation.

Mahuta was given leave on Thursday night and most of the day on Friday, but she was required to be in Parliament from 9pm until midnight on Friday.

Labour whip Chris Hipkins said Mahuta didn’t have to be in the debating chamber, just the parliamentary buildings.

That is a key revelation. Mahuta could have remained in her office with her baby. There was no requirement at all for her to be in the chamber. So the question has to be asked, did she go down in the chamber with her baby just as a publicity stunt to protest having to be in Parliament at all at that time?

I’m all for MPs being able to take babies into the House, but it is important to note that MPs are not required to be in the House for votes. They merely have to be in the parliamentary precinct.

But Mahuta said it was “silly” she had to take her five-month-old daughter Niua-Cybele to work that late just to make up numbers.

She had raised the matter with Speaker David Carter and Hipkins and expected something to be done.

“I was concerned that provisions weren’t made for nursing mums during urgency in terms of leave numbers … no child should be in the workplace from nine till midnight,” she said.

I understand (my source may be wrong) that Mahuta in fact offered to do the Friday shift. That she was originally rostered on for Thursday, and wanted to swap. So again I am not sure that Mahuta was forced to be there on Friday night.

Now don’t get me wrong. being a working mum is damn hard, and a working MP mum harder than most. I would expect that party whips would do everything possible to give one of their 25% proxies to an MP who is caring for an infant for late night sessions. But we do not know the full details of why Mahuta was rostered on for Friday night. As I said, I understand she was originally rostered on for Thursday, and did a swap.

The Herald reports:

Prime Minister John Key does not believe Parliament’s hours should be reduced to make it more “family friendly”, saying having children while in Parliament was “challenging but do-able” and it was up to each party to ensure nursing mothers had the support and time out needed.

Unless there was a huge explosion in the number of MPs with infants, the 25% proxy allocation to each party should be more than adequate to allow parents with infants to have flexibility with their hours.

Speaker David Carter is considering introducing special leave provisions for nursing mothers after Labour MP Nanaia Mahuta was in Parliament with her baby until midnight on Friday because of urgency. She told the Speaker it was unfair to expect nursing mothers to be in Parliament late into the night.

Mr Key said it was up to the Speaker to decide on any new rules, but it was possible for parties to arrange leave to give priority to those who most needed it, such as nursing mothers. Parties can have one quarter of their MPs away at any time without losing votes in Parliament.

He said it was up to the Speaker to decide whether to formally allow women to take babies into the House.

It isn’t just up to the Speaker. He can not unilaterally change standing orders. The standing orders committee would need to recommend a change to standing orders to change the proxy rules, and the House would need to agree to it – probably by way of a sessional order.

In terms of whether infants are allowed in the House, the rules seem unclear. I can’t find a Speaker’s Ruling on this issue. The preferred approach would be to amend standing orders to make it clear this is allowed, but in the absence of an explicit change I think the Speaker can show some common sense discretion. However let’s be very clear – ultimately the rules of Parliament are not decided by the Speaker, but by the House. He is the House’s servant, not its master.

Labour whip Chris Hipkins said Ms Mahuta had been given significant amounts of leave but there was extra pressure on leave during urgency. Ms Mahuta had agreed to work on Friday night after she was given leave for Thursday.

Oh I should have read this article first. This backs up the point I was making above. Mahuta chose to work Friday night instead of Thursday.

He had taken her off the speaking roster after she told him she had to bring the baby to Parliament.

So again, her decision to go down to the House with her baby was a voluntary one – presumably to gain publicity.

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Babies in Parliament

May 20th, 2013 at 1:00 pm by David Farrar

Stuff reports:

A screaming baby in the debating chamber late at night has prompted Parliament to discuss how to become a more family-friendly workplace.

Labour MP Nanaia Mahuta says she was forced to attend a debate with her 5-month-old daughter on Friday, as far as she understood it, “simply to make up numbers”.

If she was forced to attend a debate, that was a decision made by the Labour Party Whips. MPs do not need to be in the debating chamber to vote.

The debate, on Crown minerals, stretched until midnight. However, Mahuta said when her daughter started crying before it ended, she was faced with little choice but to leave – missing the vote. The Hauraki-Waikato MP said it was “silly” that she found herself having to be there at that hour in the first place, breaking her baby’s routine.

“This is specific to my responsibility as a breastfeeding mother,” Mahuta said. “This is practically silly, if I’m just being in the building to make up numbers at that time of night.”

Parliament requires that 75 per cent of MPs are in the complex while the House is sitting.

No it does not. There is no requirement for any number of MPs to be in the complex while the House is sitting. The requirement is that a party can only cast proxy votes for up to 25% of its MPs. But a party can choose to vote with fewer than its normal number of votes. Labour did this on Saturday when they were casting (I think) 19 votes. They have 33 MPs so are allowed nine MPs away so to be voting with 19 means 23 of their 33 MPs were away from Parliament.

The point is that it is up to a party how it manages who is at Parliament, and whether or not they vote with their full numbers. Obviously the Government has less flexibility as they can not afford to be votes down.

The Herald reports:

Parliament’s Speaker is considering a rule change for MPs with babies after Labour MP Nanaia Mahuta was required to be in Parliament with her 5-month-old baby until midnight last week because Labour needed her there so it could cast its full tally of votes during urgency.

Parties need at least 75 per cent of their MPs in Parliament to cast all of their votes, and Ms Mahuta’s usual care arrangements did not extend to Friday so she took her baby daughter with her, including going to the Debating Chamber at one point, but left when the baby started crying.

Again this is an issue for the Labour Party Whips. They required Manuta to be in the parliamentary buildings and even if they needed her there for her vote, there is no standing order that required her to actually be in the debating chamber – unless the whips rostered her on for house duty.

She has asked the Speaker to consider new rules for nursing mothers, saying they should not have to be at Parliament later than 9pm without affecting the party’s voting numbers or taking leave off other MPs.

I am not convinced this is an issue for standing orders. The whips have flexibility to allow 25% of MPs to be absent. The Labour Whips could have done one of three things:

  1. Not required Mahuta to be there, and required another Labour MP to be there so they keep their 33 votes
  2. Not required Mahuta to be there and casted 32 votes instead of 33
  3. Asked the Government for a pair (yes you can still effectively do that) and have both a National and Labour MP leave the precincts so both parties are a vote down, keeping the relative balance

Standing orders should allow an MP who is caring for an infant to bring the baby into the House, as has happened in the European Parliament. But I don’t see why standing orders need to exempt mothers from being there after 9 pm when the whips already have more than enough flexibility to avoid this. Mahuta’s issue should be with the Labour Whips.

Take a comparison. If an MP is seriously ill, or worse, standing orders don’t give them an exemption from being at Parliament for he purpose of proxy votes. Instead the whips just allocate them one of the 25% quota. The entire reason we have the allowance for 255 not to be present is to avoid having to have standing orders try and be prescriptive as to why an MP can or can not be away from Parliament.

Even the PM doesn’t get a special leave pass to be away from Parliament when doing official duties around the country. He or she has to be one of the 25%.

She also believed it was time Parliament developed more formal, wider guidelines for mothers of young children, including rules on taking a baby into the House.

Speaker David Carter said he would talk to the business committee about allowing mothers of young babies to be away on occasion without affecting their party’s leave quota.

I’m all for mothers being able to take a baby into the House. I think the precedent is that they can, but this is not explicit.

But I see no reason to start defining explicit categories of people who can be away from the parliamentary precinct, as it defeats the entire rationale of giving each party flexibility to decide for itself.

The question should be why the Labour Whips required Mahuta to be present late on a Friday night.

Labour whip Chris Hipkins said the party would support a change to give nursing mothers leave on top of the usual allocation.

Every effort had been made to give Ms Mahuta as much leave as possible, but sometimes that was impossible because other MPs also had commitments outside Parliament.

As I blogged above, Labour could simply vote with less than their full entitlement - as they did on Saturday. Or they could ask the Government for a pair.

Also as I blogged above, the requirement is to be in the grounds of Parliament, not to be in the debating chamber. Any requirement for Mahuta to be in the chamber was a requirement by Labour Whips, not by Standing Orders. The only people who have to be in the House are a presiding officer, a Minister and a whip for any party with more than five MPs.

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Not being rushed through

March 4th, 2013 at 9:00 am by David Farrar

Some commenters and others have alleged that the Government is “rushing” the Marriage (Definition of Marriage) Amendment bill through Parliament. This is incorrect, and in fact isn’t even possible. The Government can control the order and timing of Government bills, but has no ability to speed up or slow down Members’ Bills – especially ones that are conscience issues.

The process and timing for Members’ Bills is controlled by Parliament’s Standing Orders. I thought it would be useful to take people through what these are, and how they have worked in this case.

  1. An MP submits a proposed Members’ Bill to the Clerk – SO 274. Louisa Wall did this on 1 June 2012
  2. If at any time less than eight Members’ Bills are awaiting a first reading, a ballot is triggered under SO 277(1). This occurred on Wed 27 June and Wed 25 July when the House had a Members’ Day and considered a number of other Members’ Bill that were awaiting first reading.
  3. Ballots were held on Thu 28 June and Thu 26 July. On 28 June four bills were selected out of 65 submitted and on 26 July five bills were selected out of 63 submitted. The Marriage (DOM) Bill was one of those selected on 26 July.
  4. The bill was introduced to Parliament that day – SO 277(3)
  5. The bill is set down for a first reading three sitting days later – SO 281(2), which is Thu 2 August 2012.
  6. In every two weeks of House sitting, Govt bills are debated on five of the six sitting days, and Members’ bills are given priority on every second Wednesday – SO 74(1). Generally there will be four and a half hours available.
  7. On Members’ Days, any local or private bills take precedence – SO 63. This means that a Members’ Bill will not be debated until any local or private bills scheduled for a reading or committee stage are dealt with first.
  8. If they get to Members’ Bills, any bills awaiting third reading, committee stage or second reading are given priority over a bill awaiting first reading. S70(1)
  9. There was a Members’ Day on 15 August which did not see the Marriage (DOM) Bill got to, but on Wed 29 August its first reading was held. There are 11 speeches lasting 65 minutes under Appendix A. The vote was 80-40.
  10. At the conclusion of the first reading, the MP in charge nominates a select committee for it to be referred to. SO 283(1). It was referred to the Government Administration Select Committee.
  11. The Select Committee is required under SO 291/1 to report back the bill within six months, which in this case is 28 February 2013. The only way this deadline can be extended is if Parliament unanimously (or near unanimously consents.
  12. The Select Committee called for submissions on 12 September, and allowed the normal six weeks until 26 October.
  13. They received 21,533 submissions with 10,487 in favour and 8,148 against. 2,898 of the submissions were individual ones, not form letters.
  14. The Select Committee starting hearing oral submissions on the 7th of November and the last submission was heard on 30th of January. They heard 220 submissions in person with hearings in Auckland, Wellington and Christchurch. The final day for oral submissions was only 4 weeks before the bill had to be reported back.
  15. The Select Committee then considered the bill, the submissions, proposed amendments, had a report drafted and voted to accept the report. They reported back on 27 February 2013 – the second to last day possible.
  16. The bill is then set down under SO 292 for a second reading three sitting days later. This is Thu 6 March.
  17. The second reading will occur automatically on a Member’s Day once any local or private bills on the order paper are dealt with, and any committee stage or third readings of Members’ Bills. There are three such bills ahead of it on the Order Paper which will take place on Wed 13 March – the next Members’ Day. This is all automatic under Standing Orders – the Government gets no say on it.
  18. If the second reading passes on 13 March, then the committee stage is likely to be on Wed 27 March when amendments can be considered.
  19. After the committee stage, the third reading is likely to be Wed 17 April.

All this timetabling is basically automatic. The rules of Parliament are binding. Only with unanimous leave can dates or timing be changed. This is deliberate. It is important that the Executive only controls its own bills, but doesn’t control Parliament as a whole.

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Speaker Carter

February 13th, 2013 at 1:00 pm by David Farrar

Jane Clifton writes at Stuff:

As new Speaker David Carter began his first full sitting day in the job, Winston Peters started as he meant to go on, too: “Pointofordah!”

This is usually the first thing out of the NZ First leader’s mouth at question time – but this was before the first question had even been asked. Mr Peters’ urgent problem with Mr Carter was “the regalia you’re wearing”. What was the background of the feathery capelet bedecking the Speaker’s shoulders?

Mr Peters’ mockingly querulous tone – “because we’re full of curiosity” – made it clear he was really asking: “What the heck have you come as?”

Mr Carter decided not to take offence, however, and explained good-humouredly that it was a Maori gift, symbolising “goodwill, honour and peace to the House”.

Mr Peters laughed delightedly as if he’d just heard the punchline to a good joke – though there was an immediate outbreak of goodwill in the form of House-wide applause for Mr Carter.

Save for a little cantankerous sniping later from the usual suspects, Mr Peters and Labour’s Trevor Mallard, and a bit of cheek from Green co-leader Russel Norman, Mr Carter had a reasonably undemanding workout.

I thought it was a good first outing for Speaker Carter. What was pleasing is that when Ministers didn’t answer a factual question, he allowed the Opposition MPs to re-ask the question (without it having to count as an additional question) until the Minister answered.

The funniest aspect was in relation to question 11 from Chris Hipkins to Hekia Parata about which, if any, particular decisions she regretted. Trevor Mallard got up before the question was even asked and started quoting several Standing Orders and Speaker’s Rulings. I, like most, was busy looking up the orders and rulings being referred to until at the end of his point of order he revealed that he was suggesting to the Speaker he be lenient if the primary answer is longer than is normally allowed. Very very funny, and a nice reasonably subtle (for Trevor) use of points of order to sledge someone.

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Any veto would be 9+ months away

April 11th, 2012 at 9:00 am by David Farrar

Danya Levy at Stuff reports:

Labour’s proposal to extend paid parental leave looks likely to have enough support to pass Parliament’s first hurdle – but the Government could still block it by using its power to veto costly policies it does not support.

A bill by Labour’s early childhood education spokeswoman, Sue Moroney, drawn from the members’ ballot last week, aims to extend the paid leave from 14 weeks to 26.

The Government’s support partner UnitedFuture, which campaigned during last year’s election campaign on extending paid parental leave to 13 months, could give Labour the numbers it needs to send the bill to a select committee for consideration.

UnitedFuture leader and sole MP Peter Dunne called the bill a “step in the right direction” and said he was inclined to support it.

Even if Labour has the support to pass the bill, Parliament’s standing orders enable the Government to exercise a financial veto on legislation that would have a significant impact on the Budget.

However, there could be enormous moral pressure from both inside and outside Parliament for National not to veto the family friendly bill.

The Government can issue a financial veto certificate under Standing Order 321 if a bill, in its opinion, “would have more than a minor impact on the Government’s fiscal aggregates”.

However Standing Order 323 states a a certificate relating to a bill “may be given only when the bill is awaiting its third reading”.

What this means is that if Labour, Greens, NZ First, Maori, Mana and United all vote for the bill it will have its first reading. It would then go to a select committee for six months, and return to the House for a second reading. If still supported by those parties it would then go to the committee of the house stage, and if reported back from there, then and only then can the Government veto it as it awaits third reading.

So any potential use of the veto is likely to be in 2013, not even this year.

UPDATE: It is worth giving some background to the veto. It was formalised in 1996 in response to MMP, specifically to allow minority governments to govern. If a Government can’t control its own finances, then it isn’t the Government as we know it – we would have a US style Government where the Executive has limited financial powers (and we’ve see how well that system works with earmarks and the lpletoike).

The veto has been used often in the past. From 2000 to 2008 Labour used it on at least a dozen occasions to veto amendments to bills. Also the minority National Government from 1997 to 1999 used it on several occasions, including (I believe) on a bill, not just amendments.

Interestingly even before 1996 there was an effective veto. The Speaker could refuse amendments which had a fiscal impact. The decision was made that it was more appropriate for the Government rather than the Speaker to decide, as they have to manage the consequences.

UPDATE2: The Government has said they will veto the bill, but as I explained above they can not actually do this until after it has completed committee of the house stage and is set for third reading.

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In praise of Trevor and Labour

October 14th, 2011 at 9:00 am by David Farrar

I blogged on 27 September on the review of Parliament’ standing orders. A fuller list is at that post, but some of the changes include:

  • The Clerk to record and publish attendance of MPs
  • A Bill of Rights analysis to be supplied not just at first reading but also for substantive SOPs amending bills. This is something I have advocated several times.
  • Provision for extended sitting hours without going into urgency by sitting on either a Wednesday or Thursday morning, if necessary. Again something I have strongly advocated, as it should reduce the need for urgency so much.
  • Also provision for extended sitting hours on a Thursday evening and Friday morning, but only if the Business Committee agrees, which means basically the Opposition consents to it.
  • Ministers moving urgency in future will need to state the reason for the urgency. Good.
  • Business Committee determinations to be published on the Parliament website. These proposals give a lot more power to the Business Committee, so this is good. The BC needs near-unanimous consent to make decisions, so it is about encouraging parties to work together more.

These changes were passed by the House last week, and will apply to the next Parliament. They were passed on a voice vote with no parties or MPs dissenting. Considerable credit goes to Speaker Lockwood Smith who chaired the Standing Orders Committee.

But I also want to acknowledge the role Labour, and its rep Trevor Mallard, played. Generally changes that make the House more efficient are not necessarily a good thing for the Opposition. Take as an example the new ability to have extended hours without going into urgency. This allows the Government to pass more laws without using urgency, which means the Opposition will lose the opportunity to complain as often about use of urgency.

Labour presumably agreed partly because they plan to be in Government again one day themselves (when they will benefit from it), but partly also I think because they do want the House to operate more effectively. So it is worth acknowledging their constructive role in these changes. I’d like to quote from Trevor Mallard’s speech on the new standing orders:

Although it might cause him some embarrassment, I also acknowledge Rodney Hide and the work he has done within this. I was surprised at the number of occasions when we agreed as we progressed through the Standing Orders, and I think that having someone who has had a period as a poacher, and who, to a certain extent, has turned gamekeeper, was useful. It was useful having his view on the importance of Parliament and where the balances lie. People who look carefully at this report will see that it is one that very slightly tips the running of Parliament in favour of the Government, but provides some safeguards to that. Those of us who have been involved on both sides of the House think that that is something that could be useful going forward.

It does tip the balance a bit but there are stronger incentives now to gain consensus through the Business Committee.

Although I am less comfortable with that change, I am probably more comfortable than many of my colleagues with the set of arrangements around the extra hours—the extended sittings—of the House. I have had a role in Government business before. I know that things do not work neatly, and that therefore it is too easy for Governments to move to urgency in order to get through business that, of itself, is not urgent. Urgency has too often been used as a House management tool rather than as a tool to progress urgent business. I think the extended sittings give the right compromise there: select committees cannot sit at the same time as the House, except with leave; notice is given; bills are not taken through more than one stage at any one time; and the extended sitting occurs only once a week, unless the Business Committee agrees. In my opinion, that will give the Government a bit more power, but will move it back from using urgency in a way that I consider to have been inappropriate of Governments for just about as long as I can remember.

What I am pleased about is that a few months ago I co-operated with Labour MP Grant Robertson to publish an analysis of the use of urgency over the last few terms of Parliament. It didn’t win me a lot of friends in certain quarters, but I felt it was important to highlight the trend. I was nervous that Labour would be all rhetoric on reducing urgency, but not actually agree to changes such as the above, which would allow more business to be conducted without urgency. There had in fact been a sessional order asking for this sitting on the order paper for a couple of years, but which had not progressed due to lack of support.

So I was pleased to see Labour actually agree to changes (and Trevor suggests not all his colleagues were that keen to do so), to make a substantive move to back up the rhetoric. And the changes should mean that any future uses of urgency for non-urgent business will attract sustained criticism (with some limited exceptions such as post-election policy implementation).

There is, I think, quite a lot of extra power going to the Business Committee. Again, I reiterate my surprise at how well that committee is working. Frankly, Mr Brownlee, and especially Mr Power, with whom I have worked more often on that committee recently, have been open with the committee as to their intentions. The meetings have been slightly better planned, maybe, than at some stages in the past. You, Mr Speaker, in the way that you have chaired the committee, have also tried to seek consensus, although there has been an occasion or two where you have been the only person who has had a particular point of view. It is probably fortunate for the other members of the committee that you do not represent a party on that committee.

That’s a nice recognition of Gerry, Simon and Lockwood.

There are times when the House looks very juvenile. General Debate is a typical example. But there are also times when they rise above squabbling, and the review of the standing orders debate was one of those.

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The Review of Standing Orders

September 27th, 2011 at 2:53 pm by David Farrar

The Standing Orders Committee has just reported back a review of the standing orders that govern Parliament. This are of interest to few people, but are highly important. They are the rules of our Parliament.

The full report is 110 pages. I’ve yet to read it all, but on first browse it looks to include some significant enhancement. I hope the House and the Government adopt the recommendations. A brief summary include:

  • The Clerk to record and publish attendance of MPs
  • A new form of legislation called a revision bill that has no debate at first and third reading but does have a select committee hearing and a second reading debate
  • an inquiry into how Parliament should respond to future national emergencies
  • the ability to deduce an MPs pay if they are suspended from the House
  • an extension of privilege to include broadcasting of the House etc
  • A Bill of Rights analysis to be supplied not just at first reading but also for substantive SOPs amending bills. This is something I have advocated several times.
  • Provision for extended sitting hours without going into urgency by sitting on either a Wednesday or Thursday morning, if necessary. Again something I have strongly advocated, as it should reduce the need for urgency so much.
  • Also provision for extended sitting hours on a Thursday evening and Friday morning, but only if the Business Committee agrees, which means basically the Opposition consents to it.
  • Ministers moving urgency in future will need to state the reason for the urgency. Good.
  • Uncorrected transcripts of Parliament to be placed on website within three hours. Excellent initiative.
  • Clark’s Office working towards a public fully searchable database of text and video of Parliament. This will replace the printed weekly Hansard.
  • An MP not giving the correct oath will be required by standing orders to immediately withdraw from the House. They also note that most of the committee support a review of the oath. I agree with both clamping down on improper oaths, but also changing the oath.
  • Business Committee determinations to be published on the Parliament website. These proposals give a lot more power to the Business Committee, so this is good. The BC needs near-unanimous consent to make decisions, so it is about encouraging parties to work together more.
  • A requirement for an MP intending to talk about an issue before the courts to notify the Speaker in advance
  • Proposed members bills will now be recognised before they are drawn from the ballot, and be available of the Parliament website, which may help the MP proposing it to gain support for it. Sensible.

There are some areas where they could have gone further, but overall I think the proposals would make Parliament significantly better, and I hope that they are adopted.

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Urgency

October 27th, 2009 at 10:00 am by David Farrar

Some Left-wing bloggers such as No Right Turn and Labour MP Grant Robertson are crying foul over the government’s use of urgency and getting stuck into Leader of the House Gerry Brownlee.

Now Labour are being rather hypocritical here, and I will explain the different sorts of urgency. In essence there are four version of urgency. They are

  1. Extraordinary urgency. This is incredibly rare and can only happen if the Speaker consents to it. It tends to be used for tax bills only, and means the House sits without pause (except meal breaks) until the bills covered by the extraordinary urgency are passed.
  2. Urgency to pass a bill through multiple stages. This is when the House goes into urgency (which means longer sitting houses) to pass a bill through all stages, without referring it to a select committee. This is generally quite undesirable as bypassing select committee both robs the public of a chance to submit, but also means drafting flaws are less likely to be corrected.
  3. Normal urgency. This extends the sitting hours of the House, and effectively cancels question time, but bills do not generally go through more than one stage at a time.
  4. Urgency with question time.This is when the Government goes into urgency to extend the sitting hours, but modifies it so the House can still have question time every day. This reflects the importance of the Opposition being able to hold the Government to account through question time.

Now a lot of people don’t realise that the House normally sits for relatively few hours each week. On Tuesdays and Wednesdays it sits from 2 until 6pm, then 7.30pm until 10pm. On Thursday it sits from 2pm until 6pm.

That’s 17.5 hours. That sounds like quite a bit of time for the government to pass bills. But remember that Question Time happens each day between 2pm and 3.15-3.30. On Wednesdays there is a general debate between 3.30 and 4.30. And every second Wednesday is a members’ day, when the government can’t advance government business.

All this means that in a normal week, the government gets only around 12-13 hours (depending on how long Question Time lasts) to pass Bills. Every second week it gets only 7.5 hours! I won’t even get started on urgent debates (granted by the speaker), motions of condolence, etc, all of which take more time. Overall it tends to mean less than 10 hours a week on average to actually pass laws.

Urgency means that the House extend its sitting times. From the day after the motion is moved (so Wednesday if moved on a Tuesday) the House sits from 9 am to midnight, which is 13 hours a day excluding meal breaks.

In theory the House could sit until midnight Saturday, which would be 58.5 hours. In reality normally the House still rises on a Thursday, so the extra time gained is Wednesday and Thursday mornings plus Thursday evening.

This is what the government has been doing lately – just extending the hours on Wednesday and Thursday.

The problem of lack of time to pass Bills is not one that has just affected this government. That is why Labour is being totally hypocritical over the use of urgency. Grant Robertson and Chris Hipkins in particular know better given they were advisors to the last government. Dr Cullen regularly put the House into urgency between 1999 and 2008 and a helpful reader has done the numbers for me.

In the 1999-2002 Parliament, Labour took urgency 22 times and extraordinary urgency twice. 23 bills passed their 3rd reading under urgency. Indeed in Labour’s first year in office, they took urgency ten times.

In the 2002-2005 Parliament, Labour took urgency nineteen times and a massive 78 Bills passed their 3rd reading under urgency!

In the 2005-2008 Parliament, Labour took urgency ten times and 48 bills passed their 3rd reading under urgency.

Urgency was often moved in October, November, and December of each year under Labour, as the end of the year approached. That’s what this government appears to be doing as well. It’s nothing to do with poor House management – it’s simply extending sitting hours in the traditional pre-Xmas period.

The other thing that I want to stress is that urgency normally  means question time is not held, how ever National has consistently arranged urgency so that question time is still taken, ensuring Ministers remain accountable to the House. This was very rare under Labour.

I expect as the Parliamentary term goes on the use of urgency will decline a bit. Further down the track the government might like to take a look at the sitting hours and practices of the House. Should the House sit regularly on Thursday night for example? Is there potential to have the House sitting regularlyin the morning even while select committees are considering Bills?

Personally I would change Standing Orders also, to reflect the different types of urgency. I personally would not call merely extending the sitting hours “urgency” if question time (and members day) is retained. I would also look at whether the Speaker’s permission might be needed for urgency which is used to bypass select committee, to make it harder for Governments to do so.

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Price on Parliament and court cases

September 27th, 2008 at 3:00 pm by David Farrar

Readers may recall a massive scarp between Rodney Hide and the Speaker when she refused to allow him to talk about the Wayne Crapper perjury video, because Winston claimed it was the subject of a court case.

Steven Price takes a look at how the Speaker ruled:

In the end, the Speaker ruled in Peters’ favour, saying Hide was in breach. “Nothing said in the House should prejudice, however slightly, the decision of any court,” the Speaker said. “The House applies more rigorous inhibitory standards on itself than apply to the media in reporting judicial proceedings.” This is because the legislature “should take extreme care not to undermine confidence in the judicial resolution of disputes by intruding on individual cases”.

I don’t know what precisely is in issue in the lawsuit. But I think that ruling is wrong. I’m worried about the phrase “however slightly”.  It’s a ridiculously low threshold, far lower than that applicable to the media. The rules applying to them say they can’t create a “real risk of prejudice” to an upcoming trial. That’s nebulous and chilling enough. This “however slightly” nonsense goes much further.Is it required by a sensible reading of the rules? Nope. In fact it flies in the face of the language that demands “a real and substantial danger of prejudice”.

Is it required by the needs of the administration of justice? Nope. If the courts can tolerate the media commenting on cases as long as they don’t create real risks of prejudice, then they can put up with MPs doing the same.

Is it good policy? Nope. There seems even more reason to cut our elected representatives some slack when conducting the business of the nation than there does for the media.

Is is good law? Nope again. The Speaker has forgotten that the Bill of Rights Act, which was passed by Parliament and says explicitly that it applies to Parliament, requires any restrictions on free speech to be demonstrably justified. You’d think that might be a relevant factor when considering how to interpret Standing Order 111. Apparently not.

I also thought it was a bad ruling. It actually allows any MP to gag any other MP by claiming that what they are referring to is the subject of a lawsuit.

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Issues MPs should be looking at

July 19th, 2008 at 8:58 am by David Farrar

Some may think that there is less of an issue for Peters having had the donation go to pay for his private legal expenses, rather than to NZ First itself. I am of the view this makes things much worse for him.

NZPA reported:

He said that since 1991 he had been involved in 14 legal actions which had been partly funded through donations, and Mr Henry had “a firm policy” of not disclosing the source of donations.

“I have never been told the source of these donations but have personally met the shortfall which has amounted to many hundred thousands of dollars,” Mr Peters said in a statement.

Now this makes very clear that the secret donation was effectively a donation that benefited Winston Peters personally. If they had not received that $100,000 then Peters by his own words would be making up the shortfall.

The first issue this may raise is the tax status of the donation. Peters is not a charity, and the donation is well above the limit for personal gifts. Who exactly was the donation made out to? What account was it paid into? Who controls that account? What is the legal personality that received it? Was tax paid on it if tax is liable?

The next issue is the Cabinet Manual. First some general clauses:

2.52 A Minister of the Crown, while holding a ministerial warrant, acts in a number of different capacities:

  1. in a ministerial capacity, making decisions, and determining and promoting policy within particular portfolios;
  2. in a political capacity as a member of Parliament, representing a constituency or particular community of interest;
  3. in a personal capacity.

2.53 In all these roles and at all times, Ministers are expected to act lawfully and to behave in a way that upholds, and is seen to uphold, the highest ethical standards. Ultimately, Ministers are accountable to the Prime Minister for their behaviour.

So the question for the Prime Minister is has her Minister of Foreign Affairs acted in a way which has upheld the highest ethical standards in not just their ministerial capacity, but also their political and personal capacity.

2.55 All members of Parliament are required to disclose certain assets and interests in an annual Register of Pecuniary Interests of Members of Parliament. This register, administered by the Registrar of Pecuniary Interests of Members of Parliament, is designed to promote accountability and transparency by identifying personal financial interests that might influence members of Parliament.

We will come back to the Register of Pecuniary Interests.

2.56 Additional requirements apply to Ministers’ interests. Conflicts of interest may arise between Ministers’ personal interests and their public duty because of the influence and power that Ministers exercise, and the information to which they have access, both in the individual performance of their portfolio responsibilities and as members of the Executive.

In other words the bar for Ministers is even higher than for MPs.

2.59 Ministers themselves are responsible for proactively identifying and reviewing possible conflicts of interest and ensuring that any conflicts of interest are promptly addressed by taking one or more of the measures set out in paragraph 2.70.

Note the requirement to be pro-active in identifying conflicts. This may mean things like asking your lawyer who donated $100,000 to you.

2.78 The Standing Orders require members of Parliament to disclose to the Registrar of Pecuniary Interests of Members of Parliament any gift accepted over a prescribed value, currently $500. This declaration includes hospitality and donations in cash or kind.

So a donation is a gift, and must be declared if over $500.

2.79 Ministers who accept gifts worth more than the prescribed value must not only disclose them to the Registrar of Pecuniary Interests of Members of Parliament, but also must relinquish them, unless they obtain the express permission of the Prime Minister to retain them.

Now it gets interesting. The PM gets to decide if you get to keep the gift. So Helen has to decide whether or not Winston can keep the $100,000 that was donated towards his legal expenses.

Now let us look at Standing Orders, namely Appendix B:

4(1)(d)Every return of pecuniary interests must contain the following information as at the effective date of the return: the name of each trust in which the member has a beneficial interest, and

And also let us look at the Register as at 31 January 2007,

4 Beneficial interests in trusts
WRP Family Trust

So if the bank account it was paid into is an actual trust fund that helps pays Winston’s legal bills – it is not listed as required.

Now let us look at Section 7(b)

a description of each gift (including hospitality and donations in cash or kind but excluding any donation made to cover expenses in an electoral campaign) received by the member that has an estimated market value in New Zealand of more than $500 and the name of the donor of each of those gifts (if known or reasonably ascertainable by the member),

Now even if (and it is a big if) Peters did not know the name of the donor, he did know there was a $100,000 donation towards his legal expenses and this was not declared. He should have declared an anonymous donation towards his legal expenses. He actually did not have to disclose the amount – but he did need it disclose the existence of it.

Now maybe you argue he did not receive the donation himself so let us turn to 7(c)

a description of all debts of more than $500 that were owing by the member that were discharged or paid (in whole or in part) by any other person and the names of each of those persons,

And we have been told these donations were to pay his legal bills and expenses. So it should have been declared under either 7(b) or 7(c). Unless you argue that the money went into a trust with a separate legal personality – but if that is the case then the trust should have been disclosed in Section 4(1)(d).

So who should sort this out. Here is one possibility:

15 Auditor-General’s review and inquiry
(1) The Auditor-General will review the returns provided under clause 14 as soon as is reasonably practicable.
(2) The Auditor-General may inquire, either on request or on the Auditor-General’s own initiative, into any issue as to whether—
(a) any member has complied, or is complying, with his or her obligations under this Appendix

So the Auditor-General could investigate. There is also another option:

Without limiting the generality of Standing Order 399, the House may treat as a contempt any of the following:

(h) as a member, knowingly providing false or misleading information in a return of pecuniary interests:

So an MP could ask the Speaker to refer the issue to the Privileges Committee. My suggestion would be both avenues – ask the Auditor-General to investigate and ask the Speaker to refer the issue to the Privileges Committee.

People may claim Peters did not know about the donation. Even if one accepts he did not know Owen Glenn made the donation, he did know that his legal expenses shortfall had suddenly reduced by $100,000 and failed to disclose it.

But also to the point, his lawyer Brian Henry would beyond any reasonable doubt be very very aware of the requirements placed on Peters by the Cabinet Manual and the Parliamentary Standing Orders. As his lawyer he would I suspect have professional and ethical obligations to make sure returns filed were correct and that Peters was in possession of the necessary information to make correct returns. I think there are as many questions for Mr Henry as Mr Peters about this.

So the issues are:

  1. Does Helen Clark think her Minister of Foreign Affairs has upheld the highest ethical standards in his ministerial, political and personal capacity?
  2. Will Helen Clark allow Winston Peters to retain the $100,000 gift from Owen Glenn – it is her decision as Prime Minister.
  3. Can the PM explain why the Government has reversed or is reviewing its position from 2003/04 on not needing a Consul in Monaco?
  4. Will an MP file a matter of privilege with the Speaker before the next sitting of the House on Tuesday?
  5. Will the Auditor-General investigate on his own initiative?
  6. Will the Inland Revenue Department investigate the tax status of the donation?
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