Kiwiblog

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.

Tags: Labour, Standing Orders, Trevor Mallard

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.

Tags: Parliament, Standing Orders

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.

Tags: Grant Robertson, hypocrisy, Standing Orders, urgency

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.

Tags: Margaret Wilson, Standing Orders, Steven Price

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?

Tags: Brian Henry, Cabinet Manual, Helen Clark, MPs Register of Pecuniary Interests, Owen Glenn, Standing Orders, Winston First