Standing Orders Review 49 th Parliament Revised Submission to Standing Orders Committee

Transcription

1 Standing Orders Review 49 th Parliament Revised Submission to Standing Orders Committee The Urgency Project Claudia Geiringer, Polly Higbee, and Elizabeth McLeay

2 Contents 1. What is the Urgency Project? 1 2. Executive Summary 2 3. Submission 5 A. Reasons Why Governments Use Urgency 5 B. Extraordinary Urgency 5 C. Is MMP an Effective Constraint on the Use of Urgency? 6 D. Urgency and Democratic Legitimacy 8 E. The Problem of Insufficient Time 10 F. Recommendations 12 Appendix A: Key Statistical Results 15 Appendix B: Research Team Biographical Information 23

3 1. What is the Urgency Project? The Urgency Project is examining the use of urgency by the New Zealand House of Representatives. The project is conducted under the auspices of the New Zealand Centre for Public Law and the Rule of Law Committee of the New Zealand Law Society. The principal funder for the project is the New Zealand Law Foundation. The members of the research team are Claudia Geiringer, Polly Higbee and Elizabeth McLeay. Brief biographical information is attached as Appendix B. The Project aims to identify trends in the use of urgency by the New Zealand House of Representatives, to comment on the constitutional implications of the use of such powers, and to provide any necessary suggestions for reform of the regulatory matrix in which they occur. Questions the Project is particularly concerned with include: What factors motivate the use of urgency? What sorts of uses of urgency are troubling from a constitutional or democratic legitimacy perspective, and in what circumstances? What constraints exist on the use of urgency, and how robust is the regulatory framework that governs it? What effect have multi-party governments had on the use of urgency? Have they constrained governments from using urgency? At the heart of the Project are two empirical research exercises. First, two databases have been created which document every use of urgency by the New Zealand House of Representatives between the years 1987 and 2010, allowing the Project to compare the use of urgency before and after the first election under MMP. The first and smaller database (the motions database) contains all but one of the urgency motions moved in the House between (222). 1 The second and larger database (the legislation database) includes the details of all Bills to which urgency or extraordinary urgency was accorded between In total, it records 1953 items of legislative business relating to 1608 Bills. 2 The second prong of the empirical research consisted of interviews with 18 current and former members of Parliament and senior parliamentary officials on their perceptions of the use of urgency. One further person was not able to be interviewed in person but has provided us with written answers to the questions posed. We intend to issue a full report on our findings and recommendations in mid One urgency motion, in 1996, was not included because none of the items of business to which urgency was accorded related to the passage of legislation. The eight extraordinary motions during the period are not captured in this database. 2 The number of items of legislative business is higher than the number of Bills because some Bills are accorded urgency more than once during their progression through the House. 1

4 2. Executive Summary A. Reasons Why Governments Use Urgency The reasons why governments use urgency can be categorised under four heads: a perceived need to expedite the passage of particular legislation; a political calculation that being seen to act decisively will play well with the electorate; in order to gain a broader tactical advantage, for example, by avoiding question time (though this use is much rarer post-mmp); a perception that there are insufficient scheduled sitting hours to get through the government s legislative programme. The last factor was the primary factor that we found drove the use of urgency. The majority of parliamentarians whom we interviewed were of the view that urgency is not only a tool, but a legitimate tool, for the government to get extra sitting hours. Underlying that view is a general perception that the House does not currently have enough hours to get through government business. B. Extraordinary Urgency Interviewees stressed the infrequency of extraordinary urgency motions, and saw Standing Orders as placing tight constraints on its use. Our study tends to confirm that is so. C. Is MMP an Effective Constraint on the Use of Urgency? Our data indicate that the advent of multi-party Parliaments has had a significant effect on the ability of governments to use urgency but that the effect is uneven, and that the constraint imposed by the multi-party environment is sometimes weak or even absent. In particular, there have been two apparent exceptions: the 45 th Parliament ( ) and the current Parliament. The data suggest a significant increase in the overall use of urgency during these periods. The data also suggest a significant increase during these periods in the occasions on which urgency has resulted in legislation not being accorded select committee scrutiny. The data suggest that to account for the impact of multi-party Parliaments on urgency we must look to a complex list of factors, including the relative strength of the major party, the stability and precise nature of its support arrangements, the personalities of lead figures in the Government, and the institutional culture and ideological perspectives of support parties. D. Urgency and Democratic Legitimacy In Part 3D below, we identify ten principles against which the constitutionality and democratic legitimacy of urgency ought to be measured. Urgency advances some of those principles by helping governments to implement their legislative programmes and by providing a mechanism for governments to respond to unexpected events and contingencies. Nevertheless, urgency can run foul of a number of the other principles. That is most obviously so when select committee scrutiny is by-passed. The select committee system plays a pivotal role in the legislative process, enhancing the House s deliberative and scrutiny functions, providing opportunities for public participation, and enhancing the quality of legislative output. Select committee scrutiny ought only to be dispensed with (or indeed significantly abbreviated) in rare cases of genuine need. 2

5 Where, as is more common, the select committee stage is preserved, the extent to which urgency nevertheless offends against principles of democratic legitimacy will depend on the precise context for example, the subject matter and complexity of the legislation, the stage or stages of the legislative process at which urgency is accorded, and the degree of scrutiny that the legislation has already received or is due to receive. As a general point, though, the stand-down periods between legislative stages play an important role in allowing legislation to proceed through the House at a measured pace, and in providing opportunities both for members of the House and for interested members of the public to digest and respond to developments. Even urgency for one stage can have an impact on democratic legitimacy principles by creating a public perception whether fair or not that Parliament is not following its own rules, and that legislation is being rammed through the House. E. The Problem of Insufficient Sitting Hours It is clear that a driving force behind the use of urgency is the perception that the House has insufficient regular sitting hours to deal with its business. Our study is not in a position to resolve the broader issues that this raises, but we do provide some relevant data on sitting hours in Part 3E. The data indicate that sitting hours in New Zealand are on the low side when compared with other Commonwealth jurisdictions. In our view, reliance on urgency to address the problem is undesirable. The hybrid role played by urgency as both a device for responding to genuine emergencies and a mechanism for extending the House s sitting hours is contributing to a profound lack of understanding in the media and the general public as to what urgency is, and as to its democratic implications. This has two negative consequences. On the one hand, it means that urgency can attract negative public attention even when it has been utilised in relatively benign circumstances. The very terminology of urgency sends out a false signal to the electorate and therefore confuses it as to the constitutional ramifications of what is occurring. Secondly, that confusion also impacts on the extent to which the media and public opinion can operate as an effective constraint on more troubling uses of urgency, such as the use of urgency to by-pass select committee consideration. F. Recommendations On the basis of our research findings, and for the purposes of this submission, we make the following five recommendations, which are explored in Part 3F below. i. The Standing Orders Committee ought to consider conducting a comprehensive review of parliamentary time such as the one conducted in 2006 by the Scottish Parliament. 3 ii. Standing Orders ought to deal separately with (and re-name perhaps as extra time ) the situation in which the House seeks to devote extra time to completing its legislative business but does not wish to interfere with the rules governing the orderly progression of legislation through the House. The simple act of separating out and re-naming the more benign use of urgency (for one stage of a Bill) would, in our view, have a significant effect. It would enable governments to better explain and defend their actions to the electorate, 3 Procedures Committee Review of Parliamentary Time Call for Evidence (2006) accessed 2 December

6 iii. Standing Orders ought to require that a motion to take urgency (but not extra time ) ought to be limited to one item of legislative business. This should be the case for all urgency motions. If that is not acceptable, though, a half-way house might be to impose such a requirement in cases where the urgency motion results in the select committee process being by-passed. iv. Standing Order 54 ought to be reworded to require the Minister to: inform the House with some particularity why the business is urgent. Consideration should also be given to requiring urgency motions to be moved by the Minister in charge of the legislation. v. Where an urgency motion would by-pass the select committee stage of a Bill, the Speaker ought to have a role analogous to his/her current role in relation to extraordinary urgency in determining whether the recourse to urgency is justified. Appendix A Appendix A sets out the key statistical data generated by the project to date. It details the number of urgency motions (by year and by Parliament), the number of Bills accorded urgency (by year and by Parliament), the percentage of Bills accorded urgency (by Parliament) and the percentage of sitting time taken under urgency (by Parliament). It also breaks down the overall use of urgency into specific uses (such as urgency for all stages, or urgency for only one stage) and provides data on the extent to which each of these uses were deployed in particular years and by particular governments. 4

7 3. Submission A. Reasons Why Governments Use Urgency One of the questions that we explored with interviewees was the reasons why governments use urgency. Drawing on those interviews, as well as on the formal reasons given by Leaders of the House when moving urgency, the Project has categorised the reasons why governments use urgency under four heads. First, as the name suggests, the use of urgency may be motivated by a need (or perceived need) to expedite the passage of a particular piece of legislation. Secondly, urgency may be motivated by a political calculation that being seen to act decisively in relation to particular legislation, or at a particular time in the electoral calendar, will play well with the electorate. That might be because the government believes that there is public support for the legislative measure. 4 Or, to the contrary, it might be that the legislation is controversial and the government wishes to get it off the political agenda as quickly as possible. Thirdly, urgency has also been used in order to gain a broader tactical advantage against the opposition. For example, interviewees referred to the use of urgency to avoid question time, to avoid members day, to ensure that the opposition did not have time to prepare, or simply to irritate, or break the morale of, the opposition. Such tactical uses of urgency have become much rarer in the post-mmp environment, but have not been completely eliminated. The fourth and main reason why governments use urgency is because they have a full order paper and want to push forward with their legislative programmes to get through the legislative log jam, as one interviewee put it. In other words, the primary factor that drives urgency is insufficient scheduled sitting hours to get through the government s legislative programme. The majority of parliamentarians whom we interviewed were of the view that urgency is not only a tool, but a legitimate tool, for the government to get extra sitting hours. Underlying that view is a general perception that the House does not currently have enough hours to get through government business, that this is a significant problem, and that the question of urgency needs to be addressed in that wider context. If urgency were to be constrained, we were told, the House would have to find other ways to extend its regular sitting time. In fact, the need for reforms to address more systemically the problem of insufficient time was a common theme in the interviews that we conducted. Interviewees also made the point that the three-year term created a particular problem for expediting legislation. In summary, in New Zealand, urgency serves the dual function of enabling governments to fast-track the legislative process in cases of genuine need, and enabling governments to extend the time available to the House to progress the government s legislative programme more generally. B. Extraordinary Urgency Extraordinary urgency is expressly constrained by the requirement in Standing Order 56 to inform the House of the circumstances that warrant the claim for extraordinary urgency and to obtain the agreement of the Speaker that the business to be taken justifies it. It is now generally accepted that extraordinary urgency is only 4 Urgency by new governments in order to be seen to be promptly implementing their election promises is a variation on this type of motivation. 5

8 appropriate where there is both a need for an immediate law change, and where the new law will come into immediate effect. 5 Interviewees stressed the infrequency of extraordinary urgency motions, and saw Standing Orders as placing tight constraints on its use. Our study tends to confirm that is so. C. Is MMP an Effective Constraint on the Use of Urgency? In contrast with extraordinary urgency, the only formal constraint on (ordinary) urgency is the need to get the support of a majority of the House for the urgency motion. One of the key questions for the Project is whether the presence of smaller parties in governing arrangements constrains the use of urgency. The era of multi-party governance in New Zealand in fact began before the first MMP election, in September 1994, when the two larger parties began to fragment as MPs positioned themselves for the different electoral system. Since 1994, no single party has held a majority in the New Zealand Parliament. According to our data, once minor parties enter into agreements not to oppose the government on confidence and supply, it is rare for them to vote against the government on urgency motions. For example, the Green Party an open opponent of the use of urgency only voted against urgency motions on three occasions during the term 6 (abstaining on one further occasion) and on two occasions during the term (abstaining twice). 7 There is, though, no hard data on the number of occasions on which the refusal of support parties to support a proposed urgency motion has stymied the government s intention to seek urgency. The majority of politicians whom we interviewed were of the view that the need to negotiate support with minor parties has been a significant constraint on the use of urgency motions since MMP. This is borne out by the data set out in Appendix A. 8 Figures 1-6 reflect a significant decrease, since 1994, in the overall number of times that Parliament has gone into urgency, in the average number of Bills accorded urgency, in the percentage of Bills accorded urgency and in the sitting hours of the House conducted under urgency. The way in which urgency is used also appears to have changed. The use of urgency in such a way as to result in legislation not being subject to select committee scrutiny (referred to below as no-select-committee urgency ) has been extremely low throughout the period of study. 9 There is, though, a significant decrease in this use of urgency since 1994 (see Column K of Table 1, and Figures 7 and 8). Under the two single-party majority governments for which this study has full data ( and ), Bills were subject to no-select-committee urgency on 16 and 12 occasions respectively (Figure 8). In contrast, the average number of Bills to have 5 For example, Standing Orders Select Committee Report of the Standing Orders Committee on the Review of the Standing Orders [1995] I AJHR 18A at 20; David McGee Parliamentary Practice in New Zealand (3 rd ed, Dunmore, Wellington, 2005) at The agreement between Labour and the Greens was unwritten. 7 In contrast, during the term, when the Greens had a co-operation agreement with Labour but without agreed support on confidence and supply, the Greens voted against the government on urgency motions on 13 occasions. 8 All references to Figures and Tables in this section are to the Figures and Tables in Appendix A. 9 Under current Standing Orders, this results whenever the first and second reading stages of a Bill are comprehended within an urgency motion. 6

9 been subject to no-select-committee urgency by subsequent Parliaments on which we have full data is 7.4. On the other hand, the pattern of decline in the use of urgency is uneven. In particular, there are two apparent exceptions: the 45 th Parliament ( ) and the current Parliament. In relation to the former, unexpectedly, the use of urgency was relatively low during 1997 the period of most stable government but was relatively high during the second and third years of the parliamentary session (Figures 1 and 3). Indeed, the years 1998 and 1999 stand out as two of the highest in the entire period of the study. Significantly, the numbers remained high even after the breakdown of the National-New Zealand First majority coalition in 1998, after which, the National Party had to rely on a combination of support from Alamein Kopu, the ACT Party, the United Party and some of the New Zealand First MPs. This Parliament also stands out for the number of times Bills were subject to no-select-committee urgency (Figure 7). We do not have full data for the current Parliament. Nevertheless, the available data are revealing. The number of urgency motions moved during its first full year 2009 is the second highest since the advent of multi-party Parliaments, topped only by If the government continues to move urgency motions at the same rate, it is on track to top all multi-party governments by the end of its term. It is also on track to rank second of all multi-party Parliaments behind the 45 th Parliament on Bills accorded urgency Figure 4 as well as on percentage of sitting time under urgency (Figure 6). The data on the way urgency has been used by this Parliament are also striking. Between its election in November 2008 and the end of that parliamentary year, the National-led government put seven Bills through all their stages under urgency (Table 3). This was the third highest number by one government in any one year in the study behind 1998 (13) and 1999 (8). The current government achieved this feat in the nine calendar days that Parliament sat in 2008 after the general election. The use of no-select-committee urgency, has remained high, in relative terms, throughout this government s term in office. Figure 8 shows that a little over two thirds into its threeyear term, this Parliament already ranks the highest equal of all Parliaments during the period of the study in this use of urgency. On the other hand, the data indicate an interesting trend, during the course of this parliamentary term, away from the use of urgency to take together the introduction and the initial debate. Table 3 (Columns E and F) shows that during 2009, this usage comprised 30.6% of all items of legislative business considered under urgency, contrasting with an average of only 1.8% during the 11 years or partial years of the previous Labour-led government. In 2010, however, this usage was completely eliminated perhaps reflecting responsiveness to criticisms, whether from the opposition, the media or from its support partners. 10 It is also worth noting that urgency to take one stage alone has trended upwards (to 48.4% of all items of legislative business considered under urgency in 2010 Columns C and D). In summary, there is no doubt that the advent of multi-party Parliaments has had a significant effect on the ability of New Zealand governments to use urgency. However, our research indicates that the effect is uneven, and that the constraint imposed by the multi-party environment is sometimes weak or even absent. The data suggest that, inn order to account for the impact of multi-party Parliaments on 10 Though, of course, when urgency was accorded to Bills for all stages, those would include the introduction and initial debates. 7

10 urgency, we must look beyond the formal designation of the governance arrangements (majority coalition vs minority) to a complex list of factors. These may include: The parliamentary size of the major party, its relative strength vis-à-vis its support parties, and the stability of its support arrangements; The personalities of lead figures in the Government such as the Prime Minister and Leader of the House; Extraneous factors motivating the particular government to use urgency, such as a perception of likely defeat at an upcoming election; The institutional culture and ideological perspectives of particular support parties and the people who make them up (for example, the pronounced opposition of the Greens to the use of urgency was clearly a significant factor during the three terms of Labour-led government, ); and The precise nature of the support arrangements that have been entered into. With respect to this last factor, the perception of a number of interviewees was that a key difference between the current Government and the former Labour-led MMP governments is that the current Government has express clauses relating to procedural support in its confidence and supply agreements. The position, though, is a little more complicated. It is true that National s support agreements with United Future, ACT and the Māori Party contain a clause requiring those parties to support the government on procedural motions unless [the support party] has previously advised that such support is not forthcoming. Labour s support agreement with United Future during the term, in fact, contained an identically worded provision. United Future did not regard this as an obstacle to taking an independent stance on urgency motions on occasion. In contrast, National, ACT and the Māori Party share a common understanding that the effect of the current support agreements is to require ACT and the Māori Party to support procedural motions as a matter of confidence. It seems, therefore, that while an important consideration may be whether or not support for procedural motions, including urgency, has been negotiated at the beginning of the relationship, unwritten understandings as to what has been agreed to may be at least as important as the formal document itself. D. Urgency and Democratic Legitimacy In our view, therefore, multi-party governance does not always operate as a significant constraint on the use of urgency. To what extent is that a problem from a constitutional or democratic legitimacy perspective? In its 2009 report, the House of Lords Select Committee on the Constitution identified five principles that ought to underpin consideration of fast-track legislation. 11 We would adopt this list and add a further five of our own. 1. Legislation ought to be a proportionate, justifiable and appropriate response to the matter in hand and fundamental constitutional rights and principles [ought not to be] jeopardised House of Lords Select Committee on the Constitution (2009) Fast-track legislation: Constitutional Implications and Safeguards. Vol I: Report, HL Paper (The Stationery Office Limited, London) at House of Lords Select Committee on the Constitution (2009) Fast-track legislation: Constitutional Implications and Safeguards Vol I: Report, HL Paper 116-1, (The Stationery Office Limited, London) at 8. 8

11 2. The House ought to strive to produce high quality legislation. 3. The House has the constitutional obligation to scrutinize legislation effectively Citizens ought to have the opportunity to participate in the political process. 5. The legislative process ought to be conducted in a transparent manner. 6. In systems of representative democracy, public, full and open policy deliberation is important Law-making processes need to be stable, predictable and conducted in accordance with known rules. 8. Parliamentary procedures ought to contribute to fostering respect for public institutions. 9. The Government has the right to govern as long as it commands a majority in the House. 10. Despite all of the above, legislatures need rules that allow normal processes to be bypassed in exceptional situations. Urgency advances principles 9 and 10 above by helping governments to implement their legislative programmes in the face of insufficient regular sitting hours, and by providing a mechanism for governments to respond expeditiously to unexpected events and contingencies. Nevertheless, the use of urgency can run foul of a number of the other principles. That is most obviously so when urgency is used to by-pass select committee scrutiny. Since 1985, the select committee system has played a pivotal role in the legislative process one that has come to substitute, in many respects, for the absence of an upper house. In our view, principles 1-8 are all appreciably impacted when the select committee process is bypassed or, indeed, significantly abbreviated. That is because of the select committee system s important role in enhancing the House s deliberative and scrutiny functions, in providing opportunities for public participation, and in thereby enhancing the quality of legislative output. In our view, this use of urgency ought to be rare, and justified by a genuine need for haste in relation to the particular measure. Despite the relatively low incidence of this use of urgency, the data discussed above, particularly relating to the current Parliament, suggest that there are currently inadequate constraints on it. 15 In the more common situation where urgency is accorded to one or more stages of legislative consideration but the select committee stage is preserved, the extent to which the principles set out above are impacted will depend on a number of factors such as the subject matter and complexity of the legislation, the stage or stages of the legislative process at which urgency is accorded, and the degree of scrutiny that the legislation has already received or is due to receive. Context and circumstance are important. However, we would make the following general points. 13 And see: D McGee Parliamentary Practice in New Zealand (3 rd ed, Dunmore Press, Wellington, 2005) at See the discussion by T Barnett and P Higbee Engaging in the Future: Overcoming the Limitations of Parliamentary Representation (2009) Australasian Parliamentary Review 24:2, especially Similar concerns arise where the opportunity for select committee scrutiny is significantly abbreviated. In our view, this practice too ought to be confined to genuinely urgent situations. 9

12 The stand-down periods between legislative stages play an important role in allowing legislation to proceed through the House at a measured pace, and in providing opportunities both for members of the House and for interested members of the public to digest and respond to developments. For example, the stand-down period between the second reading stage and committee of the whole House may provide an important opportunity for members to consider what amendments they might wish to propose. When urgency is accorded to the introduction and first reading, there may not be any opportunity for opposition and support parties (as well as members of the public) to see and digest the legislation prior to the first reading debate. Where urgency is taken for one stage at a time, the impact on principles 1-6 may be minimal. Nevertheless, even here, there is an impact on principles 7 and 8. That is because the use of urgency contributes to a public perception whether fair or not that Parliament is not following its own rules, and that legislation is being rammed through the House. These matters are returned to below. E. The Problem of Insufficient Sitting Hours It is clear that a driving force behind the use of urgency is the perception that the House has insufficient regular sitting hours to deal with its business. Our study is not in a position to resolve the broader issues that this raises. Nevertheless, any discussion of urgency must necessarily to be located within the context of this wider debate so we do make some comments on it. The range of tools available to governments to free up legislative capacity can be divided into two categories: those that are designed to streamline the business of the House within the available hours; and those that are designed to increase the sitting hours available. As to the first, over the years the House has adopted a number of techniques to streamline its legislative business. These include: The move away from clause by clause debates in the committee of whole House to Part by Part debates; The move to party voting rather than divisions; Limits on the number and length of speeches; The use of closure motions; Empowering the Business Committee to decide that a Bill does not require consideration in committee of the whole House. There may well be ways in which the business of the House could be streamlined further for example, by relaxing the restrictions on the use of Omnibus Bills, or by further limiting the use that is made of the committee of the whole House. On the other hand, a number of interviewees expressed the view to us that Standing Orders have already gone too far in streamlining the process of legislative deliberation. If that is so, then the answer, if one is needed, must lie in the House sitting for more hours. In the decade from mid-1999 until mid-2009, the House sat for between 59 (in an election year) and 96 sitting days an average of 79.3 sitting days per year. The 10

13 House sat for between 62 and 100 calendar days. The sitting hours ranged from 357 to 601, an average of 531 sitting hours per year. 16 The House of Commons sits for more days per year than does the New Zealand House. Again taking the decade as a comparison, the House of Commons sat for between 65 (an election year) and 208 sitting days. 17 The average number of sitting days during that decade was Parliamentary Sitting Hours 2008 Country Chamber Sitting Hours (rounded up) Australia House of Representatives 639 Senate 482 New Zealand House of Representatives 486 Republic of Ireland Dail Eireann (House of Representatives) 795 Seanad Eireann (Senate) 551 South Africa National Assembly 141 National Council of Provinces 91 United Kingdom House of Commons 1188 House of Lords 1010 Average Lower houses and unicameral houses only 650 The data on the above Table are extracted from a comparative survey of parliamentary sitting days and hours in 2008 conducted by the Parliamentary Library of the Parliament of Australia. 18 Even allowing for the fact that 2008 was an election year for New Zealand, the sitting hours for the House were at the lower end of the range. There is, therefore, a real issue that needs to be addressed as to whether the New Zealand House of Representatives ought to sit for longer hours. There are a number of potential methods by which it might do so. For example, it could: Sit on a Friday; Sit for longer hours on the current sitting days (for example, into the evening on a Thursday); or Sit for more weeks during the year. Another suggestion made by more than one interviewee was that the House should explore moving to a system analogous to the Australian Main Committee in which, in some instances, the committee of the whole House would take place concurrently with the sitting of the House itself. 19 If an increase to the House s regular sitting hours is not considered to be desirable, a half-way house is reflected in the sessional order that is currently being promoted by 16 Office of the Clerk of the House of Representatives Report of the Office of the Clerk of the House of Representatives (Wellington) 2000, 2001, 2001, 2003, 2004, 2005, 2006, 2007, 2008, 2009, The figures are reported according to the financial years ending 30 June. 17 House of Commons Information Office Sittings of the House Factsheet P4 Procedure Series June 2010 at Appendix A, Accessed 2 December Unfortunately this document does not report sitting hours. 18 N Horne, Background Note: Parliamentary Sitting Days and Hours 2008 Parliament of Australia Parliamentary Library (2009). Accessed 2 December Because the sitting hours provide more accurate data than sitting days, we include only those countries which provided the former figure. 19 This was mooted by the then Clerk of the House, David McGee: (2003) Review of Standing Orders. Submission of the Clerk of the House of Representatives. 11

14 the Government. 20 It would enable the Government, having advised the Business Committee on the Tuesday of its intention to do so, to move, following general business on a Wednesday, that the House have an extended sitting on the Wednesday evening and across to 1pm the next day. On the Thursday morning, select committees would sit as usual. As we understand it, if this Order were adopted, question time would not be disrupted, and there would be no question of the stand-down periods between legislative stages being removed. This is extra time, pure and simple. Which, if any, of these options ought ultimately to be adopted falls outside the scope of our study. The decision involves difficult tradeoffs between the perceived advantages of more legislative time, and the competing demands on the time of MPs a particular problem for smaller parties with limited party membership. In our view, though, reliance on urgency to address the problem of insufficient sitting hours is undesirable. The hybrid role played by urgency as both a device for responding to genuine emergencies and a widely deployed mechanism for extending the House s sitting hours is contributing to a profound lack of understanding in the media and the general public as to what urgency is, and as to its constitutional and democratic implications. This has two negative consequences. On the one hand, it means that urgency can, on occasion, attract negative public attention even when it has been utilised in relatively benign circumstances (perhaps for only one stage of legislation at a time, in order to progress the order paper prior to a recess). The very terminology of urgency sends out a false signal to the electorate and therefore confuses it as to the constitutional ramifications of what is occurring. Secondly, that confusion also impacts on the extent to which the media and public opinion can operate as an effective constraint on more constitutionally troubling uses of urgency, such as the use of urgency to by-pass select committee consideration. F. Recommendations On the basis of our research findings, and for the purposes of this submission, we make the following five recommendations. In our final report, we may also evaluate the pros and cons of other, more radical, measures that may be taken. i. Comprehensive review of parliamentary time In 2006, the Scottish Parliament conducted a comprehensive review of the question of parliamentary time. 21 In our view, it would be timely for this Committee to consider conducting a similar review. ii. Separate Standing Orders provision for extended hours In our view, Standing Orders should provide separately for an extra time provision. In other words, Standing Orders ought to deal separately with (and re-name) the situation in which the House seeks to devote extra time to completing its legislative business but does not wish to interfere with the rules governing the orderly progression of legislation through the House (such as select committee consideration and the stand-down periods between the legislative stages). 20 Hon Gerry Brownlee, proposed sessional order, Extension of Wednesday Sitting, Lodged 9 December Procedures Committee Review of Parliamentary Time Call for Evidence (2006) accessed 2 December

15 That might simply involve Standing Orders making separate provision for (and renaming) urgency motions taken for no more than one stage at a time of any particular piece of legislation. Alternatively, it might involve an extra time with notice provision such as the one currently being promoted by the Government. In either case, though, the key is that the new Standing Order to provide for extra time ought to be designed to replace (rather than merely supplement) urgency as the mechanism by which governments seek an ad hoc extension of the House s sitting hours in the absence of any genuine necessity to expedite a particular piece of legislation. 22 Our point is that the simple act of separating out the more benign use of urgency (for one stage) from those uses that interfere with the orderly progression of legislation through the House would have a significant effect. It would enable governments to better explain and defend their actions to the electorate, and it would enable the electorate to make more finely nuanced judgments about the behaviour of their elected representatives. If an extra time provision of this kind is added to Standing Orders, then it ought to be possible to reserve urgency (enabling the stand-down period to be removed and/or the select committee stage to be omitted) for situations where there is a genuine reason to expedite the passage of a particular piece of legislation. The situations in which that might be so are manifold but might include, for example: To minimise the potential for speculative behaviour from market participants that might follow the announcement of change to fiscal policy; To respond to an unexpected event such as a civil emergency, an economic crisis, the failure of a financial institution or an unexpected court decision; To correct an anomaly, oversight or uncertainty in existing legislation; or To comply with a deadline created by, for example, a forthcoming event. The remaining three recommendations are designed to improve the incentives for governments to limit reliance on urgency to genuinely urgent situations of this kind. iii. One motion; one Bill Our third recommendation is that Standing Orders ought to require that a motion to take urgency (but not extra time ) ought to be limited to one item of legislative business. This would require the government to particularise the reasons that it gives to justify taking urgency and, in doing so, would again enhance the opportunities for public scrutiny of parliamentary behaviour. Our recommendation is that this should be the case for all urgency motions. If that is not acceptable, a half-way house might be to impose such a requirement in cases where the urgency motion comprehends both the first and second reading stage of any particular Bill (and thus results in the select committee process being by-passed). iv. The reasons given Standing Order 54 requires the Minister moving the urgency motion to inform the House with some particularity why the motion is being moved. Following on from 22 For that reason, the Committee will need to consider whether an extra time with notice provision retains sufficient flexibility for the House. If not, then something more closely resembling the existing urgency power (but renamed and limited to one stage of a Bill at a time) will be required. 13

16 our earlier suggestion that urgency should be distinguished from extra time, we recommend that this should be reworded to require the Minister to: inform the House with some particularity why the business is urgent. We also suggest that the Committee may wish to consider requiring urgency motions to be moved by the Minister in charge of the legislation rather than, as is generally now the case, the Leader of the House. That would again highlight the fact that the reasons given need to relate to the particular legislation, and that they need to be genuine reasons relating to the particular Bill. v. Role for the Speaker where select committee stage is by-passed Perhaps the most troubling data produced by our study relate to the failure of MMP at least during the current parliamentary term to act as an effective constraint on the use of no-select-committee urgency. For the reasons given above, no-selectcommittee urgency is extremely troubling from a constitutional and democratic legitimacy perspective. In our view, the time has come to consider whether there ought to be a role for the Speaker in approving this form of urgency, similar to the role he or she currently plays in relation to extraordinary urgency. Standing Order 56 requires the Minister moving extraordinary urgency to inform the House of the nature of the business and the circumstances that warrant the claim for extraordinary urgency. Importantly, it then provides that extraordinary urgency may be claimed only if the Speaker agrees that the business to be taken justifies it. Standing Orders do not specify a substantive criterion or standard for when extraordinary urgency would be justified or warranted. Rather, it has been left to the Speaker, advised by the Office of the Clerk, to develop appropriate guidance. Our final recommendation is that similar wording ought to be adopted in relation to any urgency motion that encompasses both the first and second stage of legislation (and therefore results in the select committee stage being by-passed). That would leave it to the Speaker and the Clerk to develop appropriate guidance as to when the urgency of the situation is such that it ought to be appropriate to eliminate select committee consideration. 14

17 Appendix A: Key Statistical Results As noted, in the period studied ( ) there were 222 urgency motions and eight extraordinary urgency motions. These motions collectively dealt with 1953 items of legislative business relating to 1608 Bills. A Urgency Motions Figure 1 shows the number of urgency motions moved by year. The multi-coloured bars indicate a change of government during the parliamentary term, with the top (crimson) stripe showing the urgency motions attributable to the later government. The average number of urgency motions for the period is 9.25 per calendar year. Figure 1: Urgency Motions Moved by Year Different government later in the same year Does not include extraordinary urgency motions. Figure 2 attributes the 222 urgency motions to particular governments. The diagonally striped bars on the graph represent incomplete Parliaments (as our data did not fully cover the years of those Parliaments). Those bars do not, therefore, provide a fully comparable indication of the number of urgency motions moved by those two governments. Figure 2: Urgency Motions Moved by Parliament Labour 1987 Labour National National/National With Support National in Coalition with NZ First/National With Support Labour in Coalition w ith the Alliance and support from the Green Party Labour in Coalition w ith the Progressives and support from United Future Labour in Coalition w ith the Progressives and support from United Future and NZ First National w ith support from Maori Party, A CT and United Future Urgency Motions by Different Government in Same Parliament Data Not Inclusive of Full Term Does not include ext raordinary urgency mot ions. 15

18 B Bills Accorded Urgency Although 1608 Bills were accorded urgency during the period, only 830 of these were Bills that were introduced to the House of Representatives during our data collection period. The rest were either introduced prior to the start of our data collection period (11) or created at a later point in the legislative process when a parent Bill was divided or split (767). The data and graphs set out below are based on the 830 Bills as introduced figure, with Bills being assigned to a year on the basis of their introduction date. 23 Nearly all of the Bills in the study were government Bills (804). The remainder was comprised of 15 local Bills, seven members Bills and four private Bills. The Bills accorded urgency reflected a broad range of subject matters. The three policy areas that were most highly represented were financial legislation (128 Bills), justice legislation (125 Bills) and primary production (65 Bills). Figure 3: Bills Accorded Urgency (Based on Introduction Date) Different government later in year Figure 4: Bills Accorded Urgency by Parliament Labour 1987 Labour National National/National With Support National in Coalition with NZ First/National With Support Labour in Coalition w ith the Alliance and support from the Green Party Labour in Coalition w ith the Progressives and support from United Future Labour in Coalition w ith the Progressives and support from United Future and NZ First National with support from Maori Party, ACT and United Future Different government in same parliament Data not inclusive of full term 23 This method of counting means that the last year of the study, in particular, is likely to underrepresent the true level of urgency. That is because urgency shows up, not in the year that it is taken, but in the year that the Bill to which it relates was introduced. We have chosen this method because Bills can and have had urgency accorded to them in more than one calendar year. 16

19 Figure 3 show all Bills that have been accorded urgency at some stage and Figure 4 assigns the Bills accorded urgency to particular Parliaments. Table 1 shows the numbers of Bills accorded urgency and expresses them as percentages of the total number of Bills introduced by each Parliament during our data collection period. 24 Figure 5 displays these data as a graph. Table 1 Parliament Bills introduced Accorded urgency % Urgency (not full term) Figure 5: Percentage of Bills Introduced that were Accorded Urgency by Parliament C Percentage of Sitting Time Taken under Urgency In his 2008 study on government law-making under MMP, Ryan Malone provided data on the number of sitting hours conducted under urgency during the period Table 2 re-produces this data and updates it to include the figures from the Parliament and the next Parliament up to the end of Table 2 Parliament Total Urgency % Urgency (not full term) This information, and the information relating to sitting hours below, was kindly provided to us by the Parliamentary Library and the Office of the Clerk. 25 Ryan Malone Rebalancing the Constitution: the Challenge of Government Law-Making under MMP (Institute of Policy Studies, Wellington, 2008) at

20 Figure 6 displays these data as a graph. Figure 6: Percentage of Total Sitting Hours Spent in Urgency D Extraordinary Urgency The 830 figure of Bills introduced includes eight Bills that were accorded extraordinary urgency. 26 As already noted, there were only eight extraordinary urgency motions over the entire period. There has never been more than one extraordinary urgency motion in any one year. The years in which extraordinary urgency motions have been taken are 1988, 1991, 1998, 1999, 2000, 2002, 2003 and This means that there was one extraordinary urgency motion in the latter period of the fourth Labour Government, three by the fourth National Government, three by the fifth Labour Government, and one so far by the current Government. E Different Types of Urgency Table 3 sets out, year by year, five of the common ways in which urgency motions are deployed: to take only one stage at a time under urgency (column C); to take the introduction and initial debate together (column E); to take all remaining stages after the Bill is reported back from select committee under urgency (column G); to take the committee of the whole House and third reading stage together (column I) and to take all stages of a Bill under urgency (column K). Table 3 shows the number of times that each usage was deployed in each year, and then reflects that figure as a percentage of all items of legislative business considered under urgency (see Column B). Where there has been a change of government during the course of the year, that year appears twice in Table 3 (column A). 26 One of those Bills, the Finance Revenue Bill 1991, was divided into four Bills, meaning that the figure for all Bills accorded extraordinary urgency is 12 out of There was one extraordinary urgency motion moved that fell outside of our period of study (before 1987). 18