Legal Beagle by Graeme Edgeler

8

The Review of Standing Orders

For anyone particularly interested, my submission on the triennial review of Standing Orders follows. I hope I picked up at least some things that at least some of you would like changed. If there's anything you'd like to see changed, submissions closed yesterday, but are - for the moment at least - still being accepted on-line. Alternatively, comment here, or on David Farrar's submission, and maybe someone somewhere with the power will read it :-)

Review of the Standing Orders

Submission of Graeme Edgeler

Overview

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in parliamentary procedure. I thank the committee for the opportunity to make a submission on the Review of the Standing Orders. I would welcome the opportunity to speak to my submission.

My submission addresses a number of discrete aspects of the Standing Orders, perhaps of particular interest to members of the public. I suggest consideration should be given to amendments in the following areas:

  • Issues concerning the use of urgency:
    • Question time under ordinary urgency;
    • Urgency used to avoid select committee consideration;
    • Clarity in urgency motions;
  • The New Zealand Bill of Rights Act 1990;
  • The Crown financial veto;
  • Bills affecting the Crown prerogative;
  • The election of the Speaker;
  • Broadcasting of the proceedings of the House during personal votes;
  • Three way votes.

Urgency

There have been a number of improvements to the systems by which the House of Representative accords additional time to the Government to pass legislation. Extended sitting hours are a welcome addition, which allow for the expansion of time without disrupting the ordinary business of the House. In addition, it is now common for leave to be granted for the House to hold question time, despite being under urgency.

Question time under urgency

While I can understand that the ordinary business of the House in holding the government to account will take a back seat when the House accords extraordinary urgency for some item of business, I do not see a particularly strong case for this to occur during ordinary urgency.

I submit that, under ordinary urgency, the standing orders should provide that the holding of question time should be automatic.

When matters are truly urgent, in the sense of legislation being needed to be passed all but immediately, extraordinary urgency will enable the government to proceed with the haste required, and, if necessary, override the ordinary requirement to hold question time. Short of this level of urgency, this should not be necessary, and question time should be held, despite the House being in urgency.

Urgency used to pass legislation without recourse to a Select Committee

Use of urgency in a way that avoids normal select committee scrutiny (particularly to allow passage through all stages) is one of the most concerning uses of urgency. While this will sometime be necessary, Parliament should be very clear about what it is doing before it does it.

Under changes to Standing Orders adopted following the last review, whenever the Government wishes to move a motion reducing the time allowed for a select committee report on a bill to a period of less than four months, that motion is debateable. Counter-intuitively, however, there is no separate debate when the government uses urgency to avoid select committee consideration entirely.

I submit that Standing Orders should be changed to require a separate debate whenever the Government wishes to advance a bill without select committee consideration.

In the same way that a debate on an instruction to a select committee to report a bill quickly is limited to that question, and speeches cannot address the principles of the bill itself,[1] a debate on such a motion would be necessarily limited. Members speaking in the first reading of a debate on an important bill should not be placed in a position of having to decide whether to speak about the bill, or to speak about the process.

Given that this sort of debate is already provided for with short select committee consideration, it should not be difficult to provide for it where the discussion is about whether there should be select committee consideration of a bill at all.

If the Government wishes to use an occasion of urgency to move multiple bills through without reference to a Select Committee, it could perhaps include these in a single motion, which can be addressed as the first item of business once urgency has been accorded.

Clarity in urgency motions

I submit that urgency motions should be required to clear as to what is covered by them. As an example, at the beginning of the last Parliament, the House resolved:[2]

That urgency be accorded the introduction and passing of Government bills dealing with taxation, employment relations, bail, education and sentencing, Government notices of motion Nos 4 and 5, and any maiden statements to be made at times determined by the Business Committee.

I do not consider this should be sufficient. Members of Parliament – and the public of New Zealand – are entitled to know what is going on in the House. I submit that all urgency motions should be required to state:

  • The exact bills intended to debated (i.e. by name); and
  • The stage or stages through which those are intended to be passed.

It will sometimes be necessary for the Government to introduce a bill under urgency, but there is no reason that people shouldn’t at least know the names of the bills that are to be debated.

New Zealand Bill of Rights Act 1990

Section 7 of the New Zealand Bill of Rights Act 1990, and SO 262 provide important protections to ensure that Parliament is informed of human rights implications in legislation before it passes laws infringing rights.

I submit that Bill of Rights reporting should also occur at other stages in the legislative process. Ideally, this would occur before the Second and Third readings of bills which had undergone substantial amendment in select committee, or the Committee of the Whole, and the House would be aware of the Bill of Rights considerations in any amendments it was consider.

Of course, I recognise that the resource implications in reporting on every bill at every stage, and every amendment, and supplementary order paper may mean it would not be practicable to require it at all stages, but I submit that the Standing Orders should at least allow for Bill of Rights reporting from the Attorney-General at other stages during the passage of legislation.

In particular, I submit that any government supplementary order paper that is referred to a select committee should be subject to a bill of rights report, and major government supplementary order papers introduced at late stages could be considered as well. I anticipate that in respect of such matters, the Bill of Rights implications will have been considered as part of the pre-legislative process in cabinet papers, etc. which should alert the Attorney-General as to which supplementary order papers need attention. Given the work will have been undertaken already, the additional work involved in obtaining sign-off from the Attorney-General should not be too great. It will also assist the House to know whether Bill of Rights concerns present in legislation at introduction have been sufficiently met by amendments made by Select Committees.

Most Bill of Rights concerns in legislation will be present from introduction, but occasionally, the problematic provisions will be introduced during the select committee process or in a committee of the whole House (as happened with the Criminal Justice Amendment Act (No 2) 1999, for example). Alternatively, broader discussion of a bill may result in a greater understanding of the bill of rights implications in it (I think, for example, of the Electoral Finance Bill and the Public Health Bill). A process by which a concerned member of Parliament (or a committee) could seek a renewed opinion from the Attorney-General as to a bill’s compliance with fundamental obligations under the Bill of Rights would be welcome.

The Crown financial veto

The Crown financial veto as contained in the Standing Orders is a relatively recent creation. Previously, it had a statutory basis, beginning in section 54 of the Constitution Act 1852, and most recently, in section 21 of the Constitution Act 1986, which provided the legislative basis for the Crown financial veto, was repealed in 2005.[3]

New Zealand operates under the system of Parliamentary sovereignty, in which the government cannot spend money without the agreement of Parliament. It is also a system where the rule of law requires that the Government follow the laws passed by Parliament. While it will almost always be the case that the Government will command a majority in the House, there will be a few instances, on the occasional issue, where the Government does not have the support of the House for its position.

This will usually not involve money, but on the few issues where it does, if the Government feels strongly enough that it does not wish to expend that money, then its solution should be to state that the vote is an issue of confidence. The provision of a veto, which can be exercised without the support of the majority of the House, is anathema to Parliamentary sovereignty and the democratic underpinnings of the House. The Crown should only ever act when it commands the support of the House. It should not have the power to veto the passage of a bill.

Bills affecting the Crown prerogative

Standing Order 309 provides that “No Member’s bill, local bill, or private bill that contains any provision affecting the rights or prerogatives of the Crown may be passed unless the Crown has, by message, indicated its consent to that provision.”

Like the Crown financial veto, this is provision is a holdover from a time now long past. We are a fully functioning Parliamentary democracy, operating under the principle of Parliamentary sovereignty.

Simply put, if the majority of the House supports a bill that affects the Crown Prerogative, the Crown should wear it. The House should not need to seek its permission to legislate on any matter that it sees fit.

The election of the Speaker

I submit that consideration should be given to the House electing its Speaker using a secret ballot.

The Speaker is creature of the House, and is responsible to the House. It is important that they not only have the confidence of the House but are seen within Parliament and outside as having that confidence. I believe that the election of the Speaker by secret ballot would greatly assist with this.

Election of a Speaker by secret ballot is now common in Westminster Parliaments. The UK House of Commons conducted its first secret ballot for Speaker in 2009 (having adopted rule changes in 2001).[4] Elections for the Speaker of the Scottish Parliament,[5] and for the Presiding Officer of the Welsh Assembly,[6] are also by secret ballot. The Presiding Officer and deputies of the Northern Ireland Assembly are not elected by secret ballot,[7] but there is a requirement that election of the Speaker and deputies has “cross-community support” (a majority of both Nationalist and Unionist members).[8]

The election of the Speaker of the Australian House of Representatives[9] and the election of President of the Australian Senate[10] are also by secret ballot, as are such elections in state or territory legislatures in ACT,[11] New South Wales,[12] the Northern Territory,[13] Queensland,[14] South Australia,[15] Tasmania,[16] the Legislative Assembly of Victoria,[17] (but not the Legislative Council[18]), and Western Australia.[19]

The election for the Speaker of the Canadian House of Commons[20] has been by secret ballot for over 25 years (there is no election for the Speaker of the Canadian Senate, who is appointed on the advice of the Prime Minister[21]). Elections for Presiding Officers of provincial legislatures in Alberta,[22] British Columbia,[23] Manitoba,[24] New Brunswick,[25] Newfoundland and Labrador,[26] Nova Scotia,[27] Ontario,[28] Prince Edward Island,[29] Quebec,[30] and Saskatchewan,[31] are also all conducted by secret ballot, however, the Speakers of the Legislative Assemblies of the three Canadian territories: Northwest Territories,[32] Nunavut[33] and Yukon[34] are elected by motion

The international movement towards conducting the elections of presiders Officers by secret ballot is clear, and the New Zealand House of Representatives remains on the out, by continuing to elect its Speaker in a way that allows for a strong whip to be imposed

I submit that it is time for the New Zealand House of Representatives to consider adopting a secret ballot for the election of the Speaker

Broadcasting of the proceedings of the House during personal votes

The Rules of Filming the House[35] currently provide that:

7. While a personal vote is in progress, a graphic to this effect may be shown in place of live coverage, or a static wide-angle shot of the Chamber may be used, provided that this coverage does not seek to identify how individual members are voting. Any spoken proceedings that occur during a personal vote (such as a point of order) will be covered, subject to the usual rules.

I submit that this should change. While personal votes are uncommon, when they are held, they are usually on issues on which there is uncommonly high public interest in the vote.

There is no good reason to deny people watching at home on television, or via the Internet, access to the same information that can be seen via people sitting in the public gallery. While I can understand a desire not to show what is happening actually inside the lobbies, there should be no reason why, when a personal vote is being conducted, the cameras in the chamber shouldn’t be trained on the Ayes and Noes doors so that people watching at home can see which members are voting which way, with the ambient noise of the house in the background.

The situation during various votes on the same-sex marriage legislation, where people watching from home (and, I understand, from overflow rooms in the Parliamentary precinct), spent several minutes watching a basically blank screen while elevator music was playing was not a good look for the House, and discourages participation by the wider public in the legislative process.

Voting where more than two options are offered

In the course of this Parliament, the House conducted what I understand was its first three-way vote. From the perspective of someone who was sitting in the gallery during the debate on the alcohol purchase age, the process did not seem particularly satisfactory. The procedure where members left the chamber to cast their votes in private leaves much to be desired. It appeared to take an inordinate amount of time, and it wasn’t clear that very many people actually knew what was going on.

While such votes are likely to be rare, there is no reason that the House cannot take note of its recent experience and resolve a more satisfactory process for any repetition. The Standing Orders of the House already provide for a procedure for the conducting of votes where there are more than two options, namely during contested elections for Speaker in which there are more than two nominees. There is no reason why this procedure could not be adopted the next time the House conducts a three way vote. The Chair could simply call upon each member in turn to announce which option they support. I do not imagine it would take any longer than the process used during the drinking age debate, and it might even make for good television.

Conclusion

I look forward to reading the other submissions on the Review of Standing Orders, and I thank the Committee for the opportunity to present a submission.

[1]     Standing Orders of the House of Representatives, SO 286(3).

[2]     (9 December 2009) 49th Parliament, Journals of the House of Representatives, 23.

[3]     Constitution Amendment Act 2005, s 5.

[4]     Standing Orders of the House of Commons – Public Business, SO 1B.

[5]     Standing Orders of the Scottish Parliament, SO 11.9.2.

[6]     Standing Orders for the National Assembly for Wales, SO 6.8.

[7]     Standing Orders of the Northern Ireland Assembly, SO 4(5).

[8]     Northern Ireland Act 1988 (UK), s 39(7).

[9]     Standing Orders of the House of Representatives, SO 11(i).

[10]    Standing Orders of the Senate, SO 7.

[11]    Standing Orders of the Legislative Assemby for the Australian Capital Territory, SO 2(g).

[12]    Standing Orders of the Legislative Assembly of New South Wales, SO 10; Standing Rules and Orders of the Legislative Council of New South Wales, SO 13.

[13]    Standing Orders of the Legislative Assembly of the Northern Territory, SO 7.

[14]    Standing Rules and Orders of the Legislative Assembly of Queensland, SO 41.

[15]    Standing Orders of the House of Assembly of South Australia, SO 8; Standing Orders of the Legislative Council of South Australia, SO 18.

[16]    Standing Orders of the House of Assembly of Tasmania, SO 10; Standing Orders of the Legislative Council of Tasmania, SO 14.

[17]    Standing Orders of the Legislative Assembly of the Parliament of Victoria, SO 10;

[18]    Standing Orders of the Legislative Council of the Parliament of Victoria, SO 2.03.

[19]    Standing Orders of the Legislative Assembly of the Parliament of Western Australia; Standing Orders of the Legislative Council of Western Australia, SO 211.

[20]    Standing Orders of the House of Commons, SO 4.

[21]    Constitution Act 1867, s 34.

[22]    Standing Orders of the Legislative Assembly of Alberta, Schedule A.

[23]    Standing Orders of the Legislative Assembly of British Columbia, SO 11(c).

[24]    Rules, Orders and Forms of Proceedings of the Legislative Assembly of Manitoba, r 8(1).

[25]    Standing Rules of the Legislative Assembly of New Brunswick, r 11(8).

[26]    Standing Order of the House of Assembly of Newfoundland and Labrador, SO 4(1).

[27]    Rules and Forms of Procedure of the House of Assembly, r 6B(g).

[28]    Standing Orders of the Legislative Assembly of Ontario, SO 3(e).

[29]    Rules of the Legislative Assembly of Prince Edward Island, r 9(5).

[30]    Standing Orders and Other Rules of Procedure of the National Assembly of Quebec, SO 5.

[31]    Rules and Procedures of the Legislative Assembly of Saskatchewan, r 42(1).

[32]    Rules of the Legislative Assembly of the Northwest Territories, r 8(3).

[33]    Rules of the Legislative Assembly of Nunavut, r 8(3).

[34]    Yukon Legislative Assembly, Information Sheet No. 1: The Speaker, http://www.legassembly.gov.yk.ca/pdf/1_the_speaker.pdf

[35]    Standing Orders of the House of Representatives, Appendix D.

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