Legal Beagle by Graeme Edgeler


Enhancing democracy

My last post – a simple copy and paste of single standing order 267 – is now my second-most popular. You guys are weird.

I thought I’d have another go – this time with standing order 277.

Okay, not quite. But it's a standing order deserving of some comment all the same.

I accept that the Government – which commands a majority in the House – will win practically every vote in Parliament. But it always bugged me that they pretty much get to decide what every vote is. Everything except members’ bills, local bills and private bills – which get collectively shunted to the time left after the weekly general debate on not-quite-every-second Wednesday – is at the mercy of the Government. With their majority they control the order paper, and decide what bill comes up for discussion and when. Government pretty much has to go 100% to the winner, but it’s never seemed right that Parliament does. A close second in a hard-fought election campaign just seems like it should have more reward than a slightly lower differential on the votes the Government has the courage to place before Parliament.

You’ll lose every vote, but it really seems like you should get to decide what some of them are. In the last Parliament, National – within a couple of points of Labour at the election – got to advance one substantive policy – Wayne Mapp's “90 day” bill: a relatively simple measure entirely possible to advance from the opposition benches. It failed (they lost, remember), and while National had a few other members' bills none really stood out and screamed “National advancing core policy for which we advocated at the last election”.

And National only got to advance that through a bill because Wayne Mapp was lucky enough to have it drawn from the members' ballot – it could just as easily have been Judith Collins' Citizenship (For Descendants of Those in the Service of New Zealand) Amendment Bill. Other National members have had luck too, but while their luck has allowed them to advance pet projects (Nick Smith's Building (Late Consent is a Free Consent) Amendment Bill), they haven't had much luck getting core National Party policy debated.

And it's something they should be allowed to do. Not to overwhelm the order paper; probably nothing close to proportional control of it, but to choose to bring to the public consciousness something of importance to them, every so often.

This – I don't really like to call it injustice – isn't easy to solve. A complete overhaul of the system for ordering parliamentary business could hamstring government; setting some time aside each week or fortnight for ‘opposition business’ would necessitate losing time from members’ business or government business, and would likely be opposed by whomever is in government (and many in the opposition).

Which is how we get to standing order 277. SO 277 creates the process by which members' bills are introduced. Idiot/Savant over at No Right Turn has been doing God’s work some journalist’s work analysing the progress of members' legislation and reporting on the hopeful bills that find their way into the members' ballot.

Regular readers of his series may realise that SO 277 sets out the process by which the ballot for introduction of member's bills occurs. Everyone (except ministers) can put a bill in the ballot, and enough are drawn so that there are always four awaiting a first reading debate (this differs slightly from the text of the standing order – they've been operating under a sessional order that over-rides it – ask me in the comments thread if you care what this means), members are limited to one bill in the ballot each, and two people can't have the same bill (there's another standing order prohibiting Parliament having two bills on the same matter, or indeed voting twice within a calendar year on the same question). If two people try to have the same bill, there's a pre ballot which decides which proposed bill goes into the main ballot (I/S carries an example of where this has happened).

My simple proposal is to delete the last bit. If we allowed as many MPs as wanted, to have same bill the opposition could seize the opportunity to push some real policy, to choose an issue where they think the Government is vulnerable. 47 members of the leading opposition party all putting some bill attacking some perceived weakness of the government seems a good idea – whoever is in power. There would be a slight downside – there'd still be a prohibition on having two identical bills, so if more than one bill is due to be plucked from the obscurity of the ballot, they'd be forgoing the chance of getting a second. Perhaps worth the risk. And if they don't think it is, they don't have to do it.

The solution is imperfect – an element of luck remains, and the limited time there is to advance members’ business will mean slow progress; but it avoids the pitfalls of any of the potential big reforms. No-one is worse off – the government won't lose time for its legislative agenda, and those who want to advance members' bill may just be competing in the ballot against copies of the same bill rather than many different ones – so it stands at least some prospect of being picked up, and our democracy might just be a little less capricious.

Why devote a post to it? Well, I find it interesting, anyway. And if we can come up with a way to better recognise the views of everyone whose votes meant an opposition fell just short of government, it can only enhance democracy; finally, I thought it would be nice to respond to I/S's call to action) to see if an on-line columnist such as myself can make a difference by floating what is possibly an entirely novel idea.

Plus, it could have some nice spin-offs. It needn't necessarily be used by opposition parties: members from across the parliamentary Internet caucus could each propose the same bill to fix some troublesome aspect of copyright law; a cross-party bunch of republicans could use it to try to force some version of Keith Locke’s Head of State (Referenda) Bill onto the parliamentary agenda; or a group of like-minded MPs could try to force debate on reform of one of those perennial issues no-one in a major party likes to discuss, let alone debate.

And the member who really wanted to advance the Airport Authorities (Sale to the Crown) Amendment Bill still could.

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