Opposition forcing long debates on brief committees

Parliament's specialist select committees have been scantily utilised by the government in passing legislation so far this Parliament. Now, opposition MPs have rediscovered a disused parliamentary mechanism to protest that.

The tendency to rush legislation has lessened but not disappeared as the government has settled into its term. Nearly 10 months into the 54th Parliament, the pace of legislating has recently become less frantic. Recent bills are much more likely to receive solid time in committee, with many being given four months to report back (from the default six months).

But bills are still regularly dashing through Parliament's hurdles, including two bills a week ago that appear to have sparked something of a revolt.

When those two bills received first readings on 12 September, their respective ministers announced they intended to ask the House to approve drastically shortened times for select committees to consider their bills.

Brooke van Velden (in charge of a bill on gambling), gave an understandable reason for the rush (though not why the bill had been introduced so near an impending deadline).

Casey Costello (in charge of a vaping control bill), neglected to give any reason at all for why her bill must urgently return from committee at the end of October.

A rediscovered filibuster

Those two bills appear to have been the catalyst for a protest by opposition MPs. The protest involved a rediscovered mechanism to filibuster (prolong) Parliament's approval process of the government's instruction to curtail each committee's time. The tactic has been quite effective, having delayed rubber-stamping the Government's plan for one of the bills by a week (so far).

When a bill (a proposed law) is debated in Parliament for its first time and is successful, it is passed to a select committee for close inspection (and feedback from experts and the public). The default period a committee is given to consider a bill is six months. We discuss why that much time is needed later in this article.

If a government wants a bill to be dealt with more quickly, the minister can reduce that time to as little as four months without needing the majority of MPs to agree. A report-back period shorter than four months requires an 'instruction to the committee' to be debated and voted on. Debating these instructions prior to a vote has been required since a rule change in 2011.

The result of such a vote is a foregone conclusion (government's have a guaranteed majority), and the debate isn't usually very long because it is such a limited topic, and MPs have to stay relevant to that 'question'. Also everyone can only speak to the motion once.

Last week's new tactic was very simple. So simple it is surprising it has not been used in recent memory. Labour MP Duncan Webb suggested an amendment on the instruction, having checked with the clerk on duty in the chamber, that doing so was within the rules.

On Tuesday, when debating instructions on Costello' vaping bill, Green MP Lawrence Xu-Nan took Webb's example and also proposed an amendment, suggesting a slightly longer time in committee (until mid-December).

Those amendments meant the House was now debating a slightly different topic and so there was a little more scope for debate.

The Clerk of the House of Representatives, David Wilson, says there is also a second benefit.

"There's a basic rule in the House that you can only speak once to any motion or question. This is a new motion because it changes the existing one, and so … all of those people who've spoken already can speak again to the amendment."

Voila, an even longer debate. To help, the instruction motions include multiple elements, each of which is a target for yet another amendment.

None of this prevents an instruction from passing, but it does make it harder. It also uses up extra House time.

Debating time in the House is a precious commodity, and it is carefully managed. Debates that suddenly take longer than expected can throw everything out of whack.

It's also an extended opportunity for opposition MPs to publicise their disagreement with the government's plan to make quick law.

"In our system", says Wilson, "one of the disciplines on a government is that they have to justify their decisions and other parties that don't agree with them get to point out why."

The situation

The opposition's filibuster on Costello's instruction to the Health Committee regarding the vaping bill has been effectively stalled for a full parliamentary week (with some help from over-ambitious placements on the Order Paper).

The government will need to try again next week to receive the House's approval on the proposed instruction, or alternatively, accept Xu-Nan's amendment and a December (rather than October) deadline.

In the meantime, the Health Committee tasked with improving the vaping bill, including letting the public have its say on it, is in a weird instruction limbo.

The committee already has the Bill but it also has only the default instructions-to take six months working on it. If the new instructions eventually turn up next week, that six months will reduce to about five weeks. Not ideal for planning.

In the meantime, expecting a change in instructions, the committee leadership (who are National MPs), has already sent out an invitation for submissions on the Bill with a timetable that presumes the short deadline.

Currently, submissions will need to be received by 27 September. That is not a lot of time to contribute, but at least the filibuster hasn't made it any shorter.

If you would like to make a submission on the vaping bill, here is the Bill's information page and its submission page.

Why committees matter

Parliament has twelve subject select committees, each manned by a tiny but clever staff and a small cross-party group of MPs, who specialise in a topic area, for example, education or health.

By default, every proposed law is expected to undergo a six-month-long committee inquiry, including input from the minister whose bill it is, government policy advisors, legal drafters, government and independent experts, stakeholders, and any member of the public who wants to contribute. After taking this advice the committee works to improve the law, sometimes rewriting it substantially.

There are many arguments why bills should spend time in committee. Here are three:

1. Since 1951, New Zealand's Parliament has had no upper house (e.g. a senate). Upper houses are often described as 'deliberative bodies'. Select committees stand in for the deliberations that would be expected to occur in our missing upper house.

2. Committees act as a brake (albeit a weak one), on the runaway train that governments with a unicameral Parliament like ours can become. They slow down rushed and potentially dictatorial legislating; but only if you use them.

3. Committees find and suggest fixes for bad law before it gets passed, whether the flaws are unintended consequences, bad drafting, or daft policy. They do that with help from experts, stakeholders and everyday Kiwis. This avoids embarrassing amendment bills to clean up screw-ups.

But why do committees need to take so long?

Having received a bill for consideration after a successful first reading, a committee's first task is to invite people to contribute. Researching and writing useful submissions is not an instant task. This usually uses up at least a month.

Committees might receive ten written submissions or ten thousand. Or many more. They need to be managed, read and trawled for useful information. This takes time.

Committees hear oral submissions as well. This is really valuable, especially with stakeholders and experts who often bring valuable insights. At best this takes weeks, and often longer.

Having taken on board all this information, the committee decides what it should do. Do they like the bill? Can they improve it? How? This is not fast.

Finally, the committee needs to have people redraft the bill's problem areas and also write the report that discusses its findings. Neither of these is a small job either.

Clerk of the House David Wilson summarises: "And so that six months can go by really quickly. Some small or straightforward bills don't need that long, don't get many submissions; but others are complicated or contentious and need at least that much time, and sometimes more."

All of these tasks are complicated of course by the fact that committee members come from various political parties and won't always agree. However, committees often work together surprisingly well considering their differences. A good MP will focus on making good law, even if they disagree with it.

Finally, each committee's tasks are made more difficult by how few MPs New Zealand has. Many MPs need to serve on two committees. As a result the committees can't all meet every day that parliament sits. Half meet on Wednesdays and half on Thursdays.

Their staff are also often spread across multiple committees for lack of numbers (aka funding). More MPs and more committee staff would make all of this more efficient.

Parliament's underutilised engine room

This article began with the claim that Parliament's specialist select committees have been scantily utilised by the government in passing legislation so far this Parliament. That is a claim worth backing up.

This 54th Parliament has now been sitting for nine and a half months. In that time (by my count), the Government has initiated and passed 28 policy-oriented laws. Collectively those bills spent 606 calendar days being considered by select committees, or on average 21 calendar days per bill.

This may not sound bad, but select committees don't meet every calendar day. Usually they meet just one day per sitting week, and sit 30 weeks a year. So, in reality those 21 calendar days consideration are actually fewer than three.

A handful of the 28 bills got a fair bit more attention than that, but 19 of the 28 were never sent to committee at all-instead passing through all stages under urgency.

For comparison, by default, a bill spends six months in committee (about 16 sitting weeks).

As noted earlier, the government's initial, almost frantic pace of legislating has eased. Most bills now being introduced are receiving either four or six months of consideration. But not all.

Recent bills that have had shorter periods before select committee are:

• A bill reintroducing charter schools, from David Seymour - 71 days. No reason given by the minister.
• A bill making sure Lotto can keep gambling online, from Brooke van Velden - 28 days. Deadline-based reason.
• A bill to change vaping rules, from Casey Costello - 43 days. No reason given by the minister.
• A bill to extend deadlines on earthquake prone buildings, from Chris Penk - 84 days. Deadline-based reason.

And in case you're wondering which ministers (with multiple bills), are taking the least or the most account of good Parliamentary process in passing legislation, the ministers from both ends of the speed scale are from the same party.

Chris Bishop, as the government's Leader of the House, is the minister whose role suggests the most interest in parliamentary rules and procedure. His record agrees with that.

His five bills so far have been allocated 663 days before committee for an average of 132 days each. In keeping with that steady pace, just one of his bills has become law so far (that one was under urgency). Bishops contentious Fast-track Approvals Bill has 'fast' in the title and is all about making things happen quickly, but he still allocated it six months in committee (now extended to seven).

You might think that National's Deputy Leader of the House, Simeon Brown, would have a similar interest in good process, but his eight bills debated so far have averaged just 24 days in committee.

Most of that committee time was for just one of the eight bills he has introduced. Just two of his eight bills have even been to committee.

RNZ's The House, with insights into Parliament, its legislation and issues, is made with funding from Parliament's Office of the Clerk.