By Alexander Campbell

People probably tend not to think about Parliament if they can avoid it.  But when it comes to justice, not even the highest court in the land can compare to the supreme power of Parliament. Standing Orders are the rules Parliament operates under, regulating how we can all access and advocate to the legislative branch.

They are reviewed at the end of each term by the Standing Orders Committee. The Committee operates on the basis of consensus, and the House adopts the amendments recommended for the next term of Parliament. While that means the changes recommended will actually be implemented, some submitters have noted that it means the recommendations are usually piecemeal rather than transformational.

The latest review came out a few weeks ago with important recommendations that will impact how people engage with and influence the legislative process. This article focusses on changes to petitions, members’ bills and select committees, since these are the areas most people will interact with when engaging with Parliament. While much of the review deals with technical changes, there are some which should genuinely improve the scrutiny Parliament provides.

Changes to Petitions

Petitions are a common and easy way for campaigners to affect change. As such, hundreds of petitions were presented to the House this term, half on paper and half electronically. There were two important changes to the Standing Orders around petitions in this review.

Amendment 35 will make the sessional order allowing electronic petitions permanent. Other administrative changes, such as allowing hard copy and electronic petitions to be considered together as one petition, have also been recommended to make sure there is equal treatment for both types.

The submission by the Clerk of the House of Representatives highlights the positive impact the introduction of electronic petitions has had on petition numbers. However, this surge in petitions has also had the unintended consequence of increasing the workload of select committees. To address this, the Clerk and several other submitters proposed the creation of a specialist Petitions Committee to consider petitions, which was accepted by the committee. The new committee will receive petitions and then decide whether to refer them to the appropriate subject area select committee, directly to a minister, or to consider the petition itself. It also will have powers to group petitions together, monitor the performance of other select committees in considering petitions, and request help from the Ombudsman.

The aim of these changes is to decrease the time taken for petitions to be considered, and hopefully increase the efficacy of this form of advocacy. Whether these changes do succeed will depend on whether the new Petitions Committee resolves to divert a significant number of petitions away from subject select committees or simply acts as a new intermediary.

Changes to Members’ Bills

Members’ Bills allow backbench and opposition MPs to propose legislation outside the Government’s programme. Members’ Bills are drawn from a ballot whenever a slot for a bill comes up on Members’ Day. This type of bill has recently been the vehicle for significant reform in conscience issues, such as the End of Life Choice Act 2019 and the Marriage (Definition of Marriage) Amendment Act 2013, where political parties are often unwilling to campaign. Members’ Bills allow groups to work with sympathetic MPs rather than having to necessarily persuade an entire caucus. This review proposes two main changes to the Members’ Bill process.

First, Amendment 24 formalises the joint sponsorship of Members’ Bills. This was done for the first time in history this term of Parliament with the Crimes (Definition of Female Genital Mutilation) Amendment Act through a special variation of Standing Orders. The review recommends formalising this process to give members from different parties a way of working together on Members’ Bills and build cross party support. It is important to note however that this does not increase the chances of a bill being drawn from the ballot (unlike the Female Genital Mutilation Bill which skipped the ballot process).

The second major change is regarding the introduction of Members’ Bills which have majority support. Amendment 25 allows Members’ Bills which have the formal support of at least 61 non-executive members to be automatically introduced the next sitting day, bypassing the ballot process which can otherwise prevent bills from ever reaching the House. It is important to note that the threshold of 61 non-executive members was chosen so that it does not become an alternative way for the Government to introduce legislation.

An important question I would raise however, is whether this will simply discourage controversial but important votes ever getting proposed now that backbench MPs have this more certain way of getting something done. A better approach would be a one that does not take time away from Members’ Bills in the ballot but creates a path for non-controversial proposals from backbench MPs to the Order Paper.

Changes to Select Committees

Beyond the changes to petitions, there have been changes to select committees as well. Some submitters observed that select committees are not adequately scrutinising executive business due to too much legislative and other business (including petitions, as discussed earlier). The changes recommended aim to address this.

The review has a range of measures to make select committees more flexible. COVID-19 meant many had to sit remotely for a period, and the review recommends amendments to allow remote meetings to continue. This is in part to facilitate more meetings in non-sitting weeks where members are generally not in Wellington. The review also recommends amendments to allow joint meetings of committees and more flexibility around attendance requirements should a member needs to leave briefly.

The review also notes that data shows the number of inquiries initiated by the committees has trended downwards for the past 10 years. In part this would be addressed by reducing the petition workload of committees as discussed earlier. The review also proposes expanding the powers and responsibilities of committees in order to encourage more focus on scrutiny of executive decision-making and long-term policy. Examples of this include removing the ban in Standing Order 189(3) on select committees considering bills not referred to them, and requiring the new long-term insights briefings (which the new Public Service Act 2020 requires departments to prepare every three years) to be presented to select committees for consideration.

It should also be noted that the review aims to increase the involvement of select committees in the pre-legislative phase by recommending a procedure for law-change engagement plans. This would help prevent the need for last minute changes to legislation as it proceeds through the House by facilitating cooperation and consultation on the original drafting of Bills. It could also help reduce the need for undemocratic uses of urgency, by increasing and providing recognition for scrutiny in the pre-legislative phase.

Conclusion

Standing Orders are mundane and arcane, but important to our democracy. They define administrative technicalities alongside democratic necessities. We should all take note of how Parliament chooses to structure its consultation and deliberation.

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Featured image source: PickPik