ANALYSIS: Concern over the use of parliamentary urgency is a perennial issue, which has arisen again with the passage of the Māori wards legislation. Laura Walters takes a look at when urgency is used, and when it really shouldn’t be
The Government has been under scrutiny for its use of Parliamentary urgency, and given the power afforded to Labour by its single-party majority, there are legitimate concerns about this emergency approach becoming the ‘new normal’.
That doesn’t mean there aren’t legitimate reasons for going into urgency, as long as the necessary checks and accepted norms are followed.
Careful process, open scrutiny by Parliament, public consultation and investigation through the select committee process cumulatively make for good lawmaking.
This process is supposed to ensure proposed legislation is stress tested, and that there aren’t any unintended consequences.
It is also supposed to instill public confidence and allow for engagement and consultation, especially by those who could be affected by the legislation.
So when that process is circumvented or rushed, there is understandable concern.
Urgency allows Parliament to expedite the passage of bills or extend Parliament’s sitting hours.
This can mean just some stages of a bill will be passed under urgency, or all stages may be considered under urgency, doing away with the usual stand down period between readings.
In particularly urgent cases, the important select committee process may be significantly shortened, or bypassed altogether.
Legislation giving businesses support in the event of a longer lockdown was among the bills rushed through Parliament under urgency last week; today we report a law change to fix a loophole exposing NZ’s carbon market to major manipulation will be introduced in urgency.
The use of urgency is often framed negatively in public conversation, with the general belief being that the pros of legislative efficiency do not outweigh the cons of doing away with important layers of democratic scrutiny.
It usually hits the headlines when the fast passing of a bill becomes politically charged and the Opposition calls out the Government for trying to run roughshod over democratic process.
Or in extreme cases where something has gone materially wrong, as it did last May when Parliament introduced the wrong piece of legislation and then passed it within hours, accidentally bringing into law a multi-billion dollar loan scheme.
But there is often little understanding of how and why urgency is used, including when it is a useful and justifiable tool, and when it’s used for more malign purposes.
This perennial debate has surfaced again, with the passage of the Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill under urgency.
The bill was referred to the select committee with just two days for the public to make their submissions, with the whole select committee process lasting six days. The usual time given to a committee to report back on a bill is about six months.
While the Government says the use of urgency is to ensure the bill passes in time for the 2022 local body election, the Opposition says the bill is being rushed through for “solely political purposes”.
National Party electoral reform spokesperson Nick Smith has heavily criticised the Government’s use of urgency in this case, saying the Government does not want the debate lingering.
“Electoral law is important as it determines how we are governed, yet the Government is running a sham process and giving supporters an unfair advantage through the short select committee process,” Smith said.
Why the rush?
It is not unusual for opposition parties, regardless of their stripes, to criticise a government’s use of urgency.
But there is often little they can do, as a motion of urgency only needs a simple majority to pass.
Indeed, Labour criticised John Key’s government for its use of urgency on many pieces of legislation. And now the same issues are playing out against Jacinda Ardern’s Labour Government.
But the use of urgency is not always a bad thing. The key is understanding why urgency is being used, what form of urgency is being used, and how frequently it is being used.
Smith told Newsroom he believes there are good reasons for its use.
Nobody seriously questions its use in genuine emergencies, such as National’s response to the Canterbury earthquakes or Labour’s response to Covid-19, he says.
In these situations the power of urgency is important in passing specific laws to deal with “unusual challenges”.
Urgency can also be well justified in dealing with closing identified legal loopholes, Smith says.
For example, officials might find a piece of tax law is deficient, and quickly pass a law to close that loophole.
“The most offensive use of urgency is when it is done for political convenience.”
In these cases there may not be time to mount an opposition campaign, or give people the chance to access relevant advice, or test whether the law does what its proponents say.
University of Otago law professor Andrew Geddis agrees there is certainly a place for urgency, as was shown during the Covid-19 pandemic.
While urgent lawmaking may be a second-best process – ideally, all laws would be carefully deliberated on over a period of time – the perfect can also be the enemy of the good, he says.
“I’m not sure that the NZ public would have been very happy to hear that the Government couldn’t react quickly to Covid-19 because the only appropriate legislative responses required a six-month select committee process.”
But it is important to differentiate between “flavours” of urgency.
Reducing the length of time a bill must sit on the order paper between stages of debate, or extending the sitting hours of the House to allow more time to debate and vote on bills, generally is less problematic than truncating or even skipping the select committee stage.
While there’s no hard and fast rule to say urgency cannot be used for certain things, as a matter of good practice, constitutional matters should never be legislated under urgency, Geddis says.
What counts as a “constitutional matter” might be a grey area in New Zealand, but past examples of questionable uses of Parliamentary urgency have drawn significant criticism.
These include a bill that obviated the need for a by-election in the case of Harry Duynhoven, who took up Dutch nationality, despite being a New Zealand sitting MP.
And while Smith is hot on the topic of constitutional law, he was challenged by constitutional law experts back in 2010 after urgently passing a law – as Environment Minister – which gave him special powers to ignore environmental laws in Canterbury, whenever he saw fit, and without permission from Parliament.
How often is urgency used?
The other issue to consider is how frequently urgency is used by a government, and whether this lends itself to excessive use or any obvious trends in the types of bills being passed under urgency.
In his 1979 book Unbridled Power, Geoffrey Palmer referred to New Zealand’s legislative process as the “fastest law in the West”.
But New Zealand’s ability to pass laws at breakneck speed is not necessarily a good thing.
Research from Victoria University of Wellington and the New Zealand Law Foundation in 2011, found between 1987 and 2010, the house of representatives went into urgency or extraordinary urgency 230 times. And it accorded urgency to more than 1600 bills – many of them on more than one occasion.
Close to half the legislation introduced to the house between 1987 and 2010 had urgency accorded to it at some stage.
Over the decades, there have been attempts to change and limit the use of urgency, with people pointing out the dangers that come with a lack of consultation and poorly drafted law.
However, these attempts largely proved fruitless.
Following the introduction of MMP, there was a slight decline in urgency motions, but these ramped up again in subsequent years.
And by 2009, the percentage of sitting hours under urgency was higher than in 1989. Between 2009 and 2010, 70 percent of all bills had at least one of their stages passed under urgency.
In 2011, following the publication of the Victoria University and Law Foundation Research, changes were made to try and better control the use of urgency – including clear articulation of why urgency was needed.
And this appeared to help for a time.
The 51st Parliament, under the last National government (2014-2017), went into urgency 12 times. And the 52nd Parliament under a Labour-led coalition (2017-2020) passed 18 motions of urgency.
Urgency accounted for 10.9 percent of the total sitting hours for the whole of the 52nd Parliament – up from 7.5 percent in the 51st Parliament, but still far below the average of 20.5 percent between 1996 and 2011.
But a range of factors, including the Coalition Government’s rush to pass a slew of laws ahead of the 2020 election, and more significantly the Covid-19 pandemic, has seen the use of Parliamentary urgency surge once again.
The February issue of The Policy Quarterly assesses Parliament’s response to the Covid-19 pandemic, with analysis of the widespread use of urgency and the checks and balances put in place.
Between March 25 and 6 September 2020, the House considered 51 bills under urgency, including nine that bypassed the select committee stage.
Urgency accounted for 41.3 percent of the 253 hours of sitting time over this period. And urgency in 2020 accounted for 62 percent of all urgency during the 52nd Parliament.
While people are generally in favour of using urgency during a genuine emergency, there are clearly risks.
Other than the doozy that saw the wrong law passed in May, there is also the risk of the executive branch misusing or overusing its delegated power, and the erosion of public trust due to the lack of scrutiny and ability to participate.
However, the analysis by Gabor Hellyer, who is a Principal Clerk of Committee in Select Committee Services in the Office of the Clerk, found the checks and balances put in place during the pandemic response helped aid in good lawmaking, and in some cases should become common practice when lawmaking under urgency.
For example, the Covid-19 response committee was seen as a big success. It was chaired by the leader of the Opposition, had the power to summon people and documents, and the less theatrical, more informal setting of the virtual committee room proved better suited to probing governmental decisions on complex topics.
Hellyer suggested the ability to establish a temporary committee in response to an emergency should become normal practice.
And while the Regulations Review Committee’s work made few headlines, it made a significant contribution by scrutinising regulations, some of which were amended and improved.
Following some criticism, the Covid-19 Public Health Response Act was referred to a select committee after its passage, as it had not gone through the committee process beforehand.
The article suggests this ex-post referral of laws passed under urgency should be adopted practice, rather than relying on a government minister to take that initiative on an ad hoc basis.
Also worth noting, is the extra public engagement in the Parliamentary process during Covid-19.
Colmar Brunton research showed a quarter of New Zealanders watched or listened to Parliament’s select committees since the start of last year’s lockdown – a six-fold increase on earlier numbers.
Despite the positive analysis of Parliament’s behaviour during Covid-19, Geddis says using urgency for an emergency situation like Covid-19 could lead to it becoming “the new normal”.
In other words, the Government could get used to this type of lawmaking.
And Labour’s position as a single-party majority government may even intensify this.
The continued use of urgency by modern Parliaments – one that’s not expected to stop anytime soon – means there will likely be sporadic calls to revisit the rules and norms around urgency.
In 2018, Speaker Trevor Mallard suggested sweeping changes, which would effectively abolish the practice in all but the most extreme circumstances.
He proposed a 75 percent majority before the House goes into urgency. On top of that qualification, the bill under urgency would have to pass each stage of the legislative process with a 75 percent majority.
But getting a Government to essentially agree to rules that make it harder to pass the laws it wants, and get through its work programme, is always going to be a tough sell.