New Zealand’s 54th Parliament first met in December last year. Since its first (largely ceremonial) opening week Parliament has sat on 16 days. On 11 of those days 'urgency' has replaced the usual rules.
The five days when urgency wasn't accorded included four Thursdays (which are short days), and one Members' Wednesday. There has been time for just one full Members' Day so far in seven weeks (plus a couple of hours on a Thursday). Members' Days (when non-government bills get debated), usually happen every other week.
'Railroading the House'
If you’ve been following Parliament you will have noticed that opposition MPs are getting increasingly tetchy about just how much urgency is being used, and for what.
James Shaw on Thursday last week argued that urgency had been used so overwhelmingly that its use needed to be debated in the House.
“By my count, the Government has put 16 bills through urgency and one item of Government business not through urgency. So recognising your point about the accumulation, there has to be a point at which we're able to debate whether it's appropriate for a ratio of 16 urgent items to one to go through the House, because the Government has the majority and is essentially railroading the House. We're at the point now where they can't argue that just because there was an election means that they can overturn parliamentary democracy.”
James Shaw’s count may well be better than mine. My count is 14 bills passed in 7 weeks using urgency. Most of them passed under urgency through all stages and the rest under urgency except for the third reading.
That amount of urgency is not normal.
By comparison – in a study from Victoria University of Wellington of 24 years of New Zealand’s parliament (from 1987 until 2010), the average number of bills passed through all stages under was 10. That’s 10 per Parliament! So we’ve roughly hit that average in seven weeks with more than 90 percent of the Parliament yet to go.
Urgency is not a sin
Urgency isn’t always bad. It is not some cosmic sin. It is there as an option in Parliament’s rules because there are frequently good reasons for it. Like fixing mistakes in legislation.
It is not unusual for Parliament to quickly pass a bill to fix a newly found flaw in recently passed law. Ironically those mistakes do seem more likely to result from legislation passed under urgency.
There is also often urgency after a budget is announced (say, to enact an announced excise change without people taking unfair advantage).
The previous government used urgency a lot towards the end of their second term to complete bills that had banked up at their later stages. It particularly allowed them extra morning sittings (beyond the once-a-week allocation the Extended Sittings rules allow).
There are many reasons that urgency might be quite reasonably employed. Those reasons aren’t even always about pure speed. There are sometimes practical considerations, especially for new governments.
So, let’s have a quick look at what urgency is, and some reasons it’s used.
Urgency: An explainer
Put simply, urgency allows governments to pass laws faster by setting aside specific parliamentary procedures.
There are four key ways:
- First, urgency allows Parliament to sit for longer days or even extra days (but not Sundays).
This change is pretty simple. The 54th Parliament hasn’t actually sat for extra days, just a few extra mornings. As it happens, some extra morning sittings can be achieved without using urgency.
- Second, urgency allows a government to introduce new legislation to the House and then debate it immediately, without the usual three day wait so MPs can read it and form an opinion.
This effect of urgency is especially useful for new governments, who always experience a lag in getting a supply of newly drafted bills coming through from the Parliamentary Counsel Office. Bill’s take time to write.
- Thirdly, urgency allows parliaments to complete one stage of debate on a bill (a reading), and immediately begin the next one, rather than wait a day.
The usual ‘next sitting day’ rule expects that a bill might reasonably be expected to be amended after a second reading or committee stage. The delay allows the Clerks a brief chance to amend, check and reprint a bill. Bills debated under urgency are almost never amended at any stage (though not for want of trying by oppositions).
- Fourth and finally, urgency allows a government to entirely skip the select committee stage.
The select committee stage is when the public, interest groups, and outside experts are invited to make submissions or provide evidence on a bill. It’s worth noting that a government can choose to employ urgency selectively, e.g. just for the first reading. It doesn’t have to cover all stages or eliminate the select committee stage.
Skipping an entire stage is much more drastic than the other rule changes, but if speed is of the essence, then dropping select committee hearings will save up to six months.
Skipping public feedback
Skipping select committee hearings is the aspect of urgency that most angers all oppositions, for multiple reasons.
It is also the most constitutionally fraught aspect of urgency. In a unicameral system like ours (with no upper house to second guess a government’s ideas), there are very few checks on a government’s power to legislate. The select committee process is considered a crucial pause and check on a New Zealand’s government’s capacity for unbridled legislating at troubling speed.
Select committees allow public feedback (and time to think). This is when mistakes and unintended consequences are found and fixed. Most bills return from their select committee with amendments. Most bills are improved with time, thought and public input.
The important work that all parties undertake in committee to improve legislation is why it has become more common in recent years to shorten (rather than skip), the select committee process.
A significant truncation is achieved by the House issuing ‘Instructions’ to the select committee with an expected time limit for their inquiry. By far the shortest of these was in 2019 when the Parliament passed tighter gun controls in the wake of the mosque shootings under a bespoke version of urgency, which still allowed six days for a very compact select committee process. Six days that managed about 10,000 written submissions and 20 or so in person.
Giving reasons
As it happens, Parliament’s rules for urgency expect governments to provide the House with reasons for why urgency is needed, at the time it is requested. The person who usually fronts this request is the Leader of the House.
For example, so far this Parliament Chris Bishop has given various reasons, including (to paraphrase): ‘we won the election and have a mandate to do this’, ‘it is part of our coalition agreement’, ‘we want it done fast (i.e. it is in our 100 day plan)’, ‘we said we would repeal this when it was enacted’, and ‘this is a repeal and it was widely debated when it was enacted, so there is no need to go through it all again’, and ‘now it’s your turn’.
Are those good enough reasons – who knows?
Parliament’s rules do not include specific requirements for the reasons given for urgency, so almost any reason would suffice. They needn’t be compelling. As the Speaker pointed out this week in response to an opposition complaint, by definition all governments have the majority required to have urgency accorded by the House.
Practical reasons less often provided
Not all reasons are likely to be included in an urgency motion. Some might be practical and some more tactical.
Practically speaking, urgency is especially useful for new governments which often have a lot of policy they want enacted, but a shortage of bills that are drafted and ready to debate.
It takes time to write legislation. New governments don’t have the resources to begin work on laws properly until they are sworn in and they then spend months winding up to full speed.
To fill time early on most new governments pick up half-finished business from the previous administration and amend it if necessary as it progresses. But picking up old business doesn’t satisfy governments promising (possibly unrealistic) speed. In this case the previous government left fewer bills than is usual languishing on the Order Paper, having worked hard to complete as much business as possible pre-election.
Urgency allows a government to skip the three day wait to debate a new bill. This helps if they are being drafted close to deadline, and there are few options available to debate.
Basically, new governments often have a shortage of new bills to debate. Maybe even fewer new bills than it takes to fill a week of normal debate in the House. If they can’t bear to pick up the unfinished bills they are in a bind.
Doing the math
Under the normal process each new bill gets a first reading and is then sent a select committee for up to six months before returning for more debate. That first reading will take up to two hours of House time tops. Usually less.
Following that process, once bill ‘A’ is sent to committee, the government needs another bill to debate; and another, and another, until the bills begin returning from committee. But that's months away.
A parliamentary fortnight includes roughly 21.5 hours for debating government bills. A new government only prepared to debate its own, new bills, will need at least five newly drafted bills each week, and probably more. That’s just not possible at the beginning of a new regime.
So, if you won't stoop to picking up the previous government's uncompleted business, you need to fill more time while trying to draft more bills to have them ready to debate.
Oddly, going fast uses the most time. Urgency creates extra time (morning sittings), but soaks up even more time than it provides (so long as you break urgency before you add in Thursday morning or, god forbid, Friday).
The most time is used if you skip the select committee process. That way you can debate four stages of one bill back to back – the equivalent of debating at least four different four bills.
And under urgency the opposition is likely to debate harder and try to slow things down, especially if the bills are contentious. Debating a contentious bill under urgency will fill more than a day. You might only need three or four bills a fortnight.
And that buys you time to write new bills and stay ahead of the game.
The downside is that the bills in question miss proper consideration, especially by the public. As a result they may include mistakes or unforeseen consequences necessitating embarrassing follow-up legislation to fix them.
Tactical reasons never provided
There may also be tactical considerations, though it would astonishing if these were offered to the House.
Most obviously, quick wins may help satisfy a government’s electoral promises and keep voters happy. They may also outrage opponents, which some may also see as a win.
But there are also political advantages to skipping the select committee process.
Select committee hearings invariably include evidence from experts and stakeholders deriding a government’s ideas. Much worse ‘real people’ might turn up in person and tell heart rending personal stories and get emotional. The media loves that sort of thing, but no government wants it aimed at them on the news. Urgency avoids all of this.
This week, Labour MP Ingrid Leary, decrying the repeal under urgency of tougher anti-smoking laws, paraphrased experts opposed to the bill as saying “at least put it to a select committee so we can hear from communities whose whānau will die as a result of this."
It would be a brave government who saw that as a missed opportunity.
The quick and the dead
Tactically speaking, legislating slowly tends to allow an idea’s opposition time to ramp up public feeling, build pressure and mount a campaign. Moving fast can circumvent that.
As an added bonus speed also moves contentious topics out of the news cycle as fast as possible. Even if they are replaced by another contentious issue, they are replaced. Westminster politicians will even tell you that sometimes a shocking distraction is ideal.
Speed can have multiple tactical advantages.
Consider for example, the previous government’s complex and slow moving Three Waters reforms. They took two years and built a wave of opposition over that time. If they had been done-and-dusted in a week of highly contentious debating under urgency, would their opponents have managed to mount the same level of campaign?
In summary, urgency is not necessarily bad. Sometimes speed is genuinely necessary. Sometimes governments, especially new governments, have practical reasons why aspects of urgency might be helpful.
But also, tactically, urgency can allow a contentious idea to become a fact before its opponents have had enough time to come up with a slogan. Cynics might think that reason enough.
RNZ
