Life in the Legislative Fast Lane: Urgency in Parliament

By Alexander Campbell

Legislating is not normally meant to be a race, but Sir Geoffrey Palmer once said New Zealand makes “the fastest law in the West”.[1] The troublesome title seems to hold today, with it recently emerging that while acting under urgency, Parliament accidentally passed the wrong bill.[2] The practice of expediting bills or extending Parliament’s sitting hours by invoking urgency is fairly common in New Zealand, and is usually framed negatively in the media. Despite all this, not much attention in the news is given to understanding what urgency is, why it is used, and what should be done about it. Urgency provisions are complicated, but even this cursory look at the issue underlines the tension between legislative efficiency and democratic scrutiny at the heart of urgency.

What is urgency?

Urgency has long been a part of our legislative landscape, and has been gradually restricted with changes, most recently following a 2011 review by the Standing Orders Committee.[3] By the beginning of the twentieth century, the House had agreed informally that the Government could have bills read in an expedited fashion in the last two weeks of a session.[4] This was formalised in 1903, but there was not widespread use of the procedures until 1930.[5] This form of urgency allowed Parliament to regularly sit late into the night. However, in 1985 then Minister of Justice and Attorney- General, Geoffrey Palmer further reformed and narrowed the provisions, arguing the new provisions were “a reasonable compromise between the desire and the need of the Government to get its business through and the rights of the minority to express its opposition”.[6] This neatly describes the inherent tension between legislative efficiency and democratic integrity which characterises urgency.

Standing Orders allow Ministers (generally the Leader of the House) to take a motion to accord urgency or extraordinary urgency to certain business, such as certain stages of bills.[7] For ordinary urgency, there are two main effects. First, urgency allows the House to continue with a piece of business until its completion.[8] Therefore, a bill can pass through a number of stages in a single sitting, bypassing the normal stand down periods between stages. More notably, the select committee stage can be bypassed entirely. The second main effect is that urgency allows the normal sitting hours of the House to be extended until midnight.[9] This can continue until either the business is completed, the Government decides not to continue, or midnight Saturday, since the House does not sit on Sundays.

Extraordinary urgency is used far less frequently, but does more to speed up business. It has two main important differences from ordinary urgency. First, extraordinary urgency can only be accorded to business if the Speaker of the House agrees that it is justified. [10] An extraordinary urgency motion has never been refused by the Speaker to date. Second, sitting hours are extended even further than under ordinary urgency. On the day of the motion, the House can sit through the night until eight in the morning, with a break before the sitting resumes at nine.[12]

In summary, urgency or extraordinary urgency can be accorded to business of the House, most notably bills. It expedites whatever stages urgency is accorded to by enabling them to occur back to back. It can also mean that the sitting hours of the House are extended to accommodate the business. It is important to understand that urgency can be used in many different ways, with different impacts on the time spent on and quality of deliberation. Therefore, whether the trade-offs of urgency are worth it is a question that requires some nuance.

Why is it used?

What’s the hurry?, a study on urgency in New Zealand by academics at Victoria University of Wellington categorised the various uses of urgency as part of their quantitative research on this issue.[13] They found four main reasons why governments use urgency, analysing the circumstances and whatever reasons were formally given.

The first and most justifiable category where urgency has been used, is where specific reasons relating to the legislation or the problem it addressed meant an expedited response was thought to be necessary.[14] Common examples of this include responding to an emergency or unexpected event, or even simply providing certainty for markets. Generally these cases are what the general public might think of as appropriate times to use urgency, but it should also be noted there are few checks on whether or not these reasons are genuine. For example, late last year Minister of Justice Andrew Little announced that the government would legislate to ban foreign electoral donations over $50.[15] This was passed in one day under urgency, despite the bill’s commencement date not being until the beginning of 2020.[16] There was therefore no need to quickly change the law since there was still an opportunity to donate before the bill came into effect. The bill could have been expedited somewhat without totally eliminating most of the opportunity for consideration and improvement.

The second category identified was use of urgency to free up the Order Paper.[17] The idea here is that governments want to make progress on their legislative programme. This raises the legitimate question of the legislative capacity of Parliament. However it is not clear that the appropriate way to address this is by reducing the amount of scrutiny applied to bills. It is especially concerning when the Government alone gets to choose whether controversial bills of public interest will be expedited or whether technical and less controversial bills will be expedited. It should be noted here that reforms in the 2011 Standing Orders review including giving power to the Business Committee to allow for extended sittings, [18]  have helped to ease what Peter Dunne referred to as “legislative log-jam”. [19] It was noted in the 2017 review that this has been particularly successful in progressing uncontroversial legislation like Treaty of Waitangi claim settlement bills.[20]

The third category is the use of urgency for tactical political reasons.[21] Urgency can be used to influence public sentiment of the Government or to gain political advantages over the opposition. The advent of ‘100-day pledges’ in which new governments promise to carry out vast bodies of work in their first hundred days in office is a modern example of urgency being used simply because it is politically expedient. Both the Fifth National Government[22] and the Sixth Labour Government have used urgency in this manner.[23] While there is perhaps an argument around democratic mandates for 100-day programmes, this ignores the opportunities scrutiny provides for improvements. Less common today is the use of urgency to gain an advantage over the opposition by for example preventing Question Time or Members’ Day. Ken Shirley told researchers that “in the old Muldoon governments, he used to do it deliberately just to irritate [the opposition]”.[24] Others who were interviewed suggested government still used urgency to prevent Question Time in cases.[25] Obviously, this category is certainly the most egregious abuse of urgency provisions.

The final category identified is the use of urgency in relation to Budget Day.[26] This relates and overlaps with many of the issues identified above, and so for brevity is not discussed here.

And so, there is a variety of reasons why urgency is invoked. Each use of urgency is different and has arguments for and against. However there is always the underlying tension between the ability of the government to pass the legislation it wants and the House to properly scrutinise it. Before exploring the arguments around the use of urgency further, our understanding of the place of urgency can be enhanced by looking at overseas jurisdictions’ use of similar procedures.

How might it be changed?

Many overseas jurisdictions have ways of expediting legislation. Australia, with a comparable Westminster system, also allows Ministers to declare bills to be urgent which imposes time limits on debate.[27] In considering the tension between legislative efficiency and democratic scrutiny, it is useful to note that Australia has a Main Committee which can sit at the same time as the House itself and undertake the Committee of the Whole House stage for uncontroversial legislation.[28] This expedites legislation but maintains scrutiny for all legislation and higher levels of scrutiny for controversial legislation. Another comparable jurisdiction is Scotland. The Scottish Parliament has the concept of an emergency bill.[29] This enables the separation of extended hours and abridged scrutiny which comes from skipping the select committee stage or removing stand down periods. Only emergency bills can be expedited by skipping stages or removing stand down periods, whereas the extension of hours is dealt with by the Parliamentary Bureau. The point to be taken from comparisons with overseas is that the powers contained in our urgency Standing Orders are not unique, but there are many different ways of approaching the balance between legislative efficiency and democratic scrutiny.

The impact of urgency on democratic scrutiny depends heavily on context because of the variety of ways and situations in which it can be used. Many politicians view urgency as a legitimate way to solve the problem of a perceived lack of legislative capacity, with little concern for the democratic implications.[30] The use of urgency to bypass select committees though is surely the most egregious, given the important role akin to an upper house our select committees play in the legislative process.[31] This is where the most detailed and public consideration of bills takes place. Removal of stand down periods between readings impacts less on the quality of scrutiny the House provides, but is nevertheless bad for deliberation. The extension of sitting hours is also less worrisome for democratic legitimacy if not abused to circumvent scrutiny in Question Time or the role of MPs in other ways such as Members’ Days or their ordinary work outside of Parliament. It should also be noted however that the impact on public perception of Parliament every time urgency is used, no matter whether or not it is actually justified, is significant.[32] It is dangerous for the House to be seen regularly circumventing its own rules given the effect it has on perceptions of its democratic legitimacy. This effect is aggravated further by the muddled nature of urgency provisions which combine relatively benign powers to extend sitting hours with the ability to pass bills with effectively zero scrutiny. Some of the reasons discussed above, such as but not limited to genuine emergencies, may well justify the use of some type of urgency, but others do not.

Ideas for how to reform the use of urgency in New Zealand are not lacking. Many comparable jurisdictions have rules we can draw on, and much academic work has been done on possible reforms. Generally, possible reforms approach the problem in two ways. First, there must be increased controls on the use of urgency, or at least the use of urgency to bypass select committees. This could be done by requiring a higher threshold for the use of urgency than the current simple majority. The Labour party suggested to the Standing Orders Committee in 2017 that a threshold of 75% be required to invoke urgency.[33] Similarly, Germany and Denmark require a 66% threshold before urgency provisions can be used.[34] A higher threshold, whatever the level, would require parties to negotiate before invoking urgency, increasing the power of minor parties and the Opposition in the MMP environment to act as a check on the use of urgency. Second, there must be less of a reason for the Government to use urgency to get through their legislative agenda, by increasing the legislative capacity of the House. This could be achieved by extending sitting hours or by reducing the time it takes for a bill to be passed. The former has already been addressed in part by the 2011 and 2017 reviews of Standing Orders, with the introduction of extended sitting hours primarily used for uncontroversial legislation such as Treaty of Waitangi settlement claims.[35] It should also be noted that extended sitting hours may not always lead to more legislation, given that so much of Parliament’s time is taken up with non-legislative business. Furthermore, more legislative capacity may not be a good thing, as a lower capacity acts as a cap on the amount of rapid changes one Parliament can make.[36] Reducing the time it takes for a bill to be passed is complex, but generally involves reducing the rigidity in the process.[37] This could be achieved by delegating more power to the Business Committee to negotiate which stages exactly should be necessary for each bill according to its level of controversy.

So, urgency is not quite as clear cut as it is often presented. The muddled and broad nature of the powers it gives makes constraints on its use complicated. Its high level of use reflects the tension between democratic scrutiny and legislative efficiency. The current system clearly does not provide sufficient checks on the use of urgency’s more extreme powers, but the clogged Order Paper suggests the current system does not provide sufficient legislative capacity. Whatever the solution is, hopefully Parliament can soon lose the dubious title of making “the fastest law in the west”, if we have not already.[38]

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[1] Geoffrey Palmer Unbridled Power? An Interpretation of New Zealand’s Constitution and Government (Oxford University Press, Wellington, 1979).

[2] Thomas Coughlan “Parliament passes the wrong law in an afternoon of urgent lawmaking” Stuff (Online ed, New Zealand, 1 May 2020).

[3] Standing Orders Committee, “Review of Standing Orders” [2011] AJHR I.18B.

[4] John E Martin, The House: New Zealand’s House of Representatives 1854–2004 (Dunmore, Palmerston North, 2004) at 120.

[5] Standing Orders of the House of Representatives 1903, SO 95A.

[6] (23 July 1985) 464 NZPD 5853.

[7] Standing Orders of the House of Representatives 2017, SO 57(1).

[8] Standing Orders of the House of Representatives 2017, SO 58(1).

[9] Standing Orders of the House of Representatives 2017, SO 58(2).

[10] Standing Orders of the House of Representatives 2017, SO 60(3).

[11] Claudia Geiringer, Polly Higbee and Elizabeth McLeay What’s the hurry?: urgency in the New Zealand legislative process 1987-2010 (Victoria University Press, Wellington, 2011) at 92.

[12] Standing Orders of the House of Representatives 2017, SO 61(2).

[13] Geiringer, Higbee and McLeay, above n 11, at 48-65.

[14] Geiringer, Polly and McLeay, above n 11, at 48-54.

[15] Thomas Coughlan and Henry Cooke “Government to ban foreign donations of above $50 under urgency” Stuff (Online ed, New Zealand, 3 December 2019).

[16] Electoral Amendment Act 2019, s 2.

[17] Geiringer, Higbee and McLeay, above n 11, at 54-57.

[18] Standing Orders Committee, “Review of Standing Orders” [2011] AJHR I.18B at 7.

[19] Geiringer, Higbee and McLeay, above n, 11 at 54.

[20] Standing Orders Committee, “Review of Standing Orders” [2017] AJHR I.18A at 10.

[21] Geiringer, Higbee and McLeay, above n 11, at 57-61.

[22] Brooke Donovan “Government steps in over power struggle” The New Zealand Herald (Online ed, Auckland, 15 December 2008)

[23] Chris Bramwell “Govt uses urgency to start 100-day plan” RNZ (Online ed, New Zealand, 9 November 2017).

[24] Geiringer, Higbee and McLeay, above n, 11 at 59.

[25] Geiringer, Higbee and McLeay, above n, 11 at 60.

[26] Geiringer, Higbee and McLeay, above n 11, at 61-65.

[27] Geiringer, Higbee and McLeay, above n, 11 at 41.

[28] Geiringer, Higbee and McLeay, above n, 11 at 42.

[29] Geiringer, Higbee and McLeay, above n, 11 at 43.

[30] Geiringer, Higbee and McLeay, above n, 11 at 55.

[31] Geoffrey Palmer, Unbridled Power: An Interpretation of New Zealand’s Constitution and Government (2nd ed, Oxford University Press, Auckland, 1987) at 236.

[32] Geiringer, Higbee and McLeay, above n, 11 at 14.

[33] Standing Orders Committee, above n 20, at 10.

[34] Sascha Mueller "The Busy House: Alternatives to the Urgency Motion" (2011) NZJPIL 9(2) at 175.

[35] Standing Orders Committee, above n 20, at 10.

[36] Geiringer, Higbee and McLeay, above n, 11 at 125.

[37] Sascha Mueller, above n 33, at 189.

[38] Geoffrey Palmer, above n 1.