MIL-OSI New Zealand: New approaches to holding the government to account in New Zealand

1

Source: New Zealand Parliament

Rt Hon Trevor Mallard

Speaker of the House of Representatives

One of the core roles of a Westminster-based legislature is scrutiny of the Executive. It is a duty of all backbench members and one that has received increasing attention in New Zealand in recent years. The COVID-19 pandemic and resulting lockdowns made it necessary to make significant changes to the way that Parliament operated and, particularly, how it scrutinised the executive. The all-party Business Committee played an important role in considering and agreeing ways to continue parliamentary scrutiny of the executive at a time when it would exercise wide-ranging emergency powers. The committee is chaired by the Speaker, attended by senior members of each party and operates on a basis of near-unanimity.

Virtual House & committees – enabling questioning of Ministers even when people are absent

Perhaps the most significant change made in preparation for the lockdown and four-week adjournment of the House was the establishment of an Epidemic Response Committee, chaired by the Leader of the Opposition and with a majority of members drawn from parties not in government. Unusually, it was given the power to send for persons, papers and records. There was general support for the establishment of the committee and wide agreement about its importance. The Shadow Leader of the House commented that:

These are quite uncharted times. This select committee fills a void that would normally be occupied by question time or, perhaps, written questions or something else. It will, in my opinion, be a little stronger than both of those provisions, but with a great deal of cooperation, that’s been talked about by everybody across the House today, it should work in the best interests of all New Zealanders.[1]

The committee met virtually, under new sessional orders permitting such arrangements, usually three times each week on the days that the House would normally sit. It initially focussed on questioning Ministers and senior public servants about the epidemic response. Later sessions included hearings with business and community leaders. The committee invited independent experts to give it advice and to comment on the evidence from Ministers and officials. The questioning of Ministers was notable for the exchanges being significantly longer and more informative than what usually occurred during oral questions in the House.[2] Most New Zealanders were at home during the lockdown and the hearings were seen as usefully providing information on developments as well as holding the executive to account.[3]

Scrutiny of delegated legislation

The Regulations Review Committee has, since 1985, played an important role in scrutinising secondary legislation and in advising other select committees on Parliament’s delegation of law-making power to the executive. Its work became even more important during the pandemic. The government had broad powers to make orders under the COVID-19 Public Health Response Act 2020. These orders expire if not confirmed by the House. The Standing Orders Committee developed a process for parliamentary scrutiny and approval of these orders.

Under sessional orders made by the House, every order made by the government stands referred to the Regulations Review Committee and a motion to confirm it may not be moved until the committee has reported or a specified time has expired. Between April and August 2020, the committee scrutinised 110 orders made ins response to COVID-19.[4] It continues that work today. The government has generally responded to concerns raised by the committee by amending its orders.

Changes made to financial scrutiny debates – first to sector-focussed (2014-2017) and then to minister-focussed (2020)

The House had experimented with different approaches to financial scrutiny of the government. From 2014 the Business Committee developed new trial approaches to financial debates that focus on 10 major sectors, rather than having a wide-ranging debate on all appropriations and departments. This led to a somewhat more focussed debate, with a greater expectation that Minsters would be able to answer questions, since the areas of interest for the debate were known in advance.

In 2020, when the House returned from lockdown it was required to hold the annual review debate before the Budget. The Business Committee agreed to a shorter debate that would focus on questioning key Ministers only (such as Finance, COVID-19 response, Foreign Affairs and Health). This has remained the preferred approach since then, though it is not the default approach set out in Standing Orders.

A companion change was made to Standing Orders, by a sessional order, intended to encourage better questioning of Ministers. Normally, the committee of the whole House stage of a bill limited members to taking four calls on any provision. This had led to members making set-piece speeches rather than engaging with the Minister in charge of a bill on its detail. The four-call limit sometimes became a target. Proposals to remove the limit on calls to promote a greater interchange between members and Ministers had not been successful until then.[5] With the greater focus on dialogue with Ministers during the COVID-19 outbreak, parties agreed to temporarily suspend the limit on calls in committee of the whole House. The new sessional order was first applied to the committee stage of the annual review debate[6], which was notable for being more interactive and more closely resembling the extended questioning by the Epidemic Response Committee. The new approach was regarded as a successful innovation and continued to be used for the remainder of the parliament. It was adopted as a permanent change to Standing Orders in 2020.[7]

Encouraging of ministers to attend select committees for annual reviews and bills

The success of the Epidemic Response Committee in conducting “more conversational scrutiny” of Ministers led to recommendations to encourage greater engagement with Ministers with committees.[8] The Standing Orders Committee reported:

We strongly encourage committees to invite Ministers to participate in initial briefings on Government bills and to attend to discuss significant policy changes… The legislative process would be enhanced if committees had more opportunity to discuss these matters with responsible Ministers.

Scrutinising the quality of legislation

In addition to questioning Ministers on their policies, there has been a growing interest in the quality of legislation. Parties will not always agree on the policy behind legislation but, regardless, the legislation passed by Parliament should be of the highest possible quality. The most effective scrutiny of the quality of legislation can occur at select committees. Since 2021 the Office of the Clerk has scrutinised all bills and provided committees with advice about legislative quality matters, based on the guidelines laid down by the Legislation Design and Advisory Committee.[9] Generally, committees have drawn on this advice to scrutinise government officials about the legislation and the process for developing it. It has become standard practice for select committees to report on their consideration of legislative quality issues.

New format for ministerial statements

During the initial response to the pandemic, there was greater use of ministerial statements to inform the House about government activity. The process for ministerial statements, and comments on statements, provided members with opportunities to make short comments, but not engage in meaningful exchanges with a Minister on what was likely to be a matter of considerable public importance.

The Standing Orders Committee recommended that the responses to such statements be made more flexible to enable questions to be put to Ministers.

Ministers are now required to address questions in much the same way as during oral questions, and questions need to relate to the content of the ministerial statement. After asking questions, members conclude with some short comments. This format has been more informative for the House and more effective in scrutinising the Government. I have used the discretion granted to the speaker to briefly extend the time available to a member questioning the Minister to ensure that the time taken in answering them does not disadvantage the member.

More work to be done

The developments outlined in this paper have generally had a positive impact. However, there is more to be done.

Improving financial scrutiny

Scrutiny of the Estimates and of annual reports of agencies tend to take two approaches:

  1. Written questions on the minutiae of spending
  2. Questioning of ministers and officials, generally by opposition MPs on headline issues

There is little focus on outcomes of spending, long-term issues or sector-wide responses. This is partly because financial scrutiny has been traditionally based around subject matter committees scrutinising individual appropriations and departments.

The Auditor-General recently expressed the view that agency performance reporting is meeting minimum standards but that it is hard to know whether the outcomes Parliament is investing money in are being achieved successfully. He advocated for changes to the Public Finance Act and for Treasury to be tasked with consolidating and aggregating public sector wide performance reporting to give a better view to committees on whether the outcomes it has invested in (better school, hospitals, transport etc.) are being achieved. The consolidated performance reporting information would provide a system wide view of what outcomes are being achieved, as opposed to just what output have been purchased, and would help committees and MPs scrutinise Government and the public sector on delivery.[10]

The Governance and Administration Committee have invited the Clerk and Auditor-General to do some work on revising the typical financial scrutiny questions to reduce the length of the questionnaire and better focus on getting information about achievement of outcomes. That work should be completed in time for the next round of annual reviews.

Even if we can improve the questions, one of the other challenges is in having ministers attend for extended periods of questioning. They are often shielded from long appearances by their staff or by committee members from the same party voting down such proposals. Some ministers occupy much of the time allocated for questioning by making excessively-long opening statements. There is still work to do in convincing ministers that accounting to the public, through parliament, is a core part of their role. Chairpersons already have the power to cut off long introductory statements but they are frequently unwilling to do so. I have discussed this matter with chairpersons and encouraged them to perform their roles as presiding officers and parliamentarians fearlessly.

Developing the public governance role for the Governance and Administration Committee

The Governance and Administration Committee was given oversight of public governance in the 2020 review of Standing Orders. It is working on how to best carry out this function. Recent public sector reforms offer some opportunities here. The Public Service Act 2020 includes a requirement for departments to prepare long-term insights briefings at least once every three years, and for these briefings to be presented to the House. They must be prepared independently of Ministers and provide information about medium and long-term trends that may affect New Zealand society.[11] Detailed scrutiny of these briefings by select committees could result in long-term issues being brought to the fore during each term of Parliament. The Governance and Administration Committee will lead the first round of this work in 2022. The Public Service Act 2020 also requires the Public Service Commissioner to prepare a three-yearly briefing on the state of the public service, and for it to be presented to the House. The Governance and Administration Committee has been engaging with the Commissioner on the nature of this briefing and considering how to best make use of it.

Proportional allocation of committee chairs

Many elements of New Zealand’s proportionally-elected parliament, including membership of committees, are allocated in accordance with the share of seats held by each party. However, chairs of committees are not. As a result, almost all chairpersons are members of government parties and are less likely to support robust scrutiny of the government. In the 52nd parliament, the government offered a substantial share of committee chairs to non-government parties. However, this led to deadlocks on committees’ legislative work, with committees unable to agree amendments to bills. In the face of legislative obstruction, the government did not repeat the offer in the 53rd parliament.

While governments should have certainty that they can progress their legislative programme, committees have a role in scrutinising the Executive and it is a role that should be played by all members. Having a greater number of committees chaired by non-government members and having committees without a government majority has the potential to enhance scrutiny work, since the committee will be less likely to vote down inquiries or financial scrutiny that might be critical of the government. I have advocated for the chairperson of the Finance and Expenditure Committee to be drawn from a non-government party, given the role this committee plays in overseeing the government’s finances and in allocating scrutiny work to other committees. I have not been successful to date. The Clerk has suggested the proportional allocation of chairpersonships during reviews of Standing Orders but this has not been supported. It is something that seems attractive when in Opposition but less so when in government.  This is a matter that the Standing Orders Committee will consider again in its next review, which has just commenced.

In my view, we should go one step further. Oral questions are allocated on a proportional basis but the executive is excluded from the allocation, because the questions are intended to hold it to account. The same could be done with the allocation of seats on committees. This would end the domination of committees by parties in government. Committees would still have an incentive work constructively on legislation, since the government would ultimately have the numbers on the House to amend and pass legislation as it wished. Committees constituted this way would be less likely to be perceived as tools of the executive. It is more likely that submissions would be considered on their merits and amendments in the interest of better legislation would be made. In turn, this could increase public engagement with committees. Legislative scrutiny by committees could be further improved by caucuses taking less of a role in shaping their decisions. It would be far preferable that the members of the committee who had heard the submissions and received advice made decisions about bills. If their parties didn’t agree with their conclusion they could lodge amendments during committee of the whole House, which would also improve transparency.

Scrutiny is a core responsibility of the legislature. The testing of government policies and plans should not be feared or avoided. It is a way of making them better. The challenge is not so much in making rule changes – we have been particularly successful in that when there has been the opportunity to test them first. The real challenging is in changing attitudes and behaviour so that:

  1. All backbenchers see their role as scrutinising the executive
  2. All ministers accept that accounting for the decisions to parliament is not an inconvenience but fundamental to our democracy
  3. Members focus on outcomes and important, long-term issues rather than only what is in the headlines.

As I say, there is still plenty of work to do.

[1] Hon Gerry Brownlee, New Zealand Parliamentary Debates, 25 March 2020, Vol 745, p. 17318.

[2] For more detail on Parliament’s response to the pandemic see D Wilson (2021). How the New Zealand Parliament responded. Parliaments and the Pandemic. Study of Parliament Group, London.

[3] Daniela Maoate-Cox, Powerful or powerless? What can the Epidemic Response Committee do? RNZ, 19 April 2020.

[4] G Hellyer (2021). Assessing Parliament’s Response to the Covid-19 Pandemic. Policy Quarterly, 17(1).

[5] Report of the Standing Orders Committee, 2017, I. 18A, p. 30.

[6] The committee of the whole stage of the Appropriation (2018/19 Confirmation and Validation) Bill.

[7] Report of the Standing Orders Committee, 2020, I. 18A, p. 40.

[8] Report of the Standing Orders Committee, 2020, I. 18A, p. 24.

[9] The Legislation Guidelines are available at http://www.ldac.org.nz/assets/documents/LDAC-Legislation-Guidelines-2021-edition.pdf

[10] The Auditor-General’s briefing to the Finance and Expenditure Committee on central government audits can be viewed at https://www.facebook.com/FESCNZ/videos/637088700684055

[11] Public Service Act 2020, Schedule 6, clauses 8 and 9

MIL OSI

MIL OSI New Zealand News