Labour MP Ingrid Leary in Select Committees during the 2023 Estimates Hearings. Photo: VNP / Phil Smith
Earlier this month in Parliament the Finance and Expenditure Select Committee sent a report back to the House with an unprecedented extra.
The committee put on record their concern that - and I am paraphrasing - some of the drafting instructions for the committee’s amendments to the Water Services Legislation Bill had not been what they expected. Some unidentified official had either made a huge mistake or taken it into their head that they knew better than the MPs.
It got me wondering how a committee does this. By what process do they decide what changes a bill needs and how do they track those decisions? To find out I sat down with asked the chair of the committee that caught the runaway bill, Labour MP Ingrid Leary.
The ‘natural tension’: Parliament v government
“What happened a few weeks ago, to my mind is an example of the system working,” says Ingrid Leary.
In understanding what happens it’s worth understanding that select committees are a creature of Parliament, while ministerial advisors are a part of government. They work for a government department or ministry. For any new piece of legislation, ministry advisors and officials are part of the engine that determines how to turn a policy into law. They stay involved when that bill reaches a select committee.
Leary acknowledges this tension. Being an MP from a governing party does not alter her identity as a part of parliament and not of government. ‘Government’ is only the ministers, not their colleague MPs.
“By their nature, there's a bit of tension between the select committee process and the government or executive process, as [there] should be. Because after all, Parliament is the one that holds government to account and the government is accountable to Parliament.”
Processes and Advice
“When a bill comes to select committee, usually what happens first, is there is an introduction to the bill, often with a set of slides made by the officials from the department presenting it, to give an overview to MPs about what the bill entails, what it's intending to do, how it works, and so on. Then the committee can decide, if it's quite a technical bill, for example, that it would like to also get an independent adviser.”
An independent advisor would be an expert on the specific subject matter that is not someone from inside the ministry that helped the minister in devising the bill. Advisors come from a range of places and committees might receive advice on appropriate people from other experts or from Parliament’s own research branch - the Parliamentary Library.
Leary points out that officials from within a ministry are professionally apolitical (so if the government changes they will also equally assist the next government in furthering alternate policies). She notes though that they bring a particular cause-and-effect perspective to thinking about legislation and it can be good to have someone look at it from a fresh perspective.
“Officials who are working on policy, are paid to look at policy in terms of ‘if we follow this path, then that will happen; [but] if we follow this other path, then that will happen’.”
“Also,” she says, “if it's a contentious area, [an independent advisor] can support the committee in being seen to be independent in its deliberations.”
But above all it is about making the best possible legislation.
“It's about wanting to make sure that the legislation is fit for purpose, and is in the best possible shape it can be. Sometimes bills come before us that need very little work. And sometimes they need quite a lot of what I would call ‘panel beating’. And I think there's a real willingness from all political parties to make the legislation as good as possible.”
Tracking advice and changes
As a committee hears advice from the public and from experts they need a way to track the advice and their responses to it. And a way to build their ultimate instructions for Parliament’s legal drafters (the Parliamentary Counsel’s Office). Leary is a big fan of spread-sheeting it all.
“One of the most thorough ways to do that, and something that I think should be a normal course of action really, is to work off a Table of Changes, so that all members are very clear on what is being suggested by [public] submitters, what officials are suggesting should change and why (or why they suggest it shouldn't change).”
The same is true for the independent advisors points of view and the committee's own conclusions.
Watching MPs swapping accusations inside the debating chamber most people conclude that their behaviour would be similar behind closed doors in committee. It is not a cheery thought. But MPs appear to work much more collaboratively in select committee's private sessions than seems likely given their performative public outrage. That cooperation is usually also true of a committee’s advisors.
“Often actually, the independent adviser can work with the officials and they can come to an agreement, because this is about what is rational in terms of having the bill meet its expectations and its intention, rather than a kind of ‘policy judgment’.
MPs: the ultimate arbiters
“However, if there is conflicting advice, then it is up to the committee to make those decisions. So having that in a table format is very, very helpful.”
This is where the problem seems to have arisen recently. Without the committee, an advisor took it upon themselves to add drafting instructions that the committee hadn’t agreed to. The tricky bit is that advisors do sometimes suggest very minor tweaks without the committee having to bash it out themselves. But these are still listed and known. Leary calls these tweaks technical changes.
“It also means that advisors can indicate what would be called technical changes; very small technical changes that can go to the drafters that wouldn't normally need to take up the committee's time.”
Ingrid Leary thinks the system works.
“I think the whole process usually works very well. And if there are disagreements between officials and independent advisors, or officials with each other or [between] MPs, officials and advisers; that is all natural tension in the system, designed to flush out the best possible solution for that bill.”
This is Parliament-versus-government writ small. And just as parliament is ultimately the master of government. The majority of committee MPs are the final arbiter of how a bill is to be reported back to the House with amendments. Not the minister or advisors (whether government or independent).
“Look, I think the New Zealand public can be very confident in the decisions that are made by select committees. There is always scope for further [improvement], having a larger number of MPs that would be great, or for having more time. Those are the two pressures. MPs are often time poor. But the quality of advice given to select committees across the board tends to be very high quality.
“And as long as MPs are doing their job and making sure they read all the material and engage with it, then I think the legislation that comes before the house is very good quality. I think we're very lucky with the level of resource that we have available to us and the quality of advice that we're given.”
