Friday, October 22, 2010

Thoughts on Standing Orders

Parliament is currently engaged in its triennial review of Standing Orders. Its a fairly arcane subject, but I can think of a few subjects I'd like to raise with them.

Firstly, the Bill of Rights Act. Standing Order 261 echoes the requirements of s7 of the BORA and requires the Attorney-General to report on any inconsistency with the BORA when a bill is introduced. This is a useful mechanism to ensure that when Parliament violates the BORA, it actually means to - but it does not go far enough. As we've seen several times in recent years (notably with the three strikes law), amendments can be proposed either by select committee or at the committee stage which are inconsistent with the Bill of Rights Act. These receive no formal scrutiny, and this calls into question whether Parliament actually means to violate the BORA, or whether they are merely ignorant. The problem could be resolved by requiring the Attorney-General to report inconsistencies not only on introduction, but before the second and third readings as well. Alternatively, the Attorney-General could report on individual amendments proposed at the committee stage, though this would require more work.

Secondly, privilege. Standing Order 401(n) lists as an example breach of Parliamentary Privilege the following:

reflecting on the character or conduct of the House or of a member in the member’s capacity as a member of the House
As with the law of sedition, if interpreted strictly, this would outlaw virtually all criticism of MPs. Reflecting on the character and conduct of MPs in the performance of their duties, and judging whether they are ignorant, stupid, foolish, venal, self-interested or merely incompetent, is what citizens in a democracy do. But apparently, we're not allowed to, on pain of being hauled up before a kangaroo court of MPs and persecuted for daring to think bad thoughts about them.

This is an obvious prima facie violation of the right of free expression and one which is unjustifiable in a democracy. If MPs feel they have been unfairly maligned by public criticism, then they already have a remedy for that: they can sue for defamation. But they should not be allowed to punish non-defamatory speech, let alone in a manner which allows them to be judges in their own case (or to have their mates judge it for them). If this Standing Order allows punishment beyond that permitted under law, then it is unjust; if it does not, it is unnecessary. Either way, it should be removed.

(Alternatively, it could be amended to add "As a member...". If the House wants to forbid its members from reflecting on each other's character, it can. How Parliament regulates itself is its own affair. If it wants to regulate the public, it should do so by statute, not by standing orders and private law).

Thirdly, there's pecuniary interests. As we've already seen, the rules here are problematic, effectively allowing MPs to evade proper scrutiny by stashing their assets in a trust. And if you go through the register, you will find a large number of MPs availing themselves of this opportunity to thwart public oversight and prevent any scrutiny of their conflicts of interest.

There's an obvious solution to this: bust the trusts, and require MPs to disclose all significant assets in trusts they manage or are beneficiaries of. That way, we can see that our MPs are clean, and that they are not voting to enrich themselves or mingling their public and private interests.

Finally, there's the prayer. If you've ever watched Question Time, you'll know that the House opens with an explicitly Christian prayer, asking that the great bearded sky fairy guide them in various things, including "the maintenance of true religion" and "the glory of thy holy name". This is a violation of freedom of religion. The separation of church and state requires the latter to be neutral regarding religion. What god(s) people believe in is their own affair, but its no business of the state. Opening each day with a prayer violates that neutrality. It excludes every kiwi who is not a Christian - 44.4% of us at last count - by casting Parliament as an explicitly Christian body. And it dedicates "our" House to explicitly religious goals, every day.

We don’t allow prayer in schools for these reasons, and we should not allow it in our Parliament. The opening prayer has no place in a religiously neutral state. The religious beliefs of individual MPs are their own business, but here the beliefs of some are being imposed on the House - and through it, symbolically upon the whole of New Zealand. That cannot be allowed to continue.