Points of Order — Standing Order 38—Minister Not Present

I raise a point of order, Madam Speaker. This is the first opportunity to raise this point of order. When the House adjourned last night, points of order could not be raised because the bell was ringing. But I now most certainly do raise a point of order and believe that you should rule on it, and rule on it right now.

There has been an understanding in this House that it is the duty of the Government to provide the quorum. You will find many such statements made by Opposition members and made by Government members. The Standing Orders Committee, in my time, decided to reduce the quorum, so it is now down to three, but one of the requirements of the quorum is that a Minister of the Crown ought to be present.

If it is established that it is parliamentary for the Government to collapse the House just by withdrawing its Ministers, then the executive is basically saying it can do that at any time it chooses. In this case it was for a dinner, but it might be because the questions asked are embarrassing, or for a whole variety of reasons. But if it is now established that the Government can close down Parliament at any time it likes, I put it to you that we are no longer a parliamentary democracy; we are some Third World country.

I do say to you, Madam Speaker, that when you went to the Governor-General very recently you said you were going to uphold the privileges of Parliament. I believe that you should do so now, and publicly state that it is unparliamentary for the Government to withdraw Ministers deliberately just because it does not suit them to be subject to parliamentary business, and that it is particularly unparliamentary to do that on a day set aside as members’ day.

It may be that the Government does not want to discuss the state of our polytechs, but members on this side do, and we have support from the Standing Orders that say that reports of select committees should have time found for them. We finally found some time last night, only to have the matter withdrawn.

I think it would be extremely unfortunate if the Speakership were to adopt the view that the executive can make this arbitrary use of power with no rebuke from the Speaker. I cannot imagine that a Speaker of the British House of Commons would not admonish Ministers in the strongest possible terms for collapsing the House just because it suited the executive. I invite you so to rule.

Standing Order 38 is quite clear in this respect. There is no quorum requirement at all now, except, of course, that a Minister has to be present, and presumably somebody has to be present in the Chair. Apart from that, there is no requirement for anybody else to be present. When we did have a quorum requirement—as I managed to demonstrate quite conclusively once as senior Opposition whip—on a members’ day it was actually the responsibility of the Opposition, rather than the Government, to maintain the quorum. Mr Birch found that out, much to his surprise, when the Government withdrew from the Chamber after the Opposition had been threatening quorum calls.

Last night was a most unusual situation, where one party in a multiparty House refused to be reasonable about the conclusion of the business around members’ bills, which the Government was perfectly prepared to see concluded. All parties were prepared to see the House rise at that point except for the ACT party, and the Government was forced to use the only mechanism available to it to ensure the most orderly possible procedure—that is, to ensure that a State dinner did not occur just a few metres away from the Chamber with members possibly going backwards and forwards between the Chamber and the State dinner.

Finally, I would perhaps have greater sympathy for Mr Prebble’s argument today had he not been on the 8.30 flight to Auckland last night.

I am concerned that the Leader of the House has made light of what is a very serious point of order. Standing Order 38 states quite explicitly: “A Minister must be present during all sitting hours of the House.” Yesterday evening we saw the Leader of the House quite blatantly and quite proudly break the Standing Orders of this House. I put it to you, Madam Speaker, that if the Leader of the House can quite blatantly abuse a Standing Order because it suits the Government to do so, then effectively the message to all members of this House is that if a Standing Order does not suit them they should just break it. Equally, it sets an appalling example to the people of our country, when we as lawmakers say in effect that we break rules when it suits us.

The more important constitutional point that Mr Prebble rightly raises is that this Standing Order has now been used to set a dangerous precedent, which effectively means that the Government can collapse—shut down—the House at any time it wishes. If a confidence vote is coming up that the Government thinks it may lose, it just needs to withdraw every Minister and, instantly, without any points of order, the House is shut down. It can do the same if there is an embarrassing bill on members’ day.

I have a bill in the ballot. My rights have been undermined, because members’ ability to advance legislation depends on their bills being drawn in the ballot, and only bills drawn in the ballot can be debated. Effectively, what the Government did last night through the subversion of the Standing Order was to take away 2½ hours of members’ time.

This democracy of ours survives on conventions. We have had this Standing Order, or similar provisions, going all the way back to 1853. I sat in the library this morning and went back to the Standing Orders that were first established for our Parliament in 1853. At no time in those 150 years has this stunt been pulled before.

A dangerous precedent has been set. The right thing for the Leader of the House to do is to stand and apologise to this House for breaking the Standing Order, and he should set aside 2½ hours of members’ time to make up for such a blatant breach.

That is a speech I really must respond to on a factual basis. In fact, it was not a result of the Government action, at all, that any time was lost for members’ business in relation to members’ bills. First of all, we had started the last member’s bill on the Order Paper, and therefore that action did not affect the number of bills to be drawn in the ballot today. Secondly, the Government sought leave twice—twice—to finish all members’ bills on the Order Paper, last night, so that there would have been no time subtracted in the future for the consideration of members’ bills. The only business the House was not able to discuss was the reports of select committees. I finally note that during the dinner function the deputy leader of the National Party thanked me for the fact that members were able to attend the dinner as a result of my action.

💬 Madam SPEAKER: I call Sue Kedgley. [Interruption] She stood first, I am sorry. The member will be heard, but the other member stood first.

Now that the Minister has confirmed that he did use a mechanism available to him to close down the House last night, which precluded the completion of debate on my bill and other issues on the Order Paper, it would be helpful, Madam Speaker, if you were able to give us a ruling as to under what circumstances you would consider it acceptable for a Minister to use that mechanism to close down the House, and under what circumstances you would consider it unacceptable for a Minister to use such a mechanism. I think that that would be very helpful.

Madam Speaker, before I get to my point of order, I want to address your idea of seniority in this House. If you thought that a member’s rising to his or her feet first was some sort of entitlement to precedence, then obviously you would have called the last speaker before Dr Cullen, who had already spoken once on the point of order. That is pretty obvious, really. I do not want to be difficult in this House, as some members are wont to be, but I am bound to point out that we have a thing called seniority, and that you should uphold it.

The second point I want to make is that New Zealand First agreed to the House being lifted, because we had in this country the president of the biggest Islamic country in the world. I was somewhat astonished to see the desire of one party, which spends all its time talking about the need for foreign intervention, foreign aid, and foreign subjugation in terms of its policies for foreign exports, not to have the House rise. I think there is a precedent for the action taken. It is a very unfortunate one, which I think happened in 1904. So it is 101 years since it was last tried. But my real point is that, if a party does object, then the House should continue to proceed with its business. In that respect, I think it is rather disappointing that the rights of the House as enunciated by one party—which, nevertheless, are still the rights of the rest of us—were ridden over in a very roughshod way. That is the point I want to make.

My point follows closely on the theme adopted by the member who has just resumed his seat. Madam Speaker, I draw your attention to the definition of “leave” in Standing Order 3, which states that it “means permission to do something that is granted without a dissentient voice”. The Leader of the House suggested that his misuse of Standing Order 38 was OK because, as he said, all the other parties wanted to see that action happen.

First, I am not sure that that is true. As I understand it, other parties were told: “If you don’t go along, we’ll collapse it anyway.” So the consent or approval that he secured might have been against the background of a threat just to wield power. But that right to deny leave is in fact the right of any member who wants the House to continue; it is not the right of the parties. I think that until the Standing Orders decide that this Parliament is simply a congress of parties, the Leader of the House should not use the argument that other party representatives were happy with his actions—and I am not sure that they were—to justify something.

I urge you to invite him to consider this and suggest that he create a convention out of this incident, that the House cannot be collapsed unilaterally, and adhere to it.

The first point I make is that I made reference to this issue at the dinner last night for the Indonesian President, largely to point out in a fairly sarcastic way that there were very few members of Parliament at the dinner. Furthermore, there were even fewer Ministers at the dinner. So the question is: where were those Ministers? If they were in their offices, working, why could they not have been in Parliament, working? Given that the business of the House would have been the select committee reports and the National Party had produced a speaking list that went well into that list of select committee reports, the actual disruption to the dinner would have been minimal.

The real point of Dr Nick Smith’s point of order was that there are numerous rights within the Standing Orders for members to exercise. If they were recklessly applied by all members of the House, then there would be no business of the House. It is the conventions that apply to the way in which the Standing Orders are used that allow the House to do the business that members are elected to do. Dr Cullen has taken hold of a Standing Order, which has never been used in this way before, and grabbed powers for the Government that mean that Dr Cullen, or Helen Clark, or whoever might be running the country at the time, would be the person who determines whether Parliament sits. That is unacceptable. It also cuts right across the rights of elected members, which you particularly are charged with protecting.

When we were told yesterday that there was a likelihood the Government would collapse the debate, we assumed that meant what it usually means—that the Government would pull its speakers so that the time that is taken over any bill or discussion is reduced. At no point did we think it would mean that the Government would fail to provide a Minister to the House, and effectively shut the place down. It is the use of Standing Order 38 to shut down Parliament for the convenience of the Government that causes the most concern for Opposition parties. The suggestion is that Dr Cullen should apologise for using this Standing Order in such a reckless manner. The problem is that if he refuses, the opportunity arises for other members to use the Standing Orders in an equally reckless manner. There can be no winners out of the development of that sort of circumstance.

💬 Madam SPEAKER: I will hear two more contributions and then I will rule.

I will respond to one point that Mr Franks made. Mr Franks rightly made the point that leave can be denied by one member of the House. But the implication of what he said was that when leave is denied for something—and leave is sought for many things—the Government is not able to use any other mechanisms. Of course, frequently the Government uses other mechanisms when leave is denied. To take a very obvious example, which we may well see some time in the near future—[Interruption]

💬 Madam SPEAKER: Will the member please leave the House. A point of order is being spoken to. As the member is quite aware, it shall be heard in silence.

Hon Bill English withdrew from the Chamber.

For example, the Government may seek leave to have a Supplementary Order Paper that is outside the scope of the bill considered as part of the bill. If that leave is denied, the Government does not just say “Well, that’s it.” Normally, the Government would move a motion in order to enable the Committee of the whole House to consider it and would then use the majority, at the cost of a debate, to overtake the situation where leave has been denied. I think Mr Frank’s assertion that simply because leave is denied for something, the Government cannot use any other leave that is available to it to achieve its objectives is one that cannot stand because it would be quite a dangerous assertion within the proceedings of Parliament.

I am now even more alarmed, after hearing Dr Cullen’s contribution. I will not quote his words, but the effect of what he said is that Standing Order 38 is a mechanism whereby the Government can get its own way if it does not get it by other means, and that Governments are always entitled to do that. That is an interesting notion. If we read Standing Order 38, we see that it is actually an instruction. It is an instruction from this House to the executive. It states that a Minister must be present. That is an order. Last night the Government defied this House and defied the Standing Orders.

I have been giving some thought as to whether it was such a serious defiance that it was a breach of privilege. You, Madam Speaker, may yourself consider referring the matter to the Privileges Committee. I think so because if we look at what amounts to contempt—and I will take just one example—we see that it is something that obstructs members from carrying out their duties. The ultimate obstruction to carrying out our parliamentary duties is something that prevents us from exercising free speech. If I feel strongly about it, it is because I was the member exercising my right of free speech. It was my speech that was interrupted. I take grave exception to the Minister interrupting my speech. I was not invited to the President of Indonesia’s dinner—not that that has anything to do with it; I would have had the same view even if I had been invited. [Interruption] Why should I be required to stay here? I think that that was a reflection on me.

I want to come back to the point I am making. As far as I know, Standing Order 38 has never been interpreted by any Speaker, but I put to members that the interpretation by a Speaker who is upholding Parliament should be that it is an instruction to Ministers. Where there is evidence that Ministers have deliberately broken it, then there ought to be some penalty. I think there is quite a strong case here that the Leader of the House should be referred to the Privileges Committee, because he created the ultimate obstruction to this House exercising its duties. He arranged for all Ministers not to be here, so that this House could not meet. Not to rule that would be to condone what Mr Cullen is now telling us—that there is a new device, and that any Government, at any time, whenever it chooses, can close down this House. I cannot see any other Parliament that calls itself a Parliament accepting that sort of arbitrary power.

Ruling on the point of order, I thank members for their contribution. As has been noted, Standing Order 38 sets out the procedure for the Speaker to follow if no Ministers are present in the Chamber. That procedure was followed. If members wish to criticise the Government for the action it took, then they are perfectly entitled to do so. If members think that the Standing Order is defective, they can raise that with the Standing Orders Committee, and I suggest they do that.

I further note on the question of quorum that there are no quorum requirements today, except in so far as that for the House to function there must be a Speaker and a Minister present. I also note that it is not for the Speaker to comment on the appropriateness of the Government or Opposition parties utilising the rights that are open to them under the Standing Orders.

I raise a point of order, Madam Speaker. I ask you to think very carefully about the ruling that you have given us today, fairly quickly. The first line in Standing Order 38 states that a Minister must be present during all sitting hours of the House. That is not debatable. It is not optional—it is a requirement. The Government deciding that it determines when the House sits—not anybody else, not the Speaker, not the rest of the members; just the Government—is the point being made here today. The right for members to participate in the parliamentary debate is what is also at stake here today. For you, as Speaker, simply to say that if we do not like this, we should send it to the Standing Orders Committee—and we know what a long procedure that is—is, I think, letting down this House and letting down members in this House.

Dr Cullen shows absolutely no remorse for taking the course he did yesterday. We already know that most members were not invited to the dinner last night, so there is no reason why there had to be that so-called traipsing in and out, and there were only a few Ministers there, so there is no reason why Ministers could not have been here. What we are faced with is a Leader of the House who simply says to you that he will decide when Parliament is open and when Parliament is closed. I have to say that we are very disappointed at your speedy ruling on this matter, and we would ask that you consider, firstly, asking the Leader of the House to make an apology for using the Standing Order so recklessly and, secondly, how members’ rights might be better protected by a stronger ruling from the Chair.

Firstly, I want to make it clear that all members were invited to the dinner last night. In case some of them already had engagements or their secretaries did not tell them about it, I make it clear that they were all invited to the dinner last night. That is the custom of this House in those circumstances. Secondly, Standing Order 38 is a statement of the condition under which a sitting of the House can occur, in exactly the same way as the quorum requirement was a statement of the conditions under which a sitting of the House must occur. Equally, under the old rules, a quorum could have been withdrawn—which is precisely what I did as senior Government whip, and the Opposition then had to provide the numbers on a members’ day after threatening to withdraw its own members.

This will be a very short contribution. I am not allowed to dispute your ruling, so what I will respectfully suggest to you is that you take a course of action that other Speakers have taken, and actually look at the Hansard and the arguments that have been put to you. I am not suggesting that you need to change your ruling, but I do think that you need to look at it to see whether it should not be wider. It is a very serious ruling to accept what Dr Cullen is saying, which is that this mechanism is open to the Government, because the other alternative is that this is an instruction to the Government. When the Government abuses it, it should be open to rebuke, including the ultimate rebuke of the matter being sent to the Privileges Committee. That would be a very strong statement to the Government.

I would also say to Dr Cullen that maybe there were invitations. It was my understanding that we were told that there was not enough space in the place next door for every member. But I am not criticising members who went to the dinner, because when the original invitation was put out for a Saturday, I thought that the presence of the President of Indonesia was important enough for members to come here on a Saturday for it. I am not saying that it was not an important occasion; I just fail to believe that this House is not capable of having a dinner and being able to sit at the same time.

💬 Madam SPEAKER: Members are debating the ruling at this point. I am happy to put my ruling in a written form for members.

I raise a point of order, Madam Speaker.

💬 Madam SPEAKER: Is this a different point of order?

Yes, it is a new point of order. This House does operate by conventions, and there are the Standing Orders. I seek leave for the House to set aside 2½ hours of time for members’ business for the next sitting day on Tuesday, 12 April, to make up for the time that was removed by the abuse of Standing Order 38.

💬 Madam SPEAKER: Leave is sought for that purpose. Is there any objection? There is objection.

I seek leave for 2½ hours of members’ time to be set down for Wednesday, 13 April, to make up for the time that was stolen from members by the actions of the Leader of the House.

💬 Madam SPEAKER: Leave is sought for that purpose. Is there any objection? There is no objection.

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