The House: Making law - a final avalanche of edits

There are five parliamentary stages to passing a law. The three reading stages are short and built of speeches. The remaining two are when the real work is done, by two very different committees.

Select Committees get a lot of attention and, when governments don't dodge this stage entirely, are the best opportunity to improve or alter an impending law.

The second, less glamorous committee, is Parliament's last chance saloon for fixing mistakes or changing minds before a bill is finalised. It is variously referred to as the Committee Stage, Committee of the Whole, or the mouthful Committee of the Whole House.

Managing the last chance to edit

"The Committee of the Whole is essentially a big committee that takes place in the debating chamber. Any MP can participate in the Committee of the Whole, and any member can propose an amendment to a bill. There's no limit on the number of amendments that they propose."

That is how Pav Sharma describes the Committee Stage, and he should know. He manages the House Office, which is the part of Parliament's secretariat tasked with looking after the debating chamber.

"Our focus is ensuring that members have everything that they need to debate legislation, to debate other aspects of house business, to scrutinise the government's finances."

All the 'paper' that comes or goes from Parliament's debating chamber (the House) transits through the House Office. Bills, questions, petitions, papers, reports, and amendments - many thousands of them - make the office a thrumming hive of clever people keeping a large machine running smoothly. Johnny Blades has described them as Parliament's Brain.

I often seek their expertise, but have learned that one time not to wander in asking dumb questions is when the House is in the middle of a contentious Committee Stage, as they may be swimming through hundreds of amendments on the bill under discussion. These will have arrived as emails, typed notes, or scribbled on slips of paper. They need processing almost instantly, while they are still relevant and under discussion in the chamber.

"It can get very busy," Sharma says. "It can get a little bit tense in the House Office and in the chamber when we have a particularly contentious Committee Stage."

The point of all of this is a fundamental of Parliament - the mutability of legislation. That it can evolve and improve during its journey through Parliament.

"One of the points of the legislative process is that bills should be able to be amended - that they're amendable. Ideally, a bill will start its legislative process in one way and it will be improved as a result of the legislative process and come out a better, more fit-for-purpose piece of legislation."

Most of the amendments Parliament accepts on bills come out of the select committee process. But mistakes are made, problems are missed, arguments continue over both the policy and the method - and the Committee of the Whole is the final chance to fix things. When bills debated under urgency skip a select committee entirely, the Committee Stage becomes the only chance for improvement.

Not every amendment arrives in a final scramble. There are two kinds. It's worth noting the difference because you hear MPs in Parliament referring to them by their different names - an 'amendment paper' and a 'tabled amendment'.

Roughly, amendment papers arrive in advance, while tabled amendments happen in the action. They might also be drafted by different groups of people.

Amendment papers vs tabled amendments

"If it's from the [minister] in charge of a bill, [an amendment paper is] usually drafted by the minister's officials, so the Parliamentary Counsel Office [who also draft government legislation]. If it's an amendment paper for a non-minister, then that's where the House Office comes into play and we will draft the amendments for the member based on their instructions," Sharma said.

"The great thing about an amendment paper is that it's printed in advance. It's published on the legislation website. It has its own unique number, so it's really easy to identify and to cite in debate."

Amendment papers from the MP in charge of a bill (usually a minister) occasionally substantially rewrite a bill. Amendment papers from opposition MPs are usually much more specific, but they are also often written in advance.

"Opposition members do instruct us to draft amendment papers and often they're very organised and we can have a whole raft of amendment papers that are released from opposition members in advance of the committee stage."

The tabled amendment is the more last minute of the two. It is referred to as 'tabled' because it can literally be scribbled out on a sheet of paper, walked up to the front of the debating chamber and handed to the Clerk at the Table.

As Sharma elaborates: "They can be typed out or they can be handwritten. They can be delivered to the Clerk at the Table in the chamber, or they can be delivered to the House Office. And the general principle is that if they are an 'in order' amendment, then they are voted on."

The many purposes of amendments

Bills are seldom a done deal when they begin at Parliament. Almost all bills are amended, and improved by the process. Improved as law especially, regardless of their policy. But policies are also smoothed, particularly via select committee hearings, when unintended consequences are pointed out and can be avoided. But improvement is not the only reason to offer an amendment.

"I think it's important to note that there are different purposes for amendments," Sharma said.

"It's quite common for the member in charge of a bill, often the minister, to propose amendments to their own bill. This could be to fix some inconsistencies, tidy up the bill itself, or to potentially introduce some new policy to the bill."

An opposition MP suggesting an amendment has a more varied range of purposes, including just eating up House time by slowing the inevitable process. They offer something to discuss in debate and help prevent repetition (which might bring debate to a close). Even the process of voting on them eats time.

"In New Zealand, we have party voting. It's pretty quick. You're looking at somewhere like 45 seconds for a particular vote, but if you've got over 100 amendments on a particular part of a bill, then, yep, you're looking at at least an hour of voting, which can be a bit of a challenge for members because votes are taken in silence."

It's not all about filibustering though.

"They do use up some House time, but they're [also] an important part of the Committee of the Whole debate. [An amendment is] also a really good way of signalling the Opposition's different …policy positions. It could be that they would approach this issue from a completely different angle. It's also a way in which they can [raise] the interests of a community group or other party. So they're kind of almost using their representative function by putting up an amendment."

This is a crucial part of the democratic process.

"It's a really important principle that members should be able to put up amendments and that every in-order amendment is voted on. That the committee does get that opportunity to make a decision on those amendments. Because some of them actually do improve the bill.

A fundamental lore of a 'good parliamentarian' is that, even if they disagree with a policy, they will try to help make good legislation.

"A key function for members of parliament is that they are legislators, and when they're putting up amendments to the bill, they are quite often trying to improve the bill," Sharma said.

In select committees, working on amendments is a much more collaborative process, but even in the Committee of the Whole government ministers do occasionally accept an opposition suggestion.

"It does happen," agreed Sharma. "It happens on relatively rare occasions, and I think part of the reason for that is that the amendments are being put up in Committee of the Whole, and so there hasn't necessarily been the opportunity for ministers and officials to assess those amendments to ensure that they are not going to cause … unintended consequences, for example.

That said, there are occasions where you do get that really good debate across the House. Opposition members are able to provide a good explanation of their amendment. They're able to persuade the minister that this is a good idea, and that amendment is essentially adopted by the government and that change is agreed to."

Key rules: Out of order amendments

When, after much debate, the Committee of the Whole comes to vote on part of a bill, it first votes on all of the amendments relevant to that part, that are within the rules. It is only at this point that amendments are ruled out by the chair. A reason is always given for rejecting an amendment. The rulings come from the chair and are entirely their call, but are based on advice from the clerks.

"[Parliament's rules], the Standing Orders say that the Committee of the Whole can make amendments that are relevant to the subject matter of the bill, that are consistent to the principles and objects of the bill, and that otherwise conform to the standing orders and practises of the House. …The default is that unless there's a good reason for an amendment to be ruled out of order, it should be voted on."

In brief, an amendment must be three things: it will be relevant to the bill, consistent with its principles and objects, and conform to expectations. Those guidelines lead to a few key reasons for rejecting amendments.

"One of the most common [reasons] an amendment is ruled out of order is that it's outside the scope of the bill," Sharma said. That rule is part of the requirement for relevance.

"We've got some quite tight rules around what's an acceptable bill. A bill has to have a single subject area and it has to have a focus, which means that you don't have these really big, disparate bills, which you can throw all sorts of different provisions into.

"The scope of the bill is really determined by 'how big is this bill at introduction?' and how much it does. So a really narrow bill is going to be much harder to amend than a wide ranging [one]. What we're considering there is how relevant is the amendment to the bill that [was] introduced to the House?

"A really good example of that would be an amendment that is 'inconsistent with the principles and objects of the bill', which is kind of a parliamentary phrase, but really it's talking about what's the overall intent or the overall thrust of the bill?

"You could, for example, have a bill, which is increasing the number of district court judges. An amendment that would reduce the number of judges is definitely relevant to that bill, but it is a completely different direction of travel. So that would be a relevant amendment, which would still be 'out of order' because it's inconsistent with the bill's intent or its principles and objects."

An amendment can also be relevant initially and become irrelevant. An amendment already agreed to can alter what is relevant, because now the bill is different and things have moved on.

"Sometimes an amendment will come later on in the debate and in the bill, and the committee has already done some voting, …and it's made some decisions. And so those later amendments are inconsistent with the decisions that the committee's already made."

It's like the MPs were planning a holiday and have already decided on a beach location, at that point it becomes pointless to debate who will bring the skis.

An amendment might be both relevant and consistent and still fail, because it does not conform to the expectations for legislation.

"At a basic level, an amendment needs to make sense, …and it needs to make sense in the context of the bill. So you can't just add some random words to the piece of legislation. You have to know where in the bill that amendment's going to go. It has to be a coherent amendment. So if an amendment doesn't do that, it could be ruled out as not in the correct form of legislation. So it's got to be written as if it was part of the bill and actually make sense within the whole."

It's complicated. Certainly the advice the clerks offer is both useful, and also essential.

The process

The House Office offers advice to all MPs, not just presiding officers. Clever MPs accept that assistance and learn as much as possible. That includes help in drafting amendments likely to fit within the rules - if that is required. Not all amendments need to fall within the rules to be useful for debate.

"We do provide advice to members when they are discussing their amendments with us," says Sharma. "We can …say, 'we think it's possible that this could be …out of order for particular reason'. But ultimately, the decision on whether something is in order or out of order sits with the chairperson of the Committee of the Whole, (the Deputy Speaker or the Assistant Speakers). It's their sole decision.

Note: The Speaker never presides over the Committee of the Whole, only his team does.

"[When an amendment is tabled] we read it really closely. We read it not in and of itself. We also read it in the context of the bill. So that relationship between the amendment and the bill itself is what's going to determine whether it's going to be 'in order' or not. So, yes, is it relevant to the bill? And is it consistent with what the bill's trying to do?"

A predictable flurry of amendments is always offered on a bill's shortest section - its title and the date it comes into effect. These 'preliminary clauses' are a bill's first section, but the final one that is voted on.

The amendments to them are often (but not always), unserious, even sarcastic, Some may fall within the rules, but many will not.

"It's common for members to put up dozens… of amendments on the title clause. Opposition members have been doing this for many, many parliaments. [Historically] we've had amendments which described a bill as 'Orwellian' or as 'betraying senior citizens'. Lots of these amendments are an opportunity for opposition members to signal their dislike of a particular bill, or just critique it."

"They're quite good for us because we can rapidly see that they're going to be 'out of order' because they're not necessarily a serious amendment or not an objective description of the bill."

The sarcasm or irony in many title clause amendment suggestions carries a small upside of releasing a little tension in the final debate after a long Committee Stage. Oppositions predictably lose the final vote on any government bill, but after many hours of hard debate they get to not just critique the policy, but outright mock it.

And once the preliminary clauses are agreed and the sometimes hundreds of amendments on a bill have all been dealt with, the House Office can collectively exhale. But never for long. Another avalanche of paperwork is always heading their way.

*RNZ's The House, with insights into Parliament, legislation and issues, is made with funding from Parliament's Office of the Clerk. Enjoy our articles or podcast at RNZ.