Displacement, Drift, Layering And Conversion: The Changing Parliament

Monday, 8 July 2024, 2:47 pm
Article: RNZ

Phil Smith, Editor: The House

For any political geek, a new PhD thesis focused on the rules of Parliament is catnip; even more so if the researcher happens to run the Parliament’s secretariat.

Surely they know where the metaphorical institutional bodies are buried and which cupboard holds the spades.

David Wilson had a PhD conferred this year with a thesis titled Influences on parliamentary procedure in New Zealand 1935 2015. His formal title is Clerk of the New Zealand House of Representatives. He manages the team of experts who make the legislative side of Parliament tick. His clerks manage the various select committees and the House itself. They are also the acknowledged experts on Parliament’s rules, acting as advisors to speakers and chairs.

The thesis offers a vast array of possible topics to discuss and dissect, but this article will focus briefly on three things: the central idea of the thesis, what it highlighted about how our parliament operates, and our history of relentless change.

Listen to a radio interview with David Wilson about his thesis duration14:49

Listen to a radio interview with David Wilson about his thesis

Categorising change

Most rules that govern parliaments change over time. This is true whether they are written down or are simply conventions. But they don’t all change the same way, and the rules for the different aspects of Parliament seem to exhibit different kinds of change.

The framework for David Wilson’s research is work by political scientists James Mahoney and Kathleen Thelen, who, Wilson says, created “a model for understanding institutional change in any kind of institution, but particularly political ones. It looks at a couple of variables; one is the discretion to interpret the rules, and the other one is the possibility of vetoing changes to rules.”

“The interplay between those two things brings up four different kinds of change, so institutions can change their rules and ways of operating through Displacement, where one rule actually just replaces another one - it's written over the top of it. Layering, where additional rules are added on top of existing ones. Conversion, where the rules actually stay the same but they're interpreted in a different way; and Drift, where the rules remain the same but their effect is altered, often by situations outside of the institution.”

(Note: Unless noted, the quotes in this article are from our interview, and not the research.)

A Parliament that embraces both change and rules

New Zealand’s Parliament is not afraid of change. Ours is the Parliament that sloughed off its own Upper House in the 1950s, and rethought the basis of New Zealand democracy in the 1990s.

“Through the 1980s and 1990s there were enormous amounts of change,” says Wilson. “The mid-80s changes under the fourth Labour government, which really drastically reformed the Parliament, rewrote the rules; and a lot of those changes are still in operation now. And then a decade later in preparation for MMP - another big round of changes.”

Regular change has now been baked in. The last two triennial reviews of Parliament’s Rules (the Standing Orders), have also included some significant shifts, including things like MPs working remotely (a shift instigated by Covid-19 necessity). These days the change process also invites ideas from the public.

Surprisingly, despite sometimes being ground shifting, the changes agreed by the Standing Orders Reviews are not contentious.

“...because all of those changes are made on a consensus basis," Wilson says.

"All the parties agree, they don't do things that are not widely supported, you tend to have changes that endure. You don't get a new government come into office and overturn them, because they weren't the government's changes in the first place. They're changes made at the end of a parliament where no one knows who the new government is going to be at the next election. So they tend to be rules that work for the institution of Parliament, not for parties in government or opposition particularly.”

Also, our Parliament seems to be quite rule-happy, compared to other similar parliaments.

“We've got a lot more rules than other parliaments in the UK or Australia or Canada – almost twice as many as some of those other parliaments [as a rough guide]. That doesn't really account for the different ways you might write rules. But yes, we certainly have a lot more, and they are a lot more granular. They go into quite a lot more detail about many things.”

Not everything though. Some areas, like written questions and select committees are reasonably uncodified.

The Clerk of the House of Representatives, David Wilson, gives evidence to Parliament's Standing Orders Committee about ideas for the 2023 Review of Standing Orders. Photo: VNP / Phil Smith

Rewritten rules are not the only changes

While New Zealand’s parliaments are very happy to rewrite and tweak the written rules (displacement and layering), those rules are also slippery things and don’t always stay where you put them.

While the vast majority of changes in parliament are via displacement and layering (where rules are purposefully rewritten), ‘conversion’ (where the rule remains but is reinterpreted) tends to be the dominant of change in Parliament’s most public fora – Question Time.

In this area, some level of conversion occurs every time the Speaker changes. Wilson outlines its particular nature.

“Question time actually has very few rules, and they’ve really not changed since the 1930s, apart from the necessary changes to reflect the fact the house is now proportionally elected.

"But really it's the same handful of rules with a lot of interpretation by speakers over time. Because it's highly politically contentious, it would be difficult to get consensus around [formal] rule change. And so actually, a lot of the responsibility there just falls to the speaker to enforce things and interpret things on the day.”

This daily interpretation of the rules is how conversion works. Precedent builds on precedent and eventually practice is very different.

Part of Wilson’s research was a wide array of interviews with former Parliamentary power-brokers – Speakers, Clerks, Whips, Leaders of the House and so on. The former Speaker (and National Party MP) Lockwood Smith’s interview sounds like it was particularly fascinating. After some time in the Chair he sat back and reconsidered how he was doing things - including rereading the actual Standing Orders, not just the accumulated Speakers’ Rulings (the precedents).

“And I felt that had happened with the Speaker's rulings around answering questions that, you know, the precedential creep had got to the point where Speakers believed that a minister could almost say anything in addressing the question. And I refused to accept that because the standing order actually says an answer shall be given, you know... So, I threw away some pages of speaker's rulings.”

Smith’s tenure was curtailed when John Key appointed him as High Commissioner in London. David Carter replaced him and the interpretation shifted again, arguably boomeranging back to where it had been prior to Smith’s originalism.

The Clerk of the House of Representatives, David Wilson, has a quick squiz at Parliament's rule book in case the Speaker needs his advice. Photo: VNP / Phil Smith

The sheer amount of change

Among the many points of interest that this kind of research highlights, one is the extraordinary amount of change that New Zealand’s Parliament has undergone.

There is constitutional change, like Parliament shucking off its own Upper House, and the move to MMP. There is structural change, like the creation of the Business Committee or the many downstream impacts of MMP. There is operational change, from remote video access to proxy party voting.

One seldom noticed shift is both breathtaking and a good example of the way that MPs’ actions adapt and change over time – written questions.

Written questions can be asked of ministers by any MP, but are almost always from the opposition. Unlike oral questions (which actually developed out of written questions), there is no limit on their number.

They are not often noticed by the public (despite all being available to read on the Parliament website), but says Wilson “they've become a really important part of the scrutiny of the government. You can obviously gather answers that need a lot more research and maybe need data provided in a way you really can't do in oral questions.”

Written questions are often used to fish for issues to follow-up in the more public oral questions (Question Time). The more hooks you throw in the water, the better the chance of catching a whopper.

Wilson enumerates their numbers in each Parliament between 1961 and 2017.

In the 33rd Parliament (1961-3) there were a total of 42 written questions over three years. There were 80 MPs at the time so that is 0.52 questions per MP.

Between 1996 and 2017 (when Wilson’s research ends) the per-Parliament number of questions the usual number was around 40,000 and 50,000 per parliament and a high of 73,914 questions during the 49th Parliament (2008-2011).

Since then it has climbed ever higher.

The number of written questions in the most recent two Parliaments have reached crazy levels: 113,519 (during the 52nd Parliament - 2017-2020), and 133,576 (53rd Parliament - 2020-2023). That is nearly 500 questions for every day the 53rd Parliament sat.

In the current Parliament (as of writing) the total is already nearing 40,000. These levels of questions are surely sometimes as much a way of gumming up the works as it is a way of finding useful answers. It would be fascinating to count the number of FTEs the wider public service employs to answer them all.

Whatever it is, it is a powerful metaphor for relentless and enormous change that Parliament sees.

Will Parliament ever stop changing?

David Wilson asked each of his interviewees: “Do you think change will be an ongoing process or will the parliament reach a point of stability where the status quo will prevail?”

Here are a few of the answers:

Trevor Mallard (Labour Party, former speaker) – “The job is never finished. Yeah. And I think that the development of a more democratic House is business that you can never say is finished.”

Mary Harris (Former Clerk of the House) – “Happiness with the status quo can be a dangerous thing. The world is constantly changing.”

Lockwood Smith (National Party, former speaker) – “I think it's inevitable that whatever activity you're involved in in life, that better ways of going about it will emerge and people will become concerned about deficiencies in the way we do things. And so, I think reform will be an ongoing thing.”

Kennedy Graham (Green Party, former whip) – “But do think that there's scope for improvement. And I would be reasonably confident, optimistic that in New Zealand's case, we certainly have the ability to improve. And maybe... you just have to be reasonably patient that things do improve or change for the better over time.”

David Carter (National Party, former speaker) – “Never [stop changing]. Otherwise, the world stopped changing.”

David McGee (Former Clerk of the House) – “I'm absolutely convinced it will be an ongoing process. I mean accommodating the technology to the parliament. Members are going to expect that themselves. And so, you're going to have to keep on changing rules to reflect that.”

Chris Hipkins (Labour Party, former Leader of the House/PM) – “[I] think it'll have to keep evolving, because if it doesn't, it'll lose legitimacy. And, you know, parliament becomes an archaic institution that's not relevant, then the democracy will be in peril. So, I think it will have to continue to evolve and adapt and change.”

RNZ’S THE HOUSE – JOURNALISM FOCUSED ON PARLIAMENTARY LEGISLATION, ISSUES AND INSIGHTS – IS MADE WITH FUNDING FROM PARLIAMENT’S OFFICE OF THE CLERK.

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