The delta variant’s entry into Aotearoa and our move into level 4 has upset a lot of plans and required a lot of us to change how we work. Members of Parliament are not exempt from such disruption. Using a process set out in Standing Orders, the Prime Minister has informed the Speaker of the need to postpone for a week the House of Representatives’ return from a scheduled adjournment. The Speaker has then accepted that this is necessary and notified MPs accordingly. Consequently, this week the House will not sit as a collective body, while MPs (as opposed to ministers) have to remain in their home bubbles and participate in the other business of the House remotely.

Before considering the good and bad of this move, a quick technical point that, as Graeme Edgeler notes, actually matters for once. There has not been a suspension of Parliament, as many in the media have claimed. That would require the PM to go to the Governor General and request that she issue a proclamation announcing its prorogation. The effect of such a proclamation is described in McGee’s Parliamentary Practice in New Zealand: “The House and its committees cannot meet following prorogation until Parliament is again specifically summoned to meet by the Governor-General.” In contrast, postponing the House’s sitting stops it collectively meeting in person, but doesn’t put a halt to its select committees carrying on their business (albeit over zoom, as many of the rest of us must). 

That said, the big question is whether having those select committees still carrying on their business provides sufficient mechanisms of accountability and scrutiny for the government’s actions. Everyone – even the government – says that such accountability and scrutiny is really important, given the far-reaching decisions and actions being taken by ministers at the present time. But there’s real disagreement about what level and form of accountability and scrutiny is required. In particular, opposition parties have levelled two criticisms at the government. The decision to postpone the House’s sitting is argued to be unnecessary and nueters the ability to properly question executive action. And the decision to rely on “ordinary” select committees rather than reconstituting the Epidemic Response Committee is said to offer an inadequate, government-friendly venue for questioning. The first claim seems wrong to me, while the second will depend very much on how government backbenchers choose to behave.

Should the House’s sitting have been postponed?

Postponing the House’s sitting under Standing Orders is a two step process. The PM first must believe “on the written recommendation of the Director-General of Health, that the postponement of the next sitting of the House is necessary for the effective management of a serious outbreak of a disease affecting people.” So, there must have been an on-the-record public health judgment that getting MPs from around the country, plus all of parliament’s support staff, together in the middle of a city with an as-yet undetermined spread of delta variant creates too great a risk of transmission. Then, the Speaker must independently decide that the PM’s view (reflecting the recommendation of Ashley Bloomfield) warrants a sitting delay.

There’s then something a bit odd about lambasting Jacinda Ardern for using a process that all political parties agreed should be in place exactly for situations like the present one. Because, that’s how Standing Orders are created – they require the unanimous (or near-unanimous) agreement of all MPs. If the opposition parties really don’t want a Prime Minister to be able to put off the House’s sitting in the midst of a public health emergency, they probably shouldn’t have agreed to let her do so. And having agreed that she should be able to do so, second-guessing how “safe” it would be to have the House sitting smacks of the sort of arm-chair epidemiology seen on sockpuppet twitter accounts.

Furthermore, let’s be honest about what the opposition wants from the House’s sitting. It’s not the opportunity to continue to debate and vote on things like the Education and Training (Teaching Council Fees and Costs) Amendment Bill, or the Crown Pastoral Land Reform Bill. Rather, it’s the optics of having their members standing at the same level as the Prime Minister and ministers and having the chance to grill them during question time. That’s not an irrelevant process. But it is a rather limited and performative form of accountability. Honestly, I can’t get overly upset at it being set aside for a week.

Should the Epidemic Response Committee be reconstituted?

However, if having the entire House up and running is too risky for the moment, what should stand in its place? When the House was unable to operate during our previous level 4 lockdown, a special Epidemic Response Committee was set up to provide accountability and scrutiny. It had two features that were noteworthy. First, it was chaired by the leader of the opposition and a majority of its members were opposition MPs. That allowed the opposition to set the Committee’s agenda and control its proceedings. Second, it was given the express power to require that people attend and documents be produced. This power largely was notional, rather than necessary. Indeed, the one time the Committee sought to exercise the power in order to get some legal advice from the government, the Speaker determined that it could not actually be used in that way. However, the fact the power was granted signalled how important the Committee’s job was seen to be.

Once Aotearoa moved out of level 4 and the House again started working in a somewhat “normal” way, this Committee was dissolved. The opposition has for some time argued that it (or something like it) ought to be re-establised to provide a sort of one-stop shop forum for overseeing the government’s Covid response. However, the case for having something like the Epidemic Response Committee largely is a negative one – it is said to be needed because the “usual” parliamentary mechanisms for accountability and scrutiny are inadequate. Will that be even more the case over the next week, where the House is not meeting as a collective body?

Can “ordinary” select committees do their job?

Select committees, it often is said, are the engine-room of the House. Their focus on a particular subject area, plus the extra time they have to undertake study of an issue, allows them to delve into matters far more deeply and completely than can the House as a whole. Questions asked in select committee rarely attract the same level of public attention as does question time in the House, but they can be far more effective in actually finding out what is (or is not) happening in government.

As such, in theory the various select committees dealing with matters right across the government’s current Covid response ought to be able to engage all MPs not currently holding executive office in examining how the government is doing. The government’s leader of the House, Chris Hipkins, then claims this in regards how these select committees will operate: “Ministers and senior government officials will be making themselves available to appear before virtual select committees over the coming week. Those meetings will be televised on Parliament TV and we expect opposition members to have the bulk of the allotted time to ask questions.”

That sounds great … in theory. However, as others have noted, the track record of some government members on some select committees may give pause. There has been a tendency for some backbench Labour MPs to run interference for ministers and officials, undermining the committees’ ability to fully question them. Just as, it must be noted, some backbench National MPs have on occasion played procedural games to try and embarrass government members. That’s part-and-parcel of New Zealand’s strongly disciplined system of party politics. Loyalty to party and a desire to protect your own team – or show up the opposing team – often trumps loyalty to the institution of Parliament. While it might be nice to have more of a tradition of strong backbench independence, such as exists in the United Kingdom, we govern with the political traditions we have, not the political traditions you might want or wish to have at a later time.

The important question for now is, can the dynamics of a delta-inspired lockdown work to offset this sort of knee-jerk behaviour? Because, we’re very much not in a “government as usual” situation. That cuts both ways, of course. As Simon Bridges found out, perhaps unfairly, there is minimal public appetite for opposition action judged to be undercutting the nation’s collective effort. But equally, there really needs to be minimal tolerance for government MPs who use their control of select committee processes to shield their colleagues and government officials from legitimate questioning. Minimal tolerance from the party leadership (no pats on the back for being a good team-mate), minimal tolerance from the media’s parliamentary gallery (we’re not playing politics-as-usual), and minimal tolerance from us the public (this game is too important not to watch and care about).