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Separate parliamentary law reform process suggested

Sir Peter BlanchardA separate parliamentary process for reforming what people call “lawyer’s law” is needed, according to Supreme Court judge Sir Peter Blanchard.

Law reform was difficult, he said in a speech at Auckland University on 5 March 2011.

A “good part of the difficulty” was the lack of adequate procedural mechanisms that would enable law reform proposals – draft bills – to get early consideration in Parliament.

“They get caught up in the legislative log jam,” he said.

Sir Peter suggested that the Standing Orders of the House should provide that bills agreed to be law reform measures are placed directly before a specified Select Committee. That would remove the need for a two-hour first reading. which unnecessarily takes up the time of the House.

“Then, if approved with or without amendment by the Select Committee, they should proceed directly to a truncated Committee of the Whole House stage and finally a short debate on the third reading.

“I am suggesting truncating the Committee of the Whole House stage … to avoid the need for separate consideration of each Part of a Bill, which can make the process very lengthy, even where any remaining contention is quite limited.

“I am also conscious of the fact that the best layout of legislation may sometimes be compromised because of a wish to reduce the number of Parts and thereby lessen the amount of time before the Committee of the Whole House, which is an encouragement to the Leader of the House to give a bill priority because it will not take very long to pass it through that stage.

“Finally, I see no need for more than a handful of speeches on third reading which is simply a yes/no vote. If a law reform measure reaches that stage there is little likelihood that anyone is going to say anything significantly new at that point in the process.

“Conscious of the fact that Judges should not be criticising Parliament, I should emphasise that in making this proposal, born out of the excruciating experience of watching multiple law reform projects stall, some permanently and some for many years, I am merely trying to be helpful.

“A cynic might say that because specialist law reform is not politically sexy, this proposal for procedural reform will itself not be of much interest to politicians.

“The point I would make, however, is that parliamentary time is precious and expensive. At the moment it can be said that it is being misspent and that parliamentarians could, if procedures are altered, find that their time is freed up for things which are more interesting to them.

“I add a caveat. Perhaps it should be a condition of entry into the new procedure that a bill should have been published in exposure draft (including by attachment to a Law Commission report) at least three months before it goes into the House and directly to a Select Committee.

“Some other qualifications may be necessary. An ability for a bill to be moved to a different Select Committee, for instance. And it may also be desirable to require a full parliamentary process beyond the Select Committee stage if the Select Committee is not unanimous in its report. But I feel confident that details of this kind could easily be worked out if the bare bones of the proposal meet with approval.”

This article was first published in LawTalk 768, 25 March 2011, page 8.

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Last updated on the 11th May 2012