Handing over law making

As I blogged yesterday I am in support of modernising our adoption laws. They are literally a relic from the 1950s. But the law reform is not just about whether same sex couples should be able to adopt, but needs to deal with a wide range of adoption issues, guardianship issues and surrogacy issues.

A few people think this will lead to many gay couples getting to adopt children, ahead of “deserving” heterosexual couples. But I quote Andrew Geddis on this:

This law change will result in only an infinitesimal increase in the number of children who actually get raised by a same-sex couples because there are Fuck All “stranger” adoptions in New Zealand (less than 100 a year). And then a given same-sex couple only will be able to adopt a child if the birth mother chose them ahead of all other eligible couples. So if gay couples could join the pool of people eligible to adopt in this manner, the number of children who would be placed with them likely would be negligible

What this means is that the argument about whether kids being raised by same-sex couples is good/bad is pretty much irrelevant to this issue, because it ISN’T ABOUT MORE KIDS BEING RAISED BY SAME SEX COUPLES THAN THERE ARE AT THE MOMENT.

What this is about is like what we saw on TV3, where two lesbians have lived together for 19 years, and both have a biological child. however they can not make each other the adoptive parent of each child. So if one of them dies, one of the children could be left in limbo. The current law actually prevents the best interests of the child being paramount.

Media reported yesterday that National MP Nikki Kaye and Green MP Kevin Hague have been working for around 18 months on an adoption law reform bill. As I indicated, it is a hugely complex area, and just identifying the key policy issues is quite a task.

Now some in Labour have been saying that there is no need for a bill by Hague/Kaye, as Jacinda Ardern already has a bill in the members’ ballot. This prompted me to look more closely at the bill, and I’m afraid it is very seriously flawed. I have absolutely no doubt that Jacinda genuinely wants good law reform in this area, but the bill she has put forward is basically little more than a legislative request for the Government to do something. The bill, which is only slightly longer than a press release, essentially does the following:

1. Requires the Minister for the Law Commission to ask the Law Commission to review the law relating to the care of children and update its September 2000 report on adoption
2. Requires the Law Commission to report within 12 months a report, recommendations and draft legislation
3. Requires the Minister of Justice to introduce the bill, as drafted by the Law Commission, without amendment within seven days

There are a significant number of semi-fatal flaws with this approach. The first is timing. Under the Ardern bill, there would probably be no law change for four or more years until after it has been selected from the ballot. The likely timings are:

• 1st reading – 3 months after introduction
• select committee – 6 months
• 2nd and 3rd reading – 3 months
• Law Commission report – 12 months
• Govt Bill has first reading scheduled – up to 12 months
• select committee – 6 months
• 2nd and 3rd reading – 3 months

So even if the Ardern bill was drawn tomorrow, any actual law change would take four or more years, so maybe the law would be changed by 2017. The problem is that Jacinda is trying to use a bill, to get the Law Commission to write a bill. But Ardern’s bill itself would have to go through the full legislative process which would take probably 12 months. And I am being generous in suggesting it could take 12 months to pass. Many member’s bill have spent 18 months just awaiting their first reading!

Effectively what Ardern wants could be achieved by writing a letter to the Minister of Justice, and this would save one to two year’s time if the Minister agreed. However Ardern is trying to legislate to force the Minister to introduce a bill, even if they do not want to. But she has made a fatal error. She has legislated that such a bill must be introduced within 7 days of the Law Commission drafting it, but she has not said that the Government must schedule it for a first reading debate.  So if the Government did not want the bill to progress, it would simply place it at the bottom of the order paper – which they can do as it would be a Government bill. Even a minority Government would be able to prevent the bill from ever being voted on – something they can’t do with a private members’ bill that actually seeks a law change – rather than just ordering the Government to introduce a bill.

So to be very clear, even if a majority in Parliament favoured law reform, the process outlined in this bill would give the Government an effective veto. It is not difficult to imagine a scenario where for example it is after the 2014 election and say Colin Craig or Winston Peters could demand that the price of their support is the bill not proceed, as their constituents do not like it. By making it a Government bill, you lose control of its timing.

So the biggest problem if Ardern’s bill would not actually see any law change for four or more years, and could in fact never be voted on if the Government did not want it to pass. But that is only one flaw.

The second flaw is that the Ardern bill doesn’t specify a single policy principle. Not one. It gives actually no direction to the Law Commission as to what should be in the bill, what its scope should be, or even that the bill should not discriminate against same sex relationships. Every single detail is left to the Law Commission. This is a blank piece of paper. Now one could say, well surely they would mainly repeat what they reported in September 2000. Well they might. But it is worth considering that I think every single member of the Law Commission is now different from 12 year ago. So there is no guarantee that what the Law Commission would deliver is what Ardern wants. It is the job of legislators to spell out the general policy principles they want a law to reflect.

The third flaw is that the Minister of Justice is required to introduce whatever the Law Commission drafts, without amendment. Putting aside the rather important constitutional issues of making the Law Commission able to bypass Cabinet, it means that if a first reading is scheduled the MPs have to vote on whatever the Law Commission drafted. It could not be amended unless it survives to select committee. Such a bill could include a provision that all babies named David have to be placed into the care of CYFS and the Minister of Justice would be forced to introduce it without amendment. Sure that is an unlikely example, but it is a horrific precedent to have draft laws bypass Ministerial and/or MP approval, and going straight to a vote. This gives huge powers to the unelected Law Commissioners.

This is obviously a very bad idea. The political process is about MPs and parties working together to ensure a bill is acceptable and has enough support to pass first reading. There are often intense negotiations before a bill is introduced into Parliament.  The Ardern Bill actually entirely removes MPs from the legislative equation until the Law Commission bill reaches select committee – if it even made it that far. And the probability that it would face massive changes at select committee is enhanced when MPs have had zero say in its drafting.

The fourth flaw, I touched on earlier. Rather than introduce a private members’ bill that actually outlines the desired law changes, it just instructs the Government to introduce a bill in probably two years time. By then making it a Government bill, it means Parliament loses control of when it gets voted on, as Government bills are debated at the discretion of the Government. So by failing to specify that the bill must be scheduled for first (and subsequent) reading/s at the top of the Government order paper, the bill is basically entirely ineffective.

So in summary the Ardern bill is not a helpful (while I am sure well motivated) step towards sensible adoption law reform for the following four reasons:

1. It would probably delay any actual law reform for four or more years. By contrast a private members bill which actually specified the proposed reforms could be passed into law within a year or so.
2. There are absolutely no policy principles in the bill (not even that the welfare of the child is paramount). It is a total blank piece of paper for the Law Commission.
3. The bill locks MPs out of any involvement in the eventual draft government legislation prepared by the Law Commission, making it far less likely of gaining the necessary support.
4. The private members bill requires the Government to introduce a Government bill, which will then only progress at the timetable decided by the Government – rather than as Parliament wishes. Under MMP the two are not the same thing.

It is very easy to write a nine clause bill and trumpet that as the “solution”, claiming it would “address a wide range of concerns about the outdated Adoption Act”. But alas law making is not that simple or easy. Either you convince the Government to make adoption law a Government priority, or you draft a private members bill to do it yourself.