The Care of Children Law Reform Bill debate

The House debated last night Jacinda Ardern’s Care of Children Law Reform Bill. Despite the fact that most parties and MPs agree adoption laws need to be reformed, the House voted down the bill because it was so lightweight. As I blogged last May, it was basically a press release pretending to be a bill. It did nothing except ask the Law Commission to write a bill, and require the Minister of Justice to introduce it.

One Minister has said that the bill basically meant handing over most of the powers of Parliament and the Cabinet/Executive to Wayne Mapp! (Dr Mapp is a Law Commissioner).

The debate is in the draft Hansard transcript:

JACINDA ARDERN (Labour):  It makes sense that as Parliament we make use of the expertise of the Law Commission and the work that has already been done. Doing so would be an unusual practice, though, and I do acknowledge that. Embedding this process into a member’s bill is, however, a very, very unique approach, but, as I have said, given that this work is so overdue, anything that can help us speed up reform in this area surely must be welcomed.

The problem is that the bill doesn’t speed up reform. It would mean an actual law reform bill would not be considered by Parliament for two to three years.

SCOTT SIMPSON (National—Coromandel): The sponsor of this Care of Children Law Reform Bill, Jacinda Ardern, has nominated the Justice and Electoral Committee to scrutinise the bill should it pass this first reading. Therefore, as chairman of the committee, it falls to me to have a first go at what can only really be described as a very sloppy and lazy member’s bill by this member. …

But I am very aware that in contrast to this once-over-lightly bill that is being presented by Ms Ardern, the Green MP Kevin Hague has actually done a very significant and substantial piece of work and has a bill in the ballot on this very matter. His bill remains in the ballot. It is a hugely complex area. It is emotional and it has huge impacts on people’s lives. Just identifying the key policy issues is itself quite a task, but if Jacinda Ardern genuinely wants to make a real contribution to serious and meaningful law reform in this area, then she needs to put in a bit of serious work. This bill that she has put forward is basically little more than a legislative request for the Government to do something. It is not a solution; it is not even an attempt at a solution. 

Hague’s bill is 18,000 words of legislation which covers around a dozen different policy areas. It is a very serious piece of law reform, which if drawn from the ballot could see a new law in less than a year.

The first major flaw with this very sloppily drafted piece of legislation is that if passed, under this bill there would probably be no law change for at least 4 years or more. And let us just have a look at the likely timings. A select committee would take about 6 months or more to give this member’s bill consideration, given the looming summer break ahead of us. Then there would need to be a second and third reading—that would easily take a further 3 months or more. Then the Law Commission itself would need to draft its report, and that would take at least a year—probably longer. Then, of course, once it came back from the Law Commission under instruction, the Government bill would have to be first read and scheduled, and that could take up to another 12 months. Then there would be a select committee process; that would be another 6 months or more. Then there would be a second and a third reading, and at least another 3 months after that. So the problem is that the member sponsoring this bill is essentially trying to use her member’s bill to get the Law Commission to write her bill for her. That is sloppy. That is lazy. It is a lazy approach. It is politically lazy—it is politically lazy—and it is intellectually lazy.

It is an NCEA not achieved.

The second flaw with this bill is that it does not actually specify a single policy principle—not one. It does not identify a single policy principle. It actually gives no direction at all to the Law Commission as to what should be in the bill or what its scope should be. The bill does not even indicate whether it should discriminate against same-sex relationships. Every single detail is left to the Law Commission. It would effectively give the Law Commission a blank piece of paper. It is a constitutional affront to this House and to the members who sit in this House.

The lack of detail is also a killer.

It is very easy to write a nine-clause bill and trumpet that as some kind of solution, claiming that it would address a wide range of concerns about the outdated Adoption Act. But, sadly for the member sponsoring this bill, lawmaking is not that simple; nor is it that easy, and it absolutely should not be. If she wants to do some serious work, then she should put in the hard work. She should put some intellectual grunt into it and actually apply her not insubstantial brain to the matter at hand and actually proffer a solution—she should actually proffer a solution. So simply drafting this bill and asking someone else to do the job for you is a lazy way of ensuring that a prospective glittering political career falls in the dustbin. The National Government MPs will be opposing this bill. It is a sloppy, lazy piece of legislation, and it deserves to be consigned to the legislative rubbish bin.

A somewhat harsh speech, but not inaccurate. And it wasn’t just National voting against. The Greens did also:

METIRIA TUREI (Co-Leader—Green): The member Jacinda Ardern announced her intention to place this bill in the members’ ballot back in 2010. On that same day the Greens indicated that we did not support the approach that she proposed. We reiterated that position again when the bill was drawn from the ballot, and as a result we will be voting against the bill today.

Kevin Hague has blogged on why the Greens said they would vote against:

This Bill is very big and complex. I believe that the cross-Party approach that I set up was the best way of proceeding, and have been very pleased that work in the last Parliament led me to be able to continue work with Nikki Kaye (and many others outside Parliament) to produce this Bill. Along the way we are certain to have made some mistakes or policy decisions that others disagree with. That is why I have indicated that while the Bill sits in the ballot waiting to be drawn I am very keen to get feedback, so that we can refine it and advance important law reform that has the broadest possible support.

“But your Bill and Jacinda’s are very similar. Why are you voting against hers?” To understand that you need to look at the Bills – they’re not similar at all. Jacinda’s Bill does not change adoption law in any way. While my Bill is a substantive reform of adoption and surrogacy law, Jacinda’s instead gets the Minister of Justice to ask the Law Commission to update the advice they have already given on adoption reform and turn that into a bill. With the best will in the world, that process will take at least two or three years to arrive at the point we have already reached, and will use valuable Law Commission money and time to bring us to where we already stand! Even then the notional Bill would require a well-disposed government to do something with it. Well if we had one of those, it would pick up my Bill and advance it as a Government one. And hers doesn’t deal with surrogacy.

Labour withdrew from the cross-Party process on adoption in order to advance Jacinda’s approach – a choice of unilateralism over multilateralism. In my opinion it is a history of unilateralism from successive governments that has led to the situation we have now, where everyone agrees the existing law is obsolete and harmful, but nobody has done anything about it. I told Jacinda at the time, and then said publicly, repeatedly, that we opposed her move, because what we really need is an approach that will actually takes us forward, not a bill that won’t pass and is instead a distraction from the goal of having adoption law that actually works for families. It should be no surprise to anyone that our position hasn’t changed. Supporting Jacinda’s Bill would undermine the cross-Party work we have been doing for the last 3 years.

You can imagine Kevin’s annoyance. He’s been spending over a year working cross-party to do a serious piece of law reform, and Labour chooses to draft up a press release, call it a bill, and try and claim credit for doing something.

TUREI: We believe batting the issue back to the Law Commission is an abdication of the responsibility to act now. One of the reasons that this is important is that drafting a bill to give effect to the Law Commission’s recommendations requires political judgment calls to be made on many policy issues, not just legal or technical ones. It is Parliament that has the mandate to do this, not the Law Commission. Secondly, this bill incorporates another form of abdication of responsibility to a future Parliament. A future Parliament cannot be bound, of course—we know that well enough—by what we decide today, so there is no greater likelihood that the process will advance the cause of adoption reform any further than the Law Commission’s 2000 report did. More to the point, although it is inevitable that issues first raised by a particular Parliament will not be completed until a future one sometimes, this bill would effectively defer any action to a future Parliament. We need to take action now. Thirdly, the Law Commission already has a busy programme, and even under the very best of circumstances this bill will not result in an actual bill on adoption for us to debate for at least another 2 to 3 years. In other words this bill delays law reform further.

If the Ardern bill did proceed, it would mean that Parliament would have the perfect excuse to do nothing until the Law Commission reported back in three years or so.

There is no reason why a bill cannot be drafted now, and, indeed, one already has been, saving us those years. Back when the member first announced this bill colleagues from Labour and National had joined Green members in a cross-party approach addressing adoption reform. We still believe that this is the best way of pursuing the change, and, indeed, have continued to work with National and other parties in the House and community organisations to develop a bill.

Labour and Jacinda had a choice – continue with the cross-party work with adoption reform groups, or seek to do some cheap grandstanding. Sadly they chose the latter. You may not get headlines from the behind the scenes work – but you do get progress.

Hopefully Hague’s bill will be drawn out of the ballot in the near future, allowing real progress to be made on this issue. The Adoption Act is woefully out of date. Note also that this isn’t about same sex adoption. Louisa Wall’s Marriage bill has already changed the law to allow same sex married couples to adopt. Adoption law reform is about recognising that almost all adoptions today are open, not closed etc.

The fate of this bill is a good lesson to other MPs. Do the hard work up front. Parliament will not vote for a bill that contains no policy principles, no details and just asks someone else to write the actual bill that is needed.