Creat­ing laws like mak­ing sausages

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Patrick Bracher

WHEN our Par­lia­ment is in ses­sion I am re­minded of one of my favourite quotes, which ar­guably goes: “If you like the law or sausages you should not see ei­ther be­ing made.”

That was be­fore the era of the tele­vi­sion but at least we now have the off but­ton.

There are good rea­sons for or­derly pro­ce­dures in meet­ings. Henry M Robert, fa­mous for Robert’s Rules of Or­der, pointed out that “where there is no law, but ev­ery per­son does what is right in their own eyes, then there is the least of real lib­erty”. Be­lieve it or not, our Par­lia­ment does have a for­mal set of rules of the Na­tional Assem­bly — 332 rules in all.

We are all con­sumers of laws. We have the right to ex­pect that those mak­ing them, like sausage mak­ers, are con­cen­trat­ing on get­ting the right in­gre­di­ents un­der the skin and not get­ting un­der each other’s skin. There are many good laws go­ing through Par­lia­ment, most of which you will never have no­ticed. They float gen­tly through the process be­neath the waves of points of or­der. Right now there are good laws in process to pro­tect chil­dren, plants and per­form­ing an­i­mals. So what you get is not al­ways what you see.

What we do see is an end­less stream of points of or­der and fruit­less mo­tions doomed to fail­ure ex­cept as grand­stand­ing ex­er­cises.

A point of or­der is an ap­peal to the speaker for clar­i­fi­ca­tion or a rul­ing on pro­ce­dure when the busi­ness of the house is un­der way, such as a speech be­ing made. A mem­ber can in­ter­rupt a speaker to raise a point of or­der. The point of or­der is suc­cinctly stated giv­ing the rea­son why the in­ter­rupter thinks some pro­ce­dure is in­cor­rect.

Per­haps, for in­stance, some­thing is be­ing dis­cussed which is not on the or­der pa­per at the time. The Speaker im­me­di­ately makes a rul­ing on the point of or­der. De­bate or dis­cus­sion is not per­mit­ted. The Speaker briefly gives rea­sons for the find­ing and takes any ac­tion that is nec­es­sary per­haps to cur­tail the de­bate on an in­cor­rect mat­ter. And that is that.

Once the Speaker has made the rul­ing, it’s dealt with and the same point may not be raised again in that ses­sion. The for­mal rules of de­bate en­cour­age free­dom of speech. You can’t in­ter­rupt a speaker un­less it is a point of or­der or a point of priv­i­lege (for in­stance you can’t hear the speaker and want them to speak up) and you can’t de­bate ei­ther.

When we watch these rules be­ing ig­nored I am sure all of us wish they would get on with the job at hand and pass some ra­tio­nal use­ful laws pri­ori­tis­ing, for in­stance, job cre­ation.

I have a sug­ges­tion. We have a law, the Pub­lic Fund­ing of Rep­re­sented Po­lit­i­cal Par­ties Act which hands out tax­payer money to po­lit­i­cal par­ties in pro­por­tion to their rep­re­sen­ta­tion in Par­lia­ment. If some­one can keep score how many times the rules of or­der are ig­nored and re­duce the fund­ing of par­ties ac­cord­ing to how of­ten they breach the rules of Par­lia­ment, per­haps our money would be bet­ter spent.

Some years un­der the pre­vi­ous regime, a suc­cess­ful busi­ness­man I knew was per­suaded to go to Par­lia­ment for an op­po­si­tion party af­ter he re­tired. Af­ter a week in Par­lia­ment he told me: “If it was a com­pany I would sell my shares.”

Sausage mak­ing also hasn’t changed much.

Ig­nor­ing rules makes for an un­pro­duc­tive Par­lia­ment

Patrick Bracher (@PBracher1) is a di­rec­tor at Nor­ton Rose Ful­bright.

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