"You’re making my head hurt," National's Chris Bishop said while hearing a submission on the issue of entrenchment. Photo / Mark Mitchell
“You’re making my head hurt,” said National’s Chris Bishop.
Bishop, generally regarded as one of Parliament’s better legal brains, was hearing a submission from constitutional law expert Graeme Edgeler on the issue of entrenchment, which had come to light following the failed attempt to entrench part of the Three Waters legislation last year.
Parliament’s Standing Orders committee is discussing the issue of the rules around entrenchment as part of its regular once-a-term review of the rules that govern Parliament.
Edgeler was telling MPs how few fundamental institutions are actually entrenched, meaning they require more than a simple majority in Parliament to repeal.
“The existence of courts is not entrenched in New Zealand,” Edgeler said.
The existence of MMP itself is not entrenched. The two votes cast in MMP elections are “kind of” entrenched because of the way the legislation was written, but Edgeler thinks it would be possible for Parliament to change New Zealand’s electoral system to something else with a simple majority.
“Stop, stop, stop, stop!” Bishop said to that one.
“I think there should be more entrenchment. I don’t know that I support a written constitution, but if we have a written constitution you will have the types of arguments of ‘what counts as constitutional?’ and what counts as constitutional aren’t the six sections we entrench it’s a lot more than that,” Edgeler said.
Towards the end of every parliamentary term, senior MPs from all parties get together and consider whether to make any changes to the Standing Orders - the rules that govern how Parliament functions. The changes are then adopted by the next Parliament.
Most tweaks are fairly minor, but even minor changes can have a big impact. Debates on ministerial statements for things like emergencies and changing Parliament’s sitting hours to be kinder on regional MPs have had a big change in the current term.
But after the entrenchment of the anti-privatisation provisions in Three Waters by the Greens and Labour last term (the entrenchment was subsequently reversed), the Standing Orders review was asked to consider a somewhat larger question: how Parliament should grapple with entrenching legislation. Labour’s embarrassed retreat from the Three Waters entrenchment, which it now concedes was a “mistake”, came with the face-saving promise to kick the rules around entrenchment to the Standing Orders Committee to see whether they might be improved and a similar mistake avoided.
The current rules are pretty simple, but perhaps vague. At committee of the whole House stage, sections of legislation can be entrenched if a motion to entrench that provision is carried by the same proportion of the house as the level of entrenchment sought.
In plain English, that means that if you want to entrench something so that it can only be repealed by 75 per cent of Parliament or a referendum, you would need at least 75 per cent of MPs to vote for it - a 60 per cent entrenchment threshold would need at least 60 per cent of MPs and so on.
Constitutional scholars disagreed with the entrenchment of parts of the Three Waters legislation because currently only very limited parts of the law are entrenched.
These relate to how elections are held. The thinking is that Parliament should be able to do more or less what it likes, but it must be accountable to voters and therefore the way the voters elect those MPs to Parliament must be placed beyond the reach of a simple parliamentary majority to alter.
Policy issues - things like whether Three Waters should be privatised - are meant to be left off the table to discourage governments engaging in political tit-for-tat willy nilly entrenchment of any old policy, which could see New Zealand end up with laws that were silly but difficult to repeal, while also undermining Parliament’s respect for the sanctity of the existing entrenched provisions, which Parliament arguably could unpick with a bare majority if it really wanted to.
This week, Parliament heard from constitutional experts on how entrenchment was working and how it should work.
Fittingly, Victoria University Professor Dean Knight, the person who first sounded the public alarm over the Three Waters entrenchment, was the first submitter.
He warned that episode risked entrenchment being “weaponised politically” and said that it risked changing New Zealand’s constitutional architecture almost by accident.
“Adding in something quite alien when no one was expecting it risks upsetting things, especially those important conventions protecting our electoral infrastructure.
“It also risked transforming and concretising our ecosystem from a flexible and responsive political constitution to a more rigid hierarchical legal constitution and eroding our cherished principle of parliamentary sovereignty,” Knight said.
He said it was a “big step” towards a supreme constitution”.
Knight said that he did not believe anything or much actually needed to change.
“Ultimately balance was restored,” he said.
One thing that might change, would be to “clarify procedural rules”.
The Three Waters entrenchment happened under urgency, with the entrenchment proposals not properly litigated in public.
Knight, and some other submitters suggested that rules could be changed to slow Parliament down.
“At most, the committee might want to think about procedural rules clarifying the elevated majority needed to entrench,” Knight said.
He said this would clarify that entrenchment was for matters that were “genuinely above politics”.
Knight said that “experts, parliamentarians, and the public” should have time to think through proposals to entrench things.
This view was taken up by other submitters like Debra Angus, the convenor of the public and administrative law committee of the New Zealand Law Society.
Angus said entrenchment was “not an appropriate topic to deal with during urgency”.
She said it was worth “having a pause and a chance for reflection”.
“The value of having a select committee process can’t be underestimated,” Angus said.
Some countries require two votes to be taken at various stages of the legislative process in order to entrench something. Fiji requires a select committee process.
The Clerk of the House, David Wilson, who also submitted, suggested that if there were a proposal to entrench something that it should have to come as the bill was introduced.
“That would enable the House to scrutinise a proposal from the start,” he said.
Many submitters were agreed that should anything change, it should change to slow Parliament down so that it cannot quickly entrench things in the future.
The committee also pondered the question of what should and should not be entrenched. Many submitters were open-minded to at least having a discussion about whether to broaden the scope of things that could be entrenched.
Green MP Eugenie Sage, whose proposal to entrench part of the Three Waters legislation sparked the controversy to begin with, sat on the committee and pushed submitters to consider whether the scope of entrenchment should be broadened.
Holding up a glass of water and gesturing at Knight, Sage noted that United Nations General Assembly had adopted a resolution that people had a human right to clean drinking water.
“Surely those fundamental things could also be part of our arrangements that are potentially entrenched. Some people would argue that that is as important as our civil and political rights,” Sage said.
Knight said he would “not disagree with that”.
“Although we’ve got to have the time for our community to have the debate about that and to identify that if we are to do that we are opening up a different constitution, much more akin to the Bolivian constitution or those where the rights to the environment are protected,” Knight said.
This particular clause, Knight noted, that what was entrenched provision related to the mode of delivery for water, not the right to fresh drinking water itself.
“I can’t say that public ownership is not a constitutional matter, because I’ve got a colleague from a different constitutional tradition in Latin America, he says ‘we entrench that all the time’, but it’s not how we do things here in New Zealand.
“I’m open to change and evolution of constitutional arrangements, but if we are going to be taking steps towards the Geoffrey Palmer-Andrew Butler-style of constitution where we lock everything down that will have ramifications for the everyday politics and the constitutional ecosystem,” Knight said.
Otago University Professor Edward Willis was also asked by Sage whether things like a right to drinking water be protected and whether there was a risk that the constitution became “frozen” if we did not address reform.
Willis’s written submission had, like many others taken the view that what is entrenched should be restricted to “basic constitutional precepts”.
To Sage, Willis said that the scope of entrenchment could be expanded to consider what she called “socio-political rights” but the case would need to be made to Parliament first.
“If particular political parties or activists want to expand the range of rights that are protected, they can make the case for that, try and find support for that, try and get a majority - have a discussion framing it as a constitutional issue and something that needs broad-spectrum buy-in,” Willis said.
“I think generally entrenchment should be used sparingly … but I don’t have a monopoly on what is decided as constitutional and what’s not, with all due respect, members of the committee don’t have a monopoly on that, it’s really for us to discuss and decide as a nation,” Willis said.
The Law Society was keen, however, that the committee actually draw a line between what should and should not be entrenched.
Professor Philip Joseph said the standing orders “ought to be amended so as to protect the legitimate sphere of constitutional entrenchment”.
“For that purpose a distinction must clearly be drawn - a distinction between constitutional process on the one hand and government policy on the other,” he said.
He said the purpose of entrenchment was not to safeguard a policy from a future government, but to protect the integrity of representative democracy.
Wilson said he did not support elevating policy provisions above politics.
“It is open to the House to decide what they are,” Wilson said.
He said that by codifying a rule that stated only constitutional matters could be entrenched, you would force the Speaker to decide what those constitutional matters were and were not.
“If we were to say only constitutional matters could be entrenched, someone would have to decide what they are. That would have to be the speaker in the current settings and that would put the speaker in a contentions position,” Wilson said.
What is constitutional and what is not is a political decision, and one that was therefore left to Parliament’s abundance of politicians.
“This is a political institution. You are all politicians - you do politics. That’s what happens in the House and I don’t think we should pretend otherwise,” Wilson said.
One of the only submissions critical of things that were already entrenched came from the Make it 16 campaign’s Thomas Pope-Kerr, who noted that while the entrenchment provisions were intended to safeguard the democratic system, the entrenched voting age could be regarded as barring participation in democracy as much as it safeguards the ability of people above that age to participate.
He said the then-leader of the opposition Walter Nash noted that this potentially strayed from democratic principles at the time the voting age was first entrenched in 1956.
Pope-Kerr said that disenfranchising people, which had been done in the case of prisoner voting, and could theoretically be done for other groups of people, could be done with a simple majority, whereas extending the vote to people would require a supermajority of 75 per cent.
“We don’t think that it’s right in order to take away the right to vote would require 51 per cent of Parliament technically … whereas to give the right to vote requires 75 per cent or a referendum and we don’t think that comparison is fair,” Pope-Kerr said.
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