Our politicians should actively support and maintain democracy, and must not undermine it.
We do not have a single supreme legal document called “the New Zealand Constitution” (“with a capital C”). Instead we have statutes, Orders in Council, Letters Patent, court decisions, Parliamentary Standing Orders, principles of the Treaty of Waitangi, traditions, and conventions that collectively make up our New Zealand Constitution.
Parliament can change any of our constitutional statutes – thereby amending our Constitution – with a simple parliamentary majority.
To prevent abuse of this amending power a small number of statutory provisions - only six - are “entrenched”. They can only be changed by a parliamentary majority of 75 per cent, or by more than 50 per cent at a referendum. They relate to: the term of Parliament (three years); establishing a Representation Commission (which draws electorate boundaries); dividing the country into general electorates, with a 5 per cent population margin; setting a minimum voting age (18 years); and guaranteeing a secret ballot.
These are the constitutional provisions that protect us from dictatorships, and from “long parliaments”; that prevent gerrymandering electorate boundaries to one party’s advantage; and that maintain voter confidentiality and protect voters from retribution for the way they vote.
All are fundamental to our democratic rights; and entrenchment ensures they can only be changed with the consent of all major political parties, or by referendum.
Nearly two-thirds of a century ago (1955), Ralph Hanan, a much admired Minister of Justice, said that “[history] has shown that the only possible way to satisfactorily make a major change in the electoral laws is where you have an element of agreement between the political parties”.
This means that, under well-established constitutional practice, accepted by all major parties, entrenchment has been strictly confined to provisions that protect the fundamentals of our parliamentary democracy. It is inappropriate to try to entrench a policy outcome, regardless of the support it enjoys at a particular time.
Parliament’s Standing Orders require that a proposal for entrenchment can only be passed by the same majority that “would be required for the provision to be entrenched”; thus guarding against attempts to reduce the entrenchment threshold to a lower level that is temporarily achievable in a passing) parliamentary context - in the recent example, from 75 per cent to 60 per cent.
It is well-established that parliament cannot bind a later parliament. The only exceptions are the entrenched provisions.
A great constitutional lawyer, AV Dicey, wrote that the legislature “cannot … bind itself as to the form of subsequent legislation”.
And the Law Society President wrote to Minister Mahuta, entrenchment provisions are reserved for significant constitutional matters “outside the scope of general policy debate”.
Sir Jim McLay. Photo / Greg Bowker, File
That’s why the entrenchment clause that was briefly slipped into the Three Waters Legislation, was undemocratic: it proposed to “bind the hands of future governments on a contestable policy position”. In short: We entrench democracy, and we entrench democratic practice - we do not entrench policy outcomes (no matter how widely those outcomes might be supported).
If anything emerges from the recent attempt to secure a brief political advantage by inserting an entrenchment clause into the Three Waters Legislation, it should be formally recognised that proposals to entrench statutory provisions must be strictly confined to measures that protect our parliamentary democracy.
The Government was forced to back down on the entrenchment clause it had slipped into the Three Waters Legislation; but it hasn’t given up on the issue. Ministers Hipkins and Robertson have foreshadowed changes to the constitutional conventions relating to entrenchment (Hipkins - “It’s also important Parliament strengthens the rules around entrenchment generally to avoid this in the future.”). They have not abandoned their attempts to find ways to bind future parliaments, and plan to refer the question to Parliament’s Standing Orders Committee.
Minister Mahuta (who bears a heavy responsibility for the recent constitutional debacle) has told Parliament that she awaits guidelines from the Committee on the use of entrenchment “for matters which are not constitutional”.
None of this is necessary.
There must be active resistance (and not just from politicians) to any attempt to manipulate entrenchment beyond its fundamental purpose of protecting our democracy.
Following Ralph Hanan’s 1955 precedent, changes should only be agreed by a broad-based parliamentary majority. There is no need to “strengthen” the “the rules around entrenchment”.
All that is required is that long-established constitutional conventions be properly observed - and not abused for short-term political advantage. That is how we protect our democracy.
Sir Jim McLay is a former deputy prime minister, attorney general and ambassador to the United Nations.
