Monday, November 28, 2022

Andrew Geddis: What happens when MPs ‘entrench’ legislation, and why does it matter?

A newly added provision to the three waters bill is a potentially momentous change to how law is made, explains Andrew Geddis.

On Wednesday night last week, something very unusual happened while parliament was busy making law. MPs from the Green and Labour parties banded together to make it much more difficult for a part of the government’s controversial “three waters” policy to ever be changed, or even removed altogether. Should future MPs want to smooth the way towards privatising the government’s new bodies for managing our water resources, they’ll have to get 60% support in parliament to do so.

That is unusual because, in the normal course of things, today’s MPs undertake their law-making job knowing that tomorrow’s MPs are free to come along and undo whatever they decide. That’s a key part of our constitutional set up. We make our parliament “supreme” in the sense that a bare majority of its MPs can enact any law they want on any subject they want. However, we temper that power somewhat by saying that a future bare majority of MPs, perhaps elected by future voters, can revisit any of those laws and change them to reflect what they now think best.

This approach is rooted in ongoing democratic accountability. Electing MPs entrusts them with overall law-making power, which we then evaluate at subsequent election. If we disapprove of how that power has been used, we can pick another lot of MPs, who can use their law-making powers to fix things up. Should the majority viewpoint change, then the law can easily change along with it. Parliament’s law-making power is vast, but it is always contingent.

Now, the keen eyed will have spotted the “normal course of things” wriggle room in the above account. For there is one part of the laws of Aotearoa New Zealand where this simple – even simplistic – account does not apply.

Back in 1956, MPs banded together and agreed to “entrench” a handful of legislative provisions that govern how our elections are to work. Things like the voting age, the length of the parliamentary term, the method of voting, and how electorates are drawn up all need more than a bare majority of MPs to change. Instead, altering these provisions requires either a super majority of at least 75% of all MPs (90 or more in our current 120-member parliament), or support from a majority of voters at a referendum.

Tim Shiels and I have discussed at some length how and why this happened. For those lacking the appetite for a 10,000-word academic article, basically it was a political deal to stop MPs from any party being tempted to game these electoral rules in ways that might help them stay in power. Because, if our system of parliamentary supremacy over the law depends on MPs being freely and fairly elected by the voters, you want to make sure that our elections are free and the rules under which they get elected are fair!

This particular entrenchment provision has been scrupulously abided by in the subsequent 66 years. The current debate over the voting age in the wake of the Supreme Court’s declaration of inconsistency reflects this fact. With National and Act publicly against any amendment, it is universally accepted that this law simply cannot change (for now, anyway). Even if all the 76 MPs from Labour, the Greens and Te Pāti Māori combined to support lowering the voting age for parliamentary elections, that still falls short of the required 90 MP threshold.

Indeed, our Supreme Court has hinted that the entrenchment provision imposes a formal legal constraint on parliament’s law-making powers. Should a bare parliamentary majority ever try to change one of the entrenched provisions, the courts very likely would refuse to recognise that purported amendment as being “law”.

Which brings us back to last Wednesday night’s parliamentary events. During the committee stage debate over one of the bills to put in place the government’s three waters reforms, Green MP Eugenie Sage proposed (and the house then adopted) an amendment to entrench the protections against privatising any of the newly created “water services entities”. Basically, the support of 60% of MPs (or a majority vote at a referendum) will now be needed before any future parliament could change the law to remove or dilute these protections.

Why does this matter? Well, first note the 60% threshold for future change. That number doesn’t reflect a principled decision on the appropriate level of parliamentary support for change. It just happens to be the current number of MPs from the Green and Labour Parties who were prepared to support Sage’s amendment. Because, parliament’s rules say that an entrenchment provision in a bill must be supported by at least the same number of MPs as it requires for future amendments. Had 70% of MPs supported including the entrenchment provision, the threshold would have been set at this level.

Second, and perhaps more important, note what this entrenchment protection applies to. Certainly, future ownership of water matters. Whether it lies in public or private hands is a really important question of policy. However, it is still just a question of policy.

It’s different from the provisions entrenched in the Electoral Act, which go to core matters regarding the fairness of the process that chooses who governs the country. We can’t really trust a bare majority of MPs, elected as they are and so eager to win and keep political power, to make rules here. Or, at least, there will always be the suspicion that any rules they make will reflect that bare majority’s personal, partisan interests instead of their best considered view of the right thing to do.

Is that then really the case with ownership of water service entities? Let us imagine that in some future world a bare majority of MPs hold the policy view that private entities can better manage and run these services. You may think that’s a stupid policy. You may even think it a potentially disastrous one. But it’s still a policy view much like someone might hold on (say) the right level of income tax, or the fairest way to deal with climate change, or the restrictions that should apply to public authorities when taking private property.

Why, then, should we say that future MPs can only act to make it easier to privatise water where a super-majority of 60% of them want to do so? What makes this one particular policy issue of such importance that it requires a different, much harder parliamentary law-making process than any other?

The point being, what happened on Wednesday was a potentially momentous broadening out of an existing wrinkle in our system of parliamentary governance. Since 1956, our law has said that some key bits of our electoral system are so at risk of partisan gaming that we can’t trust a bare majority of MPs to decide them. Now, the amended three waters legislation also says that there is a basic policy issue that is so overwhelmingly important as to justify today’s MPs placing handcuffs on tomorrow’s MPs when dealing with it.

If that is indeed the case, what other sorts of issues might a supermajority of MPs think rise to that level? And, in this brave new world, what happens to our system of parliamentary law-making, based as it is on the assumption that the view of the current majority is always subject to revision by the future’s?



Phil said...

Jacinda Ardern claims she was unaware of the late entrenchment provision. These are crazy times.

Anonymous said...

"We can’t really trust a bare majority of MPs, elected as they are and so eager to win and keep political power, to make rules here. Or, at least, there will always be the suspicion that any rules they make will reflect that bare majority’s personal, partisan interests instead of their best considered view of the right thing to do."

This government is doing exactly that, with three waters. This legislations has all the hallmarks of personal interests. You only have to look through the appointees and what you have to know or be to get a job in the project.

You are right. We really cannot trust them or this law. They are disrespecting our democracy and in doing so they are denigrating it for personal reasons.