Legal Beagle by Graeme Edgeler


The Entrenchment Angle We All Missed

I have a basically finished 800-word article on the entrenchment issue that is now unneeded. Dean Knight’s tweets, my tweets, and the open letter of the group of legal academics published by the New Zealand Herald say almost all that needs to be said on the manner in which the House – hopefully briefly – attempted to entrench parts of the Water Services Entities Bill: in short, advancing a proposal on Monday, and voting on it on Wednesday, is not the way to go about this, however important the issue is: it undermines the moral force of entrenchment, and risked damage to New Zealand’s constitutional structure.

New Zealand entrenches very few things, only aspects of the electoral system that, if changed in particularly bad ways could mean New Zealand wasn’t really even a democracy anymore, we could probably protect a couple more (eg MMP itself). But this is not holy writ. Most countries entrench, in some sense, much more than New Zealand does: because they have written constitutions.

There is no magic in limiting entrenchment to the very specific things New Zealand has, and the argument over what matters deserve constitutional protection is one that is clearly up for political debate.
You just do not do it this way.

So instead of my post about why this was bad, I instead have this post, spurred on by a thread by Max Harris, and a recent column from Gordon Campbell, tweets about which helped me realise what we all missed.

Gordan and Max think public ownership of water infrastructure is really important, so important that protecting that ownership against transient future governments’ whims justifies a measure of constitutional protection. Others may disagree – I may disagree – but there is a solution that manages this, without the need for parliamentary trickery.

You can even get the same 75% protection that the Parliamentary term has. And this can all be done without undermining the moral weight of entrenchment. Indeed, doing this the right way could enhance the mana of entrenchment. You don’t even need that supermajority in the House of Representatives.

If you are someone who thinks public ownership of water infrastructure is so important that the government should act to entrench it, you do not need to convince National to agree with you. You need to convince the public (that shouldn’t be difficult: public ownership of water infrastructure is very popular!). Because there are two ways to entrench a law in New Zealand, and both have been used: the entrenched parts of the Electoral Act 1956 were entrenched by Parliament a supermajority of MPs (in fact, all of them) voted for it. But the Electoral Act 1993 isn't law because Parliament voted for it, it's law because the public voted for it: the entrenched bits of that are actually entrenched because there was a binding referendum.

If you are a Gordon or a Max, or a Eugenie, that’s your solution. Don’t settle for 60% protection. Go into the next election with the policy: if we cannot get 75% support in the House of Representatives to protect the continued public ownership of water infrastructure, we will hold a binding referendum on it, requiring a future Parliament to either agree by a 75% majority to sell water assets, or to come back to the public in a further binding referendum.

If you think the public ownership of water assets is crucial, you can seek to protect it without the need for Parliamentary manœuvres, while also protecting the moral weight of entrenchment. But you have to mean it, and you have to want it more than you want some rhetorical cudgel to swing against the opposition. Come back next week and fix this mess, but come back to voters next year and show you mean what you say.

18 responses to this post

Post your response…

This topic is closed.