Parliament began its final sitting block of the year this week by cancelling a reservation it made two weeks ago. Or was it that they refilled a trench they had dug? They did climb out first though.
Anyway, it seemed to confuse many. Thankfully, we are here to muddy the waters further by explaining.
Nanaia Mahuta is the minister responsible for the Bill in which a clause was reserved. It's fair to say she hasn't had an easy week or two. Photo: RNZ / Angus Dreaver
Christmas is so close, you can almost taste the nutmeg. But in Parliament MP’s are not yet chugging back eggnog because the Government has a few things it wants finished before the Turkey gets it.
This week is the final full week that the House will sit and (after the usual first business - and the third reading of a treaty settlement bill), it pushed forward by undoing something they did last time they met.
The House did something small but highly significant on Tuesday two weeks ago. Something that few noticed at the time, not the journalists (yes, that includes us), or opposition MPs, or indeed the Government (who seemed genuinely surprised).
When public attention was drawn to it, it was by Dr Dean Knight, a senior law academic from Victoria University of Wellington. He had finished year-end marking and was catching up on his reading …of recent legislation.
He gets the award for paying more attention than the combined media.
Dr Dean Knight, Associate Professor of VUW's Law Faculty. Photo: Victoria University of Wellington
What he noticed was this:
Two weeks ago, during the committee stage of the Water Services Bill (when MPs focus on details and make final tinkering adjustments), an amendment suggested by the Green Party was accepted - an amendment that added a clause to ban the privatisation of water assets.
And that’s fine - but the amendment also reserved that provision - for the purpose of making it harder to overturn… something often referred to as entrenchment.
62% of MPs had agreed to the change and the new clause said that 60% would need to vote to change it back.
Yes, that is also legal. But using such a technique to reserve a policy is considered constitutionally unwise, poor form and dangerous.
Why is it bad? I asked the Leader of the House Chris Hipkins to explain.
Photo: RNZ / Samuel Rillstone
“We have very few reserved provisions in New Zealand legislation. A reserved provision is where you require more than a majority in Parliament in order to change it. So in the case of electoral law, for example, there are some reserved provisions.”
The MMP voting system and the voting age are examples. Those are significant constitutional matters and all have a 75% requirement to change them (or a public referendum, but let’s keep it simple). Back to Hipkins:
“The Standing Orders of Parliament allow for reserve provisions to be put in place… No one has, to my knowledge, [previously] attempted to put in place a reserved provision that’s less than the [75%] supermajority… but that is what happened during the Water Services Bill.”
“The Green Party put forward an amendment to that bill, that would create a reserved provision, so that you would require 60% or more of MPs to vote in favour of any privatisation of water assets.”
And here is where it gets tricky when it is used for non-constitutional things, For example, policy things. No matter how important a party thinks they are.
“Let's just imagine a future National-ACT government deciding that they would put reserved provisions around controversial legislation that they were sponsoring, let's say… they reintroduced three strikes legislation, let's say they could summons a 55% majority in Parliament. So… any future government will need 55% In order to change these provisions.”
“Then a future Labour-Green Government said ‘we're going to repeal it’ and they campaigned on repealing it, but only managed to summons 54% of the vote in the next parliament, they wouldn't be able to do that.”
“It creates some interesting challenges for Parliament. I don't think anyone wants to see a statute book that's full of all of these different thresholds… It's uncharted territory. Typically, reserved provisions have been 75% or more. I.e. they've had overwhelming support within the House.”
The constitutional shorthand for not getting into this problem is that a parliament cannot ‘bind’ a future parliament.
Chris Hipkins put it like this:
“There's a basic premise that underpins the entire parliamentary system of democracy in New Zealand -- that the majority should rule, and so one government shouldn't be bound by the government that came before it.”
This concept is why reserved provisions are always enacted inside a separate clause that is itself not entrenched. The clause that entrenches the other clause can be overturned with a simple majority.
“So there's a thing called 'double entrenchment' where you would entrench the entrenchment. In reality, I don't think that's ever been used in the New Zealand Parliament. While there might be particular provisions in an Act, in this case, the Electoral Act that are entrenched, that wouldn't stop a government repealing the entire piece of legislation and putting something new in place instead.”
But before anyone gets crafty ideas… Chris Hipkins didn't stop quite there.
“In reality, though, I think that would be again, uncharted constitutional territory. And I think any government would be a little bit circumspect about heading down that road.”
