The use of entrenchment in law-making in this country has had a sound grilling at the Standing Orders Committee which is conducting its ongoing regular review of Parliament’s rules.
Entrenchment refers to a reserved provision in legislation, where more than a majority in Parliament is required in order to overturn that part of the law. New Zealand has very few cases of reserved provisions - they’re confined to constitutional matters, mainly electoral law, and usually set with a 75% threshold. But a hoo-ha over a rare use of entrenchment late last year has brought the issue to the attention of the committee reviewing Standing Orders ahead of the conclusion of the 53rd Parliament.
The National and ACT Party representatives on Parliament's Standing Orders Committee listen to evidence during their regular review of Standing Orders. Photo: VNP / Phil Smith
What happened in November was this: 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. That much was fine. But the amendment also entrenched that provision - for the purpose of making it harder to overturn. 62% of MPs had agreed to the change, and the new clause said that 60% would need to vote to change it back.
Technically it was legit under Standing Orders. But using such a technique to reserve a policy is considered constitutionally unwise, poor form and dangerous. The Government subsequently removed it, to the relief of Dr Dean Knight, a senior law academic from Victoria University of Wellington, who initially raised the red flag over the Three Waters entrenchment move. He and other constitutional law experts submitting to the Standing Orders Committee have urged that entrenchment only be used sparingly, something he fleshes out in this formal submission.
“I think it’s helpful to think about our constitution as an ecosystem. It’s in a delicate state of equilibrium, conditioned by a mix of laws, rules, convention and practice. And adding in something almost alien when nobody was quite expecting it risks upsetting things - especially those important conventions protecting our electoral infrastructure. And it also risks entrenchment potentially being weaponized politically. It also risks transforming and concretizing our ecosystem from a flexible and responsive political constitution to a more rigid, hierarchical legal constitution, and eroding our cherished principle of Parliamentary sovereignty,” Dr Knight told the committee.
Dr Dean Knight Photo: Supplied / LDR
Other submitters included the Legislation Design and Advisory Committee (LDAC), whose members are appointed by the Attorney-General. One of their key roles is to provide advice to government agencies that are developing policy and legislation. In its submission, the LDAC recommended that Standing Orders should be amended to:
- restrict entrenchment to constitutional matters;
- provide for focussed Parliamentary debate and scrutiny of entrenchment proposals, including opportunities for the public to provide input, and
- restrict entrenchment to cases where at least a majority of 75 percent of all members supports entrenchment.
Echoing these recommendations in their submission were members of the Parliamentary Counsel Office, the team known as “the Government's legislative advisors”. The Deputy Chief Parliamentary Counsel, Karl Simpson, pointed out that parliamentary sovereignty remains a core part of New Zealand’s constitution and “on its face, entrenchment runs counter to that principle”, therefore it should be used very carefully. There are also potentially adverse effects on the quality of law from overuse of entrenchment. In the Parliamentary Counsel Office’s submission they identified two of these.
“The first is that limiting the ability to amend legislation obviously and intentionally makes it more difficult to keep that legislation up to date and fit for purpose. The second is that overuse of entrenching provisions risks undermining the very protection that entrenchment is for. So if we use entrenchment for a frequent tool for the current majority then a subsequent majority might legitimately amend an entrenchment legislation despite the entrenchment. And that precedent effect undermines the entrenchment of the provisions that everyone currently agrees should be entrenched," Simpson told the MPs.
The Chief Parliamentary Counsel, Cassie Nicholson, said there would be benefit in codifying what the current level of consensus is around entrenchment, "both that it be at a sort of 75% level, so a level that does require a significant cross party agreement of the kind that would only be on the most enduring of measures" and "that it reflect the nature of the matter being entrenched be considered to be constitutional rather than a core policy matter", while public input on proposed entrenchment.
Public input
While submitters varied on whether entrenchment should be restricted to constitutional matters, they mostly strongly urged caution regarding the use of entrenchment in law-making, and argued for Standing Orders to provide for entrenchment only being applied with at least the 75% majority, or by a majority of MPs plus a majority at a referendum. In his submission, constitutional lawyer Graeme Edgeler also argues that proposed entrenchment is a matter which the public is entitled to have a say on, and that accordingly, all such proposals should be referred to Select Committee. He also recommends for requirement for clear prior notice of entrenchment proposals to be given rather than proposals slipping into play under the radar.
Furthermore, the Make it 16 movement has submitted a call for entrenchment practice to be more focused on human rights, with reference to its own campaign to have the right to vote of people aged 16 -18 recognised. Its submission said it’s well-overdue to revise the list of reserved provisions from 1956 and to remove lowering the voting age from that list.
“In Make It 16’s view there should be a sinking lid where rights can be expanded to previously disenfranchised New Zealand citizens or residents with 51% support in Parliament, but removing voting rights from New Zealand citizens or residents should be a reserved provision.”
Photo: VNP / Phil Smith
Environmental rights
The Green Party MP who advanced the amendment that was briefly, controversially entrenched last year, Eugenie Sage, was sitting in with the Standing Orders committee hearing submissions from Dr Knight and others. Considering general practice that entrenchment should only be applied to constitutional matters, Sage asked Professor Knight whether New Zealand’s system risked being too inflexible if there’s only a narrow range of matters that can be subject to entrenchment.
“Being above politics, we need water to survive. So a right to clean drinking water, the United Nations has considered it. It’s not part of the Declaration on Human Rights, but surely those sort of fundamental things could also be part of our arrangements that are potentially entrenched, because some people would argue that’s as important as our political and civil rights,” Sage pondered.
“I wouldn’t disagree with that,” Knight replied, “although I think we’ve got to have the time for our community to have the debate about that; and to sort of identify if we’re doing that, we’re opening up a different constitution much more akin to the Bolivian constitution or those where the rights of the environment are protected.”
The MPs in the Standing Orders Committee have plenty to chew over with the submissions being heard. Their proposals for changes to the rules typically are debated close to the end of the Parliament. But don’t expect to see entrenchment used again any time soon in the House.
