The government starts this week hoping to fix its Three Waters entrenchment mistake as quickly as possible before the legislation becomes law.
The government returns to Parliament this week having received the considered opinion of the country’s leading constitutional lawyers on the entrenchment debacle who labelled the proposal contained in the Three Waters legislation a “dangerous precedent”. Once the Law Society added its voice to the outcry and described the entrenchment provision as undemocratic and unconstitutional, the government had little option but to signal the start of a humiliating backdown.
Hence Chris Hipkins, as Leader of the House, issued a press release on Sunday morning, in which he stated that the government will “fix” the Water Services Entities Bill this week by removing the entrenchment clause that was voted on during committee stages.
“It was a mistake to put the entrenchment clause in and the Government will fix the issue as soon as the House resumes on Tuesday,” Chris Hipkins said.
“We will do this by sending the Water Services Entities Bill back to the Committee of the Whole to remove the entrenchment provision.”
Chris Luxon described the situation as an “utter shambles” that suggested incompetence on Labour’s behalf.
“It just speaks to absolute chaos, I’d say, happening within the caucus and Cabinet management, that you end up not knowing about an issue like this and [it’s] actually poor implementation, poor governance and as a result we’ve got a shambles.”
Indeed the events of the last two weeks give the strong impression of a Cabinet that does not understand the details of these reforms. A Cabinet which has let Minister Mahuta go off on a frolic of her own. The result is an absurdly over-engineered Bill that has seen a multitude of concerns raised by the Auditor-General, opposition parties, councils, iwi and the public.
With regard to the entrenchment provision, it is difficult to view the adoption of the Green Party amendment as a ‘mistake’ in any formal sense. It is clear from Cabinet papers and the speeches given during last week’s committee stage from Minister Mahuta and Eugenie Sage that the entrenchment proposal had been thoroughly considered and the constitutional ramifications were known. There is no question that the vote was duly authorised and valid.
When questions began to be asked by academics, Minister Mahuta confirmed, through a spokesperson, that the change to the Bill was discussed with the Labour caucus in advance of the House sitting.
“We knew it was novel and may not pass the constitutional threshold, but it was still worthy of consideration,” Mahuta said, in an emailed response to questions from Stuff.
From the perspective of the Greens, they seem to reluctantly accept that the government has the numbers to unwind an amendment which they consider has merit as a matter of principle. They are critical of the use of urgency which led, in their view, to “rushed decision-making”. In a statement released yesterday, the Greens stated:
We would have welcomed a public conversation about this proposal at any point during the Parliamentary process for the three waters legislation. New Zealanders deserve this debate. Unfortunately the debate ended up happening under urgency in Parliament – a step that can lead to rushed decision making - which the Greens opposed at the time.
The reality is that when a government has an outright majority, the Committee of the Whole House stage of the legislative process is the only opportunity other parties have to present and have amendments voted on. This is regardless of how long a party has been talking about their ideas, or how much they’d have preferred there to be a deliberative public consideration of the issue.
Requiring a 60 percent majority of Parliament, or a straight majority in a referendum, would require any future government to build political support and consensus for any winding back of public ownership. This would uphold the very strong public support for public ownership by preventing a simple majority changing the law to privatise precious water assets.
Parliament’s Standing Orders (270) clearly provide for entrenchment and that Parliament must carry any entrenchment proposal by the same majority as in the entrenchment clause. That’s what happened with the Greens amendment.
There was very good reason for doing this – not only because it was the only opportunity in the process for us to amend the Bill, but so we can protect against New Zealanders’ justified scepticism about National and ACT’s intentions. National partially privatised our energy companies when it was last in government and ACT wants greater private involvement in the operation of three waters services.
We are disappointed with how this debate has unfolded this week. If anything it shows there is an urgent need for a public conversation on how to better protect core public assets - particularly water - from being sold off against the wishes of most New Zealanders. The Green Party will continue to fight for strong protection of the ongoing public ownership of our three waters assets, services and infrastructure,” says Eugenie Sage.
The Greens caucus will discuss the government’s proposal to return the Bill to the Committee of the Whole on Tuesday, and the expectation is that they will support that proposal given, in part, that the government and National already have the numbers.
The focus now is very much on cleaning up this mess as quickly as possible. But the clean-up is not without its own set of problems. It remains very rare to send a Bill back to a committee. It is usually reserved for situations where there is a genuine mistake or a question over which way a particular vote went. A vote in the House should have substance and weight - it should matter.
The government used the urgency process quite deliberately to jam through a complicated piece of legislation and thereby give the opposition parties the bare minimum time to digest the changes that came out of select committee, and the amendments that were proposed during the Committee of the Whole stage.
Not only did the process not give enough time for the amendments to be debated but there is a feeling that the entrenchment provision was introduced by stealth. A provision which constitutional lawyers have explained would have a profoundly detrimental effect on our constitutional arrangements. Questions remain about exactly how well briefed Cabinet and the Labour caucus was that entrenchment at 60% could be proposed and that Minister Mahuta was of a mind to support it with the party vote.
In any event, the process has exploded in the face of the government and they have been left with little choice but to return the Bill to committee with the intention of voting against an amendment which they voted in favour of only weeks earlier. By doing so, they weaken what a vote in Parliament means. They set an awful precedent of voting on the same amendment twice simply because the party leadership wasn’t paying enough attention to an important piece of legislation the first time around.
A year ago, when this government rushed through the Covid traffic light system, it received criticism from many quarters - including from the same constitutional lawyers and from the former Speaker of the House, Trevor Mallard. As that Bill headed into a third and final debate in the House, Mallard said the government, and wider House, had failed to better scrutinise the Bill.
“Urgency of this type used to be common. It isn't any more for good reason, it resulted in bad law,” he said.
Until Minister Mahuta addresses the House we cannot be sure how this issue will be fully resolved. Will entrenchment be removed and forgotten? Or will it be put into a standalone piece of legislation which can be subject to more lengthy debate?
Thomas Cranmer is a pseudonym. You can read his work here.