The Three Waters entrenchment scandal looks set to roll into this year's final week of Parliament. Further revelations could weaken an already embattled minister.
The end of the parliamentary year cannot come soon enough for this government. But try as it might to move on, it seems inevitable that more revelations will emerge during the course of this week which will keep the focus of attention on Minister Mahuta and the Three Waters entrenchment scandal.
As it is, more facts emerged last week which have helped to piece together the chain of events which led to the government voting en bloc to entrench the anti-privatisation provision contained in the Three Waters legislation on the evening of Wednesday 23 November.
On the day prior, 22 November, Labour held its caucus meeting and discussed entrenchment. Until now it has been difficult to determine how much detail was included in those discussions. However, it is now clear from answers provided by government Ministers in Parliament last week that SOP 285 was not discussed in that caucus meeting at all, and that entrenchment was discussed only generally by Labour MPs.
Prime Minister Ardern confirmed as much when she stated in the House on Wednesday, 7 December:
I've already been clear on this issue: caucus did not discuss this specific Supplementary Order Paper (SOP), because it had not been tabled. We had a general discussion on entrenchment …
This is consistent with the statement given by Minister Mahuta in the House the day before, on 6 December, when she stated:
While I won't disclose the specific discussions at caucus, there has been confirmed comments by the Prime Minister and myself that the matter of entrenchment was discussed more broadly.
In response to further questions from Simon Watts on 6 December, Mahuta also confirmed that she only learnt of the SOP when it was tabled during the committee stage:
The member knows that the SOP was tabled in the House during the committee of the whole House debate, so we were made aware of the details of the SOP at the same time he was.
It was a point of contention during question time that day and it saw Mahuta confirm that answer three times. In her final statement that day, she stated:
The SOP that was tabled by the Greens on the day was made aware to us on the day that it was tabled.
However during the exchange Mahuta never confirmed when “she” first became aware of the SOP. Instead she would only state when “we” were made aware of the details. Given that Eugenie Sage has already confirmed that she had correspondence with Mahuta’s office about the SOP, it stands to reason that Mahuta had at least some prior knowledge that the Greens would table an entrenchment amendment. The question is did Mahuta receive correspondence or advice from officials prior to the Labour caucus meeting on 22 November?
The timing becomes important because on 7 December Mahuta needed to correct her statements in the House that she had made the previous day about when the SOP was tabled. It appears that the SOP was not tabled on the day of the vote (23 November) but on the previous day:
As I said in the House yesterday, we became aware of Standing Order 285 when it was tabled in the House. Let me be clear; I made an error yesterday in the timing, because that amendment to SOP 285 was tabled in the committee … That SOP was tabled in the House after our caucus meeting on 22 November.
To cap off a humiliating week for the government in the House, Justice Minister, Kiri Allan confirmed on Thursday that Mahuta had not consulted with her about the constitutional ramifications of the entrenchment amendment.
Chris Bishop: Did the Minister of Local Government consult her about the entrenchment provision in Supplementary Order Paper (SOP) 285 on the Water Services Entities Bill, given the Cabinet Manual requirement to consult the Minister of Justice on all proposals affecting constitutional arrangements?
Kiri Allan: I did not have any discussions with the Minister of Local Government with respect to these provisions.
Thus we know the following:
Eugenie Sage was in correspondence with Minister Mahuta’s office prior to the SOP being tabled.
Minister Mahuta did not consult with any of her senior Cabinet colleagues specifically about the possibility of supporting a Green SOP that proposed entrenching the anti-privatisation provision with a 60% vote. That included not consulting with the Prime Minister, the Leader of the House, the Attorney-General or the Minister of Justice.
The Labour caucus meeting on 22 November had a general discussion about entrenchment but the details of the impending SOP 285 (or a 60% entrenchment vote) were not discussed.
No senior Cabinet colleagues of Minister Mahuta were aware that by virtue of a general discussion in caucus on entrenchment that they had agreed to vote in favour of the Green’s SOP. By contrast, Chief Labour Whip Dr Duncan Webb said he cast the vote for Labour MPs in accordance with the intention of caucus, stating, “I am happy I cast the vote in accordance with the wishes of caucus.”
Despite at first claiming that SOP 285 was tabled on 23 November, Minister Mahuta made a correction and confirmed that it was tabled on 22 November after the caucus meeting had finished. However Minister Mahuta did not alert any of her Cabinet colleagues to seek their advice in the 24 hours before the vote on the amendment occurred.
On the evening of 23 November, SOP 285 was debated in the Committee of the Whole House and Minister Mahuta stood up and gave her support for the amendment, stating: “But if people who are listening to this debate are concerned about having maximum protections at every level, then it would make sense to have a novel approach of an entrenchment clause if it were able to be achieved. We know that while this particular SOP may not pass the constitutional threshold, there is a moral obligation of people who believe that privatisation should not occur to support that particular SOP.”
Given these revelations, it seems that there will be continued focus on when Minister Mahuta received correspondence from Eugenie Sage notifying her of the intention of the Greens to table an entrenchment amendment, and if the Minister received any official advice either before or after the 22 November caucus meeting.
If the Minister had any prior knowledge of the potential SOP that the Greens intended to table and did not disclose that to her caucus colleagues it seems impossible for her to continue in her ministerial position even allowing for Ardern’s lackadaisical approach to enforcing Cabinet discipline.
Paragraph 2.56 of the Cabinet Manual sets out the standard of conduct expected of Cabinet Ministers:
In all these roles and at all times, Ministers are expected to act lawfully and to behave in a way that upholds, and is seen to uphold, the highest ethical standards. This includes exercising a professional approach and good judgement in their interactions with the public and officials, and in all their communications, personal and professional. Ultimately, Ministers are accountable to the Prime Minister for their behaviour.
For the moment Ardern is backing her Local Government Minister, even as the alibi becomes questionable. Further revelations may force her hand.
Thomas Cranmer is a pseudonym. You can read his work here.