Three Waters: What’s at stake and what happens next in constitutional spat - Thomas Coughlan

OPINION

On Tuesday last week Deputy Prime Minister Grant Robertson remarked on lowering the voting age to 16 that he’d previously supported the idea of greater civics education in schools along with a lower voting age.

This is hardly a controversial view, and has been made by multiple MPs - indeed, the Prime Minister herself has made similar remarks.

But MPs pondering greater civics education for kids had egg on their faces just days later when a Parliament of adults upended decades of constitutional norms and entrenched part of the Three Waters legislation apparently by accident - without anyone (bar the MPs proposing the entrenchment) noticing.

Jacinda Ardern and her Leader of the House, Chris Hipkins, have admitted to being unaware of the decision to vote in favour of entrenching an anti-privatisation clause at 60 per cent until after the fact.

In fact, most of the country was unaware of the significance of this until a series of tweets from Victoria University Associate Professor of law Dean Knight over the weekend.

To her credit, Ardern has not dug in.

She’s clearly realised a mistake has been made and that the convention of only entrenching limited, specific, constitutional matters relating to elections is one worth preserving. Entrenching specific matters of policy could, and probably would, lead to weaponised entrenchment, which would itself probably lead to the wholesale end of entrenchment and the protection it provides for those handful of electoral provisions.

No one (bar, bizarrely, the Greens and Nanaia Mahuta) wants that on their hands, least of all Ardern, who, it should be remembered, upheld these norms twice in the last month. Last week, she signalled she’ll abide by the entrenchment of the voting age, and earlier in October, she compromised with National over reforming the Māori electoral option, which was necessary to reach over the entrenchment threshold.

Ardern is currently weathering the embarrassment of admitting the criticism made by legal experts was correct and admitting she had no knowledge of what her party had been voting on in Parliament.

But there’s a limit, she won’t admit the lawmaking was sloppy, when it manifestly was.

The Government has referred the matter to the Business Committee, which will discuss a fix, and discuss the principles of entrenchment more broadly.

This is slightly ridiculous.

All that really needs to happen is for the bill to be referred back to the Committee of the Whole stage, where the offending clause could be scrubbed.

The Business Committee move is a face-saving climbdown for Labour.

It allows the Government to look like it’s musing over the ins and outs of entrenchment rather than spending time discussing what actually happened: poor party communication leading to the accidental undermining of a constitutional norm that it probably would not have voted for had more senior MPs been aware.

Parties make mistakes, but admitting a screw-up seriously undermines Labour’s electoral pitch for next year: that it’s an experienced, steady hand for tough economic times (it should be remembered though, that no one from National or Act picked up what had happened until Knight’s tweets).

The Business Committee gambit is an elegant solution, but makes Ardern look slightly ridiculous for the fact she’s unable to say what more or less anyone can see. National knows it; Shadow Leader of the House Chris Bishop has gleefully and accurately pointed out that fixing the problem has nothing to do with the Business Committee.

National’s mirth isn’t a bad thing.

Our political culture relies on parties being able to crow to voters when their opposite numbers screw up, but National should be careful. If Labour makes a genuine effort to fix the mistake, it should facilitate that.

Now’s not the time for brinkmanship - and it’s unlikely to come to that.

Labour does not want part of its legacy to be an accidental but corrosive undermining of the constitution and National wants to preserve the ability to repeal the Three Waters legislation without having to hold its nose and plunge into the turgid constitutional waters by using a bare majority to repeal the entrenching clause itself - a bold but dangerous constitutional move.

The irony here is that National would have a strong mandate to repeal the entrenchment with a bare majority. It campaigned on a Three Waters repeal, and 60 per cent of voters in a November Taxpayers’ Union-Cura poll said they did not support the reforms.

While Labour went to the last election with a Three Waters reform programme, the unpopular details of the four water entities that form the heart of this legislation, were revealed afterwards. Its electoral mandate for these reforms is thin, making the entrenchment all the more galling.

Still, mandate or no mandate, Labour and National have little to gain from tit-for-tat constitutional legislating (a fact that probably helps keep our constitutional arrangements fairly safe).

It’s not clear what will come from the Business Committee. National, Labour, and Act aren’t in the mood to change our constitutional arrangements. They work fairly well at the moment, and neither of those parties is keen on chewing up valuable political bandwidth by discussing the principles of entrenchment.

Labour, in particular, is keen to emerge from this crisis as a party that sticks up for and strengthens our constitution, rather than a party that undermines it (or even worse, a party that undermines it by accident).

One possible outcome is a referral to the Standing Orders Committee, which is currently doing its triennial review of the Standing Orders, the rules that govern Parliament.

Ardern’s comments on Monday suggested a possible off-ramp. Currently, Parliament’s standing orders allow Parliament to entrench a provision with the same amount of support that it can muster for it in the House. Labour and the Greens could muster 60 per cent (slightly more actually) of the votes in Parliament - and could therefore entrench at 60 per cent, so that it would require a successful referendum or 60 per cent of MPs in Parliament to repeal.

On Monday, Ardern described this as a “novel” approach to entrenchment. A possible way out is to have the Standing Orders review look at updating Standing Orders to firm up what is almost a convention around entrenchment: that it is 75 per cent or nothing.

This too is a partial fudge. Standing Orders are reviewed by every Parliament and adopted by the subsequent Parliament: the point of this constitutional snafu, that no Parliament can bind another, applies to them too.

But this episode suggests such a change might be worth looking at - although it would be wise if some of our constitutional thinkers had a bit of time to ponder such a change before our speedy Parliament went ahead with it.

The 75 per cent entrenchment is a hangover from our bipolar, first-past-the post Parliament when getting 75 per cent support was about as good as getting 100 per cent. The norms around entrenchment boil down to the importance of having some things so sacred that they could only be changed with broad consensus. It’s a tradition worth preserving, but Act and National would be within their rights to block such a change. This episode is a result of sloppiness on Labour’s part - Labour should fix it, elegant off-ramp or not.

And a note on the Greens. Green MP, and former conservation minister Eugenie Sage, is steadfast in her belief that entrenching anti-privatisation measures is the right thing to do.

This doesn’t have the support of most constitutional experts, but one wonders, if put to a poll, whether it would have widespread popular support (the “no” vote in the 2013 asset sales referendum mustered 67.3 per cent - making it relatively, though not hugely, popular).

There is a curious problem with asset sales. A key point to the current constitutional spat is that no Parliament can bind another. Should National win the election with a mandate to repeal Three Waters, no legislative trick by the current Parliament should be allowed to stop them.