The Government will remove the contentious entrenchment provision in the Three Waters bill, which would have required 60% of Parliament to vote to privatise water infrastructure.
Leader of the House Chris Hipkins confirmed on Sunday the entrenchment provision would be removed this week.
“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,” he said.
Green Party local government spokesperson Eugenie Sage proposed the entrenchment clause, which was voted into the bill at the end of November while the House sat under urgency.
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Constitutional law experts slammed the use of entrenchment in this way, saying it would set a dangerous precedent.
ROBERT KITCHIN/Stuff
Leader of the House Chris Hipkins says it was a mistake to vote to entrench the anti-privitisation provision in the Three Waters bill.
There are only six other provisions in law which are entrenched, and they all require a super majority of 75% to support change. These provisions relate to elections and the term of Parliament. For instance, recent calls to lower the voting age are unlikely to gain the 75% super majority required to change the voting age.
Last week, Hipkins said he did not know Sage had proposed to set entrenchment at 60%. She had to do so to get her provision across the line, because the National Party did not support it.
He said he knew they sought National’s support, which could have allowed the typical 75% entrenchment, and so thought the provision wasn’t going to get across the line.
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Green Party local government spokesperson Eugenie Sage proposed entrenchment against the privatisation of water.
The entrenched provision related only to prohibiting the privatisation of water, rather than the entire Three Waters scheme.
Prime Minister Jacinda Ardern said the bill already protected against privatisation through other provisions and she did not support the use of entrenchment in this way. However, the Labour Party did vote to support it.
Ardern said last week was not familiar with Sage’s provision, as she wasn’t in the House when it was voted on. But Local Government Minister Nanaia Mahuta confirmed to Stuff that this was discussed in a caucus meeting which Ardern attended.
Dr Dean Knight, a constitutional law expert, said entrenchment should be rarely used.
The use of entrenchment to stop the privatisation of water could lead to other governments entrenching their own laws, he said.
“It’s not beyond imagination that a National-ACT Government may in the future decide to entrench a three strikes law on the basis that being safe is important policy,” he said.
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Dr Dean Knight is an administrative law lecturer at Victoria University in Wellington.
On Sunday, Knight said it was “heartening” to see that the concerns of constitutional experts had been listened to.
“Entrenchment of this clause amounted to accidental or disguised constitutional transformation,” he said.
Hipkins said the uproar following the Government’s support for entrenchment in the Three Waters bill had highlighted issues with the legislation process which should be addressed.
The Government would ask Parliament’s Standing Orders Committee, a cross-party group which scrutinises the way Parliament operates, to consider the rules for when provisions can be entrenched, he said.
