Tuesday, May 02, 2006

Entrenching MMP

This is something which has been bugging me for a while, so its time to vent: people keep saying that MMP is entrenched. It's in the government's nitpicking response to the Stavenhagen report, where they say

The Report recommends the entrenchment of the MMP electoral system (paragraph 54). As the Government has advised the Special Rapporteur, the electoral system is entrenched, requiring either a 75% majority in Parliament or a referendum to change it.

It's on the Elections New Zealand website on referendums in New Zealand, where they say

A binding referendum is one way to change entrenched legislation, like the use of MMP...

And it shows up in my comments, as in this recent example (with thanks to Graham):

I'm pretty sure National doesn't oppose the entrenching of MMP - If my memory serves it's already entrenched...

The problem is that none of this is true. MMP is not entrenched, and never has been.

Section 268 of the Electoral Act 1993 famously entrenches certain sections of that Act (and the Constitution Act 1986) against change. The specified sections cannot be repealed or amended except through public referendum or a 75% majority of all MPs. While the entrenchment is also famously weak (the entrenchment clause itself not being entrenched), it effectively puts Parliament on notice that their "sovereignty" only extends so far, and that there are things they are not allowed to meddle with without overwhelming public support (and ideally, consultation).

Six sections are entrenched:

  • s17 (1) of the Constitution Act 1986, which sets the term of Parliament as three years;
  • s28, which establishes the Representation Commission which sets electorate boundaries;
  • s35, which lays out the process by which the country is divided into electorates;
  • s36, which states how much the population of those electorates is allowed to vary from the quote defined in s35 (the "fudge factor");
  • s74, which states the qualifications of electors (who is allowed to vote); and
  • s168, which covers the method of voting.

The latter may sound like enough, but looking at it, it's not. All it says is that once you have your ballot paper, you go to the booth and tick a party vote circle and an electorate vote circle - and in cases where the ballot paper only has a party vote or an electorate vote, you tick it (this being necessary to cover by-elections, though it is clearly more general). Entrenching a section saying "if there's a party vote circle on your ballot paper, you can tick it" is in no way entrenching MMP.

Looking further through the law, the sections specifying the form of the ballot paper - that it shall have circles for both the party and electoral vote - are not entrenched. The sections specifying how the votes shall be counted and that totals of both party and electorate votes shall be reported are not entrenched. The section covering the election of list MPs is not entrenched. Any of this can be changed, by simple majority, without any public consultation. A government could unilaterally return us to FPP, replace MMP with a Supplementary Member or STV system, or even move to a completely proportional system with no electorate MPs (there being entrenched electorates, but no requirement that they actually get MPs) - and there's very little we could do about it except vote them out (assuming they leave us that option - because there's no entrenchment for the clause saying that the people we vote for are those that are elected, or even that there be a poll at all).

This simply isn't good enough. The electoral system is simply too important to allow even the possibility of politicians playing with it wholesale for their own advantage - especially when there are still unreconstructed FPPists out there who want to return to the "good old days" where they could win a majority of seats while getting fewer votes than the main opposition party. Even those who support such a system I think would agree that such changes should not be made without widespread public support, ideally indicated by a referendum. While not everything can or should be entrenched, we should protect the core of the MMP system - the election of list members, the fact that there are party votes - and the sooner we do it, the better.


> especially when there are still unreconstructed FPPists

the fact that people support an idea is a reason to entrench against it?
besides - are we certain that FPP would not win a referendum?

Posted by Genius : 5/02/2006 03:12:00 AM

Genius: No; the fact that they might change it without a referendum is what worries me. It's not a serious worry, but we should remove the possibility, because fundamentally we just can't trust the bastards.

Posted by Idiot/Savant : 5/02/2006 08:10:00 AM

Opposition to MMP come consistently from the same people and for consistently the same reason. MMP entails a tilt in the power balance from plutocratic and meritocratic elites and to a more accurate representation of the wishes of the voters as a whole. This opposition to more accurate democracy is never depicted honestly however. Rather, the elites who tirelessly strive to restore power to its "proper" centres talk endlessly of the "deadlock" of MMP, of the inability to act "decisively" (itself usually a code for a right wing business agenda) and of the "cost" of operating under MMP. The current 99 MP bill is simply another attempt by those who lost a significant degree of influence and power under MMP to discredit MMP and to then try to subject it to a death by a 1000 cuts. So I just see all this as another battle between those who support better democracy and those who want democracy as long as it gives them the result they want. To this extent, when I read Gerry Brownlee's recent speech I was struck by the ideological engine that seems to drive him is not a reformist but rather a reactionary agenda. National appears to be driven by a sense of deep grievance and the desire to "get even," and by a Pol Pot like urge to have a backward leaping revolution to a mythical better past where hopefully the Clark years can be expunged like a bad dream. It is incredibly simplistic. The biggest disappointment in all this though is the Maori Party, which increasingly appears to be a party more interested in special pleadings and special privileges for one group than a party that wishes to further the interests of New Zealand as a whole.

I can see a nasty confluence of the Maori Party (more Maori MP's and less MP's overall equals more power for them), ACT (wants more ability for plutocrats to engineer palace coups) and National (false populists who wish to see the white middle class once again returned to a place of primacy in the electoral process) all scheming to get rid of the 120 MP's and thus, inevitably over time, see the end of MMP itself.

What this all points to is the need to entrench the current electoral system within the context of a wider constitutional reform. And since I am a republican….

Posted by Sanctuary : 5/02/2006 09:00:00 AM

Okay I'll concede.

61 Politicians could f*ck with the electoral act and make MMP unworkable, but I still assert that the abolition of our PR system would require the repeal of s 168(1).

Just like the abolition of the Maori Seats would require the amending of s 28 (which is my argument for why the Maori seats are entrenched).

Posted by Graeme Edgeler : 5/02/2006 09:41:00 AM

Graeme: it wouldn't; if there's no party vote on the ballot, then s168(3) applies, and you just have an electorate vote.

As for s28, it simply says that certain representatives have to be involved in establishing the boundaries of Maori electoral districts. While it implies they exist, it doesn't state that they must, or that they have to be seperate from the general ones. Ditto the definition of the "General Electoral Population", which implies (but does not insist upon) the existence of a "Maori Electoral Population". But it seems relatively easy to change other portions of the law to set those references to null, making the entrenched sections referring to them ineffective without changing them in the slightest.

Posted by Idiot/Savant : 5/02/2006 09:55:00 AM

Just checking here.

The three main changes I've seen suggested for MMP are:

1) Lower the number of MPs (and, implicitly, increase the proportion of electoral MPs to list MPs).

2) Change the threshold a party needs to get MPs in (from 5% to 4% or to 2.5% depending on who you talk to).

3) Change the number of electoral MPs you need to get in before you get extra MPs based on proportionality (from 1 MP to 2 MPs).

It's clear the (1) could be done by a simply majority in parliament. It seems to follow from what you've said that (2) and (3) would only require a simple majority. Yes?

Posted by Icehawk : 5/02/2006 10:05:00 AM

Icehawk: Yes.

Posted by Idiot/Savant : 5/02/2006 10:24:00 AM

My preferred change to MMP - making voting preferential - however, would require changes to entrenched law.

Posted by Commie Mutant Traitor : 5/02/2006 01:09:00 PM

I drafted an act some time ago that would entrench all the key acts of Parliament

I could make the Bill more complex so it protects MMP only - leaving Parliament free to muddle with the other provisions of the Act.

In order to repeal any section of the Electoral Act under my Bill as it is now, you would need either a positive vote at a referendum (my preference) or a super-majority (I think it's 75%) in Parliament.

Posted by Lewis Holden : 5/02/2006 03:56:00 PM

We went to referendum for MMP. Does that not entrench it, such that another referendum is required to change it?

I would have thought that should have been an almost default rule for binding referendums.

Posted by Anonymous : 5/02/2006 03:58:00 PM

About referenda... the 50%+1 vote standard seems too low to me and certainly at odds with the 75% of MPs standard for overturning entrenched sttuff without a referendum given that under MMP there's supposed to be a fairly close correpsondence between popular percentages and %'s of the legislature.

Shouldn't on the one hand referenda be reserved for monumental changes on which there's a grand consensus (and certainly not the 53% MMP originally garnered) and, on the other hand, if not then shouldn't the majority in an MMP parliament (or perhaps 55% or 50% plus the # of overhangs to be save) be all that's required?

I suspect the 50%+1 vote referendum model drew sustenance from the distortions of popular percentages under FPP, but it's hard for me to see what wider relevance it has. (The people should be afraid of the people! It's true.)

Posted by Anonymous : 5/02/2006 04:34:00 PM

Lewis: IMHO entrenchment should be restricted only to the truly important sections, and I'm not sure that the administrivia or offences and whatnot need to be set in stone. These are implementation details which we may need to change in the future (e.g. updating penalties so they're not so laughable; implementing electronic voting if we were to ever trust it enough etc).

Sam: No, it doesn't. It may (and should) make politicians careful about making changes, but there's no automatic legal entrenchment.

Posted by Idiot/Savant : 5/02/2006 07:39:00 PM

I am complete agreement about the need to entrench MMP, but it should only be the general matters.
In 1995 Parliament voted to switch the ballot paper around before the first MMP election (so that the party vote would be on the left and thus appear as the 'first' vote, compared to Germany in which the party vote is refered to as Zweistemer, or second vote).
Things like that still have to occur, but the general idea of the system should entrenched. Seperating those will, however, be complex.

Posted by Frederick Aloysius Weld : 5/02/2006 07:44:00 PM

IS: Perhaps then (per Fred's suggestion) the key provisions could be moved to a different, entrenched Act? The main purpose of my Bills (as you know) was to codify the most important conventions and entrench the most important constitutional statutes. IMHO there's little point codifying anything unless it's entrenched.

Posted by Lewis Holden : 5/02/2006 08:30:00 PM

Stephen: The different threshold to overcome entrenchment is really an artefact of FPP, being originally enacted in 1956 and set so as to prevent a single party (even one which won by a landslide) from changing things unilaterally. But I'm quite happy to keep it, since it effectively enshrines popular ownership of the constitution and a fundamental distrust of politicians. Bluntly, it's our constitution, not theirs, and they shouldn't be changing the fundamentals without asking us first.

Posted by Idiot/Savant : 5/02/2006 10:37:00 PM

But, you know, given that (a) any rash actions could be used as election issues, (b) it would still take an Act of Parliament to change any non-entrenched legislation, which couldn't be done in a day, and (c) Parliament could still repeal the entrenchment clause with a simple majority, quibbling over the precise procedural methods to alter MMP seems rather daft to me.

Posted by Anonymous : 5/02/2006 11:18:00 PM

Anon: we know that the entrenchment clause is weak (Parliament having doubts about its ability to bind its successors - which just shows they're looking at it from the wrong end) - but it does raise a significant psychological threshhold against meddling, and one which should not be underestimated. And I think its vital to ensure the core of our electoral system is put beyond that threshhold.

As for "rash actions" being election issues, its far better to stop such actions before they happen rather than simply hoping for accountability afterwards.

Posted by Idiot/Savant : 5/03/2006 12:28:00 AM

I/S, thanks for your read of my (mildly tangential) remark. My own preference is, of course, to certainly keep the 75% of MPs (or delete MP-only reversal altogether) and make all referendum-based reversals of entrenchment at least 60% overall popular support plus a majority in 90% (say) of all electorates (the sort of standard that led electoral reform to fail in BC recently).... Currently that 51% of MPs can launch a referendum and carry 51% of the popular vote to change whatever... That's not sufficient entrenchment in my view (i.e., even setting aside that entrenchment itself isn't entrenched - I assume in fact that that meta-problem actually can't be solved: "These rules may not be changed except by doing x,y, and z, including this one" looks bad logically; somehow background agreement-in-practice to not abuse the system of rules would appear to be necessary.... but maybe I'm missing something).

50%+1 isn't enough of "us" to make anything truly "our constitution" .... I suppose there might be occasional political hot potatoes that could go to referendum under the 50%+1 standard but nothing entrenched should work that way (and I'd rather let the representatives do their jobs on the former in any case).

Posted by Anonymous : 5/03/2006 01:40:00 AM