Monday, November 28, 2022

Entrenching anti-privatisation

Last week, Labour put the House into urgency to push on with its legislative agenda. Part of this included the committee stage of the three waters bill, and something unusual happened: they passed an entrenchment clause protecting the bill's anti-privatisation clause - meaning that a future government would need the support of a 60% majority in the House, or a referendum, in order to privatise water assets.

Constitutional scholars were outraged as this eroded our constitutional norm of entrenchment. And Labour being Labour, it looks like they're doing their usual chickenshit thing and reversing course because someone criticised them, rather than standing up for what they voted for. And I think they should stand up for it, because this is an important battle and there's no better chance than this to establish a constitutional norm against privatisation.

In case anyone has forgotten, successive hard-right governments in the 1980's and 1990's betrayed Aotearoa and sold off state assets to their mates at bargain basement prices, looting the state to enrich a clique of connected businessmen. The privatisations were corrupt, many of the former state assets were then asset stripped and run into the ground, and several had to be bailed out (some multiple times), or bought back so that we would have functioning infrastructure. This exercise in right-wing looting established privatisation as a dirty word in New Zealand politics. Many New Zealanders regard it as a crime, and something that should not be allowed to happen ever again. That's difficult in our constitutional system, and our way of doing it is effectively a constitutional warning sign: an entrenchment clause. While on the face of it an entrenchment clause says "you can't repeal this without a supermajority", the clause can itself simply be repealed (or in some cases bypassed by altering things elsewhere). So its actual force lies in the respect politicians have for it.

(Arguably, we don't do this often enough. The BORA is not entrenched, and has already been altered by a government to gut the right to a jury trial simply to save money. MMP (as opposed to its FPP bits) is not entrenched either. Or the list of prohibited means of discrimination in the Human Rights Act. Governments can, have, and are going to fuck with these for piss-poor reasons, and we should make it more difficult for them to do so. But that's another post...)

Those constitutional scholars are worried that using entrenchment for a mere "policy" issue will erode that respect. Which misses the point: the question of whether public assets belong to the public or to the government of the day to be corruptly distributed to its cronies is a constitutional one. The entrenchment clause simply makes that clear and answers "never again". And in terms of respect, that gets established by doing the thing and making it stick. Norms become norms by becoming normal.

Those constitutional scholars are also trying to scare people with the prospect of future governments doing this for other issues. What about if National and ACT entrench a three strikes law? What about if they entrench low taxes? Whatabout? Whatabout? Whatbaout?

Well, what about it? Under Parliament's standing orders, entrenchment clauses must be supported by at least the level of support needed to overturn them (so if something would require a 60% supermajority to overturn, it needs a 60% supermajority to pass). Under MMP, governments have tended to be weak, with coalition majorities of 5 votes or less. Gaining anything beyond a bare majority almost always requires gaining the support of parties outside the governing coalition. The current government is unusual in that respect, with a single-majority party and an extra 10 or 12 votes likely to support its agenda. The only other example is Helen Clark in 2002, where a collection of centrist parties in the House potentially allowed large majorities to be assembled (and resulted in much more consensus policy than usual). Otherwise, it would mean working with the opposition. And I honestly don't have a problem with that. Under MMP, party strength in the House reflects voter strength at elections. If a government can build a coalition behind an issue to entrench it to require a 60% majority to overturn, then all power to them. We live in a democracy, we get the governments we vote for, and we live with the results. If we don't like them, then we vote differently next time, throw the bums out, and don't let them back in until they've changed their ways.

Yes, doing this by an SOP under urgency is not ideal (and that's on Labour for how they chose to do this stage of the bill). Ideally, the government would have introduced an anti-privatisation bill at the beginning of its term, with anti-privatisation and entrenchment clauses for all classes of public assets. But they didn't, so its left to the Greens to do this piecemeal as things come up. Anti-privatisation is supposed to be a core principle for Labour. If they chickenshit out now, they'll be confirming their weakness and lack of principle. But then, that seems to be Labour in a nutshell now, doesn't it?