The Green Party’s push to protect Three Waters assets from privatisation using a 60 percent majority threshold was an idea inspired by a university academic who is now leading the charge against it
A constitutional law expert responsible for “crystallising” the idea on how to protect Three Waters assets from privatisation says he would have submitted against the proposal if the public had ever been consulted on it.
The Prime Minister is now in the process of back-pedalling on an amendment to the Water Services Entities Bill that passed under urgency on Wednesday night.
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Under urgency in the House last week, Green MP Eugenie Sage got the votes needed, including Labour’s, to require a 60 percent majority for public water services to be privatised in the future.
Jacinda Ardern and Leader of the House Chris Hipkins claim they were unaware Sage planned to put up an amendment, which would break with the usual convention of a 75 percent-majority threshold.
Super majorities are usually reserved for electoral law, for issues such as the voting age.
The matter is now being urgently referred by Ardern to the Business Committee, to attempt once again to get a 75 percent majority.
Given National and ACT have said they won’t support it, Sage’s amendment will need to return to the House where Labour will be forced to vote against it, Newsroom understands.
While Ardern says Labour strongly believes public water services should be protected from privatisation, she says entrenchment should be reserved for special cases and Parliament should have a wider discussion about how to ensure that in the future.
The broader issue of when super majorities should be used and what threshold is acceptable will likely be referred to the standing orders committee, which is reviewing the rules Parliament operates under.
It was in a Newsroom Pro article on June 3 - just a week before the first reading of the Water Services Entities Bill - when Otago University Professor Andrew Geddis proposed a way for Labour and the Greens to set in place a smaller entrenchment if National was unwilling to budge and support a 75 percent majority.
Together, Labour and the Greens have 62.5 percent of the seats in the House, so they could put in place an entrenchment requirement saying this proportion of MPs is needed to privatise in the future. “There’s no magic around 75 percent,” Geddis told Newsroom.
“I didn’t expect this to be picked up. It’s not exactly what I’d like to be remembered for.” - Otago University Professor Andrew Geddis
Sage used that idea in her first reading speech on June 9, saying, if a super-majority can't be reached “we hope that the select committee looks at a mechanism for potentially 60 percent entrenchment, representing those parties that are prepared to support the bill”.
When a super-majority of 75 percent couldn’t be agreed to at the select committee stage, the Greens wrote an alternative view as part of the Finance and Expenditure committee report to the House.
It said: “The Green Party disagrees that entrenchment should only be used for constitutional matters and considers entrenchment with a 60 percent majority (given the lack of support from National for a 75 percent majority) would be appropriate as a check on future privatisation of water infrastructure.”
But it seems neither Labour, nor Geddis, thought Sage would follow-through with an amendment in the House at the next stage.
Given the select committee report didn’t have an entrenchment provision agreed to by all parties, Geddis told Newsroom he assumed it had “died a death”, and that his proposal wasn't a recommendation, but simply illustrating the point that 75 percent wasn't the only option.
When the Committee of the whole House debated the bill under urgency on Wednesday night, Sage put up her amendment to enforce a 60 percent majority threshold.
Newsroom understands Geddis’ comments in June had “crystallised” the idea for the Greens, who drafted the amendment after the select committee process, which then passed because of Labour MPs in the House at the time voting in support of it.
“What was novel was some of the thresholds that were used for entrenchment, that is not something Parliament usually has before it.” - Prime Minister Jacinda Ardern
Hipkins told media on Monday “the last I had heard; the proposal was for a 75 percent entrenchment which would have failed with only Labour and the Greens supporting it”.
“I wasn’t aware until after the fact that it had been lowered to 60 percent and I wasn’t in the House at the time it happened.”
Ardern said the amendment had occurred because Sage had put the amendment up “in real time” rather than consulting ahead.
“That is absolutely how within urgency and outside of urgency, amendments can occur. That is not any different to any other debate in parliament.
“What was novel was some of the thresholds that were used for entrenchment, that is not something Parliament usually has before it.”
Sage stands by the way she did things during urgency and told Newsroom if public water services can’t be protected from privatisation in this bill, she would hope it’s covered in subsequent legislation still to come.
Meanwhile, Geddis told Newsroom there are plenty of laws that entrenchment and majorities could be used for, but that doesn’t mean it’s a good idea.
He used Parliament being able to “legalise the murder of all blue-eyed babies” as an example, pointing out he was not advocating for it and nor was it a good idea.
Geddis described the process used by the Greens as “terrible” and is one of eight academics who signed an open letter objecting to the way “the amendment was introduced, the absence of a proper debate about its effects and the unfortunate precedent it may set”.
As important as water is, Geddis told Newsroom on Monday, “it’s difficult to see why this particular matter deserves this protection, or alternatively if this does then all sorts of matters do, and that risks opening up the possibility of future governments wanting to keep their preferred social policies in place against future majorities”.
He hopes the discussion by Parliament about the wider issue of entrenchment considers whether the provision ought to be part of a bill from the outset, so that any super-majorities go through all stages of debate and can’t be introduced at the last minute.
On his direct involvement in this particular majority being passed, Geddis told Newsroom he is used to academics being ignored.
“I didn’t expect this to be picked up. It’s not exactly what I’d like to be remembered for.”
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