What’s going on here?
“Entrenchment” is the Parliamentary process of “locking in” laws passed by the Government. Entrenched provisions usually require a 75% supermajority—instead of a simple majority of 51%—and can only be changed or removed later by another 75% supermajority. But in the case of the 3 Waters reform, a 60% majority threshold was recommended. Not coincidentally, Greens and Labour combined control 61% of Parliament. Entrenchment is rarely used and has previously been reserved for changes to electoral or constitutional law. It is unclear whether an entrenchment clause on this issue would hold up in court and the attempt caused an incredible stir among both left and right leaning experts, and in the press.
Many of Minister for Local Government Nanaia Mahuta’s critics suspect the reason offered for the entrenchment clause, so water assets could not be privatised in future, was a red herring. No party has suggested privatization, and a suspicious person could think the attempted entrenchment was a trial balloon: if accepted it could have led to an attempt in the near future to also entrench the co-governance provisions.
While the Green Party may have formally introduced the clause, it was done so in close collaboration with Mahuta. That may well have been political theatre (which some would call deception) as it appeared the Greens may have acted as a proxy. Regardless, both the Greens and Labour supported the measure so there is blame to go around.
It has been widely reported Mahuta may have failed to inform the Prime Minister or Cabinet, after Cabinet expressly decided against adding an entrenchment clause.
The clause was removed, but the episode proved embarrassing to Labour. This latest controversy, which Labour are packaging as an error, comes soon after the 3 Waters reforms were dubbed 5 Waters by critics as Mahuta changed the definition of ‘water’ within the legislation to expand the unpopular bill.
The excuse of protecting against privatisation is disingenuous
Green MP Eugenie Sage’s claims around public concern regarding privatisation as an excuse for working with Mahuta to include entrenchment ring hollow. Of more than 88,000 submissions, only 15 mentioned “strong support for the provisions which protect against privatisation be entrenched”.
Besides, there is a strong case that co-governance is de-facto privatisation. Co-governance means the loss of democratic control to unelected iwi reps who have exclusive rights to issue binding orders over the 4 mega water management entities. Many iwi operate as private corporations with sophisticated business structures.
There’s also the option for long term 3rd party contracts up to 35 years within the legislation, which has been called ‘quasi privatisation’.
The Government defends Mahuta
Why the Prime Minister and her Cabinet refuse to hold Mahuta to account is the source of much speculation among political commentators. Thomas Coughlan and Karl du Fresne say Mahuta as leader of the Māori caucus is too powerful to sack. Du Fresne blames a culture of identity politics with the Māori caucus positioned as a government within a government.
National Party leader Chris Luxon called for Mahuta to be sacked for violating Cabinet rules around decision making after the entrenchment debacle became known.
Prime Minister Ardern said Mahuta hadn’t defied her and deflected saying it was a Green Party move to introduce entrenchment.