Colin Craig is asking for the impossible

Colin Craig has just one thing he wants from National in any post-election deal. Unfortunately, it's something that National isn't able to give him.

A while back, I confidently predicted the following in the wake of the announcement that Laila Harre would lead the Internet Party:

... what is National now going to do about the Conservatives? How are they going to accomodate a party whose 2.65% at the last election will likely only get bigger this time around? Because I just don't think that they can afford to hope the Conservatives get to 5%, and I also don't think that they can afford to let those votes go to waste.

So, here's my prediction. There'll be very little criticism from National over the Internet-MANA Party's decision to use the electorate lifeboat rule to get over the representation threshold. (Not least because that rule still only exists because National vetoed the recommendation to remove it.) And at some point in the next month or so, Murray McCully will fall on his sword and accept his future in Parliament is on the National Party list. Whereupon the good voters of East Coast Bays will be informed of their duty to elect Colin Craig.

Well, when my information changes, I alter my conclusions. I'm no longer convinced that National will do any such deal with Craig and his party. In fact, I think it is now more unlikey than likely it will do so. Part of that changed mind is because of Winston Peters' announcement that he'll take on Craig in East Coast Bays if National try to gift that seat to him. I think Danyl Mclauchan's right, and that the spectre of Peters gaining considerable media attention as he campaigns against a (to put it mildly) unpredictable Craig is enough to give John Key and Stephen Joyce pause for thought before allowing such a battle to commence.

But in addition, the Conservative Party's announcement of their "bottom line" policy demand before supporting National post-election strikes me as a major disincentive to National ushering them into the House. As the NZ Herald reports Craig:

"The thing that we want, that will be required if a party wants our support, is that they are going to need to agree to a change whereby that the people of this country have the right on those rare occasions ... to tell the government where to go and what to do."

He later told reporters it may not be enough for National to step aside and give him an uncontested race in the East Coast Bays seat, where he is a candidate.

"We'd want to see referendum get across the line, that's the one thing that matters for us."

Conservatives would not go into coalition or enter a confidence and supply agreement unless this condition was met.

Mr Craig said: "We're not going to be unconstructive, but in terms of getting our full support, that is our bottom line. That is what we want to achieve."

Let's pay Craig and his party the courtesy of accepting that they really, really mean what they say on this matter. Unless National give them this policy outcome, they won't give any guarantee of support for it in office. The problem they face is that there is no way that National on its own (or even in conjunction with the Conservatives) can deliver what they are demanding.

Put aside for the moment the substantive arguments for or against binding citizen referendums. Maybe they're desirable. Maybe they'd be a bad thing. But there is no doubting that adopting such a measure would represent a fundamental change to the entire constitutional order of New Zealand. And fundamental constitutional changes shouldn't be made by bare-majority governments on a straight party line vote. It's constitutionally improper to even suggest that this happen - it would be like the Maori Party saying that their price for supporting a Government would be for that Government to legislate via a bare parliamentary majority to make the Treaty of Waitangi a "higher law" constitutional document that could be used to strike down other laws. I don't care whether you think that would be a good outcome; it would be a bad way to bring it about.

Now, maybe Craig doesn't mean that he wants National (with his Party's help) to bring in binding referendums directly. Maybe he wants the issue itself to be put to a referendum, so that the people of New Zealand can decide for themselves whether or not to make the change. If that is what he means, then he really should say so. Because what he's calling for at the moment - a fundamental constitutional change carried out by a bare majority in Parliament - is improper, and I just don't think National should for one minute think about agreeing to do it.

But let's say National isn't quite that principled. There's then an additional problem. I can't see how this binding citizens initiated referendum process would work in New Zealand. Explaining why this is so will take a bit of backfilling.

Other countries that have binding referendums - and there's actually quite a lot of them - do so because they are included in the nation's Constitution. In other words, the country has a written document that sets out the "rules for making rules" in that nation. In that document, the lawmaking powers of its legislature are specified, and in addition there is power given to the populace to make laws directly through the referendum process. And because the Constitution - the written document - is "higher" law, it stops the legislature from ignoring/overriding what is said in a referendum, because it says the legislature doesn't have the power to do so. And if the legislature exceeds its powers, the courts can pull them up for doing so (because the Constitution is a legal document, and the courts are in charge of ensuring it is followed).

New Zealand isn't like that. We have no written constitutional document of this sort. What we have instead are some fundamental constitutional principles that underpin how our system of government works. And one of those principles is "parliamentary sovereignty" (and at this point, anyone who took Laws 204: Public Law at Otago just collapsed on the ground and starting twitching). Put simply, our Parliament gets to make whatever laws it wants and whatever laws it makes are then binding on everyone in New Zealand (including the courts). What is more, every Parliament is "sovereign", in that it can revisit and undo any law that a previous Parliament enacted - there's no way for a Parliament of today to tell a future Parliament "you cannot pass laws on this issue", or "you must stick with our view of what the law should be".*

So, here's the problem. How in a system of parliamentary sovereignty can Parliament (in the shape of a National/Conservative majority) pass a law that says that the general public is able to, by referendum, bind future Parliaments in their lawmaking decisions?

Even if a National/Conservative Government were to use their majority in Parliament to pass a referendum law that says that if the public vote in the future for or against some measure Parliament "must" follow that vote, exactly how would this law be "binding"? If a future Parliament were to just ignore the result of such a referendum - as is the case with current Citizens' Initiated Referendums, for which no apparent policitical price gets paid - then what could be done about it? How, given our system of parliamentary sovereignty, could a court order today's Parliament to do what a past Parliament said it must do? And what could a court even order in such a circumstance? What odds a judge saying to Parliament "because an Act was passed a few years ago saying that you had to make a law if the public voted for it, you now have to draft, debate and enact this particular Bill on this particular issue."?

Let's concretise the debate for a second. Let's imagine that we had adopted "binding" referendums back in 1993, in the sense of an Act of Parliament saying "if the public vote on an issue, Parliament must do what they say". And people then demand a referendum on (say) the Government's part-privitisation of energy companies. And a majority (or even supermajority) then votes against the Government's policy. So what?

The Parliament in 2012 passed legislation to allow the partial asset sales to take place. So on what basis can an Act from 1993 - one that says "if the Public votes against something, Parliament must do it" - override that later parliamentary enactment? The rule around legislation is that if two bits are inconsistent, then the later in time enactment prevails. And so if today's Parliament wants to ignore what the Parliament of 1993 said it "must" do, then on what basis can a court step in to tell it that it is not allowed to do so? And if a court isn't able to do this, then in what sense is a referendum outcome "binding"?

Maybe, then, a law could be passed that says that if a majority (or supermajority, or whatever) of the people vote in favour of a particular bit of legislation, then that legislation enters into force as if Parliament had enacted it. That might be workable within our existing system - although, of course, it would require that referendum topics all be accompanied by fully drafted legislative proposals that can take effect straight away (as was the case, for instance, with the introduction of the Electoral Act 1993). And furthermore, Parliament would remain completely free to amend (or even repeal) that legislation as it sees fit in the future. So while the people might be able to make a law, Parliament is equally able to change or kill it. Which is, again, an odd sort of use of the word "binding".

So the only way to make referendums "binding" in the way that Craig and the Conservatives want is to somehow make the enactment setting them up a "higher law" than "ordinary" parliamentary enactments. Parliament would be legally unable to ignore a referendum outcome because the law establishing referendums places a limit on what all future Parliaments are able to do. But how can you (or, rather, a bare majority National-Conservative majority in Parliament) do so? Only by re-jigging the entire constitutional order and, in effect, creating a written Constitution that the courts may enforce against Parliament. And you can't do that by an ordinary Act of Parliament alone.

I understand that Craig and the Conservatives know what they would like to see happen. It may be a quite popular goal - like I say, binding referendum may or may not be a desirable thing to have. But I don't think they've given much thought to how their goal can be attained - and, in particular, the fact that this isn't in the hands of a bare-majority Government to confer (as is, for example, policy trophies like charter schools, Family Commissions, or Whanau Ora policies). Which, given that they've made it a non-negotiable, bottom line demand for the post-election negotiations, is a bit of a problem for both them and National.


* There's one wrinkle to this statement. If Parliament says that an enactment it has passed can only be changed in the future through some sort of special procedure (such as a supermajority or referendum), then future Parliaments are required to follow that procedure when amending that law. But in order to put such procedural protections on a piece of legislation when passing it, you must have the support of the same percentage of MPs as you require for future changes.