Why BCIR is a dumb idea

Andrew Geddis can’t type my name, but I can not only type his and use it in a post but also link to his very good explanation of the ill-conceived idiocy of the cult of Colin Craig regarding binding citizen initiated referenda.

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.

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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.

Why can’t BCIR?be delivered as the Cult of Colin Craig demands?

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.

And I don’t believe they will. My view is Colin Craig is about to get the bum’s rush from national for breaking the “no dickheads rule”.

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.”?

The congentially stupid and single issue nutters who gravitate towards BCIR simply won’t understand that. The words are too big.

?[T]he 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.

Non-negotiable mean no deal. The only way to ensure a strong National led government is to party vote National. There won’t be any deal done with the crazies.

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