Does Content Count? Constitutionality and Enforceability of Entrenchment Provisions in Aotearoa New Zealand

Abstract

Recent commentary on the enforceability of entrenchment has signalled a marked shift from Diceyan orthodoxy. This emergent view suggests that Parliament is legally obliged to comply with enhanced procedural requirements, despite their ostensible contravention of parliamentary sovereignty. The precariousness of this understanding was highlighted by the Green Party’s proposal in November 2022 to entrench an anti-privatisation provision in the Water Services Entities Bill at a 60 per cent threshold. The amendment, brought via supplementary order paper, was passed under urgency. Following critical backlash, the Government swiftly denounced the proposal, readmitting the Bill solely to remove the entrenchment clause. In the wake of this commotion, this paper argues that two constitutional conventions have developed. These conventions require that entrenchment clauses uphold democratic fundamentals and set a threshold of a parliamentary supermajority of 75 per cent. Further, this paper contends that the enforceability of entrenchment provisions is predicated on their content: they must uphold the functioning of representative democracy. This is due to a change in the rule of recognition driven by more nuanced understandings of parliamentary sovereignty and its place in the constitution.