It is a fundamental principle of our representative democracy that the current Parliament should not be able to bind its successors. The use of entrenchment to protect a piece of law from being changed or repealed via a simple parliamentary majority goes against this fundamental principle. By entrenching a current government’s policy preference, we either reduce the ability of future governments to legislate or, more likely; we undermine the current importance that we grant to entrenched constitutional provisions.

The process by which the Government introduced an entrenched provision in the Water Services Entities Bill is just as concerning as its contents. The introduction of a clause into a bill with significant constitutional importance via a Supplementary Order Paper, under urgency and without previous public debate, is probably the worst possible way such a provision could have been introduced.

In the paper, Covid and our Constitution: How a Pandemic Affected our Body Politic and Culture, Research Fellow Alex Penk concluded, “…the biggest issues revealed by this survey relate to the culture that breathes life into [our constitution] and the potential for constitutional change without proper dialogue and deliberation.” The introduction of entrenchment in this Bill is a pressing example of a potential constitutional change without dialogue or deliberation.

Our informal constitution relies on conventions and norms to continue functioning. These norms only work when all in and around power continue to uphold them. It is concerning that those in Government saw little wrong in introducing this entrenching provision and have sought to defend it. It is also worrying that there was little reaction to the provision from the Opposition or wider media at the time it was made. Legal academics have driven the pushback to this provision, and it is heartening that there is still room for the academy to function as the “critic and conscience of society.”

Maxim Institute joins those calling on the Government to send the Bill back to the Committee of the Whole House so the entrenchment provision within the Water Services Entities Bill can be removed.

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