Not How, But Why

Where privilege comes from versus why it endures

Photo by Martin Sanchez on Unsplash

Think of a bridge.

It was built with the materials of its time: arched steel, hand-driven rivets and timber pilings. Perhaps it was built for a nefarious purpose, like carrying an invading army across a river. But if it still stands, if it still allows people to cross safely from one side to the other, then the why of the bridge remains.

The value isn’t in how it was built. It’s in what it does. And the uses we still have for it.

Parliamentary privilege is that kind of bridge. And a lot of the current debate misses this entirely. People argue that it’s just an arbitrary imperial rule that we have no more need of respecting than sumptuary laws or powdered wigs.

And I keep writing about how wrong that is. I am sure you are all sick of it. Some people certainly have strongly held counter-views.

But the final point I’d like to make (for a while) is that we should never confuse a historical origin of a principle or institution with its enduring function.

Parliamentary privilege is about the power of the House of Representatives to regulate its own affairs. It determines what conduct is acceptable and enforces that collectively. Internal sovereignty, in other words.

It is only in this little pot of dirt that the flower of representative democracy grows and is tended. We uproot it at our peril.

Too much criticism of privilege has focused on how this idea came to exist. Because it arrived in New Zealand via Westminster, and because Westminster represents the colonial project, the argument goes, any defence of privilege is just the nostalgic fetishisation of procedure for its own sake.

That line of thinking is shallow. The real issue isn’t how parliamentary privilege arose. It’s why it continued to endure.

It endures because it is a condition of a deliberative body exercising lawful authority without external interference. That’s why it was so jealously guarded by the English House of Commons. And as I pointed out in an earlier piece, the same was true of the Iroquois Grand Council in North America and the Asanteman Council in West Africa.

None of those institutions were modern democracies. But they exercised authority because they could maintain their own order. That’s the principle.

Let us contrast these institutions with the Estates General of pre-revolutionary France. It never gained any real continuity, being summoned only at the discretion of the King - and not at all between 1614 and 1789. When it did meet, it did not have the right to regulate its own affairs and protect its proceedings. It operated entirely at the sufferance of the Crown, with no recognised authority to set its own rules or shield its debates from interference.

It was not a sovereign body. It was a stage set by royal permission.

What sustains practical sovereignty isn’t a founding myth. It’s the capacity to govern without being second-guessed or overruled from outside. If Parliament can’t do that, it isn’t sovereign.

Now, let me be clear: I’m no defender of Cromwell, the Roundheads, or even the Parliamentarian cause in the English Civil War. Quite the opposite. My instincts are more conservative than revolutionary.

But there’s a difference between disliking the origin of something and recognising its present utility. The Bill of Rights 1688, flawed and contingent though it was, marked the turning point where Parliament secured the independence to speak, deliberate and decide without being overawed by the Crown or the courts. That principle was worth keeping.

And it wasn’t made up out of thin air either. It formalised practices and expectations that had already been fought for on the basis of their inherent merit. It gave legal expression to the hard-won understanding that a representative assembly must be master of its own proceedings if it is to serve the public at all. There is nothing uniquely English about the core idea behind it all.

As it happened, New Zealand did inherent the English framework. And as our franchise expanded and our society democratised, the logic behind parliamentary self-regulation became stronger, not weaker. The House is now the elected voice of all New Zealanders, not just property-holding men. The whole public.

Here is the real issue:

There is a counter-view, of course. Some believe Parliament should submit to tikanga panels, external oversight bodies or other forms of non-electoral supervision. That is a coherent position, and its proponents are free to make the case for it.

But they should be honest about the fact that they are advocating for a competing constitutional model that entails a weaker role for representative democracy.

If you believe (as I do) that Parliament is the institution that best embodies the democratic will of the people, then Parliament must be able to govern itself. That’s not being “colonial.” It’s keeping the bridge open so representative democracy can keep crossing it.

Privilege may have come down to us through an imperfect route. But don’t mistake that for irrelevance. The bridge may have been built long ago, and for reasons we now reject. But it stands. It serves. It connects.

That is the why.

Tear it down, and you’d better be certain you’ve got something sturdier to replace it. Because without it, we don’t just lose a relic. We lose the way across.