Roaring about urgency, silent about authority

Of All the Principles of Democracy, This Is the Bedrock: Parliament Must Rule Itself.

On 4 January 1642, King Charles I entered the House of Commons with armed guards to arrest five members for treason. Addressing the Speaker, he said, "Mr Speaker, I must for a time make bold with your chair."

The Speaker, William Lenthall, duly vacated it. Calling first for one of the members, and then another, the King was met with total silence. He asked the Speaker where they were. Kneeling, Lenthall replied:

“May it please your majesty, I have neither eyes to see nor tongue to speak in this place but as this House is pleased to direct me, whose servant I am here; and I humbly beg your majesty's pardon that I cannot give any other answer than this to what your majesty is pleased to demand of me.”

That single sentence captured the very heart of parliamentary privilege: that the House governs itself, free from the interference of the King, the courts or the rabble.

Because of this dramatic scene and lineage, you might think of parliamentary privilege as little more than a peculiarity of English constitutional history, and therefore our Britannic inheritance.

But the rationale behind the privilege is not a cultural artefact of Westminster. It is the natural outgrowth of any system where authority is exercised through deliberative bodies. When representatives meet to exercise sovereignty, they must control their own proceedings, set their own rules and determine the boundaries of acceptable conduct within their forum.

That is, in short, what parliamentary privilege is really about. It’s not (just) about immunity from defamation suits or consequences for breaching suppression orders. Those are incidents of the broader idea: that it is for Parliament to oversee and regulate its own affairs and the conduct of its members.

The particular terminology and procedures we use here may have been transmitted from the UK, but the purpose of the privilege naturally flows from the necessities of collective decision-making.

The Iroquois Great Council (long predating European contact) offers an example. Composed of fifty sachems representing the confederated nations, the Council was not answerable to any external figure or force in how it conducted its internal deliberations.

Protocols for speech, order and discipline were determined by the Council itself in accordance with the Great Law of Peace. Military leaders and religious authorities could not interfere in these proceedings. The authority to regulate speech and behaviour within the council chamber belonged solely to the council, as a reflection of institutional self-government.

Similarly, the Asanteman Council of the Ashanti Kingdom in West Africa maintained its own procedural order independent of the king or other offices. Chiefs were accountable to their peers and the people through established customary processes, but once in Council, the body itself regulated how business was conducted and how its members spoke. Chiefs could be “destooled” for violating oaths or abusing their role, but not for political speech within the Council—unless the Council itself deemed it a breach of duty.

And so the claim that parliamentary privilege is a colonial construct is lazy and false. It is a recurring feature of functional constitutional orders wherever they arise. A particular expression took deep root in England, but only as an outgrowth of natural law and institutional necessity.

Wherever people elect representatives to govern, those representatives must be able to regulate themselves. Without that power, the assembly is hollow. No legislature can be truly representative if its members are not subject to the same rules and bound to one another by common discipline—from within, not without.

Why is this? Francisco Suárez, a leading figure in classical natural law theory, argued that a legitimate political community must possess the internal authority to govern its own members and procedures. Institutional supremacy is not merely about external independence, but internal unity—and that unity can only be preserved by the institution’s own capacity to regulate its affairs and make and enforce its own rules.

In his view, a legislative body that cannot protect its deliberative processes from external interference or compel accountability from within is already collapsing into illegitimacy.

So we are not talking about some archaic exception or convenience, but something at the very heart of parliamentary sovereignty itself. The ability of Parliament to determine its own procedures, protect the speech of its members and discipline breaches of its order is essential to its capacity to function as a sovereign institution.

This is the moral logic of parliamentary privilege. It is a necessary condition for legitimate representative government in a constitutional order. Not because MPs are above the law, but because the House is the only lawful judge of its own proceedings.

What is the alternative?

Historically, any assembly that could not govern itself was governed by others. Sometimes it was the King (Early Modern France), other times it was the clerics (Iran today), or the army (Thailand), or the mob (Ancient Rome). And if some New Zealanders got their way, the New Zealand Parliament would be governed by consultants and academics.

The most determined assault on parliamentary privilege in recent years has come from Te Pāti Māori. Since regaining representation in 2020, the party has repeatedly denied the authority of the House to govern its own members. Sometimes the transgressions have been so minor as not to really bother with (protesting neckties), and other times they have been more serious (disrupting parliamentary business). Most recently, as we all know, three MPs refused to appear individually before the Privileges Committee following some pretty shocking behaviour, asserting that only tikanga experts had jurisdiction to assess their conduct.

Party president John Tamihere has made this explicit. In an interview on Radio Waatea, he claimed Parliament "sits on Māori land" and applies "white law to our ways of being." The House of Representatives had "no standing," he said, to regulate Māori MPs.

This is not just a symbolic objection. It is a rejection of parliamentary privilege and by extension, of parliamentary sovereignty. And since Parliament is the sole constitutional repository of the people’s democratic will in this country, what is being denied here is not merely institutional, but popular legitimacy itself.

That is a serious proposition.

It does not make those who hold such views disloyal to the country. But it does mean that they are committed to a vision of government in which Parliament, the elected legislature, does not stand supreme.

That is a different constitutional order. And it is time for both the media and the public law community to be honest about that fact. The time has come to be straight with the public about the alternative model they are, tacitly or otherwise, beginning to endorse.

There is a very telling contrast at play here.

As we all know, the government rapidly passed the Equal Pay Amendment Act 2025 this month, using the process of urgency to change the law within 48 hours. Legal academics and public law commentators erupted. The use of urgency, though lawful and not uncommon, was portrayed as a constitutional affront that signalled a very worrying erosion of democratic norms.

But when Te Pāti Māori MPs challenge the very authority of Parliament to discipline its members and asserting that only their own chosen experts have jurisdiction over their conduct the best that can be hoped for is embarrassed silence. The same guardians of constitutional propriety, so vocal about procedural expediency, fell conspicuously silent.

Urgency, however inconvenient, operates within the established rules of Parliament. Te Pāti Māori's actions, boycotting its duly constituted bodies, rejecting its authority, calling it a Kangaroo court and proposing an alternative "independent hearing", represent a direct challenge to parliamentary privilege and, by extension, parliamentary sovereignty.

The selective outrage reveals a troubling double standard. Procedural expediency is condemned, yet actions that reject the foundational principles of our legislative system are met with acquiescence. It is an indictment on the public law community, some of whom are hypocrites and others simply appear to have feet of clay.

The use of urgency is not a constitutional crisis. Not even when it is mildly abused. But the erosion of Parliament's authority from within? That’s the type of thing that should be called out.

Te Pāti Māori’s challenge to parliamentary privilege is not just about a haka. That’s not the outrage. The real problem is the ongoing challenge to the core idea that Parliament is the sovereign voice of the people and therefore capable of governing itself.

Parliamentary privilege is not a technicality. It is not a colonial relic. It is not a refuge for scoundrels. It is the institutional backbone of democratic self-rule.

It does not compel us to defend the indefensible parts of our colonial past. Nor does it prevent Parliament from adapting or engaging in good faith with how its practices might better reflect the customs and perspectives of all parties to the Treaty of Waitangi.

But those changes must come from within — through the House itself, as the lawful expression of representative authority in this country.

That is what must be defended. Because if Parliament cannot govern itself, it cannot govern at all.