Abolish parliamentary privilege?
Parliamentary privilege is the set of rules that say that the core functions of Parliament should not be subject to laws passed by the parliamentary majority, to the executive (held in power by the majority), or to the courts (which enforce the rules passed by the majority).
Removing parliamentary privilege would be an assault on our democracy, on the separation of powers and on the rule of law.
Privilege is not MPs’ protection from libel laws.
That’s just one facet of it. Privilege, properly construed in its constitutional context, is a prohibition of parliament from passing any law that affects the core functions of parliament. It is the system that protects the minority (the opposition and other parties outside of government) from the majority (government).
A restrictive libel law is just one example of the kind of law that the majority can pass to restrict the core functions of parliament. But, for example, a law that says MPs can’t be arrested on their way to parliament is also a “privilege” law, a parliamentary privilege.
Privilege is not about libel. It’s about protecting the core functions of parliament from majority forces in the State.
Without parliamentary privilege, the majority in parliament achieves legislative and judicial control over the parliamentary minority. The government can use law to control the opposition. The courts must enforce law to control the opposition.
The courts and the parliament are two separate organs of the State. One should not hold power over the other in the performance of its core functions; that’s implicit in the separation of powers. Parliamentary privilege is there to protect the “functional independence” of parliament.
No body or organ of the State can be independent if it does not have functional independence.
If the parliamentary majority could pass laws that govern the parliament’s ability to perform its core functions, then the parliamentary majority can severely affect the ability of the parliament to function, and the ability of the parliamentary minority, the opposition and other parties, to hold the government to account.
As citizens, we are accountable to the courts for libel. We are not accountable to the electorate.
On the other hand, parliament is accountable to the electorate, and should not be accountable to the courts in the performance of its functions. Removing parliamentary privilege would make parliament twice accountable, both to the electorate and the courts (which enforce the will of the majority). This is wrong.
Parliament should not be subject to legislative control by the majority in parliament.
Parliament, in its core functions, should be free, and should never be subject to laws passed by the majority.
If you allow that, the parliamentary minority has no protection from the parliamentary majority, and its ability to function is compromised.
I am not saying that MPs should be above the law.
No; just that they should be free from control of the parliamentary majority in the performance of their core parliamentary functions.
It is true that privilege can be abused. MPs can abuse privilege to spread lies about citizens or other MPs.
The solution to this is the fact that we all have freedom of speech, other MPs have privilege, while the media have a duty towards the truth.
If there are lies, other MPs and political parties can scream, condemn them, call them to account, draw attention to them and expose them.
The media also has a special duty to protect those who are being lied about by establishing the truth.
A party or an MP caught lying loses credibility. A party or an MP that loses credibility loses votes. The solution to lies is for all of us to speak out against them, and to vote against them. But the solution is not to abolish privilege, a key constitutional safeguard.
These are the reasons why parliamentary privilege, or an analogous system, is considered a core democratic safeguard in every developed democracy.
An assault on privilege is an assault on the parliamentary minority. An assault on privilege is an assault on democracy, because a free and functioning opposition is required for democracy. It is deeply worrying that suggestions like this are currently part of our national electoral debate.
Ken Mifsud Bonnici is an international constitutional and institutional lawyer, specialised in public governance and the rule of law. He is currently a member of the European Commission’s body of overall legal advisers.