openDemocracyUK

Let them claim immunity!

John Jackson
9 February 2010

I hope very much that those MPs now facing the prospect of prosecution for the way in which they ‘managed’ their parliamentary expenses do claim immunity because, as MPs, they are ‘privileged’. This is not because I think that any such outrageous claim should succeed but for two other reasons.

Firstly it would provide an opportunity to establish finally whether our courts have the jurisdiction to be the final arbiters of the existence and extent of those privileges of the House of Commons and its members which are not enshrined in statute. This is ‘unfinished business’ which, on the rare occasions it has been discussed, has generated much constitutional heat.

Secondly and, for me, more importantly, it would force us all – and the media – to confront what we have allowed the House of Commons to become and what has been stolen from us. We think we are a sovereign people: we are not. Sovereignty does not reside in and is not enjoyed by ‘we the people’.

The history of this tells it all. From its early beginnings Parliament, not just the Commons, was deemed to represent the whole community in its dealings with the hereditary and sovereign monarch. But in the exercise of that deemed representation, the lords, the bishops and the members of the commons used their own judgements and were never, in any sense, delegates of those who ‘appointed’ them. As the sovereignty of the’ monarch in consultation with Parliament’ shifted to the ‘monarch as part of Parliament’ i.e. to Parliament as such, the difference between deemed representation and delegation (and the notion of ‘reporting back’) became a very hot political potato. It went to the very roots of who had, or should have, power. That is why:

  • Oliver Cromwell, with all his doubts about how far the right of Parliament to have the last word should go, opposed strongly the Levellers who proposed that the powers of Parliament should be expressly limited by an ‘Agreement of the People’ which would serve as a fundamental law embodying the will of the nation.
  • Those who fashioned the Glorious Revolution of 1689 concocted a Bill of Rights which gave Parliament effective control of the monarchy and gave precious little by way of rights to the people.
  • Those who argued, in the early years following that revolution, that members of the Commons were delegates bound to act according to the wishes of their constituents were defeated by a consensus between the leaders of the emerging political parties. By 1734 Robert Walpole, our ‘first’ prime minister, could say with complete political confidence ‘we are to guard against running too much into that form of government which is properly called democratical’.

His views were echoed by Edmund Burke thirty years later when he condemned ‘sovereignty of the people’ as ‘the most false, wicked, and mischievous doctrine that could ever be preached’. 

Thomas Paine, who supported the rebelling American colonists in the 1790s and believed that a genuine constitution was something adopted by a people for the regulation and control of its government, got into serious trouble for proposing a democratically elected national convention to establish a constitution on behalf of the people of England and asserting that the existing system of government was ‘despotic’ because those who are elected ‘possess afterwards, as a parliament, unlimited powers’.

The electoral reforms of the nineteenth century and thereafter were presented largely as ‘gifts’ from a political establishment determined to hold on to the power that went with their definition of parliamentary sovereignty to a people expected to give thanks and show proper deference to those ‘who know better’.

That is how we got to where we now are and why our supposedly representative democracy has gone rotten. It is not where we should be. The position of those who represent us is a fundamental point. And it should not be decided by those presently at the apex of political power. We, the people, must find a way to assert our sovereignty and take the power to determine what kind of community we want to be into our own hands.  It will be for the first time in our very strange history. 

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