MPs at work are above the law, and rightly so

No one in their right mind would go to the barricades in defence of the honour of Jim Devine, David Chaytor, Elliot Morley or Lord Hanningfield. Not only because most of us had never heard of these three MPs and one peer before the events of the past week (with the possible exception of one-time government minister Morley), but also because the things these men are accused of by the police – false accounting and dishonest expenses claims – are nothing to defend.

But before we leap headfirst into the political and media vortex of spite against these individuals, we should recognise that the campaign against them is far worse, and potentially far more damaging to politics and democracy, than anything these men allegedly did. Off the back of what is becoming a media-led showtrial of the three MPs in particular, the integrity of the House of Commons – the only elected wing of the British state – is being degraded. The three MPs might be bearing the brunt of the media-police attack, but the longer-term victim is likely to be us, the people, and our ability to exert our power and our interests above other, unelected state institutions and bodies.

The MPs stand accused under the Theft Act. Like a latter-day king issuing a writ for the arrest of disobedient elected commoners, Keir Starmer, director of public prosecutions, announced on 5 February that, following a six-month police investigation into the MPs’ expenses scandal, it was decided that criminal proceedings would be brought against three MPs. Devine, Chaytor and Morley will be had up in the City of Westminster Magistrates’ Court on charges relating to false invoicing, pretend mortgages, and so on.

It is for a jury to decide whether the men are guilty (though many in the media seem to have already decided that they are). But one thing we can be certain of right now, even before the trial kicks off, is that this has a powerful whiff of scapegoatism about it. Devine, Chaytor and Morley did not do anything spectacularly different to what other MPs were doing, in terms of finding various ways to supplement their annual income through the MPs’ expenses system. This has been established practice in the House of Commons for more than a decade, and, as revealed in the expenses scandal of last year, some MPs did it by claiming for Kit-Kats and duck ponds and others did it by flipping homes or living in one property while claiming a mortgage on another.

It seems to me that Devine, Chaytor and Morley have been made into the sacrificial lambs of the expenses scandal, their necks offered forth for the chop in some kind of deal – or, less conspiratorially, understanding – between party leaders and the Crown Prosecution Service.

Where the prospect of hundreds of MPs having their collars felt by the filth would have led to the collapse of representative democracy, and where the suggestion that no MPs should face criminal sanction for this scandal would be completely unacceptable in the climate of expenses anger whipped up by the media and by politicians themselves, the offering of three of the Commons’ keenest claimers of expenses looks like a useful compromise. It gives the media ‘crooks’ to salivate over, it allows the political parties to say ‘action is being taken’, and it satisfies the police’s insatiable lust for sticking their truncheons where they don’t belong – inside the House of Commons.

Whatever you think of the three men’s records as MPs (not much) and of the allegations made against them, you should be concerned about this sort of political bloodletting. It speaks to the cowardice and opportunism of the political class, which lacks the will to deal with problems internally and which hopes to score some points for Doing Something by throwing some of its own people to the cops and the courts. It is also giving rise to a showtrial in the media, where one could be forgiven for thinking that these men are on trial for political purposes, as a form of closure, to satisfy the media and restore some of the political class’s battered and bruised integrity. That is no way to conduct politics or law.

But the main reason we should be concerned about these latest developments is because of the impact they’re likely to have on democracy. In their rush to cheer the charges brought by the CPS against the MPs, the party leaders have shown their utter disregard for the supremacy of the Commons, for the freedom of elected members of parliament against the arbitrary, frequently irrational power of the state, and even for the very idea that MPs are special. The most shocking exposé in this latest chapter in the expenses scandal is that our political leaders have absolutely no appreciation of their own role, status and leadership in society, and regard themselves as being ‘just like everyone else’.

Consider the denigration of parliamentary privilege over the past week. It is reported that the three MPs plan to cite parliamentary privilege as a defence against prosecution, and this has led many, including Conservative leader David Cameron, to problematise the very idea of parliamentary privilege. Springing from the Bill of Rights of 1689, in response to King James II’s attempt to have some MPs arrested for criticising him in parliament, the ideal of parliamentary privilege is that ‘the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament’. In short, MPs are above the law (within reason): they have immunity from prosecution for most of the things they say and do inside the parliamentary chamber.

Cameron and others are now talking about limiting the usage of parliamentary privilege. But they tinker with this cornerstone of democracy at their peril. This privilege (a dirty word in today’s relativistic culture, I know) is designed to protect representative democracy from external authority, to protect the speech and deliberations of elected parliamentarians from the arbitrary intrusions of the police, the military, the monarchy or whatever. It represents the privileging of democracy over other forms of power – and that is just so. It sprang from years of conflict, from a profound tussle between parliamentarians and kings, democrats and tyrants, and for Cameron and others to decide overnight, almost as a spindoctoring exercise, that it should be overhauled reveals not only their historical ignorance but also their willingness to sacrifice some of the central tenets of democracy at the altar of what they imagine is a furious public lynch mob.

Everywhere, parliamentary privilege is now talked about pejoratively. It is ‘arcane’, ‘outdated’, ‘open to exploitation’. This creeping criminalisation of parliamentary privilege reveals an elected Commons which cannot conceive of itself as being more important than any other form of contemporary authority. MPs are ‘nothing special’ and are ‘not above the law’, intone Cameron, Brown and the rest. But the thing is, they are special, and they are above the law – not in the sense that they can murder people at liberty, but in the sense that their normal, reasonable speech and actions in the Commons should not be subject to defamation claims and should be no business whatsoever of the state’s bodies of armed men. MPs are special, not because they have superpowers or always make the right decisions, but because they are invested with the most legitimate and rational form of authority of all: our authority.

Cameron and Brown say MPs are nothing special in an attempt to ingratiate themselves with the public, not realising that they are actually insulting the public, implying that our political choices and desires, our representatives, should be de-privileged.

This has led to the bizarre situation where we are expected to see parliament as the arcane and suspicious institution and the police, led by the unelected Keir Starmer, as the forces of popular will. In its essence, if this situation is left unchallenged, if something like parliamentary privilege is rewritten, it will represent a significant reversal of the democratic gains of 1689, taking us back to a time when the elected Commons, certainly in the eyes of the king and other jealous and tyrannical figures, really was ‘nothing special’.

Of course, the key difference today is that external actors are not storming parliament – they’re being invited in. The Commons flung its doors open to police investigating the political activities of Tory immigration spokesman Damian Green in 2008 and they are opening their doors to Keir Stramer today. These are not tyrants but opportunists, moving into the vacuum left by the collapse of parliamentary integrity, serious politics and democratic debate. Also, unlike in 1689, our MPs do not make it easy for anyone to defend their special status today, given their increasingly petty political outlook, their inability to lead and inspire, and their transformation into jobsworths – their claims to be nothing special reflect a certain reality. But anyone who feels agitated by the idea that the public’s will is no more special than the views of the CPS, and who wants to put the public back at the centre of public debate, ought to challenge the drift of the expenses scandal towards its anti-democratic conclusion. We will deal with our MPs and the profound question of who should run the country at the forthcoming General Election, thanks Mr Starmer – you stick with the rather less important business of arresting criminals.

Brendan O’Neill is editor of spiked. His satire on the green movement – Can I Recycle My Granny and 39 Other Eco-Dilemmas – is published by Hodder & Stoughton. (Buy this book from Amazon(UK).)