Impeachment - if it is not obsolete then it should be !

Impeachment of Warren Hastings

Addendum: 27th June - Chilcot Report into 2003 Iraq invasion hit by further delay

Not for the first time, there has been a call for the Impeachment of former Prime Minister Tony Blair who, it is alleged, misled Parliament in the run up to the UK's involvement in military action in Iraq in 2003.  Today, the Father of the House of Commons (Sir Peter Tapsell MP) raised the matter during Prime Minister's Questions - see BBC News 18th June.  His call appears to have been swept aside by the Prime Minister who simply stated that it was important to see the results of the Iraq Inquiry under the Chairmanship of Sir John Chilcot.

There were earlier calls for Blair's impeachment, notably in 2004 (Guardian 26th August 2004) and in 2006 (Craig Murray blog).  The latest call appears to have stemmed from an article by Simon Heffer in the Daily Mail 17th June - Impeach Tony Blair: ..... writes Simon Heffer and see The Guardian 18th June 2014.

What is Impeachment?

At least in theory, Impeachment remains a possibility.  For an explanation of Impeachment see the Parliamentary Standard Note dated 16th November 2011.  The note begins by stating:


Impeachment is when a peer or commoner is accused of  'high crimes and misdemeanours, beyond the reach of the law or which no other authority in the State will prosecute.’ (Erskine May 1st ed p 374) It is a procedure that is ‘directed in particular against Ministers of the Crown’ ........ The procedure is considered obsolete.

Impeachment has been used some 70 times from 1376 to its last use in 1806 (Henry Dundas, 1st Viscount Melville).  A very notable impeachment was that of Warren Hastings in the 18th century where the trial was dragged out over some 7 years!   The procedure involved is extremely cumbersome.  Here is a description:

'Under this ancient procedure, all persons, whether peers or commoners, may be prosecuted and tried by the two Houses for any crimes whatever. The House of Commons determines when an impeachment should be instituted. A member, in his place, first charges the accused of high treason, or of certain crimes and misdemeanours. After supporting his charge with proofs the member moves for impeachment. If the accusation is found on examination by the House to have sufficient grounds to justify further proceedings, the motion is put to the House. If agreed, a member (or members) are ordered by the House to go to the bar of the House of Lords. There, in the name of the House of Commons and of all the commons of the United Kingdom, the member impeaches the accused person. A Commons committee is then appointed to draw up articles of impeachment which are debated. When agreed they are ingrossed and delivered to the Lords. The Lords obtain written answers from the accused which are communicated to the Commons. The Commons may then communicate a reply to the Lords. If the accused is a peer, he is attached by order of that House. If a commoner, he is arrested by the Commons and delivered to Black Rod. The Lords may release the accused on bail. The Commons appoints ‘managers’ for the trial to prepare the evidence; but it is the Lords that summons witnesses. The accused may have summonses issued for the attendance of witnesses on his behalf, and is entitled to defence by counsel. When the case, including examination and re-examination, is concluded, the Lord High Steward puts to each peer, (beginning with the junior baron) the question on the first of the charges: then to each peer the question on the second charge and so on. If found guilty, judgment is not pronounced unless and until demanded by the Commons (which may, at this stage, pardon the accused). An impeachment may continue from session to session, or over a dissolution. Under the Act of Settlement the sovereign has no right of pardon.'

Abolition:

In a number of reports, Parliament itself has called for abolition of the procedure - see, for example, Parliamentary Privilege 1st Report (30th March 1999) where, at Chapter 1 para 16, it is noted:

'There are other elements of privilege, which are mainly historical. Freedom from arrest has little application today. Privilege of peerage, which is distinct from parliamentary privilege, still exists although the occasions for its exercise have diminished into obscurity since a peer's right of trial by his peers was abolished in 1948. Even more archaic is impeachment, which has long been in disuse. The 1967 House of Commons select committee on parliamentary privilege recommended that the right to impeach should be formally abandoned and legislation should be introduced for that purpose. The circumstances in which impeachment has taken place are now so remote from the present that the procedure may be considered obsolete.'

The process is regarded as obsolete due to the development of what are supposed to be other methods of holding Ministers to account such as the possibility of a motion of no confidence, Parliamentary select committees, the doctrine of collective responsibility etc.  The effectiveness of such methods is beyond the scope of this blogpost.

It also seems unlikely that the impeachment process meets modern legal standards such as requirements for legal certainty.  For example, just what are 'high crimes and misdemeanours'?  The trial process before the House of Lords would raise serious questions as to the right to a fair trial under the European Convention on Human Rights.  For instance, could it be truly said that a political body was 'an independent and impartial tribunal' for the purposes of Article 6? A further problem would be that the courts of law would seem to be prohibited from questioning any impeachment because of the Bill of Rights 1689 Article 9 (where the word 'impeach' is used in a different sense). 

Various Iraq Inquiries:

There have been a number of Inquiries into matters to do with Iraq 2003. In June 2003, the House of Commons Select Committee on Foreign Affairs looked at whether the Foreign Office had presented accurate and complete information to Parliament in the run up to the war - especially with regard to Weapons of Mass Destruction (WMD).  The Intelligence and Security Committee looked at whether intelligence on Iraqi WMD was properly assessed and accurately reported in government publications - (Report here).  Then there was the Hutton Report on the death of Dr David Kelly which spent much time on the September 2002 WMD dossier.  Next there was the Butler Report on Intelligence and Iraq.  These inquiries are discussed by Richard Aldrich - Whitehall and the Iraq War: the UK's Four Intelligence Inquiries. 

The Iraq (Chilcot) Inquiry itself commenced its work in autumn 2009 and ended hearing evidence in 2011.  The Inquiry's website states that the inquiry will ...

' ...  consider the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath. We will therefore be considering the UK's involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned. Those lessons will help ensure that, if we face similar situations in future, the government of the day is best equipped to respond to those situations in the most effective manner in the best interests of the country.'

The Chilcot Report is still awaited.  Some explanation for the delay is set out by the Inquiry in a letter from Sir John Chilcot to the Cabinet Secretary (Sir Jeremy Heywood) dated 28th May 2014.  It looks as though publication of the report will still take some time and seems unlikely - perhaps for political reasons - this side of the 2015 General Election.   The so-called "Maxwellisation" process is also likely to take a considerable time - The Guardian 29th May 2014.

In the USA:

The Constitution of the USA (Article 2 Section 4)  provides that Congress has a power to impeach the President and other officials - see the Wikipedia article Impeachment in the USA.  The purpose of impeachment is to secure the removal from office of the individual.  In relation to the Presidency, impeachment has been used twice - Andrew Johnson in 1868 and Bill Clinton in 1998/99.  In neither case was the impeachment successful.  Richard Nixon was not impeached though the process was commenced.  He resigned the Presidency on 9th August 1974.

Overall:

The idea of using this antiquated, cumbersome and obsolete procedure which seems to nowhere meet modern standards of due process is risible.  The time to have held the executive to account was in 2002 and 2003 when the personal commitment of Mr Blair to assisting the USA was all too plain. On the whole, at the time, the Parliamentary system did not operate effectively to question in depth the information presented to it.  The various other inquiries and reports had quite narrow remits and little by way of criticism of Mr Blair emerged.  It is my view that, whilst Chilcot may eventually point criticism at Mr Blair and others, the report when it emerges is unlikely to be anywhere near as damning as Blair's political opponents would like.  After all, according to its terms of reference, Chilcot is about "lessons to be learned" as opposed to political reputations.  Rather than holding an impeachment, Parliamentary time might be better spent considering ways in which to enhance the effectiveness of its procedures for holding the executive to account including the possibility of enacting a more up to date process to replace impeachment should such a process be considered necessary.