by Andrew Mason
Quite possibly, the Father of the House, Sir Peter Tapsell, read Simon Heffer’s Daily Mail piece published yesterday. Today, Sir Peter raised the same issue at Prime Minister’s questions in the House of Commons.
The process for impeachment of a high official (be they a peer or a commoner) has long been a statutory tool. First used in the Parliament of England in 1376 against William Latimer, 4th Baron Latimer, for the long string of crimes, this legal remedy fell out of use beyond the unsuccessful trial of Henry Dundas, 1st Viscount Melville, the first Secretary of State for War, in 1806. According to the book ‘Royal Dukes’ by Roger Fulford (1933), it was said that Dundas was “so profoundly ignorant of war that he was not even conscious of his own ignorance.” One further attempt at impeachment was made in 1848, when Lord Palmerston was accused of having signed a secret treaty with Imperial Russia and of receiving monies from the Tsar.
However, Palmerston survived a vote in the House of Commons and the Lords did not hear the case.
In recent times (1967 and 1999) the question of the obsolescence of the impeachment procedure has been discussed. Despite this, in 2004 Plaid Cymru MP Adam Price attempted to move for the impeachment of Tony Blair for his role in involving Britain in the 2003 invasion of Iraq.
At this time, Price consulted with the then Leader of the House of Commons, Peter Hain, as to whether the power to impeach was still available. Hain informed him that, based on the 1999 Joint Committee’s report, and with the advice of the Clerk of the House of Commons, that impeachment “effectively died with the advent of full responsible Parliamentary government.”
This situation arises because it is normally in the House of Lords that the case would be heard. The procedure used to be that the Lord Chancellor presided (or the Lord High Steward if the defendant was a peer) – but this was when the Lord Chancellor was both the Lords’ presiding officer and head of the judiciary of England and Wales.
Since both these roles were removed from that office by the Constitutional Reform Act 2005, which created the Lord Speaker to preside over the Lords and made the Lord Chief Justice head of the judiciary, it is not certain who would preside over an impeachment trial today.
If Parliament was not in session, then the trial could be conducted by a “Court of the Lord High Steward” instead of the House of Lords (even if the defendant was not a peer).
(The technical and legal differences between this court and the House of Lords are that in the House all of the peers are judges of both law and fact, whereas in the Court the Lord High Steward is the sole judge of law and the peers decide the facts only – this bearing in mind that the bishops are not entitled to sit and vote in the Court.)
Whilst no legislation has been produced to abolish the remedy of impeachment, and it is argued by some that it remains as part of British constitutional law, it would appear that other (quite likely considerably time-consuming) legislation would be required to bring this power into the modern age. In particular this could possibly require the re-establishment of a formal “Court of the Lord High Steward”; also the election of a suitable Lord High Steward in person. Alternately, a new mechanism in the House of Lords would have to be established whereby more than one judge could oversee the proceeding, namely the Lord Speaker and the Lord Chief Justice plus necessarily one other high-ranking Lord in order to form a decisive quorum.