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Is it time for Parliament to dust off impeachment?

Our friends in the rebellious Colonies have the still active remedy of impeachment for those in office who, one might say, go off the rails, and other remedies as well. In the UK, impeachment is now considered ‘obsolete’ as a means of removing Crown officials, but ‘obsolete’ does not mean ‘defunct’:

As a House of Commons Paper puts it (in the link at the bottom to the pdf.):

It was a medieval means of removing the protection given to a royal servant whom the Commons found objectionable but could not otherwise persuade the Crown to dismiss.

Of course, different parts of the Commons may find the current First Lord of the Treasury ‘objectionable’ for widely varying reasons, either that she is not an avowed openly Marxist destroyer, or that she is simply a ‘Tory’, or that she is far from satisfactory in terms of her integrity.

But we appear for now to be in a situation where neither a vote of no confidence in the House of Commons on Mrs May’s government, nor a vote in her Party via the 1922 Committee in her as a leader, appear to be imminent or practicable.

As the Commons briefing paper notes:

No Prime Minister has ever been impeached. Ministers have been impeached, but those instances occurred before the modern concept of the Cabinet was established.

The first edition of Erskine May, published in 1844, describes impeachment as: “the commons, as a great representative inquest of the nation, first find the crime and then, as prosecutors, support their charge before the lords; while the lords exercising at once the functions of a high court of justice and of a jury, try and also adjudicate upon the charge preferred”.

Let us look at some of the criticisms of impeachment:

Impeachment operated in an era when Parliament and the courts had very limited oversight of government power. Different mechanisms have developed in modern politics to allow for the scrutiny of the executive. These include parliamentary questions, inquiries by select committees and independent committees of inquiry. The growth of the doctrine of collective cabinet responsibility, and the use of confidence motions have both contributed to the disuse of impeachments in modern times. Judicial review also now provides an effective check on the legality of the actions of public officials and government ministers. The impeachment process, last attempted in 1806, has not been revised to reflect the fundamental changes that have occurred in Parliament.

What use is a Parliamentary Question when the Prime Minister has misled the House and the Country for over 2 years? Who would trust an answer now?

Select Committees? All very well for getting some MPs to look at something in-depth, but when there is a cowpat in the Ballroom of State, the answer is steaming away in front of you for you and all your guests to see.

Collective Cabinet responsibility? The Cabinet largely remains in place, happy for this farce to carry on. They are not acting responsibly.

Confidence motions? As noted, there is a confidence motion procedure for the government, which due to the Fixed-Term Parliaments Act now has a cooling-off period, and it is not the government that is the major problem (although it is a big problem generally), but the leader of it.

Party confidence motions are internal matters, nothing to do with Parliament.

Judicial review: Sir Edward Coke left the Bench long ago. Judicial Review is not applicable to this sort of situation.

The beauty of impeaching the Prime Minister would be:

1. It would enjoy cross-party support, helping to ‘heal the wounds’ caused by the contentious issues we face 😉 .

2. It would leave the current Parliamentary composition intact. After all, it is removing a Crown Servant, not a Member of the House. Mrs May would remain an MP.

3. It would leave Mrs May as the unelected Leader of the Conservative and Unionist Party, and put her in the same situation as another notorious appeaser, Neville Chamberlain as leader of the Party and an MP but not Prime Minister. Not quite following the Joseph Chamberlain that she aspires to emulate, but as close as we can manage for now.

4. It would revive the prestige of Parliament, at a time when Mrs Battenberg’s presumed function of ‘to advise, encourage and to warn’ appears to be obsolete. After all, it has recently (in Constitutional timeframes) been used in the United States, an offspring jurisdiction of England, so why should it be ‘obsolete’? We may have reached the lacuna where the remedy has some use.

5. It would (or should) save us paying Mrs May a Prime Ministerial pension later on in a richly-deserved retirement. That will help to reduce our ballooning public sector pensions liabilities.

6 It would cement Mrs May’s place in history, whether or not the Lords were to convict.

23 comments to Is it time for Parliament to dust off impeachment?

  • Who’s going to do the impeaching?

    >It would enjoy cross-party support

    I doubt it. Most Labour MPs, most SNP MPs, and the majority of Tory MPs, are on her side. And they’ll hardly want to support the idea that they can be impeached themselves.

  • Mr Ed

    Hector,

    They are not ‘on her side’, they still hate her as she has the label ‘Conservative and Unionist’, no matter what she actually does. No doubt they enjoy what she is doing and support her betrayal, but only because they hate the UK’s independence more (not all Labour are like that). Many would relish her humiliation just because of her label. And they would soon press for the process to be abolished by statute, which was proposed in 1967 but never got off the ground. If a statute is needed to abolish it, it is still a possibility, they disapprove of Coke’s position that the Common Law would restrain nonsensical statutes.

  • If I was a Corbynite, I’d move heaven & earth to ensure May stays in office as that pretty much guarantees a Labour victory in the next general election when the Tory vote implodes.

  • Phil B

    As Colonel Jeff Cooper once said, there aren’t many problems in the world that can’t be solved by a good man with an accurate rifle.

    Cheap, quick and effective, though I would also be happy with ropes lamp posts and politicians and some assembly required. Cromwells attitude and comments towards the long parliament is appropriate here.

  • Although a discussion of impeachment here may not be as morally despicable as the contemporaneous one in the US, I much doubt the practical value of any such thoughts.

    – Obviously, if Mr Ed has reason to know that a Tory leadership challenge is not imminent, that is sad. If he is merely deducing from the fact it has not happened precisely one single week after Davis and Boris resigned, my take is the Trump visit put everything on hold (and kept May and the media busy while Tory rebels could talk privately).

    – Even if the Eurocrats give May enough rope to hang herself (by accepting this ‘heads-EU-wins, Tails-UK-loses’ deal), she , like Major and the Maastricht treaty in 1992, still has to get it through parliament. Major lost and then had to force it through on a vote of no confidence. May is in a much weaker position than Major.

    If someone has information that 48 honest Tory MPs can’t be found, that’s (sad) news. That nothing happened in a week – especially the week of the Trump visit – is no news to me.

    It seems needless to add that a Parliament that refuses to respect a referendum they all agreed to hold is not one that will impeach. If the procedure is politically possible then it cannot be politically necessary.

    There is also the logical point that it is harder to prove someone legally (not just morally) guilty of a crime than it is to argue convincingly that they are leading their party to electoral disaster.

  • Mr Ed’s suggestion of impeachment is, IMHO, several steps too far – not least because it really introduces a totally new concept: the ‘crime’ or ‘misdemeanour’ of ignoring the Demos in formal referendum. Such a thing, if tolerable at all, needs avoidance of hard cases making bad law. This to say nothing of a change (by act of parliament time-warped to be prior to the past referendum) in the status of all or any specific referendums, the flouting of which becomes legal rather than political. Lastly against Mr Ed, how can he actually expects the House of Lords (on recent showing) to do anything but reinforce May’s FUBAR with further layers of concrete.

    So now I feel somewhat inspired to say again, for the Conservative Party in its sad sad sad current state, pretty much that which I said in my proposal here on Samizdata of just less than a week ago. In this, I have taken good account (by deleting two words) of the factually valid criticism of Lee Moore. I’ve also dropped one point, as being less appropriate for the somewhat changed changed circumstances in the prevailing in-party power struggle.

    (i) Following PM Theresa May’s decision to risk and lose the parliamentary majority of the Tories, her party quite rightly wish to avoid her leading them into the next general election (around May 2022). Their best hope has been for her to be replaced by a new Tory leader, most likely around some 18 months before the next general election, which is November 2020 – well after (the expected) leaving of the EU by the UK in late March 2019.

    (ii) No other leading Tory politician wishes to take over at the moment, because of the risk that their longer-term ambitions will be seriously damaged by the ongoing BREXIT process. Thus (i) is a good plan for prospective Tory leaders.

    (iii) PM May is however totally messing up the likely outcome of BREXIT for the 17.4 million who voted for it. Also, ongoing lack of decisiveness and continuing delay is damaging to confidence in the UK economy and all sectors of business. Thus it is becoming apparent that May’s continuation as PM, even only until November-ish 2020 (given her current untenable BREXIT approach) will very likely actually scupper the ability of the Tories to win the next general election. This problem is becoming clearer with every day of PM May’s continuation in post.

    (iv) But still no senior Tory wishes to take the (somewhat poisoned) chalice. Because that would damage their personal future prospects as PM – to win the 2022 general election.

    (v) In these circumstances, what is actually needed is a brave action by, pretty much, the only person with: (a) strong personal belief that we need a proper BREXIT no later than March 2019 (with sensible but minimal transition arrangements), (b) sufficient credibility with the Tory Parliamentary Party to lead the Party into rejecting May’s continued PM-ship and (c) the least to lose personally in the longer term (because of age and inclination).

    (vi) That person is David Davis (aged sixty-nine and a half). Previously also one of two contenders in an election for the Tory Party leadership. The one that did not fail to win the ‘unlosable’ election against Gordon Brown’s Labour Party back in 2010. The one that did not break his word after the EU Referendum – to carry out the will of the electorate.

    (vii) Davis should indicate his firm intention to stand for party leadership, if and when a no-confidence vote goes against May. Also that, following a March 2019 BREXIT in actuality, he will stand down in/around late 2020. This could all be arranged without an actual election for the Tory leader (as was done, supposedly for the good of the Party, with May). Then the Tories could have a proper and unrushed election for a new leader, in place as PM for around 18 months before the next general election must be called.

    (viii) Other potential candidates for the Tory leadership (well at least the serious ones who wish to lead the party into the next general election with a chance of winning) should indicate their firm intention to allow David Davis’s candidature to proceed unopposed. Davis would thereby replace May as caretaker party leader (and prime minister) until around those 18 months before the next general election (expected in 2022).

    (ix) As for fear of Corbyn’s Labour, what really is there to worry about – that makes a Davis government a worse risk that a May government? Note here, the Tories have 317 seats and Labour only 262. Even a coalition of Labour, SNP and Liberal Democrats adds to only 309 seats.

    For Mr Ed and others like-minded in desire for blood, I point out the either EUist or anti-EUist wing of the Tories can easily put their whole party into a ‘bleed out’ situation. This by somewhere around 8 Tory MPs resigning their party whip: thus reducing their party from 317 MPs to much closer to that 309. This whether or not those resignations are an extreme statement of dissatisfaction or for the formation of a break-away party. Of course, if the AV Referendum has turned out differently, break-away would be different from destroy.

    Best regards

  • Mr Ed

    Nigel,

    it really introduces a totally new concept: the ‘crime’ or ‘misdemeanour’ of ignoring the Demos in formal referendum. Such a thing, if tolerable at all, needs avoidance of hard cases making bad law.

    Hard cases expose bad law, they do not make it, and if Parliament is sovereign, then (as many an anti-Cokist will tell you), Parliament can make any law. And impeachment is simply removal from office, a way for Parliament to remove Crown officials it disapproves of, it needs only a charge, which is not ‘ignoring the Referendum’ but lying about intentions and deeds, showing plans to foreign powers before one’s Cabinet etc. and generally heaping disrepute on the office.

    Of course, conviction by the Lords is a matter for that House, with all its bevy of semi-retired experienced political hacks, ‘working Peers’, the Hereditaries and the Bishops (who oddly, were not removed or reduced by Labour) and so on. Heaven forbid that the process be the punishment.

    NIall, I have no inside knowledge, only what I infer from various tree-trunk sized strands of behaviour and previous experience.

    Mrs May’s plan is to bore away until the news cycle moves on. Boredom is her sword, despair her shield, apathy her armour. She will bore her Party to its death.

  • terence patrick hewett

    The UK has an unwritten constitution which is embodied in the laws, principles and statutes by which we are governed: unlike the US which has a written constitution, so it is very difficult for an administration to do anything unconstitutional since the all they have to do table an Act of Parliament:

    “No Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea.”

    One of the few things that can be deemed unconstitutional is not to enact the law: hence the enthusiasm to implement law emanating from the EU – not to do so, as France or Germany often does, would be unconstitutional.

  • Mr Ed

    “No Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea.”

    But it does, or at least, it did, Dr Bonham’s Case.

  • Runcie Balspune

    Just abolish or make illegal the establishment of exclusive political parties.

    Once we get back to a house of individuals that represent the needs of their constituents, and not a bunch of monkeys following their tribal customs, the office of prime minister and the role of the cabinet would have much more consideration of the will of the people as their representatives would not be in such financial and ideological thrall they needed to do as they’re told.

    The concept of Prime Minister and the Cabinet is just a sop to party politics, it should not exist as it does, with virtual absolute power, it only exists for the benefit of the power of the political party to exercise its rule.

    The exclusive political party system (by which I mean you can only join a political party if you agree not to support any other party), and the whips and block voting that go with it, is an aberration of democracy and a violation of freedom of choice. There will be no need for impeachment if MPs can support what they like when there is no threat of party support or funding being withdrawn, the government has to be more careful in making sure what they propose is going to pass, not able to steamroller lawmaking using the party faithful and the threat of exclusion.

    It wasn’t always like this, we could run a country without the political parties before, and the prime minister could be anyone you like as long as Mrs Queen approves.

  • Mr Ecks

    “If I was a Corbynite, I’d move heaven & earth to ensure May stays in office as that pretty much guarantees a Labour victory in the next general election when the Tory vote implodes.”

    PdeH: 70% of their seats voted Leave. Helping May’s sellout isn’t going to do Jizz any favours.

  • Mr Ed

    I have just noted that the Parliamentary paper has the following nugget, my emphasis added:

    There are two distinct periods in which impeachment was relatively common; firstly in the 14th century until the establishment of the Tudor dynasty and secondly in the 17th and 18th centuries. A quarter of all of them occurred between 1640 and 1642, when parliamentarians revived the ancient right.

    Nicely skipping over Henry VIII’s well-known method of ‘impeaching’ unsatisfactory officials, and the actions of the Long Parliament from 1640 on are perhaps what best approximates to the current situation.

  • bob sykes

    If you can’t get enough votes for a vote of no confidence, how could you get enough to impeach?

  • >They are not ‘on her side’, they still hate her as she has the label ‘Conservative and Unionist’, no matter what she actually does.

    They’re on her side with Brexit. At least a lot of them are. They’d be happy to impeach her for a lot of things, but not this.

    PdeH: 70% of their seats voted Leave. Helping May’s sellout isn’t going to do Jizz any favours.

    It will, because it will split the right-wing vote. (What has to happen now is the complete destruction of the Tories, but that’s another issue…)

  • Derek Buxton

    As it stands the HoC, ie Parliament is a total failure. They are supposed to hold the executive to account and protect the People from an authoritarian administration as we now have. For years they have ignored this and in the hope of Preferment, more money, have done as Madam ordered without thought for Country or People. And for this we pay them large salaries and a big pension when they lose. It should not be possible for them to get rich whilst ruining the Country and People.

  • Mr Ed

    If you can’t get enough votes for a vote of no confidence, how could you get enough to impeach?

    A different question, with a different outcome. A surgical removal of the tumour, but a lot of discomfort for the patient (Mrs May’s party and government). For Labour/SNP, it puts the Conservatives in turmoil and makes May a laughing stock, for the Conservatives, a chance to move on. It’s a terrific proposal for a great deal. It can make almost everyone happy.

    And ‘impeach’ is to put on trial in the Lords, the Lords decide whether or not to ‘convict’.

    Hector: That’s a bit like saying Gollum is on Frodo’s side because he wants the Ring for himself and doesn’t want Sauron to get it. Never underestimate the hatred that drives the Left (mad).

  • Mary Contrary

    Mr Ed’s suggestion of impeachment is, IMHO, several steps too far – not least because it really introduces a totally new concept: the ‘crime’ or ‘misdemeanour’ of ignoring the Demos in formal referendum.

    I doubt that, so long as you only have to publish “Resolved, that the Prime Minister is hereby impeached”, and don’t actually have to publish Articles of Impeachment setting out the case. If you did, you’d never get a majority for them anyway (as you say, you’d need a lot of Remainer votes to carry this); so long as you do not, the precedent is not established, being an uninspectable combination of “Because she’s a Tory” and “Because she tried to give away our sovereign right to self-government”. Personally, I’d have no problem with the latter.

    I agree though, that the scheme is a bit fanciful.

  • Gollum is *temporarily* on Frodo’s side. That’s why he hides Frodo from the ringwraiths.

    >Never underestimate the hatred that drives the Left (mad).

    Sure, but never underestimate their duplicity either.

  • the last toryboy

    This is never going to happen because the people doing the impeaching would be the Establishment, and May is doing what the Establishment wants.

    The only way she’ll ever be impeached or anything like it is there’s some sort of revolutionary tribunal set up, and I can’t see that being very likely – or very desirable.

  • And it is now being reported that May is denying that her having to accept four Brexiteer-demanded amendments to her ‘finalised’ plan represent caving. Laura K tweets about these four changes:

    Govt spokesman says of Chequers amendments – ‘We believe they are consistent with the White Paper,’ – problem is not v many other people do, whether Leave or former Remainers

    So I think we need not debate anything as far out as impeachment yet. I don’t know what will happen next but I think something will.

  • Paul Marks

    If we can not even get 48 Conservative Members of Parliament to express “no confidence” in Mrs May, why talk of Impeachment? Labour and Liberal Democrat MPs would not vote to impeach someone for lying on behalf of the European Union – most of them do that all the time. And even Conservative Members of Parliament who oppose Mrs May would think formal “Impeachment” to be an absurdity – but they might be persuaded to go for an internal “no confidence” vote.

    By the way it seems the magic number of 48 was close to be reached – hence Mrs May’s concessions today on the four Amendments. With characteristic dishonesty Mrs May denied this was a rejection, by her, of her own plan of last week.

    This is why I oppose Mrs May – the endless lying means the lady can not be trusted, the concessions announced today might be backtracked on at any moment (or the law might not be enforced – or whatever). It is also why I would like serious tactics to be used. The definition of a serious tactic is one with a chance of success.

  • Paul Marks

    “But Mrs May is guilty of offences worthy of Impeachment” – I AGREE she is, but Impeachment has no chance of success.

  • Mr Ed

    If we can not even get 48 Conservative Members of Parliament to express “no confidence” in Mrs May, why talk of Impeachment

    For the reasons explained in the OP, should you care to read it, I have expained it at length. It is different to a ‘no confidence’ vote and the open socialists might have their own reasons for voting for it. And it would not need 48 Conservative votes anyway, it could, in theory, get passed with fewer than those 48 supporting it.

    Since I seem (afaics) to have been the first to have mentioned it, possibly since 1806, it is hardly surprising that it is something that has, presently, ‘no chance’ of success, but nothing else has either, so like the Kerryman, I wouldn’t start from here. The current situation seems to be a dishonest fudge on both sides. At least this could be proposed with MPs proposing it truthfully saying ‘I will fully back the Prime Minister on any confidence motion, be it on her Government or her leadership of the Party.’

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