Accountability, Impeachment and the Constitution

The Case for a Modernised Process in the United Kingdom

Chris Monaghan

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000597462
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book sets out and explores the case for a modernised impeachment process for the United Kingdom. The work examines the present law and history of impeachment in the United Kingdom, which today is widely regarded as having fallen into desuetude and its procedures inappropriate for modern conditions. It discusses how impeachment operates in two countries, the United States and Denmark, selected respectively for their marked differences from and similarities to the United Kingdom's political and constitutional system, for the purposes of illumination and possible lessons for a new impeachment process. The book seeks to provide a balanced and independent examination of the case for this, concluding that it would have a valuable role to play in the future development of the United Kingdom's system of politics and government. It concludes by setting out a detailed model for the structure, working and effect of impeachment. The book will be of interest to students, academics and policy-makers working in the areas of constitutional law and politics.

1 Introduction

DOI:10.4324/9781003269052-1

Impeachment is arguably most closely associated in popular culture with the United States. The circumstances around President William (Bill) Clinton’s impeachment and President Donald Trump’s two impeachments have certainly generated considerable public interest on both sides of the Atlantic. However, impeachment within the United Kingdom is arguably less well known. I first encountered the term whilst studying A-level history and I then re-encountered impeachment as an undergraduate while studying the East India Company in my final year at university. This second encounter was within the context of the impeachment and trial of Warren Hastings, the first Governor-General of Bengal, and the problems with holding a powerful corporate body and its officials to account. Impeachment is a product of English, and then British, political history and developed in truly remarkable circumstances to create a way for the Commons to hold royal advisors to account. It is within the spectrum of accountability that this book is concerned.

The purpose of Accountability, Impeachment and the Constitution: The Case for a Modernised Process in the United Kingdom is to explore whether impeachment, reimagined and modernised might offer a way to enhance the political accountability of the executive within the United Kingdom. I seek to place impeachment within a political context and set out a case for how impeachment could serve as a way to protect the existing constitutional norms. This may be a controversial idea, in as much as it is drawing upon something perceived by many as a historical relic to address a contemporary problem. However, Accountability, Impeachment and the Constitution: The Case for a Modernised Process in the United Kingdom will set out how impeachment could be reimagined and deployed as a mechanism to enhance political accountability and to protect the constitution from being ignored or abused by the executive.

This first chapter is designed to establish the groundwork for the argument advanced. It will set out the central question that will be addressed throughout, before then considering the aims of the book and the research methodology used, and providing a definition of impeachment. Finally, this chapter will provide an overview of the eight other chapters within this book.

Central question

Accountability, Impeachment and the Constitution: The Case for a Modernised Process in the United Kingdom explores the use of impeachment as a form of political executive accountability and whether this could serve a beneficial purpose in the contemporary United Kingdom. The inclusion of accountability is an acknowledgement that impeachment originated as a way for the House of Commons to hold the king’s advisers and ministers to account, one which predated the notion of responsible government. The book will question whether impeachment could be used in conjunction with the existing mechanisms that are available to ensure executive accountability within the United Kingdom, as a way of improving executive accountability, and whether the usage of impeachment would be a feasible proposition. Therefore, it asks whether impeachment could buttress the existing political accountability mechanisms. The focus here is the accountability of the executive within the Westminster system, and this book will restrict the scope of impeachment to cover only the Prime Minister and other ministers.

In order to answer the central question it is, first, necessary to consider examples of how impeachment has been used in English and British history, to show its historical purpose and how its usage developed over time. It is, second, necessary to consider impeachment within a comparative context and to see how it has been used in both presidential and parliamentary systems. The consideration and analysis of the comparative use of impeachment will demonstrate the strengths and weaknesses associated with its use as an executive accountability mechanism.

Finally, tins book will critically consider whether, within the context of the United Kingdom, impeachment is obsolete, and, if it is not, whether it is appropriate to be used again, and, if so, how this might work and whether it would be expedient to revise how impeachment would operate and if it could play a positive role in the enforcement of accepted constitutional norms. It will be necessary to test the feasibility of modernising the procedure of impeachment, to consider the views of experts and informed commentators as to its status and merits and finally to test whether it could co-exist with and complement existing accountability mechanisms. The intention of the book is not to ignore the difficulties associated with impeachment, or the arguments that it is now obsolete and superseded by the confidence vote and ministerial responsibility to Parliament; rather, it is to explore whether impeachment, or a modified form of it, could add something different and valuable to the existing executive accountability mechanisms within the UK Constitution.

The aims of the book

My intention when writing this book was to provide an original contribution to the academic literature on impeachment by:

• (1) Seeking to provide a definition of impeachment for the purposes of this book. This definition will be informed by the historical usage of impeachment and its comparative use in Denmark and the United States, and by the proposed reforms that will be outlined for a revised form of impeachment.
• (2) Considering the operation of the UK unwritten constitution and reviewing the political accountability mechanisms and then considering whether impeachment could serve a role in buttressing these existing mechanisms. There will be a discussion of the perceived limitations of the political accountability at Westminster and how a revised form of impeachment could reassert the authority of Parliament and respect for accepted constitutional norms.
• (3) Examining the case for impeachment, which takes the form of a revised model within this book. It will then take into account the counter-arguments against impeachment, before seeking to address these criticisms. The discussion draws heavily upon the existing literature and takes into account views of politicians and senior former members of the judiciary who were interviewed as part of this project. The aim will be to provide a balanced and independent examination of the argument that a new impeachment procedure would buttress the existing political accountability mechanisms at Westminster.
• (4) Drawing upon the comparative usage of impeachment and by considering two case studies, Denmark and the United States, which were chosen due to both their differences from and their similarities to the United Kingdom. The case studies will be used to help inform the discussion as to what form the revised procedure of impeachment should take and, where appropriate, look at possible scope for a partial constitutional transplant.
• (5) Bringing the arguments and discussion in the book together by putting forward a blueprint for a revised procedure for impeachment in the form of a proposed Impeachment Act. Once the Impeachment Act has been outlined there will be detailed consideration of how the Act and impeachment might operate in practice within the contemporary United Kingdom. The emphasis will be on the exceptionalism of impeachment, in that it is not perceived that it will be used often, but its existence serves as an incentive to follow the accepted norms of the constitution.

It is hoped that Accountability, Impeachment and the Constitution: The Case for a Modernised Process in the United Kingdom will add to the debate surrounding the accountability of the executive and be of interest to those interested in the status of impeachment within the United Kingdom.

Research methodology

This section concerns the research methodology used to undertake the research upon which the book is based. Accountability, Impeachment and the Constitution: The Case for a Modernised Process in the United Kingdom addresses impeachment as a form of accountability from a contemporary and comparative analysis, and it explores the use of impeachment as a form of political executive accountability. The central question posed by my research was whether impeachment could ever be effectively used again in the United Kingdom and whether it might serve a useful purpose as a form of executive accountability today and for the future. To understand what was meant by impeachment, I conducted a review of its historical use in this country, before considering two comparative case studies. This enabled me to approach the question with an awareness of how impeachment had been used, the problems associated with its use, and how effective it had proved as a form of executive accountability. The approach adopted in my research was not to set out to make a case for the future use of impeachment in the United Kingdom, but rather to question whether this was possible, needed, or capable of academic, political, and judicial support and then to propose a blueprint for its use.

My research methodology was approached in two ways. The first approach was a desk-based method where I used a variety of resources to undertake my research. This is a more traditional approach and incorporated the use of online and physical archives. There is a considerable volume of literature on how impeachment works in the United States, and this often considers the use of impeachment in England and Great Britain. There are also a number of books from the twentieth century considering the use of impeachment in England and Great Britain, although these focus on distinct periods of time or particular impeachments. Academic journals, such as Parliamentary History, have proved invaluable in order to access articles on impeachment, and this particular publication has published recent pieces on the impeachment of Viscount Melville and the Duke of Buckingham. A nu mber of online resources have also been invaluable to obtain out-ofprint books, Google Books, and the University of Toronto’s arcltive.org database. The online database of parliamentary proceedings, Hansard, has enabled me to follow parliamentary debates on impeachment. I have used a number of libraries at the following organisations: King’s College London, the London School of Economics and Political Science, the University of Greenwich, the University of Worcester, and the House of Commons Library. Whilst there is a wealth of material on impeachment, there is very little on how it would work today in the United Kingdom, apart from observations that it is obsolete,¹ or referencing the procedure set out in the original edition of Erskine May² In terms of the history of impeachment and its purported use in 2004, there tends to be only brief coverage on this in recent works published in this country.³

1 W McKay and CW Johnson, Parliament and Congress: Representation and Scrutiny in the Twenty-First Century (OUP 2010); O Gay and N Davies, ‘Impeachment’ (House of Commons Library, Standard Note, 16 November 2011). Note that an updated version is available.

2 T Ersldne May, A Practical Treatise on the Law; Privileges, Proceedings and Usage of Parliament (1st edn, Charles Knight and Co 1844).

3 G Rangwala and D Plesch, ‘A Case to Answer: A First Report on the Potential Impeachment of the Prime Minister for High Crimes and Misdemeanours in Relation to the Invasion of Iraq’ (August 2004); R Singh QC and C Gearty, ‘In the Matter of an Impeachment of the Prime Minister: Arising from the War Against Iraq’ (Legal Opinion, 22 September 2004); Gay and Davies (n 1).

Where material was particularly limited, I contacted institutions and organisations for assistance. Henrik Skovgaard-Petersen (Head of Section, Constitutional Law and Human Rights, Danish Ministry of Justice) generously prepared an account on the use of impeachment in Denmark and Oonagh Gay (the then head of the Parliament and Constitution Centre, House of Commons Library) arranged for me to visit the House of Commons Library and to use the archival material on impeachment. I supplemented my research with discussions with experts, such as Professor Jim Phillips (University of Toronto), who has published on the use of impeachment in colonial Canada, and Professor Erik Goldstein (Boston University), who kindly read my comparative chapters and provided invaluable feedback.

The qualitive interviews

The second approach was to adopt an empirical method in the form of qualitive interviews. This approach was designed to address my research question by testing the workability of impeachment and gauging the problems that might be encountered with using impeachment again.

Before I conducted the interviews, I met with a number of leading experts in order to discuss impeachment: Professor Conor Gearty (London School of Economics and Political Science), who co-authored the 2004 legal opinion (with Rabinder Singh QC, now a Court of Appeal judge) on impeaching Tony Blair; Professor Vernon Bogdanor (King’s College London), who was my second supervisor from 2013 to 2017; and Oonagh Gay. These preliminary discussions helped to shape my research and the direction of the thesis.

I conducted a number of empirical qualitative interviews with leading e...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Table of cases
• Table of primary legislation
• Dedication
• Preface
• 1 Introduction
• PART ONE Foundations and use of impeachment
• PART TWO UK Constitution and accountability
• PART THREE A case for impeachment
• Bibliography
• Index