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Impeachment

Standard Note:

SN/PC/02666

Last updated:

16 November 2011

Author:

Oonagh Gay and Nerys Davies

Section

Parliament and Constitution Centre

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
Crown2. The first recorded impeachment was in 1376 and the last in 1806. The procedure is
considered obsolete.

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Introduction

The ancient procedure of impeachment is described in the report of the Joint Committee on
Parliamentary Privilege in 1998-99:
71 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. 1

The earliest recorded impeachment was that of Lord Latimer in 1376 and the last was in
1806, when Lord Melville (Dundas) was charged by the Commons, but acquitted, of
misappropriating official funds. The Commons resolutions for the impeachment of Melville
were carried only by the casting vote of the then Speaker Abbot. 2 Before Melville, the last
impeachment had been against Warren Hastings in 1787 in relation to his role in India- a trial
which lasted 7 years, ending in his acquittal. The last case on purely political grounds was
that against the Tory Ministers in 1713 for their part in the negotiating the Treaty of Utrecht.
The Jacobite lords were impeached in 1716 and 1746 for rebellion. The last attempt to
persuade the Commons to bring an impeachment was against Palmerston as Foreign
Secretary, when private members alleged a secret treaty with Russia. The preliminary motion
was not successful. 3 Impeachment has not been used since 1806. Articles for the
impeachment of Walpole were drawn up after his fall in 1742, but not proceeded with,
indicating the gradual establishment of political toleration following the Revolution of 1688. 4

HL Paper 43-1 HC 214 1998-99 para 16, fn 71


An Anecdotal History of the British Parliament GH Jennings 1899 4th ed p573
3
Hansards Parliamentary Debates 23 February 1848 cols 1132-1242; Times 4 March 1848 cited in A case to
answer Hhttp://image.guardian.co.uk/sys-files/Politics/documents/2004/08/26/impeach.pdfH
4
G.W. Keeton The passing of impeachment in the Passing of Parliament 1952 p46
2

Impeachment in the 17th and early 18th centuries was a means for liquidating opponents,
and the procedure may now be regarded as obsolete, given its growth of the doctrine of
collective ministerial responsibility.7 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 of resignation of the cabinet following a successful vote
of censure against a minister, resulted in the disuse of impeachments in modern times. 5
There have been less than seventy impeachments during the whole course of English
history. There are two distinct periods in which impeachment was relatively common; firstly in
the 14th century until the establishment of the Tudor dynasty 6 and secondly in the 17-18th
century. A full quarter of all of them belong to the years 1640-2, when parliamentarians
revived the ancient right. Two of the most celebrated cases, against the Earl of Strafford and
Archbishop Laud were dropped in favour of bills of attainder, due to the flimsy nature of the
charges of high treason. 7 During the Oxford Parliament in 1681 the impeachment of Fitzharris
was rejected by the Lords, and the Commons passed a resolution That it is the undoubted
right of the Commons to impeach before the Lords any Peer or commoner for treason or any
other crime or misdemeanour, and that the refusal of the Lords to proceed in Parliament
upon such impeachment is a denial of justice and a violation of the constitution of
Parliament. The Commons also decided that any civil law court which should dare to deal
with the case of Fitzharris should be answerable to them for its action.

Impeachment procedure

Impeachment is the exercise of the law of parliament. As noted by the 1976 edition of
Erskine May, the Commons, as a great representative inquest of the nation, first find the
crime and then, as prosecutors, support their charge before 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. 8 The first edition of May, in 1844, noted that:
It rests, therefore, with the House of Commons to determine when an impeachment
should be instituted. A member, in his place, first charges the accused of high treason
or of certain high crimes and misdemeanours, and after supporting his charge with
proofs, moves that he is impeached. 9

It should be noted that this description predates modern Standing Orders, notably no. 14(1)
which gives precedence to government business, and no. 24 which allows the Speaker to
rule on whether to move the adjournment on an urgent matter. A full description of the
procedure of impeachment in Great Britain is given by Hatsell in vol. 4 of his
Precedents. 10 Proceedings were held in Westminster Hall.

Review of the procedure

The 1967 Select Committee on Parliamentary Privilege listed impeachment as being among
the existing privileges of the House in its corporate capacity. But it recommended that the
5

7
8
9
10

See Library Research Paper 04/82 The collective responsibility of ministers: an outline of the issues for a
discussion of the issues
See R M Perceval Impeachment Table 1973 pp 31-33 for an interesting discussion of the development of
this procedure
GW Keeton The passing of impeachment in The Passing of Parliament 1952 p46
Parliamentary Practice 19th ed p66
Parliamentary Practice 1st ed 1844
Hatsells Precedents vol 4 1818

right to impeach should be formally abandoned, for which legislation would be necessary. 11
1No such legislation was introduced. The recommendation was repeated in the third report
from the Committee on Privileges in 1976-77. 12 More recently the Joint Committee on
Parliamentary Privilege Report stated that the circumstances in which impeachment has
taken place are now so remote from the present that that the procedure may be considered
obsolete. 13
A vote of no confidence can be moved at any time in the House of Commons but the
Government, by virtue of its majority, will usually win. Erskine May notes: by established
convention, the government always accedes to the demand from the Leader of the
Opposition to allot a day for the discussion of a motion tabled by the official Opposition,
which in the Governments view would have the effect of testing the confidence of the
House. If defeated on such a vote then the Fixed Term Parliaments Act 2011 requires a new
administration to be formed within 14 days or a general election is held. The form of a
confidence or no confidence note is now set out in the Act. Further details are available in
Library Standard Note 6111 Fixed-term Parliaments Act 2011.
May notes: motions critical of the conduct of Ministers, either individually or collectively, have
not been treated as falling within [the no confidence] convention, though they have been
debated in Opposition time. 14 The Backbench Business Committee (BBC), which has
operated in the 2010 Parliament allocates time to motions brought by backbenchers. The
question of whether a motion of censure would be allowable within BBC time has not yet
been tested.
The impeachment procedure has not been widely adopted in the Commonwealth. However,
it survives in a somewhat different form in the constitution of the United States of America as
a mechanism for the removal of officials of the federal government, including the President,
by Congress. The House of Representatives makes the charges, and the Senate tries
impeachments. 15

Tony Blair and impeachment

The former MP Adam Price commissioned a report from Glen Rangwala, a lecturer in politics
at Newnham College, Cambridge and Dan Plesch, honorary fellow at Birkbeck College
London which set out the case for a possible impeachment of the Prime Minister, Tony Blair,
over his record in the Iraq war.
Mr Price and ten other MPs, including Alex Salmond, Boris Johnson and Nigel Evans
declared an intention to table a motion calling for impeachment of Tony Blair. 16 After
discussion with the parliamentary authorities, a motion was tabled on 25 November 2004, as
follows:
4 CONDUCT OF THE PRIME MINISTER IN RELATION TO THE WAR AGAINST
IRAQ
Mr Edward Garnier

11

HC 34 1967-68 para 115


HC 417,1976-77 para 16
13
HL Paper 43-1 HC 214 -1 1998-99 para 16
14
Parliamentary Practice 2010 24th ed p344
15
See Charles Black Impeachment: A Handbook 1988
16
MPs plan to impeach Blair over Iraq war record 26 August 2004 Guardian
12

Mr Douglas Hogg

Angus Robertson

Mr Elfyn Llwyd

Mr Simon Thomas

Mr Alex Salmond

Mr Michael Weir

Mr Richard Taylor

Hywel Williams

Dr Jenny Tonge

Pete Wishart

Mr David Amess

Mr George Galloway

Mr Richard Bacon

Mr John Gummer

Mrs Angela Browning

Mr Boris Johnson

Mr Nigel Evans

Mr Paul Marsden

Annabelle Ewing

Richard Ottaway

Mr Roger Gale

Adam Price

That a select committee of not more than 13 Members be appointed to investigate and
to report to the House on the conduct of the Prime Minister in relation to the war
against Iraq and in particular to consider
(a) the conclusion of the Iraq Survey Group that in March 2003 Iraq did not possess
weapons of mass destruction and had been essentially free of them since the mid
1990s,
(b) the Prime Ministers acknowledgement that he was wrong when in and before
March 2003 he asserted that Iraq was then in possession of chemical or biological
weapons or was then engaged in active efforts to develop nuclear weapons or was
thereby a current or serious threat to the UK national interest or that possession of
WMD then enabled Iraq to inflict real damage upon the region and the stability of the
world,
(c) the opinions of the Secretary General of the United Nations that the of Iraq in 2003
was unlawful, and
(d) whether there exist sufficient grounds to impeach the Prime Minister on charges of
gross misconduct in his advocacy of the case for war against Iraq and his conduct of
policy in connection with that war; and
That the Committee shall within 48 days of its appointment report to this House such
resolutions, articles of impeachment or other recommendations as it shall think fit.

The motion set out the possible grounds for impeachment, following loosely the procedure
used against Lord Melville, where accusations were also referred to a select committee of
the Commons. 17 It appeared in the list of future business for that day, but the motion did not
have precedence in terms of the business of the House and was not debated that session.
Tony Blair resigned as Prime Minister and a Member of Parliament in 2007.

17

See Hatsells Precedents volume IV 1818. Appendix 15 sets out extracts from the Commons Journal which
illustrate the procedure followed once the Commons had voted for impeachment

The Iraq Inquiry, was established by the new Prime Minister Gordon Brown, to discover if
there could be lessons learned from the conflict. This could be seen to be a response to the
group of MPs deciding to try and impeach the then Prime Minister. 18

18

Impeach Blair campaign, archived at Hhttp://hyperfacts.com/985259H and see A Case to Answer 2004
Hhttp://warisacrime.org/downloads/blairimpeachment.pdfH

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