Impeachment – the ousting of presidents by the actions of parliaments and similar representative bodies – seems to be in vogue just now, whether in Zimbabwe, Brazil or, potentially (dare one say it) in the United States of America. But what is it and where did it come from?
Although most associated with presidential systems, its origins lie in medieval England, a time when the monarch’s Great Council was deemed to have the powers of a court of law.
The Council was what we know of as the House of Lords now. It was only with the early development of the House of Commons that the notion of impeachment developed. The bicameral nature of Parliament led to the interesting constitutional innovation: the idea that Parliament can put on trial ministers of the monarch for failing in their duty, even though those ministers were (and in theory remain to this day) responsible to the monarch, not to Parliament.
This is the thinking: It was accepted that “the king can do no wrong”; it followed that if the king apparently did a wrong, such as breach a longstanding agreement with Parliament, it was the king’s agent, not the king, who had done the wrong – a member of the king’s executive, one of his advisers.
The Great Council, when it was a baronial body, always had the role of a judicial body, albeit mainly to approve the legal judgments of the king. So, the argument ran, the remnant of that Council, the House of Lords (barons and bishops), could judge individuals but not bring charges against anyone. The House of Commons, however, had no such restriction, so it took it upon itself to bring charges as necessary against the monarch’s ministers to the Lords for their judgment – impeachment. Continue reading
The British Prime Minister, David Cameron, has declared children must learn about Magna Carta, the 13th century deal between England’s barons and King John, which he considers “the foundation of all our laws and principles”. He knows this because he has read it in a 1905 children’s book of history, Our Island Story.
In reality Magna Carta has little to offer the modern reader – not least because most of it has been repealed or else was suppressed almost as soon as it was issued. Here is what is left of it. So is there any point in studying it? Perhaps, but not for the Union Jack waving reasons that Cameron wants it taught – and certainly not because it demands “other people [than the king] should have rights” as he believes. Indeed, it was an attempt to protect the privileges of an elite, not the rights of “the people”.
The background to Magna Carta was the various foolish wars prosecuted by the English kings – Richard the Lionheart’s Crusade in the Middle East against Islamic forces seeking to dismiss the Christian westerners from their tottering Levantine holdings and King John’s attempt to assert his rights over France. None of this came cheaply, so the issue underlying Magna Carta was: could taxes be levied by the king without the consent of “the people”?
In the 12th and 13th centuries, of course, “the people” was the barons and clergy and a small number of freemen, and when the barons revolted against King John (who succeeded his brother Richard to the throne in 1199) they were revolting against both the excessive taxations, required as a result of John’s French war, and the centralised power of the state, the absolutism that had trampled over their feudal rights – the rights they had in the lands they held as fiefs of the king.
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The Maria Miller expenses case has raised the issue of why members of the UK Parliament “mark their own homework” regarding their own ethical issues. Calls have been made to give lay members (ie non-MPs) on the Commons Standards Committee a vote on breaches of expenses rules – or to take the issue away from MPs altogether. Further, the idea of allowing MPs’ constituents to recall and “sack” MPs if not satisfied by their performance has also been raised.
Conservative MP Geoffrey Cox QC has warned against siren voices demanding a watering down of parliamentary privilege as a result of the expenses affair. That would be a dangerous constitutional change from the position in which MPs order their own affairs. If outsiders interfere “it can have the power to change history” he told the BBC’s World At One. It is a constitutional issue.
Fundamentally Cox is right. The privilege the House of Commons has to order its own affairs goes back to one of the earliest struggles with James I – who was no fan of the Parliament he was forced to work with when he became King of England in 1601.
He is reported to have told a Spanish ambassador: “The members give their opinion in a disorderly manner. At their meetings nothing is heard but cries, shouts and confusion. I am surprised that my ancestors should ever have permitted such an institution to come into existence.”
The UK Parliament’s Syria vote offered (and lost) by David Cameron in 2013 suggests that former Prime Minister Tony Blair may have left a remarkable constitutional legacy as a result of the Iraq war – one that affects the United States and possibly even France as well as Britain. Even though British Prime Ministers can declare war and deploy troops abroad under Royal prerogative without any Parliamentary approval, in 2003 Blair sought the backing of Parliament for the Iraq venture. For the first time since the 1950 Korean conflict Parliament had a say (albeit “consultative”) prior to the engagement.
So what is the history of the prerogative power to make war, and has Britain now created a new constitutional precedent that amounts to a new convention?
The prerogative power to make war is one of a number of monarchical powers retained by the Crown as the medieval representative parliamentary system (which began as a means of legitimising tax-raising beyond the Crown’s traditional levies, particularly for wars) grew into a qualified democracy. Those prerogative powers that remain (including appointing governments and the dissolution of Parliament – until the change in the Coalition agreement in 2010) are mostly held by the Prime Minister in the name of the Crown and the relevant Secretaries of State: the Defence Secretary for war-making, the Foreign Secretary for treaty-making and regulating foreign relations (though treaties often have a parliamentary passage of some sort; see below). The Executive (Government) decides on military deployments, not the Legislature (Parliament).
The US President is Commander in Chief of the Armed Forces; the UK Prime Minister derives his/her powers from the Queen who is also Commander in Chief. The fiction is that the Queen’s powers are not exercised by the Prime Minister and Secretaries of State as such but that she is likely to be bound by their advice on such matters so they in effect hold the power.
‘Methinks it’s a very strange thing for a king to consult with his subjects what war he means to undertake. This were the means for his enemies to know what he intends to do’ – Commons Speaker, 1621