The ditch Blair project

By Isabel Hilton

Financial Times

Published: March 5 2005

Every day that the House of Commons sits, between 10am and the close of parliamentary business, one of a rota of six members of parliament presents him or herself at the table office, a small room in a corridor behind the Speaker’s chair. There the MP presents a signed copy of a motion that will appear on the next day’s order paper under future business.

The motion is the same each day. It is entitled “Conduct of the Prime Minister in relation to the war against Iraq” and bears the names of 23 members of parliament from five parties. It proposes 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 in Iraq”. It is, in effect, proposing that the House of Commons solemnly contemplate the impeachment of Tony Blair.

The house should consider, it argues, the Iraq Survey Group’s conclusion last September that in March 2003 Iraq had no weapons of mass destruction, the prime minister’s acknowledgment that he was wrong when he said that Iraq had or was engaged in active efforts to acquire such weapons, and the UN secretary-general’s view that the war in Iraq was unlawful. In light of the above, it follows that the house should further consider whether there are sufficient grounds for charges of gross misconduct over Mr Blair’s advocacy of the case for war and his conduct of policy in connection with that war. Until the motion first appeared on the order paper on November 24 last year, it had been some 200 years since the last full-blown impeachment of a prominent British political figure.

The motion’s appearance had been preceded by weeks of discussion with the office of the clerk of the House of Commons, the gatekeeper of parliamentary business, whose job it is to determine whether or not a motion is acceptable. In this case, there were a number of factors to consider, among them the basic question: does impeachment still exist in British parliamentary procedure?

That it once existed is undeniable. The word derives from the old French word empechement, meaning to impede or prevent. Like many other political instruments, the practice was invented in medieval England. The first case that the House of Commons took to the House of Lords was the prosecution of one Richard Lyons for corruption in 1376. It went on to flourish elsewhere. In the US, notoriously, it was recently deployed over the affair of President Clinton and the owner of the blue dress, and there are many ongoing impeachment proceedings at lower levels of the federal system.

Less predictably, it is thriving in Iran, where several ministers have been impeached in recent times on charges of financial or political corruption (victims of a wider struggle between a conservative parliament and a less conservative executive), as has a president of South Korea, for violating election laws.

In Britain there have been 70 full impeachments in parliament for offences ranging from treason to corruption, but most of them took place so long ago that they are commonly the province of historians rather than journalists. There were two high tides of impeachment proceedings: one in the 14th century, when parliament was growing in strength, and the second in the 17th century, when parliament reached for impeachment to check what it saw as the abuse of power by the Stuart monarchs.

The most spectacular impeachment of more recent times opened on February 13 1788 against Warren Hastings, governor general of India between 1773 and 1786. The initiative was led by Edmund Burke, who sought to use the case to expose racism and injustice in British imperial policy. Hastings was accused, in the words of Thomas Babington Macaulay, of “exercising tyranny over the lord of the holy city of Benares and over the ladies of the princely house of Oude”.

The affair was a sensation and the opening of the trial was attended by everyone from the Prince of Wales down. “The streets were kept clear by cavalry. The peers, robed in gold and ermine, were marshalled by the heralds under garter King-at-arms. The judges, in their vestments of state, attended to give advice on points of law.” It took two days to read the charge sheet and on the third day Burke opened the case for the prosecution with such eloquence that several of the ladies present were overcome and had to be removed. Things went downhill after that.

The trial dragged on for seven years and ended in an acquittal, though Hastings was by then a broken man, his reputation and his fortune in ruins, and the whole affair contributed to impeachment falling out of favour.

The last impeachment proceedings, in 1806 against the First Lord of the Admiralty, Lord Melville, for alleged embezzlement of navy funds, ended in acquittal. A subsequent attempt, in 1848, to impeach Lord Palmerston, the foreign secretary, for signing a secret treaty with Russia, failed.

It was not, however, the final attempt to launch an impeachment in the UK. In April 1977, the Young Liberals’ conference urged the then Liberal leader David Steel to move for the impeachment of Ronald King Murray QC, the Scottish lord advocate, for allegedly mishandling a murder case. David Steel took no action, despite the urgings of the then chairman of the Young Liberals, Peter Hain. The former lord advocate, now Lord Murray, recently described the attempt to impeach him as “entirely misconceived” but believes that impeachment is still possible. In a neat reversal of positions, Mr Hain, now a loyal member of the Labour Party and the leader of the House of Commons, argues that it is obsolete.

One of Britain’s foremost constitutional authorities, Professor Vernon Bogdanor, is briskly dismissive of the idea that impeachment is still extant. “It has fallen into desuetude,” he said. “It was completely superseded with the development of the modern party system in the 19th century.” And yet, despite Professor Bogdanor’s opinion, at the end of the second week of November, when the table office initialled, or approved, the motion that called on the house to consider impeaching Tony Blair, an instrument widely considered obsolete rose - temporarily perhaps - from its deathbed. This impeachment may not flourish, but parliament has acknowledged that impeachment still exists.

To the small group of MPs who had coalesced around this unusual proposition, the outcome of the battle of the table office felt like a notable victory. On November 24, the day the motion was first tabled, they held a chaotic press conference in the House of Commons annexe, along with a motley string of notables - among them the novelists Frederick Forsyth and Iain Banks, the actor Corin Redgrave, peace campaigner Bruce Kent and the musician Brian Eno. Also in the throng were Reg and Sally Keys, the parents of Lance Corporal Thomas Keys, who was killed in Iraq on June 24 2003 at the age of 20 while serving with the Royal Military Police.

Alex Salmond, leader of the Scottish Nationalists, chairing the proceedings, announced that the campaign to impeach the prime minister had begun. “The motion is on the order paper. The flag is planted,” he said, like a latter-day Jacobite freshly landed from France. “Now we will see how many rally to it.”

There were a number of odd pairings among both the celebrities and the members of parliament. Frederick Forsyth and Corin Redgrave sit about as far apart in the British political spectrum as polite company permits; the former Tory minister Douglas Hogg, who drafted the motion, is not normally found in political congress with the Respect coalition MP George Galloway.

Galloway had signed the motion but was otherwise engaged that day, successfully prosecuting a libel action against The Daily Telegraph. Galloway, in turn, is not often found on the same list as Boris Johnson, the former shadow minister for the arts, who was also absent after making headlines for entirely different reasons: an affaire de coeur which led to his departure from the front bench.

Among the MPs there were those, such as Edward Garnier, a former Conservative shadow attorney general, who had supported the war, and those, such as the Liberal Democrat MP Jenny Tonge, who had opposed it. Each had his or her own explanation. As the photographers climbed over the politicians to get to the celebrities, Frederick Forsyth, invited by the Tory MP David Amess, was heard to announce that Tony Blair had misled the House of Commons on March 18 2003. “That is the offence,” he said, “and the only offence. It is not commensurate with continuing in office. If the house had not been misled it would have voted otherwise. This was not inadvertent. It was deliberate mendacity.” Iain Banks put it even more succinctly. “Tony Blair is a liar and a warmonger,” he said. “I’m here as a voter and a British citizen.”

Every party but Labour was represented by the signatories, who included the former Tory cabinet minister John Gummer. Some, such as Galloway, could be categorised as the usual suspects, and there is a strong nationalist contingent, with both Plaid Cymru and the Scottish National Party - freer, perhaps, from a commitment to the political status quo than the other parties at Westminster - strongly represented.

Critics might argue that two parties that aim for independence have little standing in an argument over the workings of Westminster. One Plaid Cymru member acknowledged the anomaly but added, “I think we are entitled to try to ensure that it works, as long as we are here.”

”It’s easy to pour scorn,” said Garnier. “And there are several categories of members who will not support this. The No 10 machinists will pour scorn on it. The political realists will say it won’t work and that we should wait for the next election, and the yawners - Pavlovian dogs who see no purpose in being an MP except to be re-elected - won’t even think about the constitutional issue of holding the executive to account. But there is nothing improper about requiring the prime minister to tell the truth to the House of Commons. Elective dictatorships begin when the commons gets lazy.”

The Garnier list of non-supporters has turned out to be fairly accurate so far. The question is, who might the supporters be? Technically, one MP is enough to move a call for impeachment, but given that success depends on a vote in the House of Commons, the sympathies of more than 300 others need to be engaged before the next step - the setting up of a committee - could be reached.

What becomes of the venture depends on how many will join the call for what is, in effect, a trial of the prime minister, preceded by his detention by men in tights. (The procedure envisages the prime minister’s arrest by the sergeant at arms “until such time as the House of Lords orders the Gentleman Usher of the Black Rod to take the accused into custody”. Bail, however, is a possibility.) To date, no Labour MPs have signed the motion - not even any retiring members, for whom the withdrawal of the whip is an empty threat. Despite the high spirits of the November 24 press conference, the prime minister is unlikely to need to brief his defence counsel just yet.

Officially, the prime minister’s press machine has assumed an attitude of determined stonewalling. “We don’t have anything to say about this,” said a spokeswoman. What would No 10’s view be of a Labour backbencher who signed the motion? “We could not possibly comment on that.” What was the prime minister’s reaction? “We have not commented on that.” Has the prime minister received any legal advice? “We could not comment on that.”

Is it, then, no more than a silly season stunt, as its critics would argue? Those involved insist that both they, and the proposition, are serious. “This is not about rehearsing old arguments about the case for war,” said Tonge. “It is about the constitutional precedent of a prime minister deceiving the country and getting away with it.”

What this disparate group has in common is a sense of disquiet that, despite four inquiries, the conduct of Iraq policy has left a number of questions hanging: what, if anything, should be done about a style of government that its critics argue has undermined collective cabinet responsibility, the civil service and the House of Commons, leaving decisions in the hands of a narrow circle around the prime minister, with few formal minutes and no checks and balances? The next question follows: what should happen in the British constitution if a prime minister misleads the House of Commons and fails to resign?

Douglas Hogg has no doubt that the remedy proposed is apt. “I have been saying since the war began that this man ought to be impeached,” he said. “People think of it as frivolous, but it is a very serious matter. Lying to the House of Commons, after all, is a high charge and you do expose yourself to risk if you make it. The reason that it should be taken seriously is that we were misled into an unwise, tragic and unnecessary war.”

The MP who first embraced the idea of impeaching Blair was Adam Price, a Welsh miner’s son and Plaid Cymru member for Carmarthen East and Dinefwr. Price, like many others, felt frustrated at the outcome of the Hutton and the Butler inquiries and the failure of the debate on the Butler report, as he saw it, to pursue the issue to a conclusion. (The Hutton inquiry investigated the death of Iraq arms expert David Kelly; the Butler report looked at the accuracy of intelligence about Iraq’s weapons capability.)

”The Butler report was like a box of knives,” Price said, “but nobody used them. When we tried to take it further after the debate we began to get non-replies to questions on Butler. Then an MP was called to order for accusing the prime minister of misleading the house. How can we take it further if we get called to order for saying what we think on the floor of the house?”

Last summer Price was in search of other parliamentary methods of calling the prime minister to account when he came across an article written for The Guardian by Dan Plesch, a security expert and academic. Plesch suggested that impeachment was still a valid instrument, and a note on impeachment from the House of Commons library had been prepared in September 2003 at the request of the oppositionist Labour MP Peter Kilfoyle. The library note advised that impeachment might be considered archaic, but it had never been repealed as a legal instrument.

”I felt we were in a constitutional crisis,” said Price. “The convention is that if a minister lies, he must resign... the prime minister is guardian of that convention. If he himself is guilty and doesn’t resign, who is to enforce it?”

Impeachment proceedings, he felt, offered a way forward. By the end of July last year, Price had gathered a group of sympathisers and decided that a serious report on impeachment was needed if it was to be pursued. “We were going to be accused of frivolity in any event, so we needed to approach it in a serious manner,” he said. Price contacted Plesch and the Cambridge academic Glen Rangwalla, who had exposed the fact that the government’s dossier on Iraq’s WMD contained plagiarised text from an obsolete academic thesis. Together they assembled the evidence, Plesch working on the historical precedents while Rangwalla combed through the prime minister’s public statements, checking them against what was later publicly known about the state of the evidence.

On August 26, the group published their argument in a short book entitled A Case to Answer. Rangwalla’s case against the prime minister extended to more than 30 pages. He argued that Blair was guilty of a pattern of issuing “seriously misleading” statements about Iraq’s possession and development of WMD that included persistently misrepresenting the assessments of the intelligence community, which he cited in support of his case. He also, according to Rangwalla, made statements that were untrue at a time when British intelligence existed to show that they were untrue.

On April 3 2002, Blair told NBC News that, “We know that Saddam Hussein has stockpiles of major amounts of chemical and biological weapons” (Rangwalla’s italics). But the most that the Joint Intelligence Committee (JIC) had come up with the previous month, as the Butler report later revealed, was: “We believe Iraq retains some production equipment and some small stocks of chemical weapons agent precursors and may have hidden small quantities of agents and weapons.”

The prime minister told the House of Commons on April 10 2002 that “[Hussein] is developing weapons of mass destruction and we cannot leave him to do so unchecked. He is a threat to his own people and to the region and, if allowed to develop these weapons, a threat to us also.” None of the intelligence examined by Butler made any such claim. In fact, the JIC in March 2002 said “Saddam has not succeeded in seriously threatening his neighbours,” and on September 9 2002 that “The use of chemical and biological weapons prior to any military attack would boost support for US-led action and is unlikely.”

When Blair told the TUC in September 2002 that Iraq “had enough chemical and biological weapons remaining to devastate the entire Gulf region”, British intelligence did not support the claim. Blair’s statement in the House of Commons that month that Hussein’s weapons programme was growing was in flat contradiction, according to Rangwalla, to the JIC’s assessment that Iraq’s illicit programme had been frozen or hindered.

Blair, according to Rangwalla, concealed evidence that would have undermined his own case. Much of the prime minister’s case on WMD rested on the stockpiles allegedly retained from 1992. Blair frequently cited the defection of Hussein Kamal, Hussein’s son-in-law, and his admission in 1995 that Iraq had indeed had an extensive WMD programme. Blair did not disclose, however, that the son-in-law had also told UN inspectors in 1995 that he personally had ordered the destruction of all biological, chemical and nuclear weapons and that this took place.

The prime minister also, Rangwalla argues, made claims of non-co-operation with the UN inspectors, putting Iraq in material breach of UN Security Council resolution 1441 - a justification, he argued, for military action. But Blair’s claims were contradicted by the accounts of the inspectors themselves, whose findings, says Rangwalla, were repeatedly misrepresented by the prime minister.

When Iraq supplied the UN Monitoring, Verification and Inspection Commission, the International Atomic Energy Authority and the UN Security Council with a 12,000-page declaration of all aspects of its nuclear, biological and chemical programmes on December 7 2002, Blair swiftly dismissed it. On February 25 2003 he told the commons that it was “a statement that not a single member of the international community takes seriously”, and he later described it as “false”. Hans Blix, however, took the view that the statement contained new material which, he said, was welcome.

On February 25 2003, Blair said that Hussein had provided no evidence of destruction of “the biological and chemical agents and weapons the UN proved he had in 1999”. In fact, the UN inspectors had not proved in 1999 that Saddam held stockpiles. In 2003, though, they had made considerable progress in collecting evidence from the Iraqis pertaining to the prior destruction of stocks, which enabled them to account for materials unaccounted for in 1999. They had been reporting this progress regularly.

All of this, Rangwalla alleges, occurred because Blair had committed himself in 2002 to backing Bush, and was then left with the challenge of winning public support for a decision already made.

The argument for impeachment was supported by a legal opinion from Rabinder Singh QC and Professor Conor Gearty, director of the Centre for the Study of Human Rights at the London School of Economics, both senior members of Matrix, coincidentally also the chambers of Cherie Booth.

They agreed that impeachment appeared to have fallen into disuse with the availability of other means of calling ministers - and prime ministers - to account, such as the Ministerial Code, first drawn up in 1917 by cabinet secretary Sir Maurice Hankey and now revised and published. The current version stresses that “Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments... it is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.” The dilemma that Rangwalla and Plesch believe they have exposed is what should happen when the sin of deception is that of the prime minister?

But Singh and Gearty also noted that the leading authorities on English constitutional law did not dismiss the practice of impeachment. Sir William Holdsworth, for instance, the venerated historian of English law, did not consider its disuse either necessary or permanent. Impeachment, Sir William had written in his A History of English Law (1903-1938), “might still be a useful weapon in the armoury of the constitution” since “it does embody the sound principle that ministers and officials should be made criminally liable for corruption, gross negligence or other misfeasances in the conduct of the affairs of the nation”.

It was especially useful, according to Sir William, when the development of party government “pledges the party to defend the policy of its leaders, however mistaken it may be and however incompetently it may have been carried out”. It was a description that Price and his colleagues felt fitted the facts quite neatly. Encouraged, they set up a website and began to campaign.

The parliamentary response to the idea of impeaching the prime minister fell roughly into the categories envisaged by Edward Garnier. The Liberal Democrat leadership was invited to join but declined to support the motion. They tabled instead an amendment to the Queen’s Speech in which they called for a special committee to consider legislation on the powers of parliament in matters of war and peace. Their motion fell, without debate, a few days later. The Labour whips made it clear that Labour MPs were to stay well away and vigorous background briefing on behalf of the government dismissed the effort as hopeless.

Outside parliament, the reaction was more nuanced. Boris Johnson, himself a declared supporter in the house, argued vigorously in favour of impeachment in both The Spectator (which he edits) and The Daily Telegraph. The Western Mail, enthusiastic for matters Welsh, devoted five pages to the story in August 2004. An Any Questions? audience on BBC Radio Four gave Jenny Tonge a rousing cheer when she spoke about it.

And, in the quieter halls of the establishment, where senior civil servants, academics and military officers shared the disquiet that had given birth to the proposal, it aroused an indulgent smile. Among the august scholars of the British Academy, for instance, there had been sufficient concern after Hutton and Butler for the Academy to be moved to formulate its own analysis of the constitutional implications of the lead-up to the war and to publish its conclusions in a short book: Hutton and Butler, Lifting the Lid on the Workings of Power.

Led by Lord Runciman, the president of the Academy, and armed with the insights afforded by Hutton and Butler, the contributors - among them Sir Michael Quinlan, a former permanent under-secretary of state at the Ministry of Defence, Lord Richard Wilson, a former cabinet secretary, and the historian Peter Hennessy - picked over the lessons learned. None supports impeachment as a remedy, but all agree that there are constitutional questions to answer; they also query whether the prime minister has been cleared of all charges.

Sir Michael, for instance, wrote that “there is more to good faith than merely the avoidance of direct mendacity, and indeed the assertion that the evidence was ‘extensive, detailed and authoritative’ surely skirted the boundaries of that.” He was also disturbed by the way No 10 conducted its business and by how little weight either parliament or the cabinet had in the decision to go to war, a disquiet echoed by Lord Butler in The Spectator, in which he made unusually direct criticisms of the manner in which decisions had been taken on the prime minister’s sofa rather than in cabinet.

In a recent letter to The Sunday Times, Sir Michael wrote that Blair had “exerted or connived... to mould legal advice to his preference and failed to disclose fully to the cabinet even that moulded advice; and... so arranged the working of the cabinet that colleagues had no timely or systematic opportunity to consider the merits of his policy in an informed manner”. Even supporters of the war, Sir Michael wrote, “must surely recognise in all this a more ruthless ends-justifying-means exploitation of personal power over governmental process in life-and-death issues than we have seen since Suez. It is disquieting that parliament has been so little able to hold this remarkable set of actions to account, and fix barriers against repetition.”

Today, he is even more forthright. “It’s a criminal folly... we must learn the lessons and make sure it doesn’t happen again. People really must not tell lies.” Impeachment, he says, would not work, although, as he puts it, “parliament is the only means of making truth-telling stick. There is no tidy recourse that the rest of us can take short of the next election.”

(Last week, The Guardian published extracts from Lawless World, by international law professor Philippe Sands, who alleged that, in the run-up to war, attorney-general Lord Goldsmith gave a written opinion, circulated to only a few senior ministers, that military action might be illegal. The Guardian further claimed that a written parliamentary answer given days later in Goldsmith’s name, stating that the war would, after all, be legal, was drawn up in Downing Street. Goldsmith denied this, saying that the answer was drawn up in his office, without consultation with Downing Street.)

Like Sir Michael, Peter Hennessy feels the affair has left an urgent need to ensure that it does not happen again. His remedy is to take the “high constitutional route” and transfer the power to go to war from the prime minister to the house. “You can’t remove untruth entirely from government, but if this is never to happen again, we need to vest the power to declare war in the House of Commons,” he says. “We need a War Powers Act and we need to ensure that the House of Commons has the means to make that decision - for example, that it has access to the full legal advice.”

Impeachment, he argues, is a distraction. “It won’t work and it takes people’s minds off what they should be doing. It plays into the hands of the executive if there is a distraction. But there is a deep unease among the real professionals - the military people, the intelligence world. This is our generation’s equivalent of Suez and it won’t go away.”

Sir Menzies Campbell, deputy leader of the Liberal Democrats, supports the call for a War Powers Act. “It’s time to put all this on a proper footing,” he says. “And the clear implication of such parliamentary proceedings would be unfettered access to the law officers’ advice about the legality of the war.” He does not, though, support impeachment. “I don’t think the remedy for any of this is to be found by scratching around for arcane legal proceedings,” he says. “But I would like to see a select committee of the House of Commons responsible for the secret services. At present we have a parliamentary committee appointed by the prime minister and the commons has no scrutiny.”

”The prime minister has been cleared of deliberately lying by two select committees of the house, by Hutton and by Butler,” says Vernon Bogdanor. “The jury is still out on misjudgment but not on deliberate deceit. The fact is that most MPs don’t believe that he lied. If they did, then the correct procedure would be a confidence motion in the house. Impeachment is simply not worth discussing.”

But for Adam Price and the other pro-impeachment MPs, none of these proposed remedies is appropriate. “There have been 70 successful impeachments in British parliamentary history,” Price says. “But impeachment often works in different ways. When there was a move to impeach Richard Nixon over Watergate, there hadn’t been a presidential impeachment since Andrew Johnson. But the threat of impeachment shone the light of public scrutiny on the affair. Nixon went before the impeachment got under way.”

Even the most optimistic supporters of the Impeach Blair campaign would be hard pressed to argue that either a resignation or an impeachment is a likely outcome. But Price hopes that the Speaker will grant a debate in which they will be able to address, without being called to order, the question of whether the prime minister was guilty of misleading the House of Commons.

In late November, in the high Victorian interior of the Old College in Aberystwyth, on the west coast of Wales, beneath gold-framed portraits of Victorian worthies, Price laid out his case before an audience of perhaps a hundred would-be campaigners in the second of a planned series of meetings on impeachment. It was a long way from the vast anti-war demonstrations of 2003, but Price argued his case with a patient sincerity. The impeachment motion, he maintained, has already changed the tenor of the discussion of the prime minister’s actions.

”Before the summer, there was an emperor’s new clothes period when you were not allowed to say ‘he lied’ in polite society,” he said. “Now it’s almost taken for granted. It’s not ‘What’s your evidence?’ but ‘Will it work?’ The responsibility to tell the truth has two elements - that you believe what you say to be true and that you make every effort to ensure that belief is well founded... Can you break the law, undermine the constitution and then just go to the country and have it all forgotten? Unless we stand up for the basic principle of accountability, why should people bother to vote at all?”

Isabel Hilton is a writer and broadcaster.