Iain Murray (Edge of England’s Sword) has several posts on this; go here and scroll down, and also see here.
I’m not sure I agree with the last post, which argues:
It occurs to me that impeachment may actually have been the subject of implied repeal under the much-derided (by me among others), but nevertheless law of the land, Human Rights Act 1998.
How does the impeachment process as described by the authors square with these provisions?
[Article 6] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
How can their Lordships assembled be regarded as an “independent and impartial tribunal”? And:
[Article 7] No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.
An undefined “High Crime / Misdemeanour” is patently contrary to this article.
I know nothing about British law, but my instinct is that if an impeachment — even for a “High Crime” — leads only to expulsion from office, it’s more akin to the firing of a high government official (though a highly specialized sort of firing) than to a true criminal conviction. It doesn’t make much sense to have the same protections for the accused there as when the accused is put in danger of prison, death, or the other consequences of criminal convictions; the main issue here is the welfare of the realm, not the interests of the government official, who ought not be seen as having any property interest in his position. And it would surprise me if English courts interpret these provisions, which seem focused on true criminal prosecutions or at least matters where the individual does have some sort of personal right at stake, as applying to impeachment. But in any event, Iain is the expert on English matters, and I’m not.
UPDATE: I’ve exchanged a few e-mails with Iain about my quibble, and they reminded me to acknowledge what Iain quite correctly pointed out (and what Mark Kleiman has just blogged about) — — in English history, the most prominent impeachments (centuries ago) have resulted in criminal punishment. The U.S. constitutional rule that an impeachment may at most punish someone by removal from federal office, perhaps coupled with a prohibition on future federal officeholding is actually a reaction to that history.
Nonetheless, I strongly suspect that in this impeachment, all that Blair’s enemies would seek is his removal from office. As a political matter, it seems highly counterproductive for them to ask for more. And if that’s all they ask for, then I don’t think that the process ought to be treated as a criminal process.
FURTHER UPDATE: I told you that Iain is the epxert on English matters and I’m not; he writes that a 1999 report of the Parliamentary Committee on Privilege provides the following:
Under this [. . .] procedure [i.e., impeachment], all persons, whether peers or commoners, may be prosecuted and tried by the two Houses for any crimes whatsoever. 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 to that House. If a commoner, he is arrested and delivered to Black Rod. The Lords may release the accused on bail. The Commons appoints ‘managers’ for the trial to prepare attendance of witnesses on his behalf, and is entitled to defence by counsel. When the case, including examination and reexamination, 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, judgement 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. The last impeachment was in 1805 (Lord Melville). The 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.
I still think that if the punishment involves only removal from office (and the arrest and bail is omitted or treated as a pure formality), the process looks more like the dismissal of a high government official — and not a matter of civil rights or criminal punishment — even if its historical origins involved something much closer to criminal punishment. Nonetheless, I appreciate Iain’s points, and I agree that formally speaking the arrest and bail are at least more reminiscent of criminal procedure, and do implicate the person’s civil rights (though I’m not sure that even they would be barred by Article 6).
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