An ancient cure for ministerial corruption

WHAT charge or penalty should ministers giving evidence in the arms to Iraq hearings face if Lord Justice Scott finds cause for concern?

There are on the face of it few sanctions available. We can all watch Matrix-Churchill drag on until the public loses interest in listening to ministers arguing about the dates of memos and the definition of the word 'arms'. Alternatively, an MP could argue that the issues at stake are so grave and the limitations on the courts so great that Parliament must be asked to consider reviving impeachment.

In the United States the option of impeachment would come into the discussion if a situation like this arose. But impeachment is an English invention, which is still serviceable in instances of 'High Crimes and Misdemeanours'. It was English experience that led the framers of the United States Constitution to include impeachment among the checks and balances.

According to procedure, the House of Lords judges a case of impeachment after the House of Commons has decided that it wishes to prosecute a case and appointed the prosecutor. A single MP is required to place a case for consideration before the House of Commons, and any individual can be impeached.

The practice, which was much used in the Middle Ages and then again in the Stuart period, fell into disuse in this country for three reasons. The lower courts became increasingly effective, official corruption declined in the 19th century and accountability to Parliament provided much greater control of ministers. Today, the lower courts are obviously cramped by the Official Secrets Act, libel laws and Crown immunity, even where judges show independence of mind. These hobbles and blinkers on the law would be set aside in a parliamentary trial so that serious issues could be examined openly.

Concern about the abuse of executive power has been rising in Britain. The rigid party system has inexorably weakened the ability of Parliament to hold ministers to account. The excesses of the Thatcher government arose because she sought to use absolute executive power - a modern- day form of the Divine Right of Kings, but now constitutionally transferred to the person controlling a majority in the House of Commons.

Party discipline remains a serious but not insurmountable obstacle to reintroducing impeachment. Clearly, a government majority can prevent a case from being put to the Commons. But would the Government have the nerve and the majority to prevent a case for impeachment being even considered for debate, and once heard from being prosecuted? The people who first suggested impeaching President Nixon were derided for a long time; one would expect a similar reaction in Britain. Defenders of the Goverment will claim that impeachment is obsolete, so long disused that it is no longer serviceable and that to raise it is a desperate and frivolous diversion. But as every vagrant knows, age does not dull the sharp edge of English law.

The first moves should be made now, so that the Speaker of the House of Commons can have had time to oil the rusty procedural mechanism to make it ready for use. Reintroducing impeachment would be a dramatic act, but the case and the times demand nothing less.

Some ministers may feel that they have been so damaged by the existing allegations that a trial would clear their reputations. Alan Clark has argued that inquiries are irrelevant and that the Opposition should have demanded that he answer in Parliament. The process of impeachment would meet his recommendation.

The writer directs the British American Security Information Council and specialises in the comparative accountability of government in the United States and the United Kingdom.

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