The constitutional showdown that could finish Keir Starmer

Following Mandelson’s arrest on Monday afternoon for misconduct in public office, however, the Government announced that certain sensitive emails would be held back until any possible investigation or trial had taken place.

Darren Jones, the chief secretary to the Prime Minister, told the Commons that: “A subset of [the] first tranche of documents is subject to an ongoing Metropolitan Police investigation.”

“This includes correspondence between No 10 and Lord Peter Mandelson, in which a number of follow-up questions were asked.

“Because of the Metropolitan Police’s interest in this document, we are unable to publish it in early March, but we will release it as soon as we are able to, upon consultation with the Metropolitan Police.”

The Telegraph understands the correspondence in question is an exchange between Mandelson and Morgan McSweeney, the former No 10 chief of staff, about follow-up questions regarding his links to Epstein. Earlier this month, McSweeney resigned over his role in Mandelson’s appointment to US Ambassador.

A Met Police spokesperson said: “An investigation into alleged misconduct in public office is under way and it is vital due process is followed so that our criminal investigation and any potential prosecution is not compromised,” adding that while they will review material “to assess whether publication is likely to have a detrimental impact” on their investigation, the “process to decide which documents should ultimately be published remains a matter for Government and Parliament”.

“We understand and respect the role of Parliament in releasing these documents and will support their objective of transparency through our work with the Cabinet Office.”

Seen one way, Starmer has been handed a lifeline by Mandelson’s arrest, temporarily sparing the airing of documents that would likely further compromise his already embattled Government. This constitutional impasse could, in theory, delay their release for years, by which time he may no longer be Prime Minister.

At the very least, however, the Government will have to walk delicately. “Parliament is sovereign, so Parliament can trump the police if it wishes to,” says Robert Hazell, professor of government and the constitution at UCL. “But Parliament will feel constrained not to prejudice the police investigation, nor any subsequent trial if there is one. That is self-restraint by Parliament, observing the contempt and sub judice rules.”

Some are concerned, however, that any withholding of documents would run counter to the expressed wishes of Parliament. On Feb 4, the Conservatives used a parliamentary procedure called a humble address to compel the Government to commit to releasing the Mandelson documents.

“The appointment of this man was absolutely the Prime Minister’s responsibility,” said Alex Burghart, the Conservative MP who tabled the address. “Today we are trying to dig into exactly what the Prime Minister knew, whether any information was kept from him, and, if so, who kept it from him.”

The Government agreed to the disclosure. Following the discussion, the Speaker, Lindsay Hoyle, was clear that Parliament trumped the police. “Just to sum up, the Metropolitan Police have no jurisdiction over what this House may wish to do,” Hoyle said. “It will be a matter of whether or not the Government provide the information. I want to let Members know that the police cannot dictate to this House.”

Nikki da Costa, who served as Downing Street special advisor on legislative affairs under Theresa May and Boris Johnson, says the issue could become “massively tricky” for Keir Starmer.

“The Speaker gave a strong steer that the police don’t get top trumps on parliamentary proceedings,” she says. “You have a situation where the House of Commons has passed the motion, which the Government has viewed as binding. So if the Government then tries to withhold documents, they could be in contempt [of Parliament]. And contempt could lead to suspension from the House.”

Procedurally speaking, Starmer finds himself sailing a narrow channel between Scylla and Charybdis. Ironically, he was one of the architects of his present predicament. Humble addresses, once thought of as a rather arcane and little-used procedure to petition the monarch from opposition, have been used in recent years by opposition parties as a “back door” to seek the release of sensitive documents.

A key moment came in 2017, when Starmer as shadow Brexit secretary used a humble address to call for unredacted Brexit impact assessments to be passed to the Brexit select committee.

Five years later, as leader of the opposition, Starmer used a humble address again to request information related to the peerage of Evgeny Lebedev, who had been appointed to the Lords against the advice of the House of Lords Appointment Commission. (On Tuesday, the Liberal Democrats used a humble address to call for disclosure relating to Andrew Mountbatten-Windsor, which the Government backed.)

“[In opposition] Starmer basically twisted this old mechanism into what he wanted to do, and now he is being hoist by his own petard,” da Costa says. Ultimately, she says the situation will come down to politics.

“The Government will try to advance an argument to say that whatever they are withholding is legitimately withheld and they will try to ask their MPs to stay with them,” she adds. “It has to be a strong enough case, and if it doesn’t hold water, then you’ll be in more trouble.”

One possible silver lining for the Government at present is that the decision in February did not specify a time limit for disclosure of the Mandelson documents. But that could change rapidly. After the King’s Speech this spring, opposition parties will have further opportunities to submit a humble address, putting a deadline on the release of papers.

Starmer’s standing among his own – increasingly restless – MPs will be crucial to his survival at that point.

“Then the question is, can Starmer withstand that motion,” says da Costa. “Will Labour backbenchers tolerate him [asking them to resist a fresh humble address] ‘because the police need us to do this.’” Any vote on the legitimacy of the Government’s case risks becoming a referendum on his leadership, at a time when Starmer is likely to be under huge pressure from his party, following what’s expected to be a bruising by-election defeat in Gorton and Denton this week, and ahead of the council elections in May, which are expected to be dismal for Labour.

A further humble address could well “become a proxy for a confidence vote,” says da Costa. “The number of MPs who abstain or vote against your motion becomes an indication of how p----- off your party is. It’s possible it could become a unifying moment, but could it really, on a matter like this? A unifying moment on a cover up?”

The Prime Minister finds himself in a bind. If he delays disclosure, he will be accused of a cover-up. If he publishes everything, he will be accused of interfering with due process.

As the lawyer-turned-opposition-leader, Starmer relished these kinds of constitutional mechanics. But the risk of inventing a weapon is that your enemies get hold of it, too.

[Source: Daily Telegraph]