RIP Lord Armstrong of Ilminster

I was very sad to hear the news of the death of Lord Armstrong of Ilminster.  Although physically ailing, he was mentally fit and continued to attend the Lords.  I saw him regularly when he was Chancellor of the University of Hull.  He was assiduous in his duties.  I once encountered him in the washroom before a degree ceremony having to cope with a nosebleed, but determined to plough on regardless.  In the Lords, he was a regular attender at meetings of the group I convene, the Campaign for an Effective Second Chamber.  He was also a great source of advice.  He was seen as the mandarin’s mandarin, the role model for Cabinet Secretaries.   One character in the TV series Yes, Prime Minister was rumoured to be based on him – not Sir Humphrey Appleby, but Sir Humphrey’s predecessor, Arnold.  I rather gained the impression that the rumour was one that Robert Armstrong was not greatly inclined to dispel!

His precision and knowledge were superb.  He was extremely helpful to me in my research of the constitutional position in the event of the death of a Prime Minister.  It was an issue that had exercised him greatly when he was Cabinet Secretary.  In 1984, he was at home when he heard the news that the Grand Hotel at Brighton, housing the Prime Minister and members of the Cabinet, had been bombed.  He spent half-an-hour not knowing whether the Prime Minister was alive or dead.  It was only when Robin Butler ‘phoned that he got the news that Margaret Thatcher was alive.  Until he got the call, he was sat thinking as to what to do in the event that the Prime Minister had been killed.

His contributions to debate were always clear and precise.  He had a sharp mind and was superb at drafting.  He was conscious that he would forever be associated with the phrase, ‘being economical with the truth’.  When he became Chancellor of Hull University in 1994, he gave an inaugural lecture exploring the origins of the phrase.

He was always splendid company and will be much missed.

The value of dissenting opinions

In some judicial systems, there is no provision for judges to offer opinions dissenting from those of the majority.  It is different in both the US and UK, where some notable dissenting opinions have been delivered in the highest courts.  Last month, I was discussing with former law lord and Supreme Court Justice, Lord Brown of Eaton-under-Heywood, the value of dissenting judgments.  The conversation derived from an essay he had written, entitled ‘Dissenting Judgments’, which he had contributed to a volume, Judge and Jurist, published in 2013 in memory of Lord Rodger of Earlsferry.

A key argument in the essay is that dissenting judgments are especially important to the losing litigant.  The majority judgment will normally make it plain that the argument of the losing litigant has been fully taken into account.  ‘But that is not invariably so. And whether or not that is so, it seems to me that nothing is better calculated than a dissenting judgment to demonstrate beyond question that the losing side’s case has been properly understood and, indeed, recognized to have real force, force sufficient to persuade one member of the court at least that it was right.’

This strikes me as a key point, helping reinforce acceptance of the process even if one is on the losing side.  It has particular relevance in the context of the UK Supreme Court in the Miller case in 2017, on triggering notification of the UK’s withdrawal from the EU under article 50 of the Treaty on European Union, and the Cherry/Miller (2) case in 2019, on prorogation.  In the first case, there was an 8-3 split, with the principal dissenting judgment given by Lord Reed.  It was a powerful and well-argued dissent.  Those who disagreed with the majority view could take comfort from the fact that their view was heard and articulated by a senior member of the court.  Contrast this with Cherry/Miller(2), where the judgment was delivered by Baroness Hale and Lord Reed and with no dissent.  This was presumably thought by the justices to reinforce the authority of the judgment, but in practice can be argued to be impolitic, in that there was no consolation for those on the losing side.  Given that the losing side comprised the Prime Minister, this may have helped prompt the Conservative manifesto commitment for a constitution, democracy and rights commission, which will address, among other things, how to ensure judicial review is ‘not abused to conduct politics by another means’.

I end by reproducing another point made by Lord Brown: ‘Obviously a judge does not dissent every time he or she disagrees with the majority view.  It was once said in the House of Lords that a member of the appellate committee dissents only when his exasperation at the sheer stupidity of his colleagues outweighs his own considerable natural indolence.  This dictum has been variously ascribed to Lord Wilberforce and Lord Ackner and, although obviously coined in jest, it carries the seeds of an underlying reality.  The more emphatically a judge believes the judgment of the majority to be wrong, the less ready will he or she be simply to assent to it.’

Standing in for the Prime Minister…

Downing Street announced earlier in the week that should the Prime Minister become incapacitated through illness, Foreign Secretary and First Secretary of State, Dominic Raab, will stand in for him.

Although the term ‘designated survivor’ has been used, it appears from the statement of the Downing Street official spokesperson that it is a case of deputing temporarily for the Prime Minister during a period of illness.  From a constitutional perspective, this raises no significant issues.  It is well established for a Prime Minister to ask another minister to stand in for them when they are abroad or on holiday or otherwise unavailable. When Andrew Bonar Law was taken ill in 1923, it was arranged that in his absence Lord Curzon would act in his place.  In 1927, foreign secretary, Sir Austen Chamberlain, was asked to fulfil the role by Prime Minister Stanley Baldwin while Baldwin was visiting Canada.  Similarly, in 1929, when Ramsay MacDonald went to the USA and Canada, Chancellor of the Exchequer Philip Snowden was designated to carry out the role.  On occasion, most notably during Churchill’s second stint as Prime Minister, other senior ministers kept the government running when Churchill and his acknowledged deputy, Anthony Eden, were both hospitalised, but on that occasion nothing was said publicly and no minister was formally designated to stand in for the Prime Minister.

Nowadays, technology enables Prime Ministers, even if abroad or – as with Boris Johnson – isolated physically in Downing Street, to keep in touch to take decisions.

On occasions in the past when ministers have been invited to stand in for the Prime Minister, it has been said that they will act as deputy Prime Minister.  The terminology is important. ‘Deputy Prime Minister’ is a title and not a post.  It carries no salary.  Because of sensitivity about the Queen’s prerogative in the choice of her principal minister, there has traditionally been some wariness about conferring the title, as opposed to saying that someone will act as deputy Prime Minister.  Attlee was the first to have the title recognised in Hansard, but it was not until the end of the century that it was again formally recognised (Heseltine, Prescott and later Clegg).  It still is not a formally recognised post carrying a salary.  Those given the title are appointed to another ministerial post in order to receive a ministerial salary.  Nick Clegg, for example, was Lord President of the Council.  Harold Macmillan put it rather well in 1962 when he said that ‘This is not an appointment submitted to the Sovereign but is a statement of the organisation of Government’’.

Downing Street have stressed that Dominic Raab is First Secretary of State.  This is distinct from acting, or being styled (formally or informally), as Deputy Prime Minister.  First Secretary of State is a post.  The holder receives seals of office and a salary.  The post was created by Harold Macmillan in 1962 for R. A. Butler.  To date, eleven people have been appointed to it.  As may be inferred from the name, it confers seniority among Secretaries of State.  If the First Secretary of State holds a meeting with one or more other Secretaries of State, they come to him (or her – one woman, Barbara Castle, has held the post).  Possibly the bad news for Dominic Raab is that no holder of the office has gone on to become Prime Minister.

All this is distinct from what would happen if a Prime Minister was to die or become permanently incapacitated, necessitating the appointment of a successor.  It is an issue that has exercised a number of Cabinet Secretaries.  This does create constitutional problems, given that nowadays the party leaders are elected by the party membership and that can take some time.  There is a precedent for having an interim, or acting, Prime Minister.  The Duke of Wellington did briefly serve as such in 1834 while Sir Robert Peel returned from Rome.  Nowadays, the problem would be one of how an acting Prime Minister would be chosen.  The problem was recognised in the 1970s by the Queen’s Private Secretary, Sir Martin Charteris, resulting in the Charteris memorandum.  For more on that, one needs to see my article in Public Law, January 2016: ‘A Temporary Occupant of No. 10? Prime Ministerial Succession in the Event of the Death of the Incumbent’, pp. 18-34, or – to save time – see my 2019 post summarising the article.

And, for much fuller studies of the selection of Prime Ministers and of Deputy Prime Ministers and First Secretaries of State, it is a case of awaiting publication of Governing Britain.

Interrogating Tweets….

When I gave the after-dinner speech to Hull University Politics Society last week, I reiterated a point I have made before (as have others – I regard it as a necessary rather than original point), namely that the Internet enables people to offer prejudices as if they were statements of fact or the reasonable (‘it stands to reason..’) and without them being subject to any prior testing or indeed research.  Some just rely on phrases that are so well used that people think they know what they mean.  They can take the form of ‘dog whistle’ comments appealing to prejudice as if they are reasonable observations and often deemed self-evidently true.

The problem with Twitter is that a prejudice can quickly be liked and shared by others who hold the prejudice and it reinforces the tweeter’s view that because it has so much support it must be true.  It can be difficult to respond in the space available with a well-developed rebuttal.  Space means that it doesn’t amount to much more than ‘I am right’, ‘No you are not’ type exchanges.  Some clearly fancy themselves as armchair experts.  Even when a tweet links to a paper, that paper may be self-published or emanate from an extreme group, or one keen to disseminate false information.  This, as we see, is especially a problem with the Coronavirus crisis, with many deciding they are qualified to pass comment not just on policy, but on the science.

The challenge is to ensure one does not respond instantly to a Tweet, or accept its veracity, but rather interrogate it in terms of the motives of tweeter and the authority not just of the author, but also source to which there is a link.  Is it a published source?  Has it appeared in a reputable journal?  And ask yourself to what extent your own prejudices influence your response.  Is it something you want to be true, even if there is no evidence to support it?  And always bear in mind the need, as with any debate, to go for the ball and not the player – ‘The argument is flawed or questionable for the following reasons..’ and not ‘You are an idiot; you are always wrong’.

It has been amazing during the Brexit debate how many people relied on attacking the other side (‘You are idiots, you don’t understand…’) as if that would influence anybody as opposed to reinforcing the prejudices of those who think the other side is deranged.  It may provide some tension relief, but it serves to antagonise those who are being attacked.  The result is that those on both sides become more entrenched.

One thought occurs.  Given what I have said about ‘dog whistle’ phrases, it may be an interesting and possibly worthwhile exercise to collect examples.  It may serve at least some service if it alerts people to how easy it is to fall into employing them without thinking what they mean.  I therefore invite readers’ suggestions as to such phrases…

More blogging….

One consequence of working from home is likely to be more posts on this blog.  Given that readers will be bombarded with material, authoritative or otherwise, on the current crisis, there is little point in my contributing to that (and sound arguments against, given that I have nothing I can contribute authoritatively).  Instead, I will be posting in my usual vein.  I will be offering posts on the constitution as well as more general issues.  Some may only attract comment (if any) from those who are constitutional nerds, but I hope to pen others that will engage wider interest and reaction from readers.  I will soon also offer some caption competitions.  In present circumstances, it may offer a bit of relief for those stuck at home.

For those who win caption competitions, I am not sure how easy it will be to send prizes, but it did occur to me that it can be a prospective prize.  Any prize-winner will win a copy of Governing Britain, once published.  That, I trust, will be an incentive…

Don’t judge a book by its cover….

Although I think the cover of the forthcoming Governing Britain is an attractive one, it is the content that counts.  Given that, I thought it may be worthwhile listing the contents so that any reader minded to buy a copy – and take advantage of the special issue detailed in the previous post – will know what is covered.

There are twelve chapters:

1. Britain’s uncodified constitution
2. Constitutional twin pillars: does parliamentary sovereignty trump the rule of law?
3. Constitutional conventions: when is a convention not a convention?
4. The constitution, the EU and Brexit: who governs?
5. Parliament and referendums: direct or representative democracy?
6. Parliament and the courts: strangers, foes or friends?
7. The law of Parliament: who polices the rules?
8. Fixed-term Parliaments: fixed or not so fixed?
9. Choosing, and removing, a prime minister: who decides?
10. A deputy to the prime minister: a deputy but not a successor?
11. Ministerial responsibility: responsibility for what?
12. Devolution: a disunited kingdom?

Each constitutes a relatively short essay on the subject, each designed to be accessible and identifying the current position.  The opening chapter sets the context.

As reported in the preceding post, a special offer has been arranged for readers of this blog.  You can get a copy for half price if you order it through the publisher’s website quoting the code govbri50.

Governing Britain – special offer…

Governing Britain: Parliament, Ministers and Our Ambiguous Constitution is now in press and is being published by Manchester University Press in May, priced at £16.99.

The book derives from the recognition that our uncodified constitution is marked by what Michael Foley identified as constitutional ‘abeyances’, understandings that are largely unspoken and which may embody contradictions and uncertain edges, and which are maintained by ‘studied inattention’.  Abeyances, he noted, are valuable, not despite their obscurity, but because of it.  In recent years, conflicts and major constitutional reforms, notable for their number as well as significance, have given rise to previously unspoken understandings being questioned.  The book addresses questions arising from these changes and which in some measure break the silence of the constitution.  The work examines the principles underpinning the constitution, primarily parliamentary sovereignty and the rule of law, constitutional conventions and practices, the extent to which they are contested and how they shape the relationships at the heart of government.  The focus is on features that are ambiguous or misunderstood and the implications of recent constitutional and political change.

And now, a first for the blog….

A special pre-publication discount has been arranged for readers.  You can get a 50% discount if you order a copy through the Manchester University Press website using the code: govbri50.  Just click the link to place an order.