Peter Hennessy and the writing down of the British Constitution

Professor Peter Hennessy is one of the best chroniclers of the British constitution, partly because his work is so readable, because he is so well-connected, and also because of his fondness for asking the ‘what if?’ questions about the constitution. His book The Secret State: preparing for the Worst 1945-2010 (actually an up-dated version of an earlier book) looks in detail at what would have happened in the event of a nuclear attack against the United Kingdom during the Cold War. Drawing on official documents he looks at those plans which were drawn up for the transition to a Third World War including the evacuation of the government to a bunker in the Cotswolds, and the despatch of the Queen to sail the ocean waves on the Royal Yacht Britannia. He also examines the plans for nuclear retaliation.

The decision to launch Britain’s nuclear weapons would be taken by the Prime Minister, in keeping with all other military actions this is a prerogative power exercised by the PM on behalf of the Queen. There was a complex series of arrangements regarding how the decision to launch a nuclear attack would be carried from the Prime Minister to Britain’s nuclear forces, which were first stationed at air bases in Lincolnshire, and since 1969 on submarines. There were also arrangements as to who would make this decision in the event of the Prime Minister being taken out in the first wave of a nuclear attack. Hennessy, however, asks a question for which they had clearly not planned:

What if a Prime Minister went bananas… at a period of high international tension and authorised the release of the British nuclear weapon and the military advisers concerned, and those small groups of civil servants who were involved as well, realised that the Prime Minister was crackers – what would happen?

Hennessy puts this question to a number of the individuals who would have been involved if such as scenario had taken place. Firstly, to Sir Frank Cooper, formerly the Permanent Secretary in the Ministry of Defence (the highest Civil Servant in that Department). Cooper replied that:

Well the key word is ‘authorised’. The Prime Minister can only authorise the use of force or the use of nuclear weapons or anything of that kind; he cannot give an order. The only legitimate orders can be given by commissioned officers of Her Majesty’s Forces. And this is a fine distinction but an important one.

Cooper went on to state that in the scenario presented by Hennessy the Chief of Defence Staff would argue with the Prime Minister and ultimately refuse to give the order to launch, although at this point he added the PM would probably sack him and appoint a more pliant officer. But the important thing to remember is that the armed forces are servants of the Crown and not the Government, and can be authorised but not ordered to do things by the Prime Minister. Cooper concluded:

…this distinction between authorisation and the power to give orders is a very important one… this is where you are into the royal prerogative basically. And , you know, there are many, many cases where the royal prerogative actually plays a very useful part in life and if you didn’t have it you would need a written constitution.

Hennessy put the same question to Sir Michael Quinlan a later Permanent Secretary in the MoD. Quinlan responded that in his view Cooper’s response was somewhat over elaborate. He stated:

I think the reality is that the Queen is indeed the ultimate authority. In all practical terms the Prime Minister is. And if the Prime Minister did something which… was plainly lunatic, plainly unjustifiable militarily… I think that the Chief of Defence Staff or anyone else in the command chain like the Commander-in-Chief of Naval Forces which ultimately would deliver it, would have to take their own personal responsibility… [and] not do it. But I don’t think they would found themselves on some elaborate theory of the constitution…

The key figure in all of this would be the Chief of Defence Staff, the most senior military person in the country, and the individual who would have to put his codes alongside those of the PM to launch a nuclear strike and who would have to give the order once authorised to do so by the PM. So Hennessy also asked Sir Charles Guthrie, former Chief of Defence Staff, about this issue. Guthrie replied:

I think the Chief of Defence Staff, if he really did think the Prime Minister had gone mad, would make quite sure that the order was not obeyed. And I think that you have to remember that actually Prime Ministers, they give direction – they tell the Chief of Defence Staff what they want – but it’s not Prime Ministers who actually tell a sailor to press a button in the middle of the Atlantic… The Prime Minister could not directly deal with a boat which was at sea… But if I thought the Prime Minister was mad, of course I wouldn’t [pass on his directive].

This is all very interesting, and if you want to read more you should look at Hennessy’s book. But my real point comes from Hennessy’s summing up of this episode in which he claims that in asking this question and recording the various responses, he, Peter Hennessy, has in fact created a part of the British constitution. You can make of that what you will, but it does serve to illustrate a number of features of the British constitution: the absence of a written code; the importance of royal prerogative; the idea that the constitution is pragmatic, it is what happens in any given circumstance; and the claims of authoritative opinion. This final quote is Hennessy himself.

The British constitution abhors writing things down. But with the transcripts of the Cooper, Quinlan and Guthrie testimony, do we now have just that for the Prime Ministers-going-barmy contingency? I think we do. I certainly hope we do. For the prime duty of this part of the human button is to be the ultimate human safeguard should circumstances require.

Hennessy’s claim to have uncovered, and indeed written, part of the British constitution in his book may seem a little self-aggrandising, which indeed it is. However, Hennessy was recently appointed as a crossbench Peer in the House of Lords and sits on the House of Lords Constitution Committee which considers these things, so he has in a very real sense become part of the Constitution.

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