The monarch’s question to a minister on Abu Hamza may be unconstitutional but the issues it raises cannot be solved because the U.K. has no written Constitution
The BBC has received some predictably unwelcome publicity about the revelations by its security correspondent Frank Gardner, live on the flagship Radio 4 news programme Today, that the Queen had said, at a private occasion in 2008, that she could not understand why the radical Islamic preacher Abu Hamza had not been arrested and that she had approached a minister asking why he was still at large. The Corporation has tendered an apology to the Queen for breaching a convention that whatever the monarch says outside occasions of state is off the record, but the fact that the Queen expressed her opinion to a minister could be a breach of the constitutional settlement of 1688, under which the monarchs were allowed to keep their respective heads but Parliament took, and has since kept, legislative sovereignty. The Queen’s question to the minister might count as unconstitutional lobbying for an action or a policy, but the issues raised are almost insoluble because the United Kingdom has no codified Constitution.
There has, therefore, never been an uncomplicated separation between the monarch and the executive. When Queen Victoria’s Whig Prime Minister and royal favourite Lord Melbourne resigned in 1839 following a defeat in the House of Commons, Victoria refused the incoming Tory Prime Minister Sir Robert Peel’s request that the monarch, in accordance with convention, replace her Whig ladies of the bedchamber with Tory ladies. Peel resigned over the snub, and Melbourne and the Whigs returned to office. In 1851, having failed a year earlier to get the Foreign Minister, Lord Palmerston, sacked, Victoria took advantage of the latter’s congratulatory message to Louis Napoleon Bonaparte on his coup in France to ask Prime Minister Lord John Russell to remove Palmerston, which he did.
The present Queen certainly takes what happens in government very seriously. Her schedule includes reading up to 10 boxes of Cabinet and other government papers daily, and she receives up to 60 ambassadors’ and high commissioners’ telegrams twice a day; she also grants the serving Prime Minister a weekly audience, which can last over an hour. Yet, while her aides express great admiration for her commitment and energy, not all observers agree that she has no impact on government. As head of state, the Queen ratifies a large number of nominations for high appointments, such as senior judicial posts, bishoprics, colonelships of regiments, certain chairs at the older universities, and national honours, several of which also refer to a long-extinct British Empire; in addition, many other honours are exclusively in the monarch’s gift.
Inevitably, many of those who covet such things, such as ex-politicians, civil servants, high military officers, and bishops, feel they have to act in ways they think will not displease the monarch; this could be particularly important in respect of honours which only the monarch can bestow, though most aspirants’ conduct may in practice have more impact on how they are viewed by those who make the nominations, such as the Prime Minister or other Ministers, than they do on the Queen herself.
Equally inevitably, this assemblage of conventions, purportedly traditional customs, and tacit understandings is often criticised. Opponents, including those who want the monarchy abolished, contend that the Queen herself has lobbied for policies, for example by talking at length with the then Prime Minister Tony Blair before a bill to outlaw hunting with dogs was put to Parliament in 2004 and telling him that ordinary people as well as social elites hunt with dogs. The House of Commons later passed the bill, a Labour Party manifesto commitment, but the Speaker then had to override the unelected House of Lords by invoking the Parliament Acts of 1911, and 1949, with the latter implying the Salisbury-Addison doctrine, a convention whereby the upper chamber does not block legislation enacting the ruling party’s manifesto promises.
Several Labour Party members and followers have further reason to be suspicious of the current monarch’s loyalties. In February 1974, an inconclusive election produced no outright winner but gave Labour 301 seats to the Conservatives’ 297, and yet the incumbent Prime Minister and Conservative leader Edward Heath tried to form a government over the next few days; some Labour supporters were very angry that the Queen had not immediately invited the Labour leader Harold Wilson to Buckingham Palace to give him that task, and saw the delay as confirming a monarchical preference for the Conservatives. It is, in addition, only a convention that the invitation to form a government goes to the leader of the party that wins an election; in theory, the Queen can appoint any of her subjects Prime Minister.
The Queen is not the only current royal to have attracted this kind of criticism, and Prince Charles in particular is sometimes very explicit about policies he favours. The heir to the throne is said to have infuriated Mr. Blair by opposing genetically modified food; he has also had discussions with the current Chancellor of the Exchequer, George Osborne, and Education Minister Michael Gove.
Jumble of statutes
While secret exchanges between the monarch, or her family, and the executive might — perhaps casuistically — be described as fulfilling a royal desire to be informed about the issues of the day, the fact that the British Constitution is uncodified makes it almost impossible even to decide what is or is not constitutionally correct, or who has the authority to rule on it. As the former senior Labour MP Tony Wright has said, there is only a jumble of statutes, common law, customs, and guidebooks; moreover, apparently constitutional laws have no special status, and can be repealed by an ordinary vote in Parliament.
That in turn means the system contains some utterly arbitrary elements. The pressure group Republic, for example, is scathing about the monarch’s power to dismiss a government at any time for any or no reason; in 1975, the Queen’s appointed representative in Australia, the Governor-General, did just that, and ended the political career of the then Prime Minister, Labour’s Gough Whitlam. The Canadian Governor-General also used this power in 2008, proroguing the dominion’s Parliament for several weeks.
Republic also criticises the royal prerogative powers, which are vested in the British government, and are effectively beyond scrutiny or restraint by Parliament. The most notorious prerogative is the power to declare war, which Mr. Blair used for the illegal invasion of Iraq in 2003; he did allow the House of Commons a vote on the war, but the opposition Conservatives’ overwhelming vote in favour meant that the combined vote for a negating amendment by 139 Labour rebels and all the Liberal Democrats was easily defeated. In any case the prerogative power meant that Mr. Blair would have been under no obligation to resign if he had lost the vote, and certainly under no obligation to cancel the invasion.
Partly as a result, demands arose for publication of the prerogative powers, but Mr. Blair’s government resisted, and then published only a partial list. The powers include recognising foreign states, and also keeping the peace within the realm, which a court decision has confirmed include ministerial powers to issue baton rounds to police without the consent of the given force’s local authority.
If any wider picture emerges from this tangle, it is the remoteness of the electorate from major decisions on policy and legislation. Rights lawyer Andrew Puddephatt has said that the 1688 settlement was a carve-up between the monarch and Parliament. Such rights as then emerged had only to do with the assembly’s rights in relation to the monarchy; since then, party discipline in the Commons has rendered even Parliament progressively more remote from the key decisions. As for Abu Hamza, Vikram Dodd notes in the Guardian that when tried in the U.K. in 2005-6, the cleric told the court of his long contact with the British security services, who had told him his fiery sermons were all right “as long as we don’t see blood on the streets.” According to a secret service infiltrator he was a useful if unwitting source of information on other extremists, even though British Muslims who reject extremism were already giving the authorities information of their own accord. Perhaps Her Majesty could have avoided a possible constitutional impropriety by asking the right officials why Abu Hamza was allowed to remain in her realm.