Did the Queen breach a convention by lobbying over Abu Hamza?

2019-11-08 08:09:01


The for breaking the convention that private conversations with the Queen are kept off the record, but did the monarch break a convention herself? The then-home secretary over Abu Hamza al-Masri was described by James Naughtie as "a corker" but led us to wonder whether her intervention raised any constitutional issues.

Ian Cram
Professor Ian Cram, Leeds University

What is the Queen's role in relation to policy? Professor , who teaches and researches comparative constitutional law at Leeds University says:

It was the Victorian constitutional writer Walter Bagehot who "the right to be consulted, the right to encourage and the right to warn". This suggests a fairly limited role for the monarch – after all on this view her ministers remain free to reject her advice. In some ways that is what her actions amount to here. She is encouraging a particular course of action to be taken by the executive.

It is not as if she is rejecting her ministers' advice which would raise an altogether much more serious constitutional set of constitutional questions. Had her ministers steadfastly refused to take a course of action which she was urging, there is a view (held by some more venerable constitutional writers such Anson in 1913) that she could dismiss her ministers. This view would now seem outdated in the modern democratic era. Others argue that if the government was proposing a fundamentally undemocratic alteration to the constitution (eg abolishing regular elections) then the Queen would be entitled to refuse to assent to legislation and dismiss the government.

What about in this case?

There is little actual political controversy over the Queen's intervention because there was no party political opposition (from the main Westminster political parties at least) to the launching of criminal investigations against .

However, even this limited role of "encouraging" could in theory bring the Queen into political controversy, especially where she appeared to be supporting the position of one political party at Westminster and implicitly critical of another. This might make the institution of the monarchy vulnerable to claims that it is partisan and no longer above the fray of party politics.

Pete Weatherby QC, from Garden Court North chambers believes the Queen's intervention was inappropriate:

"There is nothing objectionable about the Queen having an opinion, nor expressing it in private to a friend or even a journalist, although in the latter case she takes her chance, as the journalist's stock in trade is publishing information and the opinions of prominent people. However, it is objectionable in a modern democracy, for an unelected head of state to use his or her position to lobby a minister of state, as has been reported in this case.

Hence, Frank Gardner and the BBC were wrong to publish the Queen's view, or that of anyone else, if expressed confidentially and it does not raise any public interest, but they were right to report that she had made representations to ministers."