Council of Civil Service Unions v Minister for the Civil Service

Council of Civil Service Unions v Minister for the Civil Service
Court	House of Lords
Full case name	Council of Civil Service Unions & Others v Minister for the Civil Service
Date decided	22 November 1984
Citation(s)	[1984] 3 All ER 935, [1983] UKHL 6, [1984] 3 WLR 1174, [1985] ICR 14, [1985] AC 374, [1985] IRLR 28
Transcript(s)	bailii transcript
Judge(s) sitting	Lord Fraser Lord Scarman Lord Diplock Lord Roskill Lord Brightman
Case history
Prior action(s)	High Court of Justice Court of Appeal of England and Wales
Case opinions
Lord Fraser Lord Scarman Lord Diplock Lord Roskill

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case, was an English administrative law which held that the Royal Prerogative was subject to judicial review. In 1984 the British government under Margaret Thatcher decided that employees of the Government Communications Headquarters (GCHQ) would not be allowed to join a trade union for national security reasons. This was enforced through an Order in Council, an exercise of the Royal Prerogative. The Council of Civil Service Unions chose to bring this matter to court through judicial review, first to the High Court of Justice, which ruled the Order in Council was invalid. The case then went to the Court of Appeal, which decided that the national security issues trumped any problems of propriety.

From there the case went to the House of Lords, where it was decided on 22 November 1984. In their decision, the Lords found that exercises of the Royal Prerogative were generally subject to judicial review, with certain exceptions such as matters of national security. This was a significant break from the previous law, which held that prerogative powers were not in any way subject to judicial review. The GCHQ case served to identify that the application of judicial review would be dependent on the nature of the government's powers, not their source

Facts

The Government Communications Headquarters (GCHQ) is a British intelligence agency that provides signals intelligence to the British government and armed forces. Prior to the early 1980s its existence was not acknowledged, despite the fact that it openly recruited graduates. Following a spy scandal in 1983, the organisation became known to the public, and the government of Margaret Thatcher decided a year later that employees would not be allowed to join a trade union for national security reasons. This was enforced through an Order in Council, an exercise of the Royal Prerogative. Despite an extensive publicity campaign by trade unions, the government refused to reverse its decision, instead offering affected employees the choice between £1,000 and membership of a staff association or dismissal. Those employees dismissed could not rely on an industrial tribunal, as they were not covered by the relevant employment legislation. As such, the Council of Civil Service Unions decided judicial review was the only available route.^[1]

Judgment

The case first went to the High Court of Justice, where it was heard by Glidewell J. Glidewell found that the employees of GCHQ had some right to consultation beforehand, and that the lack of consultation made the decision invalid. The decision was then taken to the Court of Appeal, where it was heard by Lane CJ, Watkins and May LJJ. The Court of Appeal took a "strongly non-interventionist-stance", holding that judicial review could not be used to challenge the use of the Royal Prerogative, because it is an executive rather than a judicial right to judge national security requirements. It would be inappropriate for the courts to intervene.^[2]

The decision was again appealed, this time to the House of Lords, where it was heard by Lord Fraser, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman; judgment was given on 22 November 1984. The House of Lords chose to overrule the Court of Appeal, with Diplock, Scarman and Roskill all holding that the use of the Royal Prerogative was by default subject to judicial review, in a similar fashion to statutory actions.^[3] The Lords differed on their approach to this; Diplock held that any prerogative power which impacted on the "private rights or legitimate expectations" of people, while Lords Fraser and Brightman held that only powers delegated from the monarch could be subject to judicial review. This case was a valid scenario for that review, in that the powers had been delegated from the monarch to the Minister for the Civil Service.^[4]

Despite this attitude, the appeal failed due to the national security grounds. Lords Fraser, Scarman and Diplock all believed that the issue of national security was outside the remit of the courts, Scarman writing that "It is par excellence a non-justiciable question. The judicial process is totally inept [sic] to deal with the sort of problems which it [national security] involves". Fraser stated that while the courts would not by default accept a government statement that there was a national security issue, it was a "matter of evidence", and the evidence provided showed that the government was correct.^[5]

Significance

The courts have traditionally been unwilling to subject prerogative powers to judicial review. Judges were only willing to state whether powers existed or not, not whether they had been used appropriately.^[6] They therefore applied only the first of the Wednesbury tests; whether the use was illegal. Constitutional scholars such as William Blackstone considered this appropriate:

In the exertion therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution. And yet if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just and severe account.^[7]

The GCHQ case, therefore, was highly important; it held that the application of judicial review would be dependant on the nature of the government's powers, not their source. While the use of the Royal Prerogative for national security reasons is considered outside the scope of the courts, most other uses of the Prerogative are now judicially reviewable in some form.^[8]

References

1. ^ James (1997) p.206
2. ^ Barrow (2002) p.260
3. ^ Ewing (1985) p.1
4. ^ Ewing (1985) p.2
5. ^ Blom-Cooper (2010) p.19
6. ^ Loveland (2009) p.101
7. ^ Loveland (2009) p.102
8. ^ Loveland (2009) p.108

Bibliography

• Barrow, Charles (2002). Industrial relations law (2nd ed.). Routledge. ISBN 1859415636. 
• Blom-Cooper, Louis (2010). "GCHQ revisited". Public Law (Sweet & Maxwell) 2010 (1). ISSN 0033-3565. 
• Ewing, K. D. (1985). "Prerogative. Judicial Review. National Security". Cambridge Law Journal (Cambridge University Press) 44 (1). ISSN 0008-1973. 
• James, Simon (1997). British government: a reader in policy making. Routledge. ISBN 0415113040. 
• Loveland, Ian (2009). Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (5th ed.). Oxford University Press. ISBN 9780199219742.