Council of Civil Service Unions v Minister for the Civil Service

Facts

The Government Communications Headquarters (GCHQ) is a British intelligence agency that provides signals intelligence to the British government and armed forces. Prior to 1983 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. The Minister for the Civil Service is a position held ex officio by the Prime Minister.

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.

The decision to ban workers at GCHQ from trade union membership had been taken following the meeting of a select group of ministers and the prime minister rather than the full Cabinet. This is not unusual, even in relation to high-profile decisions: a decision was similarly taken to authorise the Suez operation of 1956 and the decision to transfer the ability to set interest rates to the Bank of England in 1997.

High Court

In the High Court, Glidewell J held that the employees of GCHQ had a right to consultation, and that the lack of consultation made the decision invalid.

Court of Appeal

In the Court of Appeal, Lord Lane CJ, Watkins LJ and May LJ held that judicial review could not be used to challenge the use of the Royal Prerogative. They decided that as the determination of national security issues is an executive function and it would be inappropriate for the courts to intervene.

House of Lords

The House of Lords overruled the Court of Appeal's reasoning and held that the Royal Prerogative was by default subject to judicial review, in a similar fashion to statutory actions. However, on national security grounds, the action of restricting the trade union was justified. Lords Fraser, Scarman and Diplock all believed that the issue of national security was outside the remit of the courts, with Lord Diplock writing that "it is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves". Lord Fraser stated that while the courts would not by default accept the government's argument that the matter was one of national security, it was a "matter of evidence" and the evidence provided in this case showed that the government was correct. Lord Diplock held that any prerogative power which impacted on a person's "private rights or legitimate expectations" was amenable to review, while Lords Fraser and Brightman held that only powers delegated from the Monarch could be subject to judicial review. This case a candidate for such a review as the powers in question had been delegated from the Monarch to the Minister for the Civil Service.

Lord Roskill said the following.

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. They therefore applied only the first of the Wednesbury tests; whether the use was illegal. Constitutional scholars such as William Blackstone considered this appropriate.

The GCHQ case, therefore, was highly important; it held that the application of judicial review would be dependent 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.

The GCHQ case also confirmed that non-legal conventions might be subject to "legitimate expectation". A convention would not have usually been litigible, and it was necessary for the court to demonstrate that it was in the present case: such a rule had been established in respect of Cabinet conventions in Attorney General v Jonathan Cape Ltd. Although the court ruled against the union, it was accepted that the invariable practice of the executive as forming a basis for legitimate expectation.

The case also shows that National Security remains a political issue and not a legal one, it is not to be determined by a court.

It summarises the scope of judicial review.

Further developments

In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), heard at the House of Lords, one of the matters decided was whether or not the courts could subject Orders in Council to judicial review. The Lords unanimously agreed that although Orders in Council were defined as "primary legislation" in the Human Rights Act, there is a significant difference in that Orders in Council are an executive product, and lack the "representative character" that comes with Parliamentary authority and approval. As such, the Lords saw "no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action".