Council of Civil Service Unions v Minister for the Civil Service

CCSU v Minister for the Civil Service (GCHQ Case)
Court House of Lords
Full case name Council of Civil Service Unions & Others v Minister for the Civil Service
Decided 22 November 1984
Citation(s) [1983] UKHL 6, [1985] AC 374, [1984] 3 WLR 1174, [1985] ICR 14, [1984] 3 All ER 935, [1985] IRLR 28
Transcript(s) Bailii transcript
Court membership
Judge(s) sitting Lord Fraser, Lord Scarman, Lord Diplock, Lord Roskill, Lord Brightman
Keywords
Judicial review, royal prerogative, freedom of association, GCHQ

Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6, also known as the GCHQ case, is an English administrative law and UK labour law case that held 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 any 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.[1] Prior to 1983 its existence was not acknowledged,[1] 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.[2]

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.[3]

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.[4]

Judgment

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.[5]

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.[6] 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.[7] 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.[8]

Lord Roskill said the following.[9]

“ In short the orthodox view was at that time that the remedy for abuse of the prerogative lay in the political and not in the judicial field.

But fascinating as it is to explore this mainstream of our legal history, to do so in connection with the present appeal has an air of unreality. To speak today of the acts of the sovereign as "irresistible and absolute" when modern constitutional convention requires that all such acts are done by the sovereign on the advice of and will be carried out by the sovereign's ministers currently in power is surely to hamper the continual development of our administrative law by harking back to what Lord Atkin once called, albeit in a different context, the clanking of mediaeval chains of the ghosts of the past: see United Australia Ltd v Barclays Bank Ltd [1941] AC 1, 29. It is, I hope, not out of place in this connection to quote a letter written in 1896 by the great legal historian F. W. Maitland to Dicey himself: "the only direct utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each generation has an enormous power of shaping its own law": see Richard A. Cosgrove, The Rule of Law; Albert Venn Dicey; Victorian Jurist (1980), p.177. Maitland was in so stating a greater prophet than even he could have foreseen for it is our legal history which has enabled the present generation to shape the development of our administrative law by building upon but unhampered by our legal history.

My Lords, the right of the executive to do a lawful act affecting the rights of the citizen, whether adversely or beneficially, is founded upon the giving to the executive of a power enabling it to do that act. The giving of such a power usually carries with it legal sanctions to enable that power if necessary to be enforced by the courts. In most cases that power is derived from statute though in some cases, as indeed in the present case, it may still be derived from the prerogative. In yet other cases, as the decisions show, the two powers may coexist or the statutory power may by necessary implication have replaced the former prerogative power. If the executive in pursuance of the statutory power does an act affecting the rights of the citizen, it is beyond question that in principle the manner of the exercise of that power may today be challenged on one or more of the three grounds which I have mentioned earlier in this speech. If the executive instead of acting under a statutory power acts under a prerogative power and in particular a prerogative power delegated to the respondent under article 4 of the Order in Council of 1982, so as to affect the rights of the citizen, I am unable to see, subject to what I shall say later, that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory. In either case the act in question is the act of the executive. To talk of that act as the act of the sovereign savours of the archaism of past centuries. In reaching this conclusion I find myself in agreement with my noble and learned friends Lord Scarman and Lord Diplock whose speeches I have had the advantage of reading in draft since completing the preparation of this speech.

But I do not think that that right of challenge can be unqualified. It must, I think, depend upon the subject matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter is such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.

In my view the exercise of the prerogative which enabled the oral instructions of 22 December 1983 to be given does not by reason of its subject matter fall within what for want of a better phrase I would call the "excluded categories" some of which I have just mentioned. It follows that in principle I can see no reason why those instructions should not be the subject of judicial review.

 ”

Significance

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.

William Blackstone[10]

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.[11] They therefore applied only the first of the Wednesbury tests; whether the use was illegal. Constitutional scholars such as William Blackstone considered this appropriate.[10]

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.[12]

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.[13]

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

There is no difference between the conclusion reached by your Lordships except... whether the reviewability of an exercise of a prerogative power is limited to the case where the power has been delegated to the decision-maker by Order in Council, so that the decision-making process which is sought to be reviews arises [within] the terms of that order; or whether reviewability may also extend, in an appropriate case, to a direct exercise of a prerogative power.

Lord Brightman, CCSU v Minister for the Civil Service[14]

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".[15]

References

  1. 1 2 "GCHQ Post War". GCHQ. Retrieved 14 March 2012.
  2. ↑ Bradley, Ewing (2011). p. 261.
  3. ↑ James (1997) p.206
  4. ↑ Bradley, Ewing (2011). p. 106.
  5. ↑ Barrow (2002) p.260
  6. ↑ Ewing (1985) p.1
  7. ↑ Blom-Cooper (2010) p.19
  8. ↑ Ewing (1985) p.2
  9. ↑ [1983] UKHL 6, [1985] AC 374, 417-418
  10. 1 2 Loveland (2009) p.102
  11. ↑ Loveland (2009) p.101
  12. ↑ Loveland (2009) p.108
  13. ↑ Bradley, Ewing (2011). p. 29.
  14. ↑ 423H–424A
  15. ↑ Poole (2010) p. 150.

Bibliography

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