Council of Civil Service Unions v Minister for the Civil Service

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CCSU v Minister for the Civil Service
Royal Coat of Arms of the United Kingdom.svg
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

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[edit]

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[edit]

High Court[edit]

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[edit]

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[edit]

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 [sic] 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]

Significance[edit]

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 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.[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[edit]

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[edit]

  1. ^ a b "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. ^ a b 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[edit]

  • Barrow, Charles (2002). Industrial relations law (2nd ed.). Routledge. ISBN 1-85941-563-6. 
  • Blom-Cooper, Louis (2010). "GCHQ revisited". Public Law (Sweet & Maxwell) 2010 (1). ISSN 0033-3565. 
  • Bradley, A. W.; Ewing, K. D. (2011). Constitutional and Administrative Law (15 ed.). Harlow, United Kingdom: Longman. ISBN 978-1-4058-7350-5. 
  • 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 0-415-11304-0. 
  • Loveland, Ian (2009). Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (5th ed.). Oxford University Press. ISBN 978-0-19-921974-2. 
  • Poole, Thomas (2010). "The royal prerogative". International Journal of Constitutional Law (Oxford University Press) 8 (1). ISSN 1474-2640.