Council of Civil Service Unions v Minister for the Civil Service
Encyclopedia
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
English administrative law
-Ombudsmen:In the United Kingdom a post of Ombudsman is attached to the Westminster Parliament with additional posts at the Scottish Parliament, the Welsh Assembly and other government institutions...

 which held that the Royal Prerogative was subject to judicial review
Judicial review in English Law
Judicial review is a procedure in English administrative law by which the courts in England and Wales supervise the exercise of public power on the application of an individual...

. In 1984 the British government under Margaret Thatcher
Margaret Thatcher
Margaret Hilda Thatcher, Baroness Thatcher, was Prime Minister of the United Kingdom from 1979 to 1990...

 decided that employees of the Government Communications Headquarters
Government Communications Headquarters
The Government Communications Headquarters is a British intelligence agency responsible for providing signals intelligence and information assurance to the UK government and armed forces...

 (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
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...

, which ruled the Order in Council was invalid. The case then went to the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...

, which decided that the national security issues trumped any problems of propriety.

From there the case went to the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...

, 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
Margaret Thatcher
Margaret Hilda Thatcher, Baroness Thatcher, was Prime Minister of the United Kingdom from 1979 to 1990...

 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
Judicial review in English Law
Judicial review is a procedure in English administrative law by which the courts in England and Wales supervise the exercise of public power on the application of an individual...

 was the only available route.

Judgment

The case first went to the High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...

, where it was heard by Glidewell J
Iain Glidewell
Sir Iain Glidewell is a former Lord Justice of Appeal, and Judge of Appeal of the High Court of the Isle of Man. He was made a privy councillor in 1985....

. 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
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...

, where it was heard by Lane CJ
Geoffrey Lane, Baron Lane
Geoffrey Dawson Lane, Baron Lane AFC PC QC was a British Judge who served as Lord Chief Justice of England from 1980 to 1992. The later part of his term was marred by a succession of disputed convictions...

, Watkins
Tasker Watkins
The Rt Hon Sir Tasker Watkins VC GBE PC was a Lord Justice of Appeal and deputy Lord Chief Justice...

 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.

The decision was again appealed, this time to the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...

, where it was heard by Lord Fraser
Ian Fraser, Baron Fraser of Tullybelton
Walter Ian Reid Fraser, Baron Fraser of Tullybelton was a British judge.Fraser was made a Privy Counsellor in 1974. One year later he was appointed as a Lord of Appeal in Ordinary, and as a Law lord he was subsequently created a life peer. He took the title Baron Fraser of Tullybelton, of Bankfoot...

, Lord Scarman, Lord Diplock
Kenneth Diplock, Baron Diplock
William John Kenneth Diplock, Baron Diplock, KC was an English judge and Law Lord.-Early life:Born the son of a Croydon solicitor, he attended Whitgift School and University College, Oxford, where he read chemistry and was later to become an Honorary Fellow.-Career:Diplock was called to the bar by...

, Lord Roskill
Eustace Roskill, Baron Roskill
Eustace Wentworth Roskill, Baron Roskill PC, JP was a British lawyer and public servant.-Background and education:...

 and Lord Brightman
John Brightman, Baron Brightman
John Anson Brightman, Baron Brightman was an English Chancery barrister and judge, ultimately of the House of Lords.-Early life and career:...

; 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. 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.

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.

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
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

considered this appropriate:
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.
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