Council of Civil Service Unions v Minister for the Civil Service [1984]
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The Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9, commonly known as the GCHQ case, is a significant decision in United Kingdom constitutional law and labour law. The case involved the government's use of the royal prerogative to ban employees of the Government Communications Headquarters (GCHQ) from joining any trade union for national security reasons.
GCHQ is a British intelligence agency that provides signals intelligence to the government and armed forces. In 1984, the government, under Prime Minister Margaret Thatcher, issued an Order in Council using the royal prerogative to ban GCHQ employees from joining trade unions due to national security concerns. The Council of Civil Service Unions challenged this decision through judicial review, arguing that it violated their legitimate expectation of being able to collectively bargain for fair wages.
In the legal proceedings, the High Court held that the lack of consultation with GCHQ employees made the Order in Council invalid. However, the Court of Appeal took a different stance, asserting that judicial review could not be used to challenge the use of the royal prerogative, especially in matters of national security. The House of Lords ultimately held that the royal prerogative was subject to judicial review, similar to statutory instruments. However, they acknowledged exceptions, including matters of national security.
The House of Lords established that exercises of the royal prerogative are subject to judicial review, but there are exceptions, such as matters of national security. The decision emphasised that judicial review depends on the nature of the government's powers, not their source (prerogative or statutory). Lord Diplock identified three grounds for judicial review: illegality (correct understanding and application of the law), irrationality (Wednesbury unreasonableness), and procedural impropriety. The case clarified that some prerogative powers, like making treaties or defending the realm, might not be subject to judicial review due to their nature and subject matter.
The GCHQ case marked a departure from the traditional reluctance to subject prerogative powers to judicial review. It established that the application of judicial review depends on the nature of the government's powers, not just their source (prerogative or statutory). The case confirmed that non-legal conventions, like legitimate expectations, might be subject to review in certain circumstances. National security issues were acknowledged as political matters not suited for judicial determination.
The case was submitted to the European Court of Human Rights but deemed inadmissible. In subsequent cases, such as R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), the courts affirmed that Orders in Council could be subject to judicial review on ordinary principles of legality, rationality, and procedural impropriety. In R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019], the Supreme Court quashed an Order in Council that sought to prorogue Parliament.
GCHQ is a British intelligence agency that provides signals intelligence to the government and armed forces. In 1984, the government, under Prime Minister Margaret Thatcher, issued an Order in Council using the royal prerogative to ban GCHQ employees from joining trade unions due to national security concerns. The Council of Civil Service Unions challenged this decision through judicial review, arguing that it violated their legitimate expectation of being able to collectively bargain for fair wages.
In the legal proceedings, the High Court held that the lack of consultation with GCHQ employees made the Order in Council invalid. However, the Court of Appeal took a different stance, asserting that judicial review could not be used to challenge the use of the royal prerogative, especially in matters of national security. The House of Lords ultimately held that the royal prerogative was subject to judicial review, similar to statutory instruments. However, they acknowledged exceptions, including matters of national security.
The House of Lords established that exercises of the royal prerogative are subject to judicial review, but there are exceptions, such as matters of national security. The decision emphasised that judicial review depends on the nature of the government's powers, not their source (prerogative or statutory). Lord Diplock identified three grounds for judicial review: illegality (correct understanding and application of the law), irrationality (Wednesbury unreasonableness), and procedural impropriety. The case clarified that some prerogative powers, like making treaties or defending the realm, might not be subject to judicial review due to their nature and subject matter.
The GCHQ case marked a departure from the traditional reluctance to subject prerogative powers to judicial review. It established that the application of judicial review depends on the nature of the government's powers, not just their source (prerogative or statutory). The case confirmed that non-legal conventions, like legitimate expectations, might be subject to review in certain circumstances. National security issues were acknowledged as political matters not suited for judicial determination.
The case was submitted to the European Court of Human Rights but deemed inadmissible. In subsequent cases, such as R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), the courts affirmed that Orders in Council could be subject to judicial review on ordinary principles of legality, rationality, and procedural impropriety. In R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019], the Supreme Court quashed an Order in Council that sought to prorogue Parliament.
