Case Facts
The Government Communications Headquarters (GCHQ) was a branch of the civil service whose principal functions were to ensure the security of United Kingdom military and official communications and to provide signals intelligence for the government. When GCHQ was formed in 1947, all staff were given the right to belong to national trade unions, and the great majority of them exercised that right. Over the years, an established practice developed whereby management would consult with the relevant trade unions before making important alterations to the terms and conditions of employment.
Between 1979 and 1981, industrial action was taken at GCHQ on seven separate occasions, causing significant disruption. The 1981 disruption was particularly serious, resulting in part of GCHQ's operations being virtually closed down. Notably, most of that industrial action arose not from disputes local to GCHQ itself, but from wider disagreements between the government and national trade unions over civil service conditions generally.
On 22 December 1983, the Minister for the Civil Service issued an oral instruction revising the terms and conditions of service of GCHQ civil servants so as to exclude membership of any trade union other than a departmental staff association approved by the director of GCHQ. The instruction was issued without any prior consultation with the staff or their unions. The power to issue this instruction derived from Article 4 of the Civil Service Order in Council 1982, which empowered the minister to give instructions for controlling the conduct of the service and providing for the conditions of service. The Order in Council itself was made under the royal prerogative.
The appellants were the Council of Civil Service Unions, a union official, and five civil servants employed at GCHQ. They applied for judicial review of the minister's instruction, contending that the failure to consult them before the change was made was unlawful. At first instance, the application was granted on the ground that the minister ought to have consulted the staff prior to issuing the instruction. The Court of Appeal allowed the minister's appeal, accepting that national security considerations justified the absence of consultation. The appellants brought a further appeal to the House of Lords, which dismissed it.
Held
The House of Lords dismissed the appeal, holding as follows.
First, irrespective of whether a power exercised directly under the prerogative might in some circumstances be immune from judicial review, delegated powers emanating from a prerogative power were not necessarily similarly immune. Per Lord Scarman, Lord Diplock, and Lord Roskill, the controlling factor in determining whether the exercise of a power is subject to judicial review is the justiciability of its subject matter — not whether its source is the prerogative or statute.
Secondly, the appellants did possess a legitimate expectation of prior consultation. That expectation arose from the existence of a regular and established practice of consultation, which they could reasonably expect to continue. The existence of such a practice gave rise to an implied obligation on the part of the minister to act fairly by consulting before withdrawing trade union membership rights. The minister's failure to consult prima facie entitled the appellants to relief by way of judicial review.
Thirdly, however, the appellants' entitlement to judicial review was overridden by national security considerations. A mere assertion of national security would not suffice — evidence is required. But once the minister produced affidavit evidence demonstrating that the decision not to consult had been taken for reasons of national security — specifically, that prior consultation carried a real risk of causing disruption threatening national security — that evidence displaced the right to judicial review arising from the denial of the legitimate expectation. The question of whether a particular course of action was necessitated by national security is non-justiciable: the executive is the sole judge of what national security requires, and the courts will not second-guess that assessment where adequate evidence is placed before them.
Lord Fraser and Lord Brightman, while reaching the same conclusion, did so on a narrower basis: delegated powers emanating from prerogative powers are subject to judicial control because their scope is defined, expressly or impliedly, by reference to the object of the power or the procedure for its exercise, enabling courts to ensure that the scope and limits of the power are not exceeded.
Ratio Decidendi
The central ratio of this decision is that the source of a power — whether statutory or prerogative — does not determine whether its exercise is amenable to judicial review. The determinative question is whether the subject matter of the power is justiciable. Where the subject matter is such that courts are competent to review it, judicial review will lie regardless of whether the power originates from statute or from the royal prerogative.
The case also authoritatively confirms the three-headed classification of the grounds of judicial review, articulated by Lord Diplock with the endorsement of Lord Scarman and Lord Roskill:
- Illegality — the decision-maker acts outside or in error of the law governing the exercise of its power;
- Irrationality — the decision is so unreasonable that no reasonable authority could ever have come to it (commonly described as Wednesbury unreasonableness, following Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947]);
- Procedural impropriety — the decision-maker fails to comply with either express procedural requirements or the common law duty to act fairly, including the observance of natural justice.
The doctrine of legitimate expectation was also confirmed as a basis for judicial review where an established practice of consultation has given rise to a reasonable expectation that such consultation would continue. The appellants' legitimate expectation arose from the longstanding practice of consultation at GCHQ dating back to 1947, and this was sufficient in principle to ground their claim — but it was ultimately defeated by national security on the particular facts.
Obiter Dicta
Lord Roskill observed, by way of obiter dicta, that not all exercises of prerogative power would be justiciable, and offered a non-exhaustive catalogue of prerogative powers whose subject matter would render them unsuitable for judicial review. These included: 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. In Lord Roskill's view, the courts are not equipped to review decisions of such high political content, and the appropriate check on their exercise lies in Parliament rather than in the judiciary.
Lord Diplock also noted, obiter, that proportionality might in future become a separate head of judicial review, in addition to the three heads he had classified. This observation has proved prescient: proportionality has since grown in significance, particularly in cases arising under the Human Rights Act 1998.