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Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9

Here is the third instalment of a mini-series of posts discussing what are, in my opinion, some of the most fundamental UK public law cases of all time. Today’s case is: Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9, simply known as “the GCHQ case”.

The facts are as follows. In December 1983, the Conservative government led by Margaret Thatcher, decided that any and all employees of the GCHQ were prohibited from joining any trade union. This decision was justified on the basis of national security and was enforced using an Order of Council, which is an exercise of the royal prerogative. The CCSU sought judicial review of the decision; arguably, the Order removed a legitimate expectation of being able to collectively bargain for fair wages.

The High Court granted the application and declared the Order to be invalid. The Court of Appeal, however, allowed the Minister's appeal. Having reached the House of Lords, the CCSU’s appeal was dismissed. Ultimately, the issue of national security was outside the remit of the courts. Importantly, Lord Fraser did indicate that the courts would not by default accept an argument that the matter was one of national security; it was a "matter of evidence". Therefore, it is decided on a case by case basis, and such decisions need to have substantive evidentiary support.

There are a number of important points to take away from the judgment.

First, it established the three traditional grounds of judicial review under common law: illegality, irrationality and procedural impropriety. The scope of the grounds for judicial review, however, have been significantly enlarged since GCHQ.

Second, Executive action based on either the common law or the use of a prerogative power were capable of scrutiny via judicial review. However, the requirements of national security outweighed those of fairness, which was a matter for the Executive to weigh and decide.

Third, the GCHQ case marks a massive departure from the traditional legal position, whereby the courts would be unwilling to subject prerogative powers to judicial review. Typically, courts would simply indicate whether or not such powers existed and no comment was made on whether their use was appropriate.

Finally, it highlights that national security policy remains a political issue, not one for the courts to decide. The issue of separation of powers regularly features in public law; the CCSU case demonstrates the high regard the courts have for the principle.

The GCHQ case has influenced recent decisions: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61 on whether the courts could subject Orders in Council to judicial review. It also played a role in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41, where the courts quashed an Order in Council that sought to prorogue Parliament.

Stay tuned for part 4.

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