Facts
The Government Communications Headquarters (GCHQ) is the UK's signals intelligence agency. Its staff had long been allowed to belong to national trade unions, and the government had a well-established practice of consulting the unions before changing their terms of employment.
In 1984, the Prime Minister, Margaret Thatcher, acting as Minister for the Civil Service, issued an instruction that GCHQ staff could no longer belong to national trade unions. She made the decision under the Civil Service Order in Council 1982, made under the royal prerogative, and without consulting the unions. The Council of Civil Service Unions sought judicial review.
Issues
- Can the courts review the exercise of power delegated under the prerogative?
- Did the unions have a legitimate expectation of consultation?
- Could national security justify the failure to consult?
Decision
The House of Lords dismissed the unions' appeal. The decision was reviewable in principle, and the unions had a legitimate expectation of being consulted. But the government had shown that consultation would have risked the very disruption to GCHQ's work that it was trying to prevent, and national security outweighed the unions' expectation.
Reasoning
Prerogative powers are reviewable. Before this case, it was widely thought that the courts couldn't review how prerogative powers were exercised, only whether they existed. The House of Lords held that what matters is the subject matter of the decision, not the source of the power. A decision made under the prerogative can be reviewed just like one made under statute, if its subject matter is suitable for review.
Non-justiciable areas. Lord Roskill listed some prerogative powers whose nature made them unsuitable for review, including making treaties, defence of the realm, the prerogative of mercy, granting honours, dissolving Parliament and appointing ministers.
Legitimate expectation. The established practice of consulting the unions gave them a legitimate expectation of being consulted before their right to belong to a union was taken away.
National security. Whether national security required a particular action is a matter for the government, not the courts, which lack the information and expertise to judge it. But the government must produce evidence that the decision was in fact based on national security. Here, there was evidence that consulting the unions could have triggered industrial action threatening GCHQ's operations.
The grounds of review. Lord Diplock set out his famous classification of the grounds on which administrative action is subject to judicial review: illegality, irrationality and procedural impropriety, adding that proportionality might be adopted in future.
Why it matters
The GCHQ case transformed judicial review. It confirmed that prerogative power isn't beyond the reach of the courts, and its three grounds of review remain the standard framework.
Lord Roskill's list of non-justiciable powers has shrunk. The courts have reviewed the prerogative of mercy (R v Secretary of State for the Home Department, ex p Bentley [1994] QB 349) and prorogation of Parliament (R (Miller) v The Prime Minister [2019] UKSC 41). Legitimate expectation has also developed, notably in R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, which recognised substantive as well as procedural expectations.
How it comes up in exams
In a judicial review problem:
- Is the decision amenable to review? Prerogative powers can be, depending on subject matter (CCSU).
- Which grounds apply: illegality, irrationality, procedural impropriety (including legitimate expectation and the duty to consult)?
- Is there a justification, such as national security, and is there evidence for it?
- Consider standing, time limits (claims must be brought promptly and within three months: CPR 54.5) and remedies.
Frequently asked questions
What was decided in the GCHQ case?
The House of Lords held that the Prime Minister's decision, made under a prerogative Order in Council, was reviewable in principle, and that the unions had a legitimate expectation of consultation. But the government had shown that national security justified the decision, so the unions' claim failed.
What are the grounds of judicial review in CCSU?
Lord Diplock identified three: illegality (the decision-maker must understand and give effect to the law), irrationality (a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person could have reached it) and procedural impropriety (unfair procedure or failure to follow required procedures).
Can prerogative powers be judicially reviewed?
Yes. After GCHQ, the courts ask whether the subject matter is justiciable. Some areas, such as national security and foreign affairs, remain sensitive, but powers such as the prerogative of mercy (R v Home Secretary, ex p Bentley [1994] QB 349) and prorogation (Miller (No 2)) have been reviewed.
What is a legitimate expectation?
An expectation, based on a public body's promise or established practice, that it will act in a certain way, such as consulting before making a decision. The courts may protect it unless there's an overriding public interest.