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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 (22 November 1983) URL: http://www.bailii.org/uk/cases/UKHL/1983/6.html Cite as: [1985] ICR 14, [1984] 3 All ER 935, [1985] AC 374, [1983] UKHL 6, [1984] 3 WLR 1174, [1985] IRLR 28 |
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Parliamentary
Archives,
HL/PO/JU/18/244
50
In re the Council of
the
Civil Service Unions and others
JUDGMENT
Die Jovis 22° Novembris 1984
Upon Report from the Appellate Committee to
whom was
referred the Cause In re the Council of the Civil
Service
Unions and others, That the Committee had heard Counsel
on
Tuesday the 16th clay of October last (Counsel having
been
heard previously on Monday the 8th, Tuesday the
9th,
Wednesday the 10th, Thursday the 11th and Monday the
15th
days of October last) upon the Petition and Appeal of
the
Council of Civil Service Unions, St. Andrews House,
40
Broadway, London SWl, Jack Hart of 14 Farm View,
Taunton,
Somerset, Ann Sarah Downey of 41 Kipling Road, St.
Marks,
Cheltenham, Christopher Hugh Braunholtz of 1 Crippets
Road,
Leckhampton, Cheltenham, Jeremy Windust of 31 Hales
Road,
Cheltenham, David Francis McCaffrey of 34
Greenways,
Winchcombe, Cheltenham and Dennis Mitchell of 1 Albert
Drive,
Cheltenham praying that the matter of the Order set forth
in
the Schedule thereto, namely an Order of Her Majesty's Court
of
Appeal of the 6th day of August 1984, might be reviewed
before Her
Majesty the Queen in Her Court of Parliament and
that the said
Order might be reversed, varied or altered or
that the Petitioners
might have such other relief in the
premises as to Her Majesty the
Queen in Her Court of
Parliament might seem meet; as also upon the
Case of the
Minister for the Civil Service lodged in answer to the
said
Appeal; and due consideration had this day of what
was
offered on either side in this Cause:
It is Ordered and Adjudged, by
the Lords Spiritual and
Temporal in the Court of Parliament of Her
Majesty the Queen
assembled, That the said Order of Her Majesty's
Court of
Appeal of the 6th day of August 1984 complained of in
the
said Appeal be, and the same is hereby, Affirmed and
that the
said Petition and Appeal be, and the same is
hereby,
dismissed this House: And it is further Ordered,
That there
be no Order as to Costs in this House or in the Courts
below.
Cler: Parliamentor:
HOUSE OF LORDS
IN RE THE COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS
(ENGLAND)
Lord Fraser of Tullybelton
Lord
Scarman
Lord Diplock
Lord Roskill
Lord Brightman
LORD FRASER OF TULLYBELTON
My Lords,
Government
Communications Headquarters ("GCHQ") is a
branch of the
public service under the Foreign and Colonial Office,
the main
functions of which are to ensure the security of the
United
Kingdom military and official communications, and to
provide
signals intelligence for the Government. These functions
are of
great importance and they involve handling secret
information
which is vital to the national security. The main
establishment of
GCHQ is at Cheltenham where over 4,000 people
are employed. There
are also a number of smaller out-stations
one of which is at Bude
in Cornwall.
Since
1947, when GCHQ was established in its present form,
all the staff
employed there have been permitted, and indeed
encouraged, to
belong to national trade unions, and most of them
did so. Six
unions were represented at GCHQ. They were all
members, though not
the only members, of the Council of Civil
Service Unions ("CCSU"),
the first appellant. The second appellant
is the secretary of
CCSU. The other appellants are individuals
who are employed at
GCHQ and who were members of one or
other of the unions
represented there. A departmental Whitley
Council was set up in
1947 and, until the events with which this
appeal is concerned,
there was a well-established practice of
consultation between the
official side and the trade union side
about all important
alterations in the terms and conditions of
employment of the
staff.
On 25
January 1984 all that was abruptly changed. The
Secretary of State
for Foreign Affairs announced in the House of
Commons that the
Government had decided to introduce with
immediate effect new
conditions of service for staff at GCHQ, the
effect, of which was
that they would no longer be permitted to
belong to national trade
unions but would be permitted to belong
only to a departmental
staff association approved by the director.
The announcement came
as a complete surprise to the trade unions
and to the employees at
GCHQ, as there had been no prior
consultation with them. The
principal question raised in this
appeal is whether the
instruction by which the decision received
effect, and which was
issued orally on 22 December 1983 by the
respondent (who is also
the Prime Minister), is valid and effective
in accordance with
article 4 of the Civil Service Order in Council
1982. The
respondent maintains that it is. The appellants
maintain that it
is invalid because there was a procedural
obligation on the
respondent to act fairly by consulting the persons
concerned
before exercising her power under article 4 of the Order
- 1 -
in
Council, and she has failed to do so. Underlying that question,
and
logically preceding it, is the question whether the courts, and
your
Lordships' House in its judicial capacity, have power to
review
the instruction on the ground of a procedural irregularity,
having
regard particularly to the facts (a) that it was made in the
exercise
of a power conferred under the royal prerogative and not
by
statute, and (b) that it concerned national security.
It is
necessary to refer briefly to the events which led up
to the
decision on 22 December 1983. Between February 1979 and
April 1981
industrial action was taken at GCHQ on seven
occasions. The action
took various forms - one day strikes, work
to rule, and overtime
bans. The most serious disruption occurred
on 9 March 1981 when
about 25 per cent, of the staff went on
one-day strike and,
according to Sir Robert Armstrong, the
Secretary to the Cabinet,
who made an affidavit in these
proceedings, parts of the
operations at GCHQ were virtually shut
down. The appellants do not
accept the respondent's view on the
seriousness of the effects of
industrial action upon the work at
GCHQ. But clearly it must have
had some adverse effect,
especially by causing some interruption
of the constant day and
night monitoring of foreign signals
communications. The industrial
action was taken mainly in support
of national trade unions, when
they were in dispute with the
Government about conditions of
service of civil servants
generally, and not about local problems at
GCHQ. In 1981
especially it was part of a campaign by the
national trade unions,
designed to do as much damage as possible
to Government agencies
including GCHQ. Sir Robert Armstrong in
his affidavit refers to
several circular letters and "campaign
reports" issued
by CCSU and some of its constituent unions, which
show the objects
of the campaign. One of these is a circular
letter dated 10 March
1981 from the Society of Civil and Public
Servants. In a paragraph
headed "Selective Strikes" the letter
states as follows:
"Union
members at certain key Government sites are now on
permanent
strike. This is the first phase of the selective
action: it
includes naval supplies and dockyards, locations
where the
Government finance machine can be disrupted, a
Government
surveillance centre and the DHSS contributions
records
computer." (Emphasis added.)
Among the
selective strike areas referred to in the list appended
to
the letter is "GCHQ Bude, Cornwall." The
seriousness of the
intended challenge to the security
system of this country can be
guaged from the literature
issued at the time by the CCSU, of
which the following are
examples:
"Our ultimate success depends upon the extent to
which revenue collection is upset, defence readiness
hampered,
and trading relations disrupted by this and future
action."
"Walk-outs
in key installations have affected Britain's
defence capability in
general, and crippled the UK
contribution to the NATO exercise
'Wintex.'"
"another
vital part of the Government's Composite
Signals Organisation ...
is to be hit by a strike from
Friday, 3 April."
- 2 -
"48-hour
walk-outs have severely hit secret monitoring
stations belonging
to the Composite Signals Organisation.
The Government is clearly
worried and will be subject to
huge pressure from NATO allies."
"Defence
plans have been upset by the continuing
action at naval supplies
depots, dock-yards, and other crucial
establishments."
Approaches
were made on behalf of the Government to local union
officials,
and later to national CCSU officials, to dissuade them
from action
which would directly adversely affect operations at
GCHQ. Some
co-operation was given by the local officials, but
none at all by
national officers. Sir Brian Tovey (former director
of GCHQ) gave
evidence to the Employment Committee of the
House of Commons on 8
February 1984 and told them that, after
one of his subordinates
had sought to explain to the general
secretary of one of the trade
unions the serious consequences that
might follow from disruption
of certain parts of GCHQ work, the
answer was "Thank you. You
are telling me where I am hurting
Mrs. Thatcher the most."
In 1982
the Government considered whether measures should
be taken to
prevent the recurrence of such disruptive action.
But at that time
the intelligence functions of GCHQ had not been
publicly
acknowledged by the Government, although they had
already been
referred to in the newspapers, and it was decided
that no action
which would involve public acknowledgement of the
activities
should be taken. In May 1983 following the report of
the Security
Commission in the case of Geoffrey Prime who had
been convicted of
espionage at GCHQ, the intelligence role of
GCHQ was for the first
time publicly acknowledged, and the
reason for avoiding public
action to deal with disruption was thus
removed. The report of the
Security Commission on the Prime
case is also relevant to this
appeal in another way, because it
recommended that a pilot scheme
should be undertaken to test the
feasibility of polygraph security
screening at intelligence agencies
including GCHQ. The CCSU were
opposed to this recommendation
and several meetings were held
between their representatives and
the Cabinet Office officials to
discuss the matter. CCSU were
concerned that the polygraph might
be introduced without adequate
consultation and on 9 January 1984
Sir Robert Armstrong wrote to
the chairman of their general policy
committee explaining that
before a decision was taken for the
definitive introduction of
polygraph, as distinct from the
experimental pilot scheme, there
would certainly need to be
consultations. That was the last word
on the polygraph question
before the announcement on 25 January
1984 that national trade
unions were to be excluded from GCHQ.
Their exclusion would
necessarily prevent their playing any part in
further
consultations on the polygraph and that was one of their
reasons
for resenting the decision of 22 December 1983.
Course of the Proceedings
The trade
unions, and some at least of the employees at
GCHQ, objected
strongly to the decision made on 22 December
1983 and announced on
25 January 1984. Representatives of the
trade unions met the
Minister for the Civil Service on two
- 3 -
occasions
in February 1984 to express their objections. They also
met Sir
Robert Armstrong several times. They presented a draft
agreement
to prevent disruption at certain parts of GCHQ but the
draft was
rejected by the Government and no agreement was
reached about
changing the Government's decision. Eventually the
first and
second appellants obtained leave from Glidewell J. on 8
March 1984
to bring proceedings for judicial review against the
Minister for
the Civil Service in respect of the instruction of 22
December
1983 and against the Foreign Secretary in respect of
certificates
which he had issued under the Employment Protection
Act 1975,
section 121 (4), and the Employment Protection
(Consolidation) Act
1978, section 138 (4), to give effect to the
instruction by
discontinuing, on national security grounds, the right
of staff to
appeal to industrial tribunals. The attack on these
certificates
has been abandoned, and the attack on the instruction
is now
limited to seeking a declaration that it is invalid; the
remedy of
certiorari is no longer sought.
Glidewell J. granted a declaration that:
"the
instruction purportedly issued by the Minister for the
Civil
Service on 22 December 1983 that the terms and
conditions of
service of civil servants serving at GCHQ
should be revised so as
to exclude membership of any trade
union other than a departmental
staff association approved
by the Director of GCHQ was invalid and
of no effect."
His reason
for granting the declaration was that there had
been a procedural
irregularity in failing to consult before issuing
the instruction.
I take this opportunity of expressing my
respectful admiration for
the carefully reasoned opinion of the
learned judge which has
substantially assisted me and, I believe,
my noble and learned
friends.
Against
that declaration the respondent appealed. The
Court of Appeal
(Lord Lane C.J., Watkins and May L.JJ.) reversed
the judge's
decision and dismissed the appellants' application for
judicial
review. They also dismissed a cross-appeal by the
appellants.
The appeal
raises a number of questions. I shall consider
first the question
which I regard as the most important and also
the most difficult.
It concerns the royal prerogative.
The Royal Prerogative
The
mechanism on which the Minister for the Civil Service
relied to
alter the terms and conditions of service at GCHQ was
an
"instruction" issued by her under the Order in Council of
1982,
article 4. That article so far as relevant provides as
follows:-
"As
regards Her Majesty's Home Civil Service - (a) the
Minister
for the Civil Service may from time to time make
regulations or
give instructions - ... (ii) for controlling
the conduct of the
Service, and providing for the
classification of all persons
employed therein and . . . the
conditions of service of all such
persons; ..."
- 4 -
The Order
in Council was not issued under powers conferred
by any Act of
Parliament. Like the previous Orders in Council on
the same
subject it was issued by the sovereign by virtue of her
prerogative,
but of course on the advice of the Government of the
day. In these
circumstances Mr. Alexander submitted that the
instruction was not
open to review by the courts because it was
an emanation of the
prerogative. This submission involves two
propositions: (1) that
prerogative powers are discretionary, that is
to say they may be
exercised at the discretion of the sovereign
(acting on advice in
accordance with modern constitutional
practice) and the way in
which they are exercised is not open to
review by the courts; (2)
that an instruction given in the exercise
of a delegated power
conferred by the sovereign under the
prerogative enjoys the same
immunity from review as if it were
itself a direct exercise of
prerogative power. Mr. Blom-Cooper
contested both of these
propositions, but the main weight of his
argument was directed
against the second.
The first
of these propositions is vouched by an impressive
array of
authority, which I do not propose to cite at all fully.
Starting
with Blackstone's Commentaries 15th ed. (1809), p.251
and
Chitty, A Treatise on the Law of the Prerogatives of the
Crown
(1820), pp.6-7 they are at one in stating that, within
the sphere of
its prerogative powers, the Crown has an absolute
discretion. In
more recent times the best known definition of the
prerogative is
that given in Dicey, Law of the Constitution
8th ed. (1915), p.421
which is as follows:
"The
prerogative is the name for the remaining portion of
the Crown's
original authority, and is therefore, as already
pointed out, the
name for the residue of discretionary power
left at any moment in
the hands of the Crown, whether
such power be in fact exercised by
the King himself or by
his ministers."
Dicey's
definition was quoted with approval in this House in
Attorney-General
v. De Keyser's Royal Hotel Ltd. [1920] A.C. 508,
526 by Lord
Dunedin and was impliedly accepted by the other Law
Lords in that
case. In Burmah Oil Co. Ltd, v. Lord Advocate,
1964 S.C.
(H.L.) 117 Lord Reid, at p.120, referred to Dicey's
definition
as being "always quoted with approval" although he said
it
did not take him very far in that case. It was also referred to
with
apparent approval by Roskill L.J. (as my noble and learned
friend
then was) in Laker Airways Ltd, v. Department of Trade
[1977] Q.B. 643, 719. As de Keyser's case shows the courts
will
inquire into whether a particular prerogative power exists or
not,
and if it does exist, into its extent. But once the existence
and
the extent of a power are established to the satisfaction of
the
court, the court cannot inquire into the proprietary of its
exercise.
That is undoubtedly the position as laid down in the
authorities to
which I have briefly referred and it is plainly
reasonable in
relation to many of the most important prerogative
powers which
are concerned with control of the armed forces and
with foreign
policy and with other matters which are unsuitable
for discussion
or review in the law courts. In the present case
the prerogative
power involved is power to regulate the Home Civil
Service, and I
recognise there is no obvious reason why the mode
of exercise of
that power should be immune from review by the
courts.
Nevertheless to permit such review would run counter to
the great
- 5 -
weight of
authority to which I have briefly referred. Having
regard to the
opinion I have reached on Mr. Alexander's second
proposition, it
is unnecessary to decide whether his first
proposition is sound or
not and I prefer to leave that question
open until it arises in a
case where a decision upon it is
necessary. I therefore assume,
without deciding, that his first
proposition is correct and that
all powers exercised directly under
the prerogative are immune
from challenge in the courts. I pass
to consider his second
proposition.
The second
proposition depends for its soundness upon
whether the power
conferred by article 4 of the Order in Council
of 1982 on the
Minister for the Civil Service of "providing for . .
. the
conditions of service" of the Civil Service is subject to
an
implied obligation to act fairly. (Such an obligation is
sometimes
referred to as an obligation to obey the rules of
natural justice,
but that is a less appropriate description, at
least when applied, as
in the present case, to a power which is
executive and not
judicial). There is no doubt that, if the Order
in Council of 1982
had been made under the authority of a statute,
the power
delegated to the Minister by article 4 would have been
construed
as being subject to an obligation to act fairly. I am
unable to
see why the words conferring the same powers should be
construed
differently merely because their source was an Order in
Council
made under the prerogative. It is ail the more difficult
in the
face of article 6(4) of the Order in Council of 1982 which
provides
that the Interpretation Act 1978 shall apply to the
Order; it would
of course apply to a statutory order. There seems
no sensible
reason why the words should not bear the same meaning
whatever
the source of authority for the legislation in which they
are
contained. The Order in Council of 1982 was described by
Sir
Robert Armstrong in his first affidavit as primary
legislation; that
is, in my opinion, a correct description,
subject to the qualification
that the Order in Council, being made
under the prerogative,
derives its authority from the sovereign
alone and not, as is more
commonly the case with legislation, from
the sovereign in
Parliament. Legislation frequently delegates
power from the
legislating authority - the sovereign in one case.
Parliament in the
other - to some other person or body and, when
that is done, the
delegated powers are defined more or less
closely by the
legislation, in this case by article 4. But
whatever their source,
powers which are defined, either by
reference to their object or
by reference to procedure for their
exercise, or in some other
way, and whether the definition is
expressed or implied, are in my
opinion normally subject to
judicial control to ensure that they are
not exceeded. By
"normally" I mean provided that considerations
of
national security do not require otherwise.
The courts
have already shown themselves ready to control
by way of judicial
review the actions of a tribunal set up under
the prerogative.
Reg. v. Criminal Injuries Compensation Board Ex
parte Lain
[1967] 2 Q.B. 864 was such a case. In that case Lord
Parker C.J.
said, at p. 881:
"I
can see no reason either in principle or in authority why
a board
set up as this board was set up is not a body of
persons amenable
to the jurisdiction of this court. True it
is not set up by
statute but the fact that it is set up by
executive government,
i.e., under the prerogative, does not
- 6 -
render its
acts any the less lawful. Indeed, the writ of
certiorari has
issued not only to courts set up by statute
but to courts whose
authority is derived, inter alia, from
the prerogative. Once the
jurisdiction is extended, as it
clearly has been, to tribunals as
opposed to courts, there is
no reason why the remedy by way of
certiorari cannot be
invoked to a body of persons set up under the
prerogative."
That case
was concerned with the actions of a Board or tribunal
exercising
functions of a judicial character, but it is now
established that
certiorari is not limited to bodies performing
judicial functions.
In Reg. v. Secretary of State for Home Affairs,
Ex parte
Hosenball [1977] 1 W.L.R. 766 which was concerned with
the
actions of the Secretary of State himself in refusing to
give
information about the reasons for making a deportation
order
against an alien, the Divisional Court and the Court of
Appeal
refused to make an order of certiorari because the refusal
had
been based on grounds of national security but, if it had
been
made in what Lord Denning M.R., at p. 778 called an
"ordinary
case" - that is one in which national security
was not involved -
the position would have been different. At p.
781, Lord Denning
M.R. said:
"if
the body concerned, whether it be a minister or advisers,
has
acted unfairly, then the courts can review their
proceedings so as
to ensure, as far as may be, that justice
is done."
Accordingly
I agree with the conclusion of Glidewell J. that
there is no
reason for treating the exercise of a power under
article 4 any
differently from the exercise of a statutory power
merely because
article 4 itself is found in an order issued under
the
prerogative.
It
follows, in my opinion, that some of the reasoning in
Reg. v.
Secretary of State for War [1891] 2 Q.B. 326 and Griffin
v.
Lord Advocate, 1950 S.C. 448 is unsound, although the
decisions
themselves might perhaps be supported on the ground that
they
related to actions by the Crown connected with the armed
forces.
The former case was of course decided long before the
modern
development of judicial review and the latter, which was
a
decision of Lord Sorn in the Outer House, mainly followed it.
The Duty to Consult
Mr.
Blom-Cooper submitted that the Minister had a duty to
consult the
CCSU, on behalf of employees at GCHQ, before giving
the
instruction on 22 December 1983 for making an important
change in
their conditions of service. His main reason for so
submitting was
that the employees had a legitimate, or reasonable,
expectation
that there would be such prior consultation before any
important
change was made in their conditions.
It is
clear that the employees did not have a legal right to
prior
consultation. The Order in Council confers no such right,
and
article 4 makes no reference at all to consultation. The
Civil
Service handbook (Handbook for the new civil servant,
1973 ed. as
amended 1983) which explains the normal method of
consultation
through the departmental Whitley Council, does not
suggest that
- 7 -
there is
any legal right to consultation; indeed it is careful to
recognise
that, in the operational field, considerations of urgency
may make
prior consultation impracticable. The Civil Service Pay
and
Conditions of Service Code expressly states:
"The
following terms and conditions also apply to your
appointment in
the Civil Service. It should be understood,
however, that in
consequence of the constitutional position
of the Crown, the Crown
has the right to change its
employees' conditions of service at
any time, and that they
hold their appointments at the pleasure of
the Crown."
But even
where a person claiming some benefit or privilege has no
legal
right to it, as a matter of private law, he may have a
legitimate
expectation of receiving the benefit or privilege, and, if
so, the
courts will protect his expectation by judicial review as a
matter
of public Jaw. This subject has been fully explained by my
noble
and learned friend, Lord Diplock, in O'Reilly v. Mackman
[1983] 2 A.C. 237 and I need not repeat what he has so recently
said.
Legitimate, or reasonable, expectation may arise either from
an
express promise given on behalf of a public authority or from
the
existence of a regular practice which the claimant can
reasonably
expect to continue. Examples of the former type of
expectation are
Reg. v. Liverpool Corporation, Ex parte Liverpool
Taxi Fleet
Operators' Association [1972] 2 Q.B. 299 and Attorney-
General
of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629. (I
agree with
Lord Diplock's view, expressed in the speech in this
appeal, that
"legitimate" is to be preferred to "reasonable"
in this
context. I was responsible for using the word "reasonable"
for the
reason explained in Ng Yuen Shiu, but it was
intended only to be
exegetical of "legitimate".) An
example of the latter is Reg. v.
Board of Visitors of Hull
Prison, Ex parte St. Germain [1979] Q.B.
425 approved by this
House in O'Reilly, at p.274D. The submission
on behalf of
the appellants is that the present case is of the
latter type. The
test of that is whether the practice of prior
consultation of the
staff on significant changes in their conditions
of service was so
well established by 19S3 that it would be unfair
or inconsistent
with good administration for the Government to
depart from the
practice in this case. Legitimate expectations
such as are now
under consideration will always relate to a benefit
or privilege
to which the claimant has no right in private law, and
it may even
be to one which conflicts with his private law rights.
In the
present case the evidence shows that, ever since GCHQ
began in
1947, prior consultation has been the invariable rule when
conditions
of service were to be significantly altered. Accordingly
in my
opinion if there had been no question of national security
involved,
the appellants would have had a legitimate expectation
that the
Minister would consult them before issuing the instruction
of 22
December 1983. The next question, therefore, is whether it
has
been shown that consideration of national security supersedes
the
expectation.
National Security
The issue
here is not whether the Minister's instruction was
proper or fair
or justifiable on its merits. These matters are not
for the courts
to determine. The sole issue is whether the
decision on which the
instruction was based was reached by a
process that was fair to
the staff at GCHQ. As my noble and
- 8 -
learned
friend Lord Brightman said in Chief Constable of the
North
Wales Police v. Evans [1982] 1 W.L.R. 1155, 1173:
"Judicial
review is concerned, not with the decision, but
with the decision-
making process."
I have
already explained my reasons for holding that, if no
question of
national security arose, the decision-making process in
this case
would have been unfair. The respondent's case is that
she
deliberately made the decision without prior consultation
because
prior consultation "would involve a real risk that it
would
occasion the very kind of disruption [at GCHQ] which was a
threat
to national security and which it was intended to avoid."
I have
quoted from paragraph 27(i) of the respondent's printed
case. Mr.
Blom-Cooper conceded that a reasonable minister could
reasonably
have taken that view, but he argued strongly that the
respondent
had failed to show that that was in fact the reason for
her
decision. He supported his argument by saying, as I think
was
conceded by Mr. Alexander, that the reason given in
paragraph
27(i) had not been mentioned to Glidewell J. and
that it had only
emerged before the Court of Appeal. He described
it as an
"afterthought" and invited the House to hold
that it had not been
shown to have been the true reason.
The
question is one of evidence. The decision on whether
the
requirements of national security outweigh the duty of fairness
in
any particular case is for the Government and not for the
courts;
the Government alone has access to the necessary
information, and
in any event the judicial process is unsuitable for
reaching
decisions on national security. But if the decision is
successfully
challenged, on the ground that it has been reached by
a process
which is unfair, then the Government is under an
obligation to
produce evidence that the decision was in fact based
on grounds of
national security. Authority for both these points is
found in The
Zamora [1916] 2 A.C. 77. The former point is dealt
with in the
well known passage from the advice of the Judicial
Committee
delivered by Lord Parker of Waddington, at p. 107:
"Those
who are responsible for the national security must be
the sole
judges of what the national security requires. It
would be
obviously undesirable that such matters should be
made the subject
of evidence in a court of law or otherwise
discussed in public."
The second
point, less often referred to, appears at p. 106
and more
particularly at p. 108 where this passage occurs:
"In
their Lordships' opinion the order appealed from was
wrong, not
because, as contended by the appellants, there is
by international
law no right at all to requisition ships or
goods in the custody
of the court, but because the judge
had before him no
satisfactory evidence that such a right
was exercisable."
(Emphasis added.)
What was
required was evidence that a cargo of copper in the
custody of the
Prize Court was urgently required for national
purposes, but no
evidence had been directed to that point. The
claim on behalf of
the Crown that it was entitled to requisition
the copper therefore
failed; considering that the decision was
made in 1916 at a
critical stage of the 1914-1913 war, it was a
- 9 -
strong
one. In Chandler v. Director of Public Prosecutions
[1964]
A.C. 763, which was an appeal by persons who had been
convicted
of a breach of the peace under section 1 of the Official
Secrets
Act 1911 by arranging a demonstration by the Campaign
for
Nuclear Disarmament on an operational airfield at
Wethersfield,
Lord Reid, at p.790, said this:
"The
question more frequently arises as to what is or is not
in the
public interest. I do not subscribe to the view that
the
Government or a minister must always or even as a
general rule
have the last word about that. But here we
are dealing with a very
special matter - interfering with a
prohibited place which
Wethersfield was."
But the
court had had before it evidence from an Air Commodore
that the
airfield was of importance for national security. Both
Lord Reid
and Lord Radcliffe, at p.796, referred to the evidence
as being
relevant to their refusal of the appeal.
The
evidence in support of this part of the respondent's
case came
from Sir Robert Armstrong in his first affidavit,
especially at
paragraph 16. Mr. Blom-Cooper rightly pointed out
that the
affidavit does not in terms directly support paragraph
27(i)
quoted above. But it does set out the respondent's view that
to
have entered into prior consultation would have served to bring
out
the vulnerability of areas of operation to those who had
shown
themselves ready to organise disruption. That must be read
along
with the earlier parts of the affidavit in which Sir Robert
had
dealt in some detail with the attitude of the trade unions
which I
have referred to earlier in this speech. The affidavit,
read as a
whole, does in my opinion undoubtedly constitute
evidence that the
Minister did indeed consider that prior
consultation would have
involved a risk of precipitating
disruption at GCHQ. I am
accordingly of opinion that the
respondent has shown that her
decision was one which not only
could reasonably have been based,
but was in fact based, on
considerations of national security, which
outweighed what would
otherwise have been the reasonable
expectation on the part of the
appellants for prior consultation.
In deciding that matter I must
with respect differ from the
decision of Glidewell J. but, as I
have mentioned, I do so on a
point that was not argued to him.
Minor Matters
The judge
held that had the prior consultations taken place
they would not
have been so limited that he could confidently say
that they would
have been futile. It is not necessary for me to
reach a concluded
view on this matter, but as at present advised I
am inclined to
differ from the learned judge, especially because of
the attitude
of two of the trade union members of CCSU which
declared that they
were firmly against any no-strike agreement.
The Court
of Appeal considered the proper construction of
certain
international labour conventions which they cite. I
respectfully
agree with Lord Lane C.J. who said that "the correct
meaning
of the material articles of the Conventions is by no
means clear,"
but I do not propose to consider the matter as the
Conventions are
not part of the law in this country.
- 10 -
Mr.
Blom-Cooper submitted that the oral direction did not
qualify as
an "instruction" within the meaning of article 4, and
that
for two reasons. First he said that there was no sufficient
evidence
of any instruction. In my opinion there is no substance
in this
ground. There is ample evidence in a letter dated 7
February 1984
from Sir Robert Armstrong to the Director of
GCHQ and also in the
General Notice 100/84 and a covering letter
issued by the Director
to all employees at GCHQ. Secondly
counsel said that the
instruction did not sufficiently specify
conditions that were
being altered, but I agree with Glidewell J.,
and with the Court
of Appeal, that the Minister's direction on 22
December 1983 did
give "instructions . . . providing for ... the
conditions of
service" of employees at GCHQ in the sense of
article 4 of
the Order in Council of 1982. There was no
obligation to put the
instructions in writing, although that might
perhaps have been
expected in a matter so important as this. Nor
was there any
obligation to couch the instructions in any particular
form.
Accordingly I reject this submission.
For these reasons I would dismiss the appeal.
LORD SCARMAN
My Lords,
I would
dismiss this appeal for one reason only. I am
satisfied that the
respondent has made out a case on the ground
of national security.
Notwithstanding the criticisms which can be
made of the evidence
and despite the fact that the point was not
raised, or, if it was,
was not clearly made before the case reached
the Court of Appeal,
I have no doubt that the respondent refused
to consult the unions
before issuing her instruction of the 22
December 1983 because she
feared that, if she did, union-organised
disruption of the
monitoring services of GCHQ could well result. I
am further
satisfied that the fear was one which a reasonable
minister in the
circumstances in which she found herself could
reasonably
entertain. I am also satisfied that a reasonable
minister could
reasonably consider such disruption to constitute a
threat to
national security. I would, therefore, deny relief to the
appellants
upon their application for judicial review of the
instruction, the
effect of which was that staff at GCHQ would no
longer be
permitted to belong to a national trade union.
The point
of principle in the appeal is as to the duty of the
court when in
proceedings properly brought before it a question
arises as to
what is required in the interest of national security.
The
question may arise in ordinary litigation between private
persons
as to their private rights and obligations: and it can arise,
as
in this case, in proceedings for judicial review of a decision by
a
public authority. The question can take one of several forms.
It
may be a question of fact which Parliament has left to the
court
to determine: see for an example section 10 of the
Contempt of
Court Act 1981. It may arise for consideration as a
factor in the
exercise of an executive discretionary power. But,
however it
arises, it is a matter to be considered by the court in
the
circumstances and context of the case. Though there are
- 11 -
limits
dictated by law and common sense which the court must
observe in
dealing with the question, the court does not abdicate
its
judicial function. If the question arises as a matter of fact,
the
court requires evidence to be given. If it arises as a factor
to
be considered in reviewing the exercise of a discretionary
power,
evidence is also needed so that the court may determine
whether it
should intervene to correct excess or abuse of the
power.
Let me
give three illustrations taken from the case law of
the 20th
century. First, The Zamora [1916] 2 A.C. 77 - surely
one of
the more courageous of judicial decisions even in our long
history.
In April 1916 a question of national security came before
the
Judicial Committee of the Privy Council sitting in Prize. The
Crown's
role in the Prize Court was that of a belligerent power
having by
international law the right to requisition vessels or goods
in the
custody of its Prize Court. A neutral vessel carrying a
cargo of
copper (contraband) had been stopped at sea by the Royal
Navy and
taken to a British port. No decree of condemnation of
the cargo
had yet been made by the Prize Court, when the Crown
intervened by
summons to requisition the cargo then in the custody
of the court.
Lord Parker of Waddington, who delivered the
judgment of the
Judicial Committee, concluded, at p. 106:
"A
belligerent Power has by international law the right to
requisition
vessels or goods in the custody of its Prize Court
pending a
decision of the question whether they should be
condemned or
released, but such right is subject to certain
limitations. First,
the vessel or goods in question must be
urgently required for use
in connection with the defence of
the realm, the prosecution of
the war, or other matters
involving national security. Secondly,
there must be a real
question to be tried, so that it would be
improper to order
an immediate release. And, thirdly, the right
must be
enforced by application to the Prize Court, which
must
determine judicially whether, under the
particular
circumstances of the case, the right is exercisable."
Discussing
the first limitation, Lord Parker observed that
the judge ought,
"as a rule", to treat the statement of the proper
officer
of the Crown that the vessel or goods were urgently
required for
national security reasons as conclusive of the fact.
And it was in
this context that he delivered his famous dictum,
p.107: "Those
who are responsible for the national security must be
the sole
judges of what the national security requires." These
words
were no abdication of the judicial function, but were an
indication
of the evidence required by the court. In fact the
evidence
adduced by the Crown was not sufficient, and the court
ruled that
the Crown had no right to requisition. The Crown's
claim was
rejected "because the judge had before him no
satisfactory
evidence that such a right was exercisable" (p.108).
The
Prize Court, therefore, treated the question as one of fact for
its
determination and indicated the evidence needed to establish
the
fact. The true significance of Lord Parker's dictum is simply
that
the court is in no position to substitute its opinion for the
opinion
of those responsible for national security. But the case is
a fine
illustration of the court's duty to ensure that the essential
facts
to which the opinion or judgment of those responsible relates
are
proved to the satisfaction of the court.
- 12 -
My second
illustration is Chandler v. Director of Public
Prosecutions
[1964] A.C. 763. In this case the interest of national
security
came into court as a matter of fact to be established by
evidence
to the satisfaction of a jury in a criminal case. The
appellants
were convicted of conspiring to commit a breach of
section 1 of
the Official Secrets Act 1911, "namely, for a
purpose
prejudicial to the safety or interests of the state to
enter a Royal
Air Force station ... at Wethersfield." There
was evidence from
an officer of air rank that the airfield was of
importance for
national security: and, as my noble and learned
friend Lord Fraser
of Tullybelton has pointed out, Lord Reid and
Lord Radcliffe
treated his evidence as relevant to the dismissal
of their appeal.
Lord Devlin developed the point taken in the case
on national
security in a passage beginning at p. 809 which, with
all respect
to those who take a different view, I believe to be
sound law.
Having referred to the undoubted principle that all
matters
relating to the disposition and armament of the armed
forces are
left to the unfettered control of the Crown, he made
three
comments. First, he put the Zamora dictum into its
true context.
Secondly, he observed that, when a court is faced
with the
exercise of a discretionary power, inquiry is not
altogether
excluded: the court will intervene to correct excess or
abuse. His
third and, as he said, his "most significant"
comment was as to
the nature and effect of the principle. "Where
it operates, it
limits the issue which the court has to determine;
it does not
exclude any evidence or argument relevant to the
issue" (p.810),
As I read
the speeches in Chandler's case, the House
accepted that
the statute required the prosecution to establish by
evidence that
the conspiracy was to enter a prohibited place for a
purpose
prejudicial to the safety or interests of the state. As
Parliament
had left the existence of a prejudicial purpose to the
decision of
a jury, it was not the Crown's opinion as to the
existence of
prejudice to the safety or interests of the state but
the jury's
which mattered: hence, as Lord Devlin at p.811,
remarked, the
Crown's opinion on that was inadmissible but the
Crown's evidence
as to its interests was an "entirely different
matter."
Here, like Lord Parker in the Zamora, Lord Devlin
was
accepting that the Crown, or its responsible servants, are the
best
judges of what national security requires without excluding
the
judicial function of determining whether the interest of
national
security has been shown to be involved in the case.
Finally, I
would refer to Secretary of State for Defence and
Another v.
Guardian Newspapers Ltd. [1984] 3 W.L.R. 986, a case
arising
under section 10 of the Act of 1981. As in Chandler's
case,
the interest of national security had to be considered in
proceedings
where it arose as a question of fact to be established
to the
satisfaction of a court. Though the House was divided as
to the
effect of the evidence, all their Lordships held that
evidence was
necessary so that the court could be judicially
satisfied that the
interest of national security required disclosure
of the
newspaper's source of information.
My Lords,
I conclude, therefore, that where a question as
to the interest of
national security arises in judicial proceedings
the court has to
act on evidence. In some cases a judge or jury
is required by law
to be satisfied that the interest is proved to
- 13 -
exist: in
others, the interest is a factor to be considered in the
review of
the exercise of an executive discretionary power. Once
the factual
basis is established by evidence so that the court is
satisfied
that the interest of national security is a relevant factor
to be
considered in the determination of the case, the court will
accept
the opinion of the Crown or its responsible officer as to
what is
required to meet it, unless it is possible to show that the
opinion
was one which no reasonable minister advising the Crown
could in
the circumstances reasonably have held. There is no
abdication of
the judicial function, but there is a common sense
limitation
recognised by the judges as to what is justiciable: and
the
limitation is entirely consistent with the general development
of
the modern case law of judicial review.
My Lords,
I would wish to add a few, very few, words on
the reviewability of
the exercise of the royal prerogative. Like
my noble and learned
friend Lord Diplock, I believe that the law
relating to judicial
review has now reached the stage where it can
be said with
confidence that, if the subject matter in respect of
which
prerogative power is exercised is justiciable, that is to say
if
it is a matter upon which the court can adjudicate, the exercise
of
the power is subject to review in accordance with the
principles
developed in respect of the review of the exercise of
statutory
power. Without usurping the role of legal historian, for
which I
claim no special qualification, I would observe that the
royal
prerogative has always been regarded as part of the common
law,
and that Sir Edward Coke had no doubt that it was subject
to
the common law: Case of Prohibitions del Roy (1607), 12
Co. Rep.
63 and Case of Proclamations (1611) 12 Co. Rep.
74. In the
latter case he declared, at p.76, that "the King
hath no
prerogative, but that which the law of the land allows
him." It is,
of course, beyond doubt that in Coke's time and
thereafter judicial
review of the exercise of prerogative power
was limited to
inquiring into whether a particular power existed
and, if it did,
into its extent: Attorney-General v. De
Keyser's Royal Hotel Ltd.
[1920] A.C. 508. But this limitation
has now gone, overwhelmed
by the developing modern law of judicial
review: Reg. v. Criminal
Injuries Compensation Board, Ex parte
Lain [1967] 2 Q.B.864 (a
landmark case comparable in its
generation with the Case of
Proclamations) and Reg.
Secretary of State for Home Affairs,
Ex parte Hosenball [1977]
1 W.L.R. 766. Just as ancient
restrictions in the law relating to
the prerogative writs and orders
have not prevented the courts
from extending the requirement of
natural justice, namely the duty
to act fairly, so that it is
required of a purely administrative
act, so also has the modern
law, a vivid sketch of which my noble
and learned friend Lord
Diplock has included in his speech,
extended the range of judicial
review in respect of the exercise
of prerogative power. Today,
therefore, the controlling factor in
determining whether the
exercise of prerogative power is subject
to judicial review is not
its source but its subject matter.
Subject to
these few comments, I agree with the speeches
delivered by my
noble and learned friends Lord Diplock and Lord
Roskill. I am in
favour of dismissing the appeal only because the
respondent has
established by evidence that the interest of national
security
required in her judgment that she should refuse to consult
the
unions before issuing her instruction. But for this I would
have
allowed the appeal on the procedural ground that the
- 14 -
respondent
had acted unfairly in failing to consult unions or staff
before
making her decision.
LORD DIPLOCK
My Lords,
The
English law relating to judicial control of administrative
action
has been developed upon a case to case basis which has
virtually
transformed it over the last three decades. The
principles of
public law that are applicable to the instant case are
in my view
well established by authorities that are sufficiently
cited in the
speech that will be delivered by my noble and learned
friend, Lord
Roskill. This obviates the necessity of my duplicating
his
citations: though I should put on record that after reading
and
rereading Lord Devlin's speech in Chandler v. Director of
Public
Prosecutions [1964] A.C. 763, I have gained no help
from it, for I
find some of his observations that are peripheral
to what I
understand to be ratio decidendi difficult to reconcile
with the
actual decision that he felt able to reach and also with
one
another.
The only
difficulty which the instant case has presented
upon the facts as
they have been summarised by my noble and
learned friend, Lord
Fraser of Tullybelton, and expanded in the
judgment of Glidewell
J. has been to identify what is, in my view,
the one crucial point
of law on which this appeal turns. It never
was identified or even
adumbrated in the respondent's argument
at the hearing before
Glidewell J. and so, excusably, finds no
place in what otherwise I
regard as an impeccable judgment. The
consequence of this omission
was that he found in favour of the
applicants. Before the Court of
Appeal the crucial point was
advanced in argument by the Crown in
terms that were
unnecessarily and, in my view, unjustifiably wide.
This stance was
maintained in the appeal to this House, although,
under your
Lordships' encouragement, the narrower point of law
that was
really crucial was developed and relied on by the
respondent in the
alternative. Once that point has been accurately
identified the
evidence in the case in my view makes it inevitable
that this
appeal must be dismissed. I will attempt to state in
summary
form those principles of public law which lead me to
this
conclusion.
Judicial
review, now regulated by R.S.C. Ord. 53, provides
the means by
which judicial control of administrative action is
exercised. The
subject matter of every judicial review is a
decision made by some
person (or body of persons) whom I will
call the "decision-maker"
or else a refusal by him to make a
decision.
To qualify
as a subject for judicial review the decision must
have
consequences which affect some person (or body of persons)
other
than the decision-maker, although it may affect him too. It
must
affect such other person either:
- 15 -
by
altering rights or obligations of that person which are
enforceable
by or against him in private law; or
by
depriving him of some benefit or advantage which
either
(i) he has in the past been permitted by the decision-maker
to
enjoy and which he can legitimately expect to be permitted
to
continue to do until there has been communicated
to him some
rational ground for withdrawing it on which he
has been given an
opportunity to comment; or (ii) he has received
assurance from the
decision-maker will not be withdrawn
without giving him first an
opportunity of advancing reasons
for contending that they should
not be withdrawn.
(I prefer to continue to call the kind
of
expectation that qualifies a decision for
inclusion in class (b) a
"legitimate expectation"
rather than a "reasonable expectation," in
order
thereby to indicate that it has consequences to which effect
will
be given in public law, whereas an expectation or hope
that
some benefit or advantage would continue to be enjoyed,
although
it might well be entertained by a
"reasonable" man, would not
necessarily have
such consequences. The recent decision of this
House
in In re Findlay presents an example of the latter
kind of
expectation. "Reasonable" furthermore
bears different meanings
according to whether the context
in which it is being used is that
of private law or of public
law. To eliminate confusion it is best
avoided in the latter.)
For a
decision to be susceptible to judicial review the
decision-maker
must be empowered by public law (and not merely,
as in
arbitration, by agreement between private parties) to make
decisions
that, if validly made, will lead to administrative action
or
abstention from action by an authority endowed by law with
executive
powers, which have one or other of the consequences
mentioned in
the preceding paragraph. The ultimate source of the
decision-making
power is nearly always nowadays a statute or
subordinate
legislation made under the statute; but in the absence
of any
statute regulating the subject matter of the decision the
source
of the decision-making power may still be the common law
itself,
i.e. that part of the common law that is given by lawyers
the
label of "the prerogative." Where this is the source
of
decision-making power, the power is confined to executive
officers
of central as distinct from local government and in
constitutional
practice is generally exercised by those holding
ministerial rank.
It was the
prerogative that was relied on as the source of
the power of the
Minister for the Civil Service in reaching her
decision of 22
December 1983 that membership of national trade
unions should in
future be barred to ail members of the home civil
service employed
at GCHQ.
My Lords,
I intend no discourtesy to counsel when I say
that, intellectual
interest apart, in answering the question of law
raised in this
appeal, I have derived little practical assistance from
learned
and esoteric analyses of the precise legal nature,
boundaries and
historical origin of "the prerogative," or of what
powers
exercisable by executive officers acting on behalf of
central
government that are not shared by private citizens qualify
for
inclusion under this particular label. It does not, for
instance,
seem to me to matter whether today the right of the
executive
government that happens to be in power to dismiss
without notice
any member of the home civil service upon which
perforce it must
- 16 -
rely for
the administration of its policies, and the correlative
disability
of the executive government that is in power to agree
with a civil
servant that his service should be on terms that did
not make him
subject to instant dismissal, should be ascribed to
"the
prerogative" or merely to a consequence of the survival,
for
entirely different reasons, of a rule of constitutional law
whose
origin is to be found in the theory that those by whom
the
administration of the realm is carried on do so as
personal
servants of the monarch who can dismiss them at will,
because the
King can do no wrong.
Nevertheless,
whatever label may be attached to them there
have unquestionably
survived into the present day a residue of
miscellaneous fields of
law in which the executive government
retains decision-making
powers that are not dependent upon any
statutory authority but
nevertheless have consequences on the
private rights or legitimate
expectations of other persons which
would render the decision
subject to judicial review if the power
of the decision-maker to
make them were statutory in origin.
From matters so relatively
minor as the grant of pardons to
condemned criminals, of honours
to the good and great, of
corporate personality to deserving
bodies of persons, and of bounty
from monies made available to the
executive government by
Parliament, they extend to matters so
vital to the survival and
welfare of the nation as the conduct of
relations with foreign
states and - what lies at the heart of the
present case - the
defence of the realm against potential enemies.
Adopting the
phraseology used in the European Convention on Human
Rights
1953 (Convention for the Protection of Human Rights
and
Fundamental Freedoms (1953) (Cmd. 8969)) to which the
United
Kingdom is a party it has now become usual in statutes to
refer
to the latter as "national security."
My Lords,
I see no reason why simply because a decision-
making power is
derived from a common law and not a statutory
source, it should
for that reason only be immune from judicial
review.
Judicial review has I think developed to a stage today
when
without reiterating any analysis of the steps by which
the
development has come about, one can conveniently classify
under
three heads the grounds upon which administrative action is
subject
to control by judicial review. The first ground I would
call
"illegality," the second "irrationality"
and the third "procedural
impropriety." That is not to
say that further development on a
case by case basis may not in
course of time add further grounds.
1 have in mind particularly
the possible adoption in the future of
the principle of
"proportionality" which is recognised in the
administrative
law of several of our fellow members of the
European Economic
Community ; but to dispose of the instant case
the three already
well-established heads that I have mentioned will
suffice.
By
"illegality" as a ground for judicial review I mean
that
the decision-maker must understand correctly the law
that
regulates his decision-making power and must give effect to
it.
Whether he has or not is par excellence a justiciable question
to
be decided, in the event of dispute, by those persons, the
judges,
by whom the judicial power of the state is exercisable.
- 17 -
By
"irrationality" I mean what can by now be
succinctly
referred to as "Wednesbury
unreasonableness" (Associated Provincial
Picture Houses
Ltd, v. Wednesbury Corporation [1948] 1 K.B. 223).
It applies
to a decision which is so outrageous in its defiance of
logic or
of accepted moral standards that no sensible person who
had
applied his mind to the question to be decided could have
arrived
at it. Whether a decision falls within this category is a
question
that judges by their training and experience should be
well
equipped to answer, or else there would be something badly
wrong
with our judicial system. To justify the court's exercise of
this
role, resort I think is today no longer needed to
Viscount
Radcliffe's ingenious explanation in Edwards v.
Bairstow [1956]
A.C. 14 of irrationality as a ground for a
court's reversal of a
decision by ascribing it to an inferred
though unidentifiable
mistake of law by the decision-maker.
"Irrationality" by now can
stand upon its own feet as an
accepted ground on which a decision
may be attacked by judicial
review.
I have
described the third head as "procedural impropriety"
rather
than failure to observe basic rules of natural justice or
failure
to act with procedural fairness towards the person who will
be
affected by the decision. This is because susceptibility to
judicial
review under this head covers also failure by an
administrative
tribunal to observe procedural rules that are
expressly laid down
in the legislative instrument by which its
jurisdiction is
conferred, even where such failure does not involve
any denial of
natural justice. But the instant case is not
concerned with the
proceedings of an administrative tribunal at all.
My Lords,
that a decision of which the ultimate source of
power to make it
is not a statute but the common law (whether
or not the common law
is for this purpose given the label of "the
prerogative")
may be the subject of judicial review on the ground
of illegality
is, I think, established by the cases cited by my noble
and
learned friend, Lord Roskill, and this extends to cases where
the
field of law to which the decision relates is national security,
as
the decision of this House itself in Burmah Oil Co. Ltd, v.
Lord
Advocate. 1964 S.C. (H.L.) 117 shows. While I see no a
priori
reason to rule out "irrationality" as a ground
for judicial review of
a ministerial decision taken in the
exercise of "prerogative"
powers, I find it difficult to
envisage in any of the various fields
in which the prerogative
remains the only source of the relevant
decision-making power a
decision of a kind that would be open to
attack through the
judicial process upon this ground. Such
decisions will generally
involve the application of government
policy. The reasons for the
decision-maker taking one course
rather than another do not
normally involve questions to which, if
disputed, the judicial
process is adapted to provide the right
answer, by which I mean
that the kind of evidence that is
admissible under judicial
procedures and the way in which it has to
be adduced tend to
exclude from the attention of the court
competing policy
considerations which, if the executive discretion
is to be wisely
exercised, need to be weighed against one another
- a balancing
exercise which judges by their upbringing and
experience are
ill-qualified to perform. So I leave this as an open
question to
be dealt with on a case to case basis if, indeed, the
case should
ever arise.
- 18 -
As
respects "procedural propriety" I see no reason why
it
should not be a ground for judicial review of a decision
made
under powers of which the ultimate source is the
prerogative.
Such indeed was one of the grounds that formed the
subject
matter of judicial review in Reg. v. Criminal Injuries
Compensation
Board, Ex parte Lain [1967] 2 Q.B. 864. Indeed,
where the"
decision is one which does not alter rights or
obligations
enforceable in private law but only deprives a person
of legitimate
expectations, "procedural impropriety"
will normally provide the
only ground on which the decision is
open to judicial review. But
in any event what procedure will
satisfy the public law
requirement of procedural propriety depends
upon the subject
matter of the decision, the executive functions
of the decision-
maker (if the decision is not that of an
administrative tribunal)
and the particular circumstances in which
the decision came to be
made.
My Lords,
in the instant case the immediate subject matter
of the decision
was a change in one of the terms of employment
of civil servants
employed at GCHQ. That the executive functions
of the Minister for
the Civil Service, in her capacity as such,
included making a
decision to change any of those terms, except
in so far as they
related to remuneration, expenses and allowances,
is not disputed.
It does not seem to me to be of any practical
significance whether
or not as a matter of strict legal analysis
this power is based
upon the rule of constitutional law to which I
have already
alluded that the employment of any civil servant may
be terminated
at any time without notice and that upon such
termination the same
civil servant may be re-engaged on different
terms. The rule of
terminability of employment in the civil
service without notice,
of which the existence is beyond doubt,
must in any event have the
consequence that the continued
enjoyment by a civil servant in the
future of a right under a
particular term of his employment
cannot be the subject of any
right enforceable by him in private
law; at most it can only be a
legitimate expectation.
Prima
facie, therefore, civil servants employed at GCHQ
who were members
of national trade unions had, at best, in
December 1983, a
legitimate expectation that they would continue
to enjoy the
benefits of such membership and of representation by
those trade
unions in any consultations and negotiations with
representatives
of the management of that government department
as to changes in
any term of their employment. So, but again
prima facie only, they
were entitled, as a matter of public law
under the head of
"procedural propriety," before administrative
action was
taken on a decision to withdraw that benefit, to have
communicated
to the national trade unions by which they had
theretofore been
represented the reason for such withdrawal, and
for such unions to
be given an opportunity to comment on it.
The reason
why the Minister for the Civil Service decided
on 22 December 1983
to withdraw this benefit was in the interests
of national
security. National security is the responsibility of the
executive
government, what action is needed to protect its
interests is, as
the cases cited by my learned friend, Lord Roskill,
establish and
common sense itself dictates, a matter upon which
those upon whom
the responsibility rests, and not the courts of
justice, must have
the last word. It is par excellence a non-
- 19 -
justiciable
question. The judicial process is totally inept to deal
with
the sort of problems which it involves.
The
executive government likewise decided, and this would
appear to be
a collective decision of cabinet ministers involved,
that the
interests of national security required that no notice
should be
given of the decision before administrative action had
been taken
to give effect to it. The reason for this was the risk
that
advance notice to the national unions of. the executive
government's
intention would attract the very disruptive action
prejudicial to
the national security the recurrence of which the
decision barring
membership of national trade unions to civil
servants employed at
GCHQ was designed to prevent.
There was
ample evidence to which reference is made by
others of your
Lordships that this was indeed a real risk; so the
crucial point
of law in this case is whether procedural propriety
must give way
to national security when there is conflict between
on the
one hand, the prima facie rule of
"procedural
propriety" in public law, applicable
to a case of legitimate
expectations that a benefit ought
not to be withdrawn until
the reason for its
proposed withdrawal has been
communicated to the
person who has theretofore enjoyed
that benefit and
that person has been given an opportunity
to comment on the
reason, and
on the
other hand, action that is needed to be taken in
the
interests of national security, for which the
executive
government bears the responsibility and alone
has access to
sources of information that qualify it
to judge what the
necessary action is.
To that
there can, in my opinion, be only one sensible
answer. That answer
is: "Yes."
I agree
with your Lordships that this appeal must be
dismissed.
LORD ROSKILL
My Lords,
This
appeal arises out of the exercise by the respondent, the
Minister
for the Civil Service, of a specific power vested in her
by
article 4 of the Civil Service Order in Council 1982.
That
specific power purported to be exercised orally on 22
December
1983. The terms in which it is claimed to have been
exercised
are contained in a letter dated 7 February 1984 from Sir
Robert
Armstrong writing as Head of the Civil Service to the
Director of
the Government Communications Headquarters at
Cheltenham
("GCHQ"). The exercise of the power took the
form of:
"instructions
that the conditions of service under which civil
servants are
employed as members of the staff of the
Government Communications
Headquarters shall be varied so
- 20 -
as to
provide that such civil servants shall not be members
of any trade
union other than a departmental staff
association approved by
yourself."
The making
of this change in the conditions of service of
civil servants
employed at GCHQ was announced in the House of
Commons by the
Secretary of State for Foreign and
Commonwealth Affairs on 25
January 1984 and on the same day
he issued certificates under
section 121 (4) of the Employment
Protection Act 1975 and under
section 138 (4) of the Employment
Protection (Consolidation) Act
1978 certifying that employment at
GCHQ was to be excepted from
those sections "for the purpose of
safeguarding national
security." On the same day the Director of
GCHQ informed his
staff in writing of the decision, of the issue
of the certificates
and of the various options which were
thereafter to remain open to
them.
My Lords,
the background to these actions in December
1983 and January 1984
is fully set out in the speech of my noble
and learned friend,
Lord Fraser of Tullybelton, which I gratefully
adopt. It requires
no repetition. Nor does the history of the
antecedent rights of
those concerned to join trade unions. That
the instructions thus
given and the certificates thus issued
drastically altered the
trade union rights of those civil servants
concerned cannot be
doubted. Nor can it be doubted that the
issue of the instructions
and of the certificates without prior
warning or consultation of
any kind with the various trade unions
concerned either at a
national or at a local level involved a
complete departure from
the normal manner in which relations
between management and staff
had hitherto been conducted and
was bitterly resented by some of
those immediately involved on
the staff side.
My Lords,
with matters of that kind your Lordships are in
no way concerned.
This appeal is concerned with and only with
judicial review.
Judicial review, as my noble and learned friend
Lord Brightman
stated in Chief Constable of the North Wales
Police v.
Evans [1982] 1 W.L.R. 1155, 1174, "is not an appeal from
a
decision, but a review of the manner in which the decision was
made."
It is the appellants' case, stated in a sentence, that the
oral
instruction of 22 December 1983 should be judicially reviewed
and
declared invalid because of the manner in which the decision
which
led to those instructions being given was taken, that is to
say
without prior consultation of any kind with the appellants or
indeed
others. Initially the respondents also sought judicial review
of
the two certificates to which I have referred but that claim
has
been abandoned.
Before
considering the rival submissions in more detail, it
will be
convenient to make some general observations about the
process now
known as judicial review. Today it is perhaps
commonplace to
observe that as a result of a series of judicial
decisions since
about 1950 both in this House and in the Court of
Appeal there has
been a dramatic and indeed a radical change in
the scope of
judicial review. That change has been described - by
no means
critically - as an upsurge of judicial activism.
Historically the
use of the old prerogative writs of certiorari,
prohibition and
mandamus was designed to establish control by the
Court of King's
Bench over inferior courts or tribunals. But the
- 21 -
use of
those writs, and of their successors the corresponding
prerogative
orders, has become far more extensive. They have
come to be used
for the purpose of controlling what would
otherwise be unfettered
executive action whether of central or
local government. Your
Lordships are not concerned in this case
with that branch of
judicial review which is concerned with the
control of inferior
courts or tribunals. But your Lordships are
vitally concerned with
that branch of judicial review which is
concerned with the control
of executive action. This branch of
public or administrative law
has evolved, as with much of our law,
on a case by case basis and
no doubt hereafter that process will
continue. Thus far this
evolution has established that executive
action will be the
subject of judicial review on three separate
grounds. The first is
where the authority concerned has been guilty
of an error of law
in its action as for example purporting to
exercise a power which
in law it does not possess. The second is
where it exercises a
power in so unreasonable a manner that the
exercise becomes open
to review upon what are called, in lawyers'
shorthand, Wednesbury
principles (Associated Provincial Picture
Houses Ltd, v.
Wednesbury Corporation [1948] 1 K.B. 223). The
third is where
it has acted contrary to what are often called
"principles of
natural justice." As to this last, the use of this
phrase is
no doubt hallowed by time and much judicial repetition,
but it is
a phrase often widely misunderstood and therefore as
often
misused. That phrase perhaps might now be allowed to find
a
permanent resting-place and be better replaced by speaking of a
duty
to act fairly. But that latter phrase must not in its turn
be
misunderstood or misused. It is not for the courts to
determine
whether a particular policy or particular decisions
taken in
fulfilment of that policy are fair. They are only
concerned with
the manner in which those decisions have been taken
and the
extent of the duty to act fairly will vary greatly from
case to
case as indeed the decided cases since 1950 consistently
show.
Many features will come into play including the nature of
the
decision and the relationship of those involved on either
side
before the decision was taken.
My noble
and learned friend, Lord Diplock, in his speech has
devised a new
nomenclature for each of these three grounds,
calling them
respectively "illegality," "irrationality" and
"procedural
impropriety" - words which, if I may
respectfully say so, have the
great advantage of making clear the
differences between each
ground.
In the
present appeal your Lordships are not concerned with
the first two
matters already mentioned, with the exercise of a
power which does
not exist or with Wednesbury principles. But
this appeal is
vitally concerned with the third, the duty to act
fairly.
The
particular manifestation of the duty to act fairly which
is
presently involved is that part of the recent evolution of
our
administrative law which may enable an aggrieved party to
evoke
judicial review if he can show that he had "a
reasonable
expectation" of some occurrence or action
preceding the decision
complained of and that that "reasonable
expectation" was not in
the event fulfilled.
- 22 -
The
introduction of the phrase "reasonable expectation"
into
this branch of our administrative law appears to owe its
origin to
Lord Denning M.R. in Schmidt v. Secretary of State
for Home
Affairs [1969] 2 Ch. 149, 170 (when he used the
phrase "legitimate
expectation"). Its judicial evolution
is traced in the opinion of the
Judicial Committee delivered by my
noble and learned friend, Lord
Fraser of Tullybelton, in
Attorney-General of Hong Kong v. Ng
Yuen Shiu [1983] 2 A.C. 629, 636-638. Though the two phrases
can, I think, now safely be
treated as synonymous for the reasons
there given by my noble and
learned friend, I prefer the use of
the adjective "legitimate"
in this context and use it in this speech
even though in argument
it was the adjective "reasonable" which
was generally
used. The principle may now said to be firmly
entrenched in this
branch of the law. As the cases show, the
principle is closely
connected with "a right to be heard." Such an
expectation
may take many forms. One may be an expectation of
prior
consultation. Another may be an expectation of being
allowed time
to make representations especially where the
aggrieved party is
seeking to persuade an authority to depart from
a lawfully
established policy adopted in connection with the
exercise of a
particular power because of some suggested
exceptional reasons
justifying such a departure.
The
appellants say that the relationship between
management and staff
over many years gave rise to a reasonable
expectation of
consultation before action involving so drastic a
curtailment of
trade union rights as that taken on 22 December
1983 was decreed.
It is of the deprivation of that reasonable
expectation that they
now principally complain and say entitles
them to judicial review.
In a
judgment which, if I may respectfully say so, I have
read and
reread with increasing admiration for its thoroughness and
clarity,
Glidewell J., while in my view correctly rejecting all the
other
arguments of the appellants, accepted this submission. The
Court
of Appeal (Lord Lane C.J., Watkins and May L.JJ.) in a
single
judgment delivered by the Lord Chief Justice was of a
different
opinion. But it is right to say that the submission on
which Mr.
Alexander Q.C. for the respondent finally and principally
rested
was never advanced at all before Glidewell J. and though
advanced
for the first time in the Court of Appeal does not seem
to have
been advanced even there in entirely the same way as in
argument
before this House for it was advanced there on a
considerably
wider basis than that upon which Mr. Alexander
ultimately came to
rest. Mr. Blom-Cooper Q.C. for the appellants
understandably made
skilful forensic play with this failure to
advance this crucial
submission before the learned judge. Thus the
House has not got
the benefit of the views of Glidewell J. upon
what I regard as the
crucial issue for the determination of this
appeal.
My Lords,
before considering this issue it is necessary to
consider a
further important question which arises by reason of the
fact that
the instruction given under article 4 of the Order in
Council of
1982 were by means of the exercise of a prerogative
power. The
appellants in their printed case invited the House to
consider and
if necessary to reconsider the reviewability of
executive acts
done under the prerogative. Mr. Alexander for the
respondent
understandably did not press the argument that no
- 23 -
action
taken under the prerogative could ever be the subject of
judicial
review. But, helpfully, he thought it right to make
available to
your Lordships a selection from the classic
pronouncements of many
famous writers in this field from Locke
through Blackstone and
Chitty to Dicey and from the writings of
distinguished modern
authorities including de Smith, Wade, Hood
Phillips and Heuston
designed to show first the historic view that
acts done under the
prerogative were never reviewable and
secondly the extent to which
that classic doctrine may at least in
this century be said to have
been diluted.
Dicey's
classic statement in Law of the Constitution, 10th
ed.
(1959) p. 424 that the prerogative is "the residue
of
discretionary or arbitrary authority, which at any given time
is
legally left in the hands of the Crown" has the weight
behind it
not only of the author's own authority but also of the
majority of
this House in Burmah Oil Co. Ltd, v. Lord Advocate
[1965] A.C.
75: see per Lord Reid, at p. 99. But as Lord
Reid himself
pointed out this definition "does not take us
very far." On the
other hand the attempt by Lord Denning M.R.
in Laker Airways
Ltd, v. Department of Trade [1977] Q.B. 643, 705 (obiter since the
other members of the Court of Appeal
did not take so broad a
view) to assert that the prerogative "if
. . . exercised improperly
or mistakenly" was reviewable is,
with great respect, far too wide.
The Master of the Rolls sought
to support his view by a quotation
from Blackstone's
Commentaries 15th ed., vol. 1, p. 252. But
unfortunately and
no doubt inadvertently he omitted the opening
words of the
paragraph:
"In
the exercise therefore of those prerogatives, which the
law has
given him, the King is irresistible and absolute,
according to the
forms of the constitution. And yet, if the
consequence of that
exertion be manifestly to the grievance
or dishonour of the
kingdom, the parliament will call his
advisers to a just and
severe account."
In short
the orthodox view was at that time that the
remedy for abuse of
the prerogative lay in the political and not in
the judicial
field.
But
fascinating as it is to explore this mainstream of our
legal
history, to do so in connection with the present appeal has
an air
of unreality. To speak today of the acts of the sovereign
as
"irresistible and absolute" when modern constitutional
convention
requires that all such acts are done by the sovereign
on the advice
of and will be carried out by the sovereign's
ministers currently in
power is surely to hamper the continual
development of our
administrative law by harking back to what Lord
Atkin once
called, albeit in a different context, the clanking of
mediaeval
chains of the ghosts of the past: see United
Australia Ltd, v.
Barclays Bank Ltd. [1941] A.C. i, 29. It is,
I hope, not out of
place in this connection to quote a letter
written in 1896 by the
great legal historian F. W. Maitland to
Dicey himself: "the only
direct utility of legal history (I
say nothing of its thrilling interest)
lies in the lesson that
each generation has an enormous power of
shaping its own law":
see Richard A. Cosgrove, The Rule of Law;
Albert Venn Dicey;
Victorian Jurist (1980), p.177. Maitland was
in so stating a
greater prophet than even he could have foreseen
for it is our
legal history which has enabled the present generation
- 24 -
to shape
the development of our administrative law by building
upon
but unhampered by our legal history.
My Lords,
the right of the executive to do a lawful act
affecting the rights
of the citizen, whether adversely or
beneficially, is founded upon
the giving to the executive of a
power enabling it to do that act.
The giving of such a power
usually carries with it legal sanctions
to enable that power if
necessary to be enforced by the courts. In
most cases that power
is derived from statute though in some
cases, as indeed in the
present case, it may still be derived from
the prerogative. In yet
other cases, as the decisions show, the
two powers may coexist or
the statutory power may by necessary
implication have replaced
the former prerogative power. If the
executive in pursuance of
the statutory power does an act
affecting the rights of the
citizen, it is beyond question that in
principle the manner of the
exercise of that power may today be
challenged on one or more of
the three grounds which I have
mentioned earlier in this speech.
If the executive instead of
acting under a statutory power acts
under a prerogative power and
in particular a prerogative power
delegated to the respondent
under article 4 of the Order in
Council of 1982, so as to affect
the rights of the citizen, I am
unable to see, subject to what I
shall say later, that there is any
logical reason why the fact
that the source of the power is the
prerogative and not statute
should today deprive the citizen of
that right of challenge to the
manner of its exercise which he
would possess were the source of
the power statutory. In either
case the act in question is the act
of the executive. To talk of
that act as the act of the sovereign
savours of the archaism of
past centuries. In reaching this
conclusion I find myself in
agreement with my noble and learned
friends Lord Scarman and
Lord Diplock whose speeches I have had
the advantage of reading
in draft since completing the preparation
of this speech.
But I do
not think that that right of challenge can be
unqualified. It
must, I think, depend upon the subject matter of
the prerogative
power which is exercised. Many examples were
given during the
argument of prerogative powers which as at
present advised I do
not think could properly be made the subject
of judicial review.
Prerogative powers such as those relating to
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 as well as others are not, I
think,
susceptible to judicial review because their nature and
subject
matter is such as not to be amenable to the judicial
process. The
courts are not the place wherein to determine whether
a treaty
should be concluded or the armed forces disposed in a
particular
manner or Parliament dissolved on one date rather than
another.
In my view
the exercise of the prerogative which enabled
the oral
instructions of 22 December 1983 to be given does not by
reason of
its subject matter fall within what for want of a better
phrase I
would call the "excluded categories" some of which I
have
just mentioned. It follows that in principle I can see no
reason
why those instructions should not be the subject of
judicial review.
My Lords,
I am not conscious of any previous decision of
this House which is
inconsistent with the principles I have just
endeavoured to state.
It may well be that there are decisions or
- 25 -
dicta of
other courts which are inconsistent. Reg. v. Secretary of
State
for War [1891] 2 Q.B. 326 arose in connection with the
armed
forces with which this appeal is not concerned, but even so,
some
of the reasoning cannot I think now be supported. There are
also
passages in the , judgments of the Court of Appeal in
Commissioners
of Crown Lands v. Page [1960] 2 Q.B. 274 and in
the
opinion of Lord Sorn in Griffin v. Lord Advocate, 1950
S.C.
448 (to mention but two decisions) which require
reconsideration in
the light of the decision of this House in this
appeal: in the latter
case, Lord Sorn mainly followed the first of
these three cases.
I find
considerable support for the conclusion I have reached
in the
decision of the Divisional Court (Lord Parker C.J., Diplock
L.J.
(as my noble and learned friend then was) and Ashworth J. in
Reg.
v. Criminal Injuries Compensation Board, Ex parte Lain [1967]
2
Q.B. 864, the judgments in which may without exaggeration
be
described as a landmark in the development of this branch of
the
law. The board had been set up not by statute but by
executive
action under, as I think and as Lord Parker C.J. stated,
the
prerogative. It was strenuously argued that the board was
not
subject to the jurisdiction of the courts since it did not
have what
was described as legal authority in the sense of
statutory
authority. This argument by Mr. Nigel Bridge, as he then
was,
was emphatically and unanimously rejected. I will quote
one
passage from the judgment of Lord Parker C.J., at p. 881:
"I
can see no reason either in principle or in authority why
a board
set up as this board was set up is not a body of
persons amenable
to the jurisdiction of this court. True it
is not set up by
statute but the fact that it is set up by
executive government,
i.e., under the prerogative, does not
render its acts any the less
lawful. Indeed, the writ of
certiorari has issued not only to
courts set up by statute
but to courts whose authority is derived,
inter alia, from
the prerogative. Once the jurisdiction is
extended, as it
clearly has been, to tribunals as opposed to
courts, there is
no reason why the remedy by way of certiorari
cannot be
invoked to a body of persons set up under the
prerogative.
Moreover the board though set up under the
prerogative and
not by statute had in fact the recognition of
Parliament in
debate and Parliament provided the money to satisfy
its
awards."
I would
also refer, albeit without citation, to the entirety of the
judgment
delivered by my noble and learned friend, Lord Diplock.
It follows
from what I have said thus far that in principle I
am of the clear
opinion that the respondent's oral instructions of
22nd December
1983 are amenable to judicial review and are not
immune from such
review because the instructions were given
pursuant to prerogative
powers.
The next
question is whether they are susceptible of
successful challenge
on the third of the grounds mentioned earlier,
namely that the
appellants had "a legitimate expectation" of
consultation
prior to any such instructions being given which
radically
affected the long-established rights of the staff at GCHQ
to be
members of trade unions.
- 26 -
It was
common ground before your Lordships, though it was
not common
ground below, that there was no contractual
relationship between
the Crown and the staff at GCHQ. Mr.
Alexander accepted that the
absence of a contractual relationship
and thus of a remedy in
private law did not preclude the
possibility of a remedy in public
law if a legitimate expectation of
consultation were established.
But he suggested that the absence
of such a relationship in
private law made it difficult to establish
a legitimate
expectation justiciable in the field of public law
without eroding
the basic principle that, at least in theory, civil
servants are
dismissible by the Crown at will and thus have no
remedy in
private law. He further argued that even if in principle
there
were a legitimate expectation of the nature for which the
appellants
contended, that legitimate expectation could not exist
when the
government of the day considered that their duty in the
field of
national security required them not to give effect to any
such
legitimate expectation as might otherwise exist. Once, he
contended,
the respondent on the material before her could
conclude that
consultations of the kind contended for by the
appellants could
and indeed would damage national security, any
obligation to
consult the appellants prior to taking the decision
disappeared.
Indeed Mr. Alexander went so far as to contend that
in such
circumstances the respondent was under a duty not to
consult the
appellants lest otherwise the very mischief which he
feared might
arise would arise.
My Lords,
if no question of national security were involved I
cannot doubt
that the evidence and the whole history of the
relationship
between management and staff since 1919 shows that
there was a
legitimate expectation of consultation before
important
alterations in the conditions of service of civil servants
were
made. No doubt in strict theory civil servants are
dismissible at
will and the various documents shown to your
Lordships seek