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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 -

    1. by altering rights or obligations of that person which are
      enforceable by or against him in private law; or

    2. 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

    1. 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

    2. 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