COMPARATIVE PUBLIC LAW

3rd Internal Assessment

IRAC Analysis on Case

“Council of Civil Service Unions v Minister for the Civil
Service [1984]”

Date of submission
11th January, 2021

Submitted to
PROF: DR. APRAJITA MOHANTY
&
ASST. PROF. RICHA DWIVEDI

Submitted by
Name: KABIR QURAISHI
PRN: 20010143037
LL.M. 2020-2021
 CASE ANALYSIS: COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS V.
MINISTER OF THE CIVIL SERVICE [1984]

CASE DETAILS

Case Name: Council of civil service unions and others v. Minister of the civil service

Citation: [1984] 3 WLR 1174

Jurisdiction: House of Lords

Judges: Lord of Tullybelton, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman

Subject: Judicial review; Constitutional Law; Administrative Law

Case History: Appeal against the decisions of the Court of Appeal

FACTS

 Foreign and colonial office have a Public service branch which is Government
communication Headquarters (GCHQ). Fundamental elements of the GCHQ were
guaranteeing the security of military and official correspondence, for giving
Government the signs knowledge and the treatment of mystery data that is crucial
to the security of the country.
 The GCHQ employees was permitted to form and belong to national trade unions.
It helped in bridging the communication gap between the officials and the GCHQ
employees.
 On 22.12.1983 Minister of Service issued an instruction varying the terms and
conditions of the GCHQ staff, according to which the GCHQ were not allowed to
belong to any trade unions.
 According to the varied terms and conditions that staff “would be permitted to
associate with only a Departmental Staff Association approved by the Director.
 The” instructions were executed through the royal prerogative under Article 4 of
the Civil Service Orders.
 No prior consultation was taken with the staff prior to issuing of the instruction
dated 22.12.1983.
 The executed order was sought for Judicial Review by the GCHQ as being unfair
on the grounds that the order was issued without consulting with those concerned
with it i.e. GCHQ .
 High Court of Justice “granted the applicants a declaration that the instruction was
invalid and of no effect stating that judicial review cannot be utilised to challenge
the powers . The Minister appealed against the order and subsequently the appeal
was admitted by the House of Lords.”

ISSUES

~ISSUE 1~

Whether the instructions issued by the Minister for Civil Services unfair and bad on the
ground of procedural impropriety?

~ISSUE 2~

Whether the instructions issued by the Minister for Civil Services justifiable on the grounds
of national security?

~ISSUE 3~

Whether the instructions given by the Minister for civil Service in lieu of its prerogative
power under Article 4 of the Civil Service order in Council, 1982 open to review by the
courts?
 PETITIONERS ARGUMENT

The appellants argued that the Minister issued the instructions was invalid as the Minister
was under a duty to fulfil the procedural obligation on the part of the state to consult the
concerned persons i.e. the GCHQ in this case before exercising such power. The appellants
argued that the Instruction was invalid as it was the procedural duty of the state to act in a fair
manner prior to making use of its power in the Council under Article 4 of the Order. They
should have duly consulted the individuals concerned. The chief question was whether in
their legislative capacity, the House of Your Lordships and the courts could look into the
order based on procedural irregularity considering the facts that- it was made by utilizing the
control accorded by the royal privilege and not by the statute and that it dealt with national
security.

They dismissed the belief of the respondents that the industrial action on the work at GCHQ
has grave effects. But in reality, it did have some unfavourable consequences as it lead to
disturbance in the steady detection of international signal communications day and night.
Since many years, the partnership between the employees and management had resulted into
a rational presumption of cooperation before taking any action. The appellants argued that the
same was expected before reducing the trade union rights rigorously. This lead to privation of
reasonable hope which in itself gives them the right to judicial review. In their case, the
appellants asked the House to examine and if needed re-examine reviewability of executive
acts done under the prerogative.

RESPONDENTS ARGUMENT

The main contention of the Respondents was that the instruction given by the Minister was
not open to review by the Courts because the instructions issued were an emanation of the
prerogative and in the interests of National security. It was argued that the order in council
was issued by the sovereign by virtue of her prerogative power and the order was not passed
under any statutory authority conferred by an act of the Parliament. As confirmed by the
government, the Order in Council was not in conformity with the power provided by any Act
of Parliament. The same was issued and presented by the sovereign by the virtue of
prerogative. But this was done under the guidance of the government of the day. In the
government’s opinion, the Order was a consequence of the prerogative and appealed to the
issue of national security. Considering the same, the instruction need not be put through the
examination of the courts.

Maintaining that the instruction through which the decision came into effect that was also
orally issued by the respondent (also the Prime Minister) orally (on 22 December, 1983) is
well grounded and in lines with Article 4 of the Civil Service Order in Council 1982. The
respondent argued that the main intension behind taking such a decision without any prior
consultation was to ensure national security and to avoid any such situation. The respondent
maintained that prior consultation involved a huge risk that could have led to disturbance and
disorder at GCHQ thereby threatening the national security. The respondent was of the view
that giving a due notice would have shown the vulnerability of areas of service to those who
were in favour of disorder and disturbance. The same should be read together with the earlier
sections of the affidavit where the attitude of the trade unions has been alluded to. The
respondent’s judgement shows that their decision was bona fide based upon concerns in
relation to national security. The same surpassed the reasonable precondition of a prior
consultation on part of the appellants.

RULES/ APPLICABLE LAWS

Article 4, Civil Service order in Council, 1982:

“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;”

RATIO

Although, the court believed that both the prerogative and executive actions derived from
statute had to confirm to the laws of judicial review and were justifiable and the procedural
propriety would apply but it was in the interests of national security that the Government
decided to carve out this exception and withdraw the benefit of judicial review.
All the Lordships unanimously believed that the executive government is responsible for
national security, what action is required to protect its interests is an issue to be determined
by those on whom the responsibility lays, and not to be intervened by the courts, Scarman
writing that the “judicial process is totally incapable of dealing with the kind of problems that
it involves”.
The court also claimed that there was a substantial proof that there was indeed a significant
possibility of disruptive acts prejudicial to National Security if the government had wanted to
provide advance warning to the national unions in this regard.
Therefore, where there is a dispute between "Procedural Propriety” and "National Security,"
the latter would win over the former.

ANALYSIS

ROYAL PREROGATIVE – SUBJECT MATTER OF JUDICIAL REVIEW

As per the house of lords holding that the exercise of prerogative powers are also subjected to
judicial review, was answered in affirmative, that it is the principal issue pertaining to the
judicial review of the prerogative power exercised by the minister. The courts have no
authority to review the manner in which the power was exercised as the lordships in majority
deviated from the settled law. The exercise of perrogative is also subjected to judicial review
as held by the lordships.An expansive interpretation of the prerogative extending to all the
non-statutory powers of the crown that have consequences on the private rights or the
legitimate expectations of the other individual, was adopted by the judiciary that also
distinguished the case of R v Criminal Injuries Compensation Board1.
As opined by Lord Foster, reviewable are the exercise by someone of the powers delegated to
him. By administering this to the facts of the case, the delegated power was exercised by the
minister which was delegated to her by the sovereign under the order in council. Holding this,
the stand on the delegation of the prerogative powers holding that all the prerogative power
cannot be a subject matter of judicial review and the courts will intervene only in cases where
the issue in question is adjudicable and justicable is clarified by the judiciary.
The Justicability of the subject matter of prerogative in question is the one, on which the
judicial review would therefore be dependent. Further, it is held by the Lordships that another
point ought to be considered is the security of the nation even if the subject matter is
justicable.
Thus, if the action in question has been taken for reasons of national security, the review
might still be excluded, even though the prerogative in question is a subject matter of judicial

1
R v Criminal Injuries Compensation Board, (1967) 2 Q.B. 864
review. The minister having decided with prior consultation with the GCHQ, it was that the
appealants failed on these grounds.

GROUNDS FOR JUDICIAL REVIEW

Lord Diplock does not make it immune to judicial review by clarifying the point that just
because a decision-making power is derived from a royal prerogative and not a statutory
source. The judicial review can be undertaken in three heads namely illegality, irrationality as
provided under the Wednesbury Unreasonableness and Procedural Impropriety 2 which
includes a Natural Justice Principles, as classified by lord Diplock.

In the present case, the Jurisdiction is conferred by the legislative instrument in which, 'the
ground of Procedural Impropriety was applicable which inculcates the natural justice
principle, procedural of fairness and the failure by an Administrative Tribunal to observe the
procedural rules', are expressly laid down.
It was held by lord Diplock, that the members of the GCHQ staff who were the members of
the trade union prima facie had the legitimate expectation that they would continue to enjoy
the benefits of such membership and representation by the trade unions.
Prima Facie were therefore given the entitlement of the matter of public law under the head
of procedural propriety before the action was taken by the administration to withdraw the
benefit.

NATIONAL SECURITY MUST PREVAIL OVER PROCEDURAL IMPROPRIETY

Thus, even though the present case fell under the head of Procedural Impropriety, the
decision was taken on behalf of the Government. The motivating factor inducing this decision
was the security of the nation. The Lordships unanimously were of the view that the National
Security is the responsibility of the executive government and the actions that essential to
protect such interests should be a concern upon whom the responsibility rests and not upon
the judiciary, which must have the last word. The Lordships went on to hold that in cases
where there is a conflict between “Procedural Propriety” and “National Security”, the latter
must always prevail over the former. Hence, in this case, ample evidence was available as to
the real risk of disruptive action prejudicial to National Security if the government decides to
give advance notice to the national unions in this regard.

2
Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223
 REVERSE JUDGMENT

The royal prerogative should by default have been subjected to the judicial review. The
prerogative power impacted on the “private rights or legitimate expectations of the
employees” which would render it to be subjected to judicial review.
As respects 'procedural propriety', there is no reason why it should not be a ground for
judicial review of a decision made under powers derived from prerogative. It is the prima
facie rule of ‘procedural propriety’ applicable to the case of legitimate expectations that the
benefit of judicial review cannot be withdrawn until the reason for its proposed withdrawal
has been communicated to the employees who have the right to enjoy the benefit and those
employees have been given an opportunity to challenge the order.
So, on the basis of these averment, it is right to say that such executive actions must be
subjected to the concept of judicial review.

CONCLUSION

GCHQ case is considered one of the landmark cases which has helped in developing the
common law principles. This case clarified that the applicability of judicial review would
depend upon the nature of the Government Powers and not their source per se with an
exception to the use of royal prerogative for national security reasons which would be
considered outside the scope of courts. This case also confirmed that the non legal
conventions might also be subjected to 'legitimate expectation". This case has further
developed the Wednesbury principle adding to more grounds namely 'procedural impropriety'
and 'proportionality' that can be classified as the grounds for judicial review of a case. This
development has helped in the removal of the problems of procedural and substantive
unreasonableness thereby broadening the horizons of judicial review and the other principles
of constitutional law including the principle of checks and balances, supremacy of law and
the scope of judicial review. The development was also appreciated in the number of cases 3

3
Borissik Svetlana v. Urban Redevelopment Authority (2009) 4 SLR(R) 92 , R v. Secy of State for Hime Dept.
(2001) 2 WLR 1622 ¶29 ; R. (Bancoult) v. Foreign Secretary (2007) 3 WLR 768; Heinz India (P) Ltd. V. State
of U.P., (2012) 6 SCC 443 at pg 468
throughout the nations including Singapore, India and other nations for providing the rational
limitations on the judicial review of the cases.

LIST OF REFERENCES

 Council of Civil Service Unions v Minister for the Civil Service [1984], UKHL 9
(22November,1984)
URL: http://www.bailii.org/uk/cases/UKHL/1984/9.html
 Suyash Verma, Council of Civil Service Unions v. Minister for the Civil Service -
A Summary (2014)
 All Answers Ltd. (November 2018). Council of Civil Service Unions v Minister for
the Civil Service. Retrieved from https://www.lawteacher.net/cases/council-of-
civil-service-unions-v-minister-for-the-civil-service.php?vref=1
 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No
2)  [2008] UKHL 61
 Essays, UK. (November 2018). Government and Accountability Lecture.
Retrieved fromhttps://www.lawteacher.net/modules/public-law/government-and-
accountability/lecture.php?vref=1
 Diganth Raj Sehgal, Judicial Review of Administrative Action(2020), available at
https://blog.ipleaders.in/judicial-review-administrative-action-2/