Council of Civil Service Unions v Minister for the Civil Service
[1985] AC 374
Ratio Decidendi
The exercise of powers derived from the royal prerogative is, in principle, subject to judicial review in the same way as powers derived from statute, provided the subject matter is justiciable. The grounds for judicial review are threefold: (1) illegality โ the decision-maker must correctly understand and apply the law; (2) irrationality โ a decision so unreasonable that no reasonable decision-maker could have reached it (Wednesbury unreasonableness); and (3) procedural impropriety โ failure to observe procedural requirements or the rules of natural justice. However, where the executive invokes national security as a ground for withholding or modifying the ordinary procedural requirements (such as consultation), the courts will not lightly interfere, as the executive is better placed to assess the security implications.
Ffeithiau
In January 1984 the Prime Minister, Mrs Thatcher, acting as Minister for the Civil Service in exercise of the royal prerogative, issued an instruction by Order in Council varying the terms and conditions of civil servants employed at the Government Communications Headquarters (GCHQ). The instruction prohibited them from belonging to national trade unions, though they could join a departmental staff association. The instruction was made without consulting the existing trade unions, contrary to a well-established practice of consultation before such changes. The Council of Civil Service Unions and six individual GCHQ employees challenged the instruction by way of judicial review. The government argued (a) prerogative powers were not susceptible to judicial review and (b) even if there was otherwise a duty to consult, it was overridden by national security.
Crynodeb o'r dyfarniad
The House of Lords unanimously dismissed the unions' appeal, upholding the government's national security justification, but the decision is celebrated for its principled holding on judicial reviewability of prerogative powers. Lord Fraser, Lord Scarman, Lord Diplock, Lord Roskill, and Lord Brightman all held that the source of the power (whether statute or prerogative) was not determinative of its susceptibility to judicial review; what mattered was the subject-matter and whether it was justiciable. Lord Diplock delivered the most influential analysis, famously classifying the grounds of judicial review into three heads: illegality, irrationality, and procedural impropriety, while adding that 'proportionality' might in future be added as a fourth ground. Lord Roskill identified categories of prerogative power (such as making treaties, granting pardons, dissolving Parliament, and matters of national security) that by their nature were not amenable to judicial review. On the facts, the trade unions had a legitimate expectation of consultation arising from the consistent past practice, and the failure to consult would ordinarily have been procedurally improper; but the government had established by affidavit evidence that national security concerns required the surprise element, and the courts were not in a position to second-guess that assessment.
Dyfyniadau allweddol
"By 'illegality' 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."
โ Lord Diplock at 410
"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. 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."
โ Lord Diplock at 410
"Procedural impropriety... covers the 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."
โ Lord Diplock at 411
Triniaeth ddilynol
The threefold classification of grounds for judicial review has been universally adopted and is the starting point in every judicial review in England and Wales. Consistently cited in R v Secretary of State for the Home Department, ex parte Brind [1991] and numerous subsequent cases.
The potential fourth ground of proportionality identified by Lord Diplock was subsequently developed in human rights cases: R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 confirmed that proportionality applies where Convention rights are engaged, going beyond Wednesbury unreasonableness.
Applied in R (Miller) v Prime Minister [2019] UKSC 41 (the prorogation case), where the Supreme Court reviewed the exercise of prerogative powers to prorogue Parliament, confirming that justiciable prerogative acts are reviewable.
What To Do Next
Step-by-Step Guides
Get Professional Help