(1985) A.C. 374

374
rfHar^Hf Defence Secretary v. Guardian Newspapers (H.L.(E.)) [1985]

Assuming, as I do, such an internal inquiry as is referred to in the A
foregoing paragraph and taking judicial notice, as I think I am entitled
to, of the fact that important decisions in Government are rarely taken
without time-consuming consultation and deliberation, I can see nothing
in the lapse of 12 days to show that the identification of the disloyal
servant who had made the unauthorised disclosure was not a matter of
urgency.
The role of the Court of Appeal was not that of a school-mistress to °
scold the Crown for the poor quality of its evidence as if it were a piece
of homework required to be done over again. A potential threat to
national security was clearly revealed and, assuming that the gravity of
the threat could be weighed at all, it was certainly not to be weighed
by the scruple. Any threat to national security ought to be eliminated by
the most effective and speediest means possible. Q
I would dismiss the appeal.
Appeal dismissed.
No order as to costs.
Solicitors: Lovell White & King; Treasury Solicitor.

C. T. B. D
E
[HOUSE OF LORDS]
COUNCIL OF CIVIL SERVICE UNIONS

AND OTHERS APPELLANTS
AND
MINISTER FOR THE CIVIL SERVICE . . . RESPONDENT F
1984 Oct. 8, 9,10,11,15,16; Lord Fraser of Tullybelton, Lord Scarman,

Nov. 22 Lord Diplock, Lord Roskill and
Lord Brightman
Crown—Minister, determination by—Whether subject to review by
courts—Minister for Civil Service giving instruction that staff no G
longer to be permitted to belong to national trade unions—
Instruction given without prior consultation with those affected—
Whether reviewable—Whether decision-making process unfair—
Whether justified on ground of national security
Judicial Review—Crown—Prerogative power—Minister for Civil Ser
vice issuing instruction under Order in Council—Whether open to
review by courts
H
The main functions of Government Communications Head
quarters ("GCHQ") were to ensure the security of military and
official communications and to provide the Government with
signals intelligence; they involved the handling of secret
375
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.))
^ information vital to national security. Since 1947, staff employed
at GCHQ had been permitted to belong to national trade
unions, and most had done so. There was a well-established
practice of consultation between the official and trade union
sides about important alterations in the terms and conditions of
service of the staff. On 22 December 1983, the Minister for the
Civil Service gave an instruction, purportedly under article 4 of
the Civil Service Order in Council 1982, for the immediate
B variation of the terms and conditions of service of the staff with
the effect that they would no longer be permitted to belong to
national trade unions. There had been no consultation with the
trade unions or with the staff at GCHQ prior to the issuing of
that instruction. The applicants, a trade union and six individuals,
sought judicial review of the minister's instruction on the ground
that she had been under a duty to act fairly by consulting those
Q concerned before issuing it. In an affidavit, the Secretary to the
Cabinet deposed to disruptive industrial action in support of
national trade unions that had taken place at GCHQ as part of
a national campaign by the unions designed to damage
government agencies and that it had been considered that prior
consultation about the minister's instruction would have involved
a risk of precipitating further disruption and would moreover
_^ have indicated vulnerable areas of GCHQ's operations.
" Glidewell J. granted the applicants a declaration that the
instruction was invalid and of no effect. The Court of Appeal
allowed an appeal by the minister.
On appeal by the applicants:—
Held, dismissing the appeal, (1) that executive action was
not immune from judicial review merely because it was carried
out in pursuance of a power derived from a common law, or
E prerogative, rather than a statutory source, and a minister
acting under a prerogative power might, depending on its
subject matter, be under the same duty to act fairly as in the
case of action under a statutory power (post, pp. 399A-E, 400C,
407A-F, 410c, 411A, F - H , 417G-H, 418C-D, 419B-C, 423G—424B).
Reg. v. Criminal Injuries Compensation Board, Ex parte
Lain [1967] 2 Q.B. 864, D.C. applied.
p (2) That the applicants would, apart from considerations of
national security, have had a legitimate expectation that unions
and employees would be consulted before the minister issued
her instruction of 22 December 1983, and, accordingly, the
decision-making process would have been unfair by reason of
her failure to consult them and would have been amenable to
judicial review (post, pp. 4 0 1 E - F , 407F-G, 412C-D, 419H—420B,
423G-^124B).
G O'Reilly v. Mackman [1983] 2 A.C. 237, H.L.(E.) applied.
(3) That, however, it was for the executive and not the
courts to decide whether, in any particular case, the requirements
of national security outweighed those of fairness; and that the
evidence established that the minister had considered, with
reason, that prior consultation about her instruction would have
involved a risk of precipitating disruption at GCHQ and
H revealing vulnerable areas of operation, and, accordingly, she
had shown that her decision had in fact been based on
considerations of national security that outweighed the applicants'
legitimate expectation of prior consultation (post, pp. 402B-C,
4 0 3 D , 4 0 7 F - G , 4 1 2 H — 4 1 3 B , 4 2 0 E - G , 4 2 3 B - D , F, G - ^ 2 4 B ) .
376
C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
The Zamora [1916] 2 A.C. 77, P.C. and Chandler v. Director A
of Public Prosecutions [1964] A.C. 763, H.L.(E.) applied.
Quaere (per Lord Fraser of Tullybelton and Lord Brightman).
Whether judicial review extends to a direct exercise of a
prerogative power (post, pp. 398G-H, 423G—424B).
Decision of the Court of Appeal affirmed.
The following cases are referred to in their Lordships' opinions:
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] B
1 K.B. 223; [1947] 2 All E.R. 680, C.A.
Attorney-General v. De Keyser's Royal Hotel Ltd. [1920] A.C. 508, H.L.(E.)
Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629; [1983]
2 W.L.R. 735; [1983] 2 All E.R. 346, P.C.
Burmah Oil Co. Ltd. v. Lord Advocate, 1964 S.C. (H.L.) 117; [1965] A.C.
75; [1964] 2 W.L.R. 1231; [1964] 2 All E.R. 348, H.L.(Sc)
Chandler v. Director of Public Prosecutions [1964] A.C. 763; [1962] 3 C
W.L.R. 694; [1962] 3 All E.R. 142, H.L.(E.)
Chief Constable of the North Wales Police v. Evans [1982] 1 W.L.R. 1155;
[1982] 3 All E.R. 141, H.L.(E.)
Commissioners of Crown Lands v. Page [1960] 2 Q.B. 274; [1960] 3 W.L.R.
446; [1960] 2 All E.R. 726, C.A.
Edwards v. Bairstow [1956] A.C. 14; [1955] 3 W.L.R. 410; [1955] 3 All
E.R. 48, H.L.(E.) D
Findlay, In re [1985] A.C. 318; [1984] 3 W.L.R. 1159; [1984] 3 All E.R.
801, H.L.(E.)
Griffin v. Lord Advocate, 1950 S.C. 448
Laker Airways Ltd. v. Department of Trade [1977] Q.B. 643; [1977] 2
W.L.R. 234; [1977] 2 All E.R. 182, C.A.
O'Reilly v. Mackman [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All
E.R. 1124, H.L.(E.) F
Proclamations Case (1611) 12 Co.Rep. 74
Prohibitions del Roy (1608) 12 Co.Rep. 63
Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B.
425; [1979] 2 W.L.R. 42; [1979] 1 All E.R. 701, C.A.
Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B.
864; [1967] 3 W.L.R. 348; [1967] 2 All E.R. 770, D.C.
Reg. v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators'
F
Association [1972] 2 Q.B. 299; [1972] 2 W.L.R. 1262; [1972] 2 All E.R.
589, C.A.
Reg. v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1
W.L.R. 766; [1977] 3 All E.R. 452, D.C. and C.A.
Reg. v. Secretary of State for War [1891] 2 Q.B. 326, C.A.
Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149; [1969] 2
W.L.R. 337; [1969] 1 All E.R. 904, D.C. and C.A.
Secretary of State for Defence v. Guardian Newspapers Ltd. [1985] A.C. 3
339; [1984] 3 W.L.R. 986; [1984] 3 All E.R. 601, H.L.(E.)
United Australia Ltd. v. Barclays Bank Ltd. [1941] A.C. 1; [1940] 4 All
E.R. 20, H.L.(E.)
Zamora, The [1916] 2 A.C. 77, P.C.
The following additional cases were cited in argument:
Air Canada v. Secretary of State for Trade [1983] 2 A.C. 394; [1983] 2 JJ
W.L.R. 494; [1983] 1 All E.R. 910, H.L.(E.)
Attorney-General for Canada v. Cain [1906] A.C. 542, P.C.
Blackburn v. Attorney-General [1971] 1 W.L.R. 1037; [1971] 2 All E.R.
1380, C.A.
377
A Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England
[1980] A.C. 1090; [1979] 3 W.L.R. 722; [1979] 3 All E.R. 700, H.L.(E.)
Cheall v. Association of Professional Executive Clerical and Computer Staff
[1983] Q.B. 126; [1982] 3 W.L.R. 685; [1982] I.C.R. 543; [1982] 3 All
E.R. 855, C.A.; [1983] 2 A.C. 180; [1983] 2 W.L.R. 679; [1983] I.C.R.
398; [1983] 1 All E.R. 1130, H.L.(E.).
China Navigation Co. Ltd. v. Attorney-General [1932] 2 K.B. 197, C.A.
R Church of Scientology Inc. v. Woodward (1982) 43 A.L.R. 587
Cinnamond v. British Airports Authority [1980] 1 W.L.R. 582; [1980] 2 All
E.R. 368, C.A.
Conway v. Rimmer [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All
E.R. 874, H.L.(E.)
D. v. National Society for the Prevention of Cruelty to Children [1978] A.C.
171; [1977] 2 W.L.R. 201; [1977] 1 All E.R. 589, H.L.(E.)
de Freitas v. Benny [1976] A.C. 239; [1975] 3 W.L.R. 388, P.C.
^ Erebus Royal Commission, In re; Air New Zealand Ltd. v. Mahon (No. 2)
[1981] 1 N.Z.L.R. 618
Gouriet v. Union of Post Office Workers [1978] A.C. 435; [1977] 3 W.L.R.
300; [1977] 3 All E.R. 70, H.L.(E.)
H.T.V. Ltd. v. Price Commission [1976] I.C.R. 170, C.A.
Hanratty v. Lord Butler of Saffron Walden, The Times, 13 May 1971, C.A.
Kamrudin Pirbhai v. Secretary of State for Foreign and Commonwealth
D Affairs (unreported), 7 September 1984, Woolf J.
Mclnnes v. Onslow-Fane [1978] 1 W.L.R. 1520; [1978] 3 All E.R. 211
Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578; [1971] 2 All E.R.
1278; 1971 S.C. 85, H.L.(Sc)
Port Louis Corporation v. Attorney-General of Mauritius [1965] A.C. 1111;
[1965] 3 W.L.R. 67, P.C.
Reg. v. Criminal Injuries Compensation Board, Ex parte Ince [1973] 1
E W.L.R. 1334; [1973] 3 All E.R. 808, C.A.
Reg. v. Criminal Injuries Compensation Board, Ex parte Thompstone [1984]
1 W.L.R. 1234; [1984] 3 All E.R. 572, C.A.
Reg. v. Criminal Injuries Compensation Board, Ex parte Tong [1976] 1
W.L.R. 1237; [1977] 1 All E.R. 171, C.A.
Reg. v. Secretary of State for the Environment, Ex parte Brent London
Borough Council [1982] Q.B. 593; [1982] 2 W.L.R. 693, D.C.
p Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R.
66, H.L.(E.)
Riordan v. War Office [1959] 1 W.L.R. 1046; [1959] 3 All E.R. 552
Royal Commission on Thomas Case, In re [1980] 1 N.Z.L.R. 602; [1982] 1
N.Z.L.R. 252
Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396
Secretary of State for Employment v. ASLEF (No. 2) [1972] 2 Q.B. 455;
G [1972] 2 W.L.R. 1370; [1972] 2 All E.R. 949, C.A.
Toohey, In re, Ex parte Northern Land Council (1981) 38 A.L.R. 439
United Kingdom Association of Professional Engineers v. Advisory,
Conciliation and Arbitration Service [1981] A.C. 424; [1980] 2 W.L.R.
254; [1980] 1 All E.R. 612, H.L.(E.)
APPEAL from the Court of Appeal.

" By notice of application for leave to apply for judicial review
pursuant to R.S.C., Ord. 53, r. 3, dated 7 March 1984, as amended on
21 June 1984, the applicants, the Council of Civil Service Unions, Jack
Hart, Ann Sarah Downey, Christopher Hugh Braunholz, Jeremy
378
Windust, David Francis McCaffrey and Dennis Mitchell, sought (1) a A
declaration that the certificate issued by the Secretary of State for the
Foreign and Commonwealth Office, dated 25 January 1984, that
employment in or under Government Communications Headquarters
(GCHQ) was required to be excepted for the purpose of safeguarding
national security, pursuant to section 121(4) of the Employment
Protection Act 1975, was invalid by reason of the fact that it had been
issued in breach of the duty of the Secretary of State to act fairly and B
accordingly to consult; (2) a declaration that the certificate issued by the
Secretary of State for the Foreign and Commonwealth Office, dated 25
January 1984, that employment in or under GCHQ was required to be
excepted for the purpose of safeguarding national security, pursuant to
section 138(4) of the Employment Protection (Consolidation) Act 1978,
was invalid by reason of the fact that it had been issued in breach of the Q
duty of the Secretary of State to act fairly and accordingly to consult;
(3) an order of certiorari to remove into the court and quash the
instructions purportedly issued by the Minister for the Civil Service, and
the altered conditions of those employed in or under GCHQ, set out in
letters dated 25 January 1984, 7 February 1984 and 21 February 1984
and in General Notice 100/84; (4) a declaration that the notification to
persons employed at GCHQ of changes in their conditions of service/ D
contracts of service effected by the letter of 25 January 1984 from the
Director of GCHQ to all the staff and the General Notice 100/84 of the
same date was ineffective lawfully to vary the conditions of service/
contracts of service of the said persons or any of them; (5) a declaration
that the purported acceptance by divers persons employed at GCHQ of
either option A or option B set out in the option form attached to the £
letter of 25 January 1984 from the Director of GCHQ to all members of
staff was ineffective lawfully to vary the conditions of service/contracts
of service of the said persons or any of them; (6) a declaration that any
decision to dismiss or to transfer any person employed at GCHQ who
refused to give up his or her membership of, or alternatively the right to
belong to, a national trade union would, in so far as the reason for the
decision to dismiss and/or transfer was the refusal, be void or alternatively F
be wrongful and in breach of the conditions of service/contracts of service,
on the grounds: (a) the two certificates issued by the Secretary of State
for Foreign and Commonwealth Affairs dated 25 January 1984 were
invalid by reason of the fact that the Secretary of State had failed to
comply with his duty in exercise of his powers under section 121(4) of
the Act of 1975 and section 138(4) of the Act of 1978 to act fairly in that G
no consultation with the employees of GCHQ or their union
representatives had taken place before the issue of the certificates; (b)
on a true construction of article 4 of the Civil Service Order in Council
1982 the Minister for the Civil Service (i) was not entitled to issue
instructions to prevent persons who wished to remain at GCHQ from
remaining as members of or attaining the right to belong to national
trade unions because such instructions would affect a fundamental right **
not falling within the meaning of "conditions of service" in article 4;
alternatively (ii) no longer had any power to alter the conditions of
service/contracts of service so as to prevent persons who wished to
379
A remain at GCHQ from remaining in or attaining the right to become
members of national trade unions, the power in question having been
superseded by section 5 of the Trade Dispute and Trade Union Act 1927
and not revived by repeal of the Act by the Trade Dispute and Trade
Unions Act 1946; (c) in issuing the purported instructions the Minister
for the Civil Service had erred in law in the following ways: (i) she had
been under a duty to act fairly and therefore to consult the employees at
B GCHQ before issuing any such instructions; no consultation had in fact
taken place before the issue of the General Notice on 25 January 1984;
(ii) she had misdirected herself by proceeding on the basis that the
certificates under the Acts of 1975 and 1978 could be validly issued
without any consultation and would be valid and effective when issued
on 25 January 1984 whereas that had not been the case; (iii) she had
Q misconstrued the true nature of the international obligations of Her
Majesty's Government contained in International Labour Organisation
Convention No. 87; (iv) she had wrongly taken into account the need to
bring employment at GCHQ into line with the employment of those
engaged in other security and intelligence services, whereas those
employed in other security and intelligence services did not have
comparable duties and did not work in similar conditions; (v) she had
D held that the issue of instructions informally under article 4 of the Order
in Council of 1982 amounted to a prescription in law within the meaning
of article 11(2) of the European Convention on Human Rights; a
misdirection as to the true meaning of article 11(2) invalidated the
relevant decision as a matter of English law if, as was apparent from the
terms of a statement in writing made by the Foreign and Commonwealth
c Office to the Select Committee on Employment, a consideration of the
meaning of article 11(2) had formed an integral part of the decision
making process; alternatively, no reasonable minister could have formed
the view that informal instructions amounted to prescription by law
within the meaning of article 11(2); (vi) by failing to have any regard to
relevant factors, namely: (a) the existence in the conditions of service/
contracts of service of employees at GCHQ of a right to belong to a
F national trade union and (b) the fact that she was obliged by the
relevant conditions of service/contracts of service and/or by long standing
industrial relations practice to consult about relevant changes in
conditions of service; (d) no reasonable Minister for the Civil Service
could have come to the conclusion that it was necessary to alter the
conditions of service/contracts of service for the following reasons:
Q (i) the industrial action taken by certain employees at GCHQ in the
period 1979-1981 had been insufficiently disruptive of operational work
at GCHQ to prompt fears that national security would in the future be
jeopardised; (ii) the delay of three years before any executive action by
way of considering the alteration was such as to negative any suggestion
that national security was being inadequately safeguarded without resort
to the alteration of the conditions of service/contracts of service of
H
GCHQ employees; (iii) the official "avowal" in May 1983 that GCHQ
was a part of the nation's security and intelligence services was
insufficient reason for the delay in determining to alter the conditions of
service/contracts of service since there had been no change in the
380
operational activities at GCHQ that required the alteration on 25 A
January 1984 when no exception had been considered necessary during
the previous three years; moreover, by 1978 at the latest the intelligence
services conducted at GCHQ had been given wide publicity; (e) (i) in a
statement made in writing by the Foreign and Commonwealth Office to
the Select Committee on Employment the legal requirements for a
change in the conditions of service had been illustrated in the following
terms: "Such regulations or instructions are legal instruments under the "
prerogative power and in the case of GCHQ the changes in the
conditions of service have been made by instruction given by the Prime
Minister under that power"; (ii) nothing amounting to a legal instrument
under the prerogative power had been issued before 25 January 1984
and accordingly the letter of 25 January 1984 and the General Notice
100/84 were both invalid; (iii) on a true construction of article 4 of the Q
Order in Council of 1982 "instructions" "providing for" "the conditions
of service" of civil servants were specific instructions in writing setting
out the relevant conditions of service; no such instructions had been
given by the Minister for the Civil Service and accordingly the letter of
25 January 1984 and General Notice 100/84 were both invalid; (f) (i) the
Minister for the Civil Service had no power lawfully to compel persons
employed at GCHQ to give up membership of a national trade union or D
to deprive them of their right to join a national trade union since the
existing conditions of service/contracts of service of such persons
permitted such membership; any change in those conditions of service/
contracts of service could be affected only by a lawful variation thereof;
no such lawful variation had been achieved by the proposed unilateral
variation since the Crown had no power, statutory, prerogative or £
otherwise, to vary conditions of service/contracts of service at will;
(ii) furthermore, no purported acceptance of the new conditions of service/
contracts of service, whether of option A or of option B set out in the
option form attached to the letter of 25 January 1984 from the Director
of GCHQ to all members of staff had affected such a lawful variation
since: (1) no consideration had been given for the purported agreement
to accept the new terms and (2) such acceptances as had been given had F
been given under duress, namely in relation to option A the unlawful
threat by the Crown to transfer or dismiss persons refusing to accept the
changes proposed in option A in breach of their conditions of service/
contracts of service and in relation to option B the unlawful threat by
the Crown to dismiss persons refusing to accept the changes proposed in
option B in breach of their conditions of service/contracts of service; Q
alternatively (iii) if, which was denied, the Minister for the Civil Service
had power to vary the conditions of service/contracts of service at will,
such power had been exercised contrary to law and in breach of the
conditions of service/contracts of service in that it was a provision of the
conditions of service/contracts of service that the said persons or their
union representatives would be consulted before changes in the conditions
of service/contracts of service were effected; no such consultation had "
taken place; (g) any decision to transfer and/or to dismiss any person
employed at GCHQ by reason of his or her refusal to give up
membership of, or the right to be a member of, a national trade union
381
A would be void and/or would be wrongful and in breach of his or her
conditions of service/contract of service in that: (i) each person employed
at GCHQ was given the right by his or her original conditions of service/
contract of service to belong to the appropriate national trade union if
he or she so wished; (ii) it was inconsistent with such a term for the
Crown to subject such a person to any detriment by reason of such
union membership; (iii) the transfer or alternatively dismissal of such a
° person would constitute such a detriment.
On 8 March 1984 the Divisional Court (Glidewell J.) gave the
applicants leave to apply for judicial review. At the hearing of the
application, the applicants withdrew their application for relief in respect
of the certificates under the Acts of 1975 and 1978 and indicated that
they would be content with declaratory relief in lieu of an order of
Q certiorari to quash the instructions purportedly issued by the minister.
Glidewell J., on 16 July 1984, declared 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.
D On 6 August 1984, the Court of Appeal (Lord Lane C.J., Watkins
and May L.JJ.) allowed an appeal by the Minister for the Civil Service,
giving the applicants leave to appeal to the House of Lords. They
dismissed a cross-appeal by the applicants relating to costs.
The applicants appealed.
The facts are set out in the opinions of Lord Fraser of Tullybelton
c and Lord Roskill.
Louis Blom-Cooper Q.C., Patrick Elias and Richard Drabble for the
applicants. A "staff association" and a "trade union" are not necessarily
the same thing: a staff association might not be affiliated to a national
trade union. It is part of a national trade union, but may only recruit
amongst the staff themselves.
Glidewell J.'s finding that General Notice 100/84 was a notice giving
information, not a set of regulations or instructions, is adopted: it is a
correct analysis of the situation regarding the direction and the general
notice. The Court of Appeal made no analysis.
Three points are made regarding the situation up to 25 January 1984.
(1) As to the decision or direction made orally on 22 December 1983 to
ban national trade unions and substitute departmental associations, there
Q was no other or further indication in that direction or in the confirming
letter of 7 February 1984 written by Sir Robert Armstrong to the
director of GCHQ. That is all the knowledge that anyone had. (2) On
25 January, a month later, the Secretary of State issued the two
certificates. Because of the date, one assumes that that was consequential
on the direction of 22 December, not the other way round. (3) The
general notice of 25 January 1984 was not an instruction; the instruction
H is and can only be the decision or direction of 22 December; it is that
and that alone.
Assuming that there was a duty to act fairly, the refusal to enter pn
consultation has a bearing on that duty. There is a body of opinion that
thought that the failure to consult was a breach of it.
1 A.C. 1985—17
382
Whether the respondent was in breach of any I.L.O. regulation is a A
matter that could have been relevant to the duty to act fairly. One of
the main matters for consultation would have been for the staff to say to
the Government that they were in breach of an I.L.O. regulation. That
goes to show the value of consultation: to indicate to the Government
what it should have in mind before making its decision.
The applicants' submissions, in skeleton form, are as follows. 1(a).
The applicants' challenge to the oral direction of 22 December 1983 is °
directed at the exercise of a specific power vested in the respondent by
article 4 of the Civil Service Order in Council 1982. The power is
delegated by the Sovereign in legislation outwith Parliament to a
Minister of the Crown, in contradistinction to a delegated power
expressed in legislation by the Sovereign in Parliament. Each power is
likewise judicially reviewable, according to established principles of Q
administrative law. (b) The oral direction of 22 December 1983 does not
qualify as an "instruction" within the meaning of article 4. (i) because
the respondent has failed to adduce sufficient evidence of any
"instruction"; and (ii) because the "instruction" did not sufficiently
specify the conditions of service that were being altered. 2. The
delegated power in article 4 is an emanation of the prerogative in the
field of industrial relations between the Crown and Her Majesty's Home D
Civil Service, and as such is outwith any of the recognised categories of
the prerogative power traditionally regarded as either beyond or only
within limited judicial review in relation to either: (i) the substance of
the exercise of such power or (ii) the manner in which procedurally it is
exercised. 3. National security considerations are relevant both to the
issue whether the power to ban trade union membership at GCHQ (an £
acknowledged part of the Home Civil Service) is justiciable and whether,
and to what extent (if any), procedural obligations in the exercise of that
power may be judicially enforceable. In both instances the courts will
require the Crown to adduce evidence sufficient to justify any limitation
on judicial review on the grounds of national security. 4. National
security considerations did not in this case (based on the evidence
adduced by the respondent before Glidewell J.) detract in any way from F
her obligation to act fairly in the exercise of the powers in article 4.
Fairness demanded prior consultation in full (or at least in the limited
way indicated by Glidewell J.) in relation to the banning of trade union
membership for staff at GCHQ. As a corollary of that right being
forfeited, the right to trade union recognition at GCHQ and the right of
GCHQ staff to take industrial action were likewise forfeited, and as a Q
consequence of banning trade union membership statutory rights
accorded to staff at GCHQ were taken away by the Secretary of State
issuing certificates under section 121(4) of the Employment Protection
Act 1975 and section 138(4) of the Employment Protection
(Consolidation) Act 1978. The duty to consult also arose by virtue of a
reasonable expectation implied by the course of conduct over nearly 40
years and by contemporaneous events, namely, the promise by Sir "
Robert Armstrong that consultations would take place over the
introduction of the polygraph at GCHQ. 5. Consultation is distinguishable
from negotiation; it required no more than a statement of intent by the
383
A respondent to exercise the power in article 4 and provision for sufficient
opportunity for the applicants to express their views or to point to
problems or difficulties inherent in, or consequential on, the exercise of
the power. Prior consultation would have given the applicants the
opportunity to raise the following, among other, matters: (i) proposals
for entering into a non-disruption agreement at GCHQ; (ii) representation
to the effect that the Government would be in breach of I.L.O.
° conventions on freedom of association, including the suggestion that an
advisory opinion of the I.L.O. itself should be obtained; (iii) the
establishment of a statutory trade union along the lines of the Police
Federation.
Under 1: where-the Crown's instructions to an individual minister or
public body are set out in the form of precise (or defined) instructions,
Q and one individual minister or public body derives his or her authority
from those instructions, the courts will keep the individual minister or
public body within the terms of those instructions. (In this case, the
Sovereign was giving instructions to one specific minister.) In so doing,
the courts will construe the instructions and imply any duties, such as
the duty to act fairly, that should be implied as a matter of ordinary
principles of administrative law, including the duty to consult in
D appropriate circumstances. (There are no circumstances in which there is
not a duty to hear the other party.) In an exercise of power by a
minister or public body, even when receiving instructions from the
Sovereign, there is a duty to act fairly.
In general terms, all prerogative powers are reviewable. Some may
not be; the nature of the prerogative determines whether they are or
g not. Where the Sovereign has given instructions to a specific minister,
the court will say that it will construe it as if it had been statutory.
("Any minister" would do, but it makes the point stronger if it is to a
specific minister.) Something like the death penalty would be totally
unreviewable in any circumstances.
As to whether orders in council are made under the prerogative and
not under statute, see Halsbury's Laws of England, 4th ed., vol. 8
F (1974), "Constitutional Law," paras. 1087, 1088; Reg. v. Secretary of
State for War [1891] 2 Q.B. 326 and Griffin v. Lord Advocate, 1950 S.C.
448. All that those two cases decide is that a retired army officer could
obtain no remedy from the courts to compel the Secretary of State to
carry out the terms of a royal warrant that provided for ex gratia
payments, particularly where the Secretary of State was by the warrant
Q the sole interpreter and administrator of the scheme for ex gratia
payments. They did not decide that there was no jurisdiction in the
courts to control ministers of the Crown acting within the terms of the
warrant: see Reg. v. Criminal Injuries Compensation Board, Ex parte
Lain [1967] 2 Q.B. 864 (see per Nigel Bridge, for the board, at p. 871D,
etc.) In any event, it is no longer necessary to show that there is a
legally enforceable right in order to control a minister's acts by way of
H
judicial review: O'Reilly v. Mackman [1983] 2 A.C. 237. Criminal
Injuries Compensation Board cases show how this branch of the law has
developed: see Reg. v. Criminal Injuries Compensation Board, Ex parte
Ince [1973] 1 W.L.R. 1334, 1339 (Lord Denning M.R.); Reg. v. Criminal
384
Injuries Compensation Board, Ex parte Tong [1976] 1 W.L.R. 1237, A
1242E (Lord Denning M.R.) and Reg. v. Criminal Injuries Compensation
Board, Ex parte Thompstone [1984] l W.L.R. 1234. Lain has been
followed in New Zealand: In re Royal Commission on Thomas Case
[1980] 1 N.Z.L.R. 602.
The applicants make four submissions as to the reviewability of the
prerogative. (1) The prerogative power to provide for conditions of
service in the Civil Service has been reduced to legislative form by the "
Order in Council of 1982. (2) If the actions of the Minister are to be
lawful actions, they must fall within the provisions of the Order in
Council as properly construed. The terms of the Order in Council
constitute the mandate given by the Sovereign to the Minister, and the
Minister must act only within that mandate. (3) It is for the courts to
control the actions of the Minister if those actions are taken outwith the Q
terms of the mandate. (4) Accordingly the courts are free to construe
the mandate and to decide whether in any particular situation the duty
imposed by it is subject to an implied duty to act fairly, and in so doing
they will apply the ordinary principles of administrative law. The position
of the Minister administering this Order in Council is reviewable on the
principles laid down in Ex parte Lain and the decisions following it.
[Reference was made to Order in Council, 22 January 1920, art. 6 (the D
forerunner of art. 4 of the Order in Council of 1982), 7; Civil Service
Order in Council 1956, art. 4, explanatory note (4); Civil Service Order
in Council 1969, art. 5; Minister for the Civil Service Order 1968 (S.I.
1968 No. 1656); Ministers of the Crown (Transfer of Functions) Act
1946, s. 3 (6) and Ministers of the Crown Act 1964, Sch. 1, para. 5, etc.]
The effect of those provisions is that first, the Minister for the Civil g
Service is recognised and given a separate legal status by a statutory
instrument laid before Parliament. Secondly, the prerogative powers to
control the Civil Service are transferred to the Minister for the Civil
Service not by virtue of the prerogative but by statute: the Act and the
statutory instrument made under it. Thirdly, the Minister (it appears)
was created by the prerogative but selected by Parliament to perform
the functions of controlling the Civil Service. These provisions recognise F
the Minister statutorily and give her a separate legal basis.
With regard to Reg. v. Criminal Injuries Compensation Board, Ex
parte Lain [1967] 2 Q.B. 864, there is an analogous situation in another
branch of the law where the High Court has reviewed judicially a
prerogative power on principles of administrative law: see Reg. v.
Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R. Q
766. Ex parte Lain is authority for reviewing the exercise of prerogative
powers, or the powers exercised by a delegated body. [Reference was
made to the Immigration Act 1971, s. 33 (5).] In Hosenball, the court
was acting in judicial review of a non-statutory prerogative power. If the
Home Secretary had acted unfairly, the court would have intervened
and quashed his decision. The case also illustrates the court's approach
to national security (and there the action was against the mandating, not "
the mandated, body). The case shows that once cannot just put up the
flag of national security: the court is entitled to be supplied with
sufficient material to enable it to say that the claim with regard to
385
A national security is justified. Then, it is a matter for the Secretary of
State.
The applicants make two submissions based on Ex parte Lain and Ex
parte Hosenball. (1) Lain, and the cases that followed it, established that
the courts will keep a delegate within his mandate. Just as the courts
will ensure that persons exercising statutory powers do not exceed their
powers, so with non-statutory powers. The source of the power does not
° matter. (2) It is conceded that the other cases are about judicial
functions, but it is illogical to restrict judicial review of non-statutory
powers purely to those that may be characterised as judicial in character.
Under 2, the applicants make four main submissions. (1) Prerogative
powers (i.e. their exercise) are in general reviewable by the courts. (2)
The earlier view that it is the source of the power that determines the
(2 existence of the prerogative and the unreviewability of its exercise is
breaking down and should be finally discarded by the House. The
proper test for determining the reviewability of the exercise of prerogative
powers is the nature or subject matter of the power in question and not
its source, be the source the prerogative, other common law powers or
statute: see In re Toohey, Ex parte Northern Land Council (1981) 38
A.L.R. 439. (3) Many of the old cases on the prerogative indicate that
D even the traditional approach to prerogative powers of defence, etc.,
may in exceptional cases be subject to review: there is no statement
excluding any kind of judicial review. In recent years the courts,
especially the House of Lords, have been willing to review the exercise
of such powers where the rights or interests of citizens have been
directly affected, i.e. cases where public immunity has been claimed:
c e.g. Conway v. Rimmer [1968] A.C. 910 and cases following down to
Air Canada v. Secretary of State for Trade [1983] 2 A.C. 394.
There is considerable doubt, even to this day, about precisely what
"the prerogative" means. The favoured view is Dicey's (Law of the
Constitution, 8th ed. (1915), p. 421), which effectively encompasses all
non-statutory powers. The rival view is that of Locke (Two Treatises of
Government, pp. 421-427). Cases where there has been judicial approval
F of Dicey's view are Attorney-General v. De Keyser's Royal Hotel Ltd.
[1920] A.C. 508, 526 (Lord Dunedin) and Burmah Oil Co. Ltd. v. Lord
Advocate [1965] A.C. 75 and see de Smith's Judicial Review of
Administrative Action, 4th ed. (1980), pp. 286-288. The only prerogative
power properly in issue in the present case is the power to regulate the
terms and conditions of employment of civil servants. That is prerogative
Q in the Dicey, not the Blackstone [Commentaries on the Laws of England,
15th ed. (1809)], sense.
The respondent's printed case carries perhaps a hint that her decision
was taken in the exercise of some prerogative power related to the
prerogative power to regulate the armed forces or foreign affairs. It
comes close to saying that there is a prerogative power to act in the
national interest. It is trite law that there is no prerogative power to act
" simply because a minister considers that the interest of the state requires
it.
Nothing in general is totally unreviewable, though this is subject to
exceptions. Even the declaration of war, or the prerogative of mercy,
386
may be reviewable. The right questions to pose are: (i) is the prerogative A
power to regulate the terms and conditions of service of civil servants in
principle reviewable by the courts? Yes. (ii) If so, do considerations of
national security preclude review in the circumstances of this case?
The prerogative here is reflected in article 4 of the Order in Council.
Even, however, if the power in article 4 had not been relied on but the
matter had been treated as falling under "general prerogative," it would
still be reviewable, de Smith, at p. 286, gives a good exposition of the ^
modern view that one does not look at the source of the power but at its
nature and subject matter; see also In re Toohey, 38 A.L.R. 439.
By way of examples: (i) the power to regulate the armed forces: see
China Navigation Co. Ltd. v. Attorney-General [1932] 2 K.B. 197, 287.
(ii) Foreign affairs, especially the treaty-making power: Blackburn v.
Attorney-General [1971] 1 W.L.R. 1037. This is wholly a matter of state; Q
it does not affect the rights of citizens, (iii) The prerogative of mercy:
Hanratty v. Lord Butler of Saffron Walden, The Times, 13 May 1971.
See also Gouriet v. Union of Post Office Workers [1978] A.C. 435 (see
de Smith, p. 287); Chandler v. Director of Public Prosecutions [1964]
A.C. 763, where neither Lord Devlin nor Lord Reid contemplated the
absolute exclusion of the courts; Laker Airways Ltd. v. Department of
D
Trade [1977] Q.B. 643; Kamrudin Pirbhai v. Secretary of State for
Foreign and Commonwealth Affairs (unreported), 7 September 1984 and
The Zamora [1916] 2 A.C 77, 106-107 (Lord Parker of Waddington)
(this was taken out of context by Glidewell J. and the Court of Appeal).
Under 3, the exercise of discretion by the minister permits the
minister to take matters of national security into account. Such questions
are relevant to the exercise of the discretionary power under article 4 g
and are reviewable by the courts in two separate ways: (i) has the
Crown, or the minister under the Order in Council, adduced evidence to
show that national security considerations did in fact weigh with the
minister when exercising the discretionary power? (ii) If there is such
evidence adduced, was the exercise of discretion a proper one? (The
Zamora is authority for this two-stage approach.) (ii) is really directed
to procedure: has the proper procedure been gone through? F
On (i), here there is no such evidence at all (see The Zamora, at
p. 83 (Sir Frederick Smith A.-G. arguendo), etc.). That is qualified by
the statement, at pp. 106-107, that "as a rule" the fact that the Crown
states that it requires the vessel or goods precludes the court from
considering whether it was required. It is qualified by the beginning of
the paragraph; see also pp. 107-108. The mere uttering of the words Q
"national security" is not absolutely conclusive: see Chandler v. Director
of Public Prosecutions [1964] A.C. 763. Lord Devlin's speech shows that
only as a general rule are the courts ousted from considering matters of
national security. They will always require evidence to support the
Crown's claim that a matter of national security is involved. [Reference
was made to Church of Scientology Inc. v. Woodward (1982) 43 A.L.R.
587.] The public interest cases show that the courts will evaluate matters "•
of national security and weigh them against private rights: Conway v.
Rimmer [1968] A.C. 910; Burmah Oil Co. Ltd. v. Governor and
Company of the Bank of England [1980] A.C. 1090 and Air Canada v.
387
A Secretary of State for Trade [1983] 2 A.C. 394. This line of cases
demonstrates that it is the nature and subject matter of the power in
question that determines whether the court will override any claim to
public interest, whether it arises as a discretionary exercise of prerogative
power, or of a statutory power, or as a statutory claim to immunity with
regard to disclosure of documents. (There is now the approach of
Parliament in section 10 of the Contempt of Court Act 1981, reflected in
" Reg. v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1
W.L.R. 766.)
If prior consultation involves a revelation of information directly
affecting national security, the court might conclude that the procedural
obligation might have to give way, but it is for the Crown to show that
what on the face of it seems harmless would in fact be harmful (see per
Q Lord Pearce in Conway v. Rimmer, at p. 987D-E). For the respondent
to have consulted prior to making this decision was a harmless duty to
perform; the question is whether it would have been rendered harmful
by claims of national security.
Under 4, in the exercise of any discretionary power, such as that
under article 4 of the Order in Council, the Minister for the Civil
Service is under a duty to act fairly. Wherever a minister exercises a
D discretionary power that involves a right, perhaps a "fundamental" right,
(here, the right was a right to membership of the trade union of the civil
servant's choice), the law implies a duty of prior consultation save in
circumstances of real urgency that would render consultation impracti
cable, such as might obtain in the operational sphere of GCHQ. The
question here is what rights were affected by the oral direction of 22
£ December 1983. It was not one right that was being taken away but a
parcel of rights. Nor was it merely an alteration of a contractual term.
The right to belong to a trade union has been recognised as a
common law right in dicta in two cases: United Kingdom Association of
Professional Engineers v. Advisory, Conciliation and Arbitration Service
[1981] A.C. 424; Cheall v. Association of Professional Executive Clerical
and Computer Staff [1983] Q.B. 126, 136B; [1983] 2 A.C. 180, 190G
F (Lord Diplock); see also Mclnnes v. Onslow-Fane [1978] 1 W.L.R.
1520. Regarding the latter case, (i) forfeiture in this context does not
have to be the withdrawal or loss of a legal right in the strict sense, (ii)
Even if this is not a case of a forfeiture, it falls within Sir Robert
Megarry V.-C.'s "intermediate category" (p. 1529) of a legitimate
expectation that the right will not be withdrawn or not confirmed, which
Q is something akin to forfeiture. [Reference was made to Schmidt v.
Secretary of State for Home Affairs [1969] 2 Ch. 149; Attorney-General
of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629; Secretary of State for
Defence v. Guardian Newspapers Ltd. [1985] A.C. 339; H.T.V. Ltd. v.
Price Commission [1976] I.C.R. 170; Reg. v. Secretary of State for the
Environment, Ex parte Brent London Borough Council [1982] Q.B. 593
and Port Louis Corporation v. Attorney-General of Mauritius [1965]
H
A.C. 1111.]
The respondent in her printed case, para. 27 (i), says that it was
considered that consultation would involve a real risk that it would
occasion the very kind of disruption that was a threat to national
388
security and that it was intended to avoid and that, having regard to A
those factors, a reasonable minister could properly have taken the
decision that she took without consultation. The answer to that is that
the question that has to be asked is to what extent national security
considerations did impinge on the respondent's duty to consult the
employees at GCHQ before removing their right to belong to a trade
union. It is clear that Glidewell J. had in the forefront of his mind the
evidence given by Sir Robert Armstrong in paragraph 16 of his first B
affidavit (see post, pp. 403B-D, 422F-G). The idea that prior consultation
could not take place because it was feared that any premature disclosure
of the Government's intention would lead to the disruption of GCHQ,
which in turn would put national security in peril, was not put before
him. In the Court of Appeal, the applicants had no notice of it. It was
then contended that the sole evidence for the point was in paragraph 16. Q
It was said that that lent support to it. There was nothing else, nor was
there any evidence to support it. (The question would then have been
whether any reasonable minister could reasonably have come to that
conclusion.) Put at its highest, paragraph 16 is ambiguous. Secondly, on
the authorities it is for the Crown to produce evidence that the
Government's fear was the reason for not consulting: that what is on its
face harmless was in fact harmful. Paragraph 16 fails to meet that test. If D
that was the real reason for not consulting, why did the Crown not say
so? In any event, it is not really a reason at all. The question here is not
so much whether it is inconceivable that consultation might have led to
disruption but whether there is any evidence that the theory of disruption
was the reason for no prior consultation.
Robert Alexander Q.C. and John Mummery for the Minister for the £
Civil Service. As to the law with regard to the prerogative, the
respondent's essential submission has always been that she was entitled
to give this instruction, and to do so without consultation, in the interest
of national security. Her action was not taken out of any desire to assert
the general unreviewability of the prerogative, but the applicants'
challenge to it necessarily involved inviting the court to review the way
in which the prerogative was exercised. The applicants contend that the F
House should assert the right of the courts to depart from the traditional
view that the way in which the prerogative was exercised is unreviewable.
There is material showing that the prerogative is in general
unreviewable, and that casts considerable doubt on whether it is at all
reviewable. Three questions arise: 1. Is the prerogative in general
reviewable? 2. If it is, is it reviewable in the field of national security? 3. Q
If it would otherwise be unreviewable, is the position different because
it is exercised by someone to whom the power is delegated by order in
council?
On 1, the broad point, it is accepted that the courts can inquire into
the existence, scope and form of the prerogative itself. That is because
the prerogative is part of the common law, and the court can determine
what the common law is and what of necessity are its boundaries. The "
issue is whether it can review the way in which the prerogative is
exercised. [Reference was made to Halsbury's Laws of England, 4th ed.,
vol. 1 (1973), "Administrative Law," para. 20, nn. 7, 8; paras. 46, 47;
389
A Dicey, Law of the Constitution, 8th ed., pp. 420, 422; Blackstone,
Commentaries on the Laws of England, 15th ed., pp. 251-252; Chitty's
Prerogatives of the Crown (1820), pp. 6-7; Holdsworth, A History of
English Law, vol. X (1938), pp. 362, 366; de Smith's Judicial Review of
Administrative Action, 4th ed., p. 137; Wade, Administrative Law,
5th ed. (1982), pp. 350-351; Wade and Phillips, Constitutional and
Administrative Law, 9th ed. (1977), p. 241; O. Hood Phillips'
° Constitutional and Administrative Law, 6th ed. (1978), p. 268 and
Heuston, Essays in Constitutional Law, 2nd ed. (1964), pp. 62-63.] It
would be strange if the prerogative were not reviewable on Wednesbury
grounds [Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation [1948] 1 K.B. 223] but were reviewable on the ground of
procedural defect.
Q In re Toohey, Ex parte Northern Land Council, 38 A.L.R. 439 was
concerned with whether an action lay against the Crown for non
performance of a power delegated to it by statute. Mason J. analysed
the position with regard to the prerogative in order to say that an action
did lie. He regarded the prerogative as something of a fiction, but there
is nothing in his judgment to indicate that he could review the exercise
of the prerogative. [Reference was made to Laker Airways Ltd. v.
D Department of Trade [1977] Q.B. 643 and Locke, Two Treatises of
Government, paras. 159-168.]
As to specific prerogatives (of mercy, etc.; there are numerous
areas), where reviewability has been claimed, it has been rejected.
There is no case where the manner of the exercise of the prerogative, or
the way in which it has been exercised, has in fact been reviewed: see
E The Zamora [1916] 2 A.C. 77, 106-107; China Navigation Co. Ltd. v.
Attorney-General [1932] 2 K.B. 197; Chandler v. Director of Public
Prosecutions [1964] A.C. 763, where there is nothing in what Lord Reid
said to cast doubt on the principle as to national security; Reg. v.
Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R.
766, which is a very strong case indicating the limitations that the court
accepts regarding issues stated by the Crown to be issues of national
F security and Church of Scientology Inc. v. Woodward, 43 A.L.R. 587.
With regard to Hanratty v. Lord Butler of Saffron Walden, The Times,
13 May 1971, see de Freitas v. Benny [1976] A.C. 239; Reg. v. Secretary
of State for War [1891] 2 Q.B. 326 and Reg. v. Criminal Injuries
Compensation Board, Ex parte Lain [1967] 2 Q.B. 864. In re Royal
Commission on Thomas Case [1980] 1 N.Z.L.R. 602; [1982] 1 N.Z.L.R.
Q 252 was a case where a commission had been set up with a quasi-judicial
role; it was as much statutory as prerogative. That case does not help,
nor does In re Erebus Royal Commission; Air New Zealand Ltd. v.
Mahon (No. 2) [1981] 1 N.Z.L.R. 618.
As to the Crown privilege line of cases, e.g. Conway v. Rimmer
[1968] A.C. 910, where the Crown, in claiming its privilege, is a litigant,
that gives rise to the need to balance competing public interests. What is
" there claimed is public interest immunity. That explains why the Crown
can make the claim, but also why others can also make it (see e.g., D.
v. National Society for the Prevention of Cruelty to Children [1978] A.C.
171). It is not special to the Crown: see per Lord Pearce in Conway v.
390
Rimmer, at p. 984c. (These cases are not dealing with the prerogative, \
but they are relevant because they take national security into account in
relation to public interest immunity.)
On 2, the narrow prerogative point (which is only relevant if the
respondent is right with regard to general reviewability), see Crais on
Statute Law, 7th ed. (1971), p. 289 and Halsbury's Laws of England, 4th
ed., vol. 6 (1974), para. 1040. There is no case to suggest that powers
conferred by Order in Council are any narrower or more reviewable °
than those that are the pure prerogative of the Sovereign. Attorney-
General for Canada v. Cain [1906] A.C. 542 shows that if all that the
Sovereign does by Order in Council is to delegate power without any
restriction on its exercise, the court should not read into it any restriction
that it would not read into its personal exercise by the Sovereign.
[Reference was made to Halsbury's Laws of England, 4th. ed., vol. 6, Q
para. 1037.]
To summarise the repondent's submissions on the prerogative: 1. It
is doubtful whether the courts can examine the way in which the
prerogative is exercised. Traditionally, the Sovereign or her minister has
been, and remains, accountable to Parliament for such exercise. 2.
Undoubtedly, there are certain areas in which the exercise of the
prerogative is not reviewable, e.g. the control and disposition of the D
armed forces, treaty-making and the conduct of foreign affairs and
national security. Therefore, where, as in the present case, the
substantive decision is accepted to have been taken for national security
purposes, the court will not review the decision-making process. 3. The
position is not altered because the minister giving an instruction is
exercising her power under an Order in Council. 4. The authorities read £
show that the courts will not go behind the evidence given by or on
behalf of the minister that her decision was dictated by considerations of
national security. [Reference was made to Secretary of State for
Employment v. ASLEF (No. 2) [1972] 2 Q.B. 455; Attorney-General of
Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629; Salemi v. MacKellar
(No. 2) (1977) 137 C.L.R. 396; Riordan v. War Office [1959] 1 W.L.R.
1046; Ridge v. Baldwin [1964] A.C. 40, 65 (Lord Reid) and Schmidt v. F
Secretary of State for Home Affairs [1969] 2 Ch. 149, 172 (Widgery L.J.
echoing Lord Reid in Ridge v. Baldwin).] What Devlin L.J. said in
Commissioners of Crown Lands v. Page [1960] 2 Q.B. 274, 291 must
apply to any legitimate expectation that gives rights in public law, so
that one should not apply a doctrine of legitimate expectation that
conflicts with this well-known principle. In considering whether there is Q
a legitimate expectation, the special position of the Crown and the fact
that it has a public duty to perform are of considerable importance.
Lord Reid's indication in Ridge v. Baldwin is that the person has no
right to be heard. That is applicable here to the question whether there
was a duty to consult.
As to the factual situation with regard to legitimate expectation, 1.
The general nature of Crown employment does not create or conduce to "■
such an expectation (i.e. that it will never exercise the rights that it
undoubtedly possesses) but points the other way. 2. It is accepted that
the absence of a contract in private law between the employer and the
391
A employee in no way bars a remedy in public law if the legitimate
expectation that public law recognises can be established, but the
presence of a contract in private law, or a relationship akin to contract,
may by its terms contradict the suggested legitimate expectation, in
which case it may be difficult to assert a legitimate expectation in public
law without eroding the agreement in private law between the parties. 3.
In the case of a Crown employee, there can be no legitimate expectation
" that the Government will not act contrary to past expectations where
they perceive it to be their national duty to do so, or where to act in
accordance with the expectation would be contrary to their perception of
their duty in the national interest. This applies not only to the national
security field but also to, e.g., financial stringency, or fiscal emergency.
4. See paragraph 27 (i) of the respondent's printed case (post, pp. 401H—
C 402A). The respondent could reasonably have taken the view that
consultation would produce disruption. 5. In the view of the Government,
the exclusion of union membership for staff at GCHQ was the only
satisfactory solution to problems caused by industrial action at GCHQ.
There was no prospect that consultation could have achieved anything
useful (this is "the futility point"), and the applicants were not therefore
prejudiced by the absence of consultation. There is no breach of the
D rules of natural justice where no prejudice has been suffered: Cinnamond
v. British Airports Authority [1980] 1 W.L.R. 582, 593 and Malloch v.
Aberdeen Corporation [1971] 1 W.L.R. 1578, 1582, 1595 and 1600, e.g.
where the person not consulted or offered a hearing is not prejudiced
because nothing that would have been said would have made any
difference to the decision.
£ The instruction of 22 December 1983 was not an instruction within
the terms of the Order in Council.
As to whether it would be right to make a declaration in the exercise
of the court's discretion, it should not make an order if it considers it
not in the public interest to do so. It should say that there was a defect
in procedure but make no order.
Accordingly, in conclusion, (i) this decision is unreviewable; (ii) if it
F is reviewable, the facts are such that the respondent could properly have
concluded that it would be harmful to the national interest to consult
because of the risk that such consultation might lead to disruption and
expose the vulnerability of GCHQ, so that a reasonable minister who
held that view was entitled (and perhaps it was indeed her duty) to
make the decision without consultation.
Q The respondent does not wish to address any submissions to the
House with regard to the I.L.O. conventions.
[LORD FRASER OF TULLYBELTON. The applicants should concentrate
their reply on (i) the difference between the respondent's "wider" and
"narrower" grounds; (ii) whether there was evidence on which a
reasonable minister could have decided as the respondent did that
consultation would be contrary to national security.]
"■ Blom-Cooper Q.C. in reply. It is not so much a question of "wide"
or "narrow" but of the different approach because of the Order in
Council of 1982. It would have been a reasonable view that it was not
necessary to ban trade unions. Chief Constable of the North Wales Police
392
v. Evans [1982] 1 W.L.R. 1155, 1160F-1161A (Lord Hailsham of St. A
Marylebone L.C.), 1174 (Lord Brightman) shows that the courts are
concerned not with whether a correct decision was arrived at but with
whether the correct procedure was followed.
As to reviewability and the prerogative power, the applicants make
three main submission. 1. Prerogative powers, in particular those such as
article 4 of the Order in Council (which is rightly described as primary
legislation), are always subject to judicial review on procedural grounds. "
Whatever may be the view as to reviewing the substantive decisions on
Wednesbury grounds, in relation to procedure they are always open to
judicial review. 2. Review of prerogative powers on the basis of a
substantive exercise flawed by the consideration of an irrelevant factor
may be difficult because of the lack of any indicia as to how the power
should be exercised or the factors taken into account: see In re Toohey, Q
Ex parte Northern Land Council, 38 A.L.R. 439. 3. No such difficulties
arise in the case of procedural review. The plain language of article 4 is
capable of being fairly or unfairly applied (i) because there is no lack of
indicia, (ii) because it is controlled by common law principles. [Reference
was made to Ridge v. Baldwin [1964] A.C. 40, 68-69; Reg. v. Criminal
Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864 and Reg.
v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 D
W.L.R. 766.]
Alternatively, as to the respondent's argument on the "narrow"
ground: 1. Lain is authority for the proposition that the courts will hold
the individual to whom prerogative powers are delegated to the terms of
the mandate, and there are additional factors in the present case,
namely that the Order in Council of 1982 is (see article 6 (4) and Craies £
on Statute Law, 7th ed., p. 289) akin to a statute, even if it is not a
statute in the ordinary sense. 2. It follows that the court can construe
the Order in Council on similar principles to those that it applies when
construing a statute, and duties such as the duty to act fairly are derived
by the same process as that by which they would be in construing
statutory provisions. 3. There are two possible answers: (i) as to the
"old authorities," such as Reg. v. Secretary of State for War [1891] 2 F
Q.B. 326: (a) they are old; (b) in any event, they are distinguishable
because they are concerned with mandamus; (ii) Lain is distinguishable.
In setting out the terms of the Order in Council, the Sovereign must
have intended that the minister would keep within the terms of the
mandate as expressed. There is an additional factor here: the Minister
for the Civil Service is a creature of statute, or, if she is not, her Q
functions were transferred to her by Act of Parliament. 4. These
principles apply so long as the Order in Council remains in force. The
Sovereign in Council, the executive government of the Sovereign and
her ministers, can change the Order in Council, but the respondent
cannot. So long as the Order in Council subsists, she must act within its
terms.
As to national security, The Zamora [1916] 2 A.C. 77 is authority for "
the proposition of the reviewability of prerogative powers. It is also very
clear authority for the proposition that if the Crown seeks to interfere
with private rights on grounds of national security it must adduce
393
A unambiguous evidence to demonstrate that it has in fact acted because
of considerations of national security. It is not enough that it might have
acted for that reason, or that a reasonable minister might have done so:
see at pp. 106-108, 110. As in The Zamora, the respondent here fired at
the wrong target.
1. Issues relating to national security, it is conceded, are primarily
for the executive to judge. 2. The executive, however, must adduce
" before the court sufficient and adequate evidence of two matters: (a)
that national security considerations did actually affect the mind of the
relevant minister; and (b) that (within the evidential limits imposed by
the nature of the subject matter) those considerations were capable of
justifying the consequence sought to be justified. 3. The applicants'
primary submission is as (a). There simply is no evidence adduced by
C the respondent that she failed to consult before the oral direction of 22
December 1983 on the grounds of national security: that is, because of a
fear that the process of consultation would provoke immediate disruption
at GCHQ. 4. It follows that the question of the sufficiency or adequacy
of evidence that arises in this case relates to the reason for the failure to
consult, and does not relate to the reason for making the substantive
decision to ban trade union membership at GCHQ. 5. The evidence,
which it is said indicates that the reason for non-consultation was the
fear of threatened disruption during any consultative process before the
decision to ban was made, is to be found exclusively in paragraph 16 of
Sir Robert Armstrong's affidavit (post, p. 422F-G). 6. That sentence
relates expressly to a fear that official secrets would be exposed to
potential disrupters during the process of consultation. It does not
E specifically, nor does it by necessary implication, relate to a fear that the
national trade unions would, if consulted, have organised a "pre-emptive
strike." The fear could not possibly justify a total absence of consultation,
because (as Glidewell J. rightly held) forms of consultation could easily
be devised so as to avoid any exposure of official secrets; indeed, limited
consultation in fact was undertaken immediately, following the
P announcement in the House of Commons on 25 January 1984. if the
respondent was disposed to (and did in fact) consult after the public
announcement of the oral direction of 22 December 1983 (when there
might have been, but was not in fact, a provoked reaction of industrial
action), a fortiori no greater fear of disruptive action could exist before
the oral direction; indeed, it would be in the interests of the trade
unions to desist from taking industrial action during any consultative
G process when there was a chance of persuading the executive not to take
the drastic action of banning trade union membership. Two questions
arise with regard to Associated Provincial Picture Houses Ltd. v.
Wednesbury Corporation [1948] 1 K.B. 223: could a reasonable minister
conclude that there was a risk of disruption during prior consultation,
and could she conclude that the danger of exposing vulnerable areas of
H operation precluded all forms of consultation? In both cases the answer
H
is "no."
Their Lordships took time for consideration.

394
22 November. LORD FRASER OF TULLYBELTON. My Lords, Govern- A
merit Communications Headquarters ("GCHQ") is a branch of the
public service under the Foreign and Commonwealth 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 Q
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 D
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 and Commonwealth 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 of GCHQ. 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 F
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 in Q
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
395
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) }?* ?"*r
v
of Tullybelton
A 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.
B 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
Q 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.)
E
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 gauged from the
literature issued at the time by the CCSU, of which the following are
examples:
p "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
G Organisation . . . is to be hit by a strike from Friday, 3 April."
"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
Tj 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
396
!* TuUyMton C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
co-operation was given by the local officials, but none at all by national A
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." lat
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, Q
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 D
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 g
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 F
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 G
the Minister for the Civil Service on two 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
397
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) }*** Eraser
or Tullybelton
A 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."
C
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
D 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.
E
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:
F "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; . . . "
The Order in Council was not issued under powers conferred by any
G 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
398
rfSiSSn C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
prerogative enjoys the same immunity from review as if it were itself a 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's
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, C
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, E
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 propriety 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 Q
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
399
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) '2 r * ' v ? s e r
v
" of Tullybelton
A 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
B 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 all the more difficult in the face of article 6(4) of the
Order in Council of 1982 which provides that the Interpretation Act
Q 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
D 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
alone in one case, the sovereign in 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
F 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
G 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
JJ 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
400
rfTunJwton C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
certiorari is not limited to bodies performing judicial functions. In Reg. A
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. Lord Denning M.R. said, at p. 781:
"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."
C
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 D
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.
p
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 F
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 Q
Whitley Council, does not suggest that 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."
401
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) L""1 r™«
v
" of Tullybellon
A 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 law.
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
Q 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
D 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 1983 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
F 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
G 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 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
402
IrfTuHy'Sn C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
involve a real risk that it would occasion the very kind of disruption [at A
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 Q
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 D
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 E
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
1914-1918 war, it was a 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 H
Reid said, at p. 790:
"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
403
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) }2r* Fr
f"
of Tullybelton
A 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
Viscount Radcliffe, at p. 796, referred to the evidence as being relevant
B 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), ante pp. 401H—402A. But it does
set out the respondent's view that to have entered into prior consultation
c 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
D 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
F 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
G 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.
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
404
WuuJiXn C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
GCHQ. Secondly counsel said that the instruction did not sufficiently A
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 C
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 p
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 E
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 limits dictated by law and G
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
405
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) Lord Scarman
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
C 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
rN 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 of Waddington 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
E context that he delivered his famous dictum, at 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
F 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
Q that the essential facts to which the opinion or judgment of those
responsible relates are proved to the satisfaction of the court.
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
406
Lord Scarman C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
of Tullybelton has pointed out, Lord Reid and Viscount Radcliffe A
treated his evidence as relevant to the dismissal of the 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 B
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 Q
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 D
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 p
the interest of national security has been shown to be involved in the
case.
Finally, I would refer to Secretary of State for Defence v. Guardian
Newspapers Ltd. [1985] A.C. 339", 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 F
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 Q
to act on evidence. In some cases a judge or jury is required by law to
be satisfied that the interest is proved to 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
407
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) Lord Scarman
A 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
B 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,
Q 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: Prohibitions del Roy (1608) 12 Co. Rep. 63 and the Proclamations
Case (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
D 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
c its generation with the Proclamations Case, 12 Co.Rep. 74) and Reg. v.
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
F 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 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
408
Lord Diplock C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
view well established by authorities that are sufficiently cited in the A
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 the 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 Q
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, D
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 F
the decision-maker, although it may affect him too. It must affect such
other person either:
(a) by altering rights or obligations of that person which are
enforceable by or against him in private law; or
(b) by depriving him of some benefit or advantage which either (i) he
had in the past been permitted by the decision-maker to enjoy and Q
which he can legitimately expect to be permitted to continue to do until
there has been communicated to him some rational grounds 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
409
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) Lord Diplock
A 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 [1985] A.C. 318 presents an example of the latter kind of
expectation. "Reasonable" furthermore bears different meanings accord
ing 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
Q 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
D 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 all members of the home civil service employed at
E 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
F 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 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
Q 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
410
nevertheless have consequences on the private rights or legitimate A
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 moneys 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 C
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 Q
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. I
have in mind particularly the possible adoption in the future of the
principle of "proportionality" which is recognised in the administrative E
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 p
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.
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 H
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
411
A 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
Q common law is for this purpose given the label jof "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
D 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
c 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
F 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.
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
Q 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.
412
My Lords, in the instant case the immediate subject matter of the A
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 Q
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 D
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 chat 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 F
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-justiciable question. The judicial process is totally inept
to deal with the sort of problems which it involves.
The executive goUrnment likewise decided, and this would appear
to be a collective decision of cabinet ministers involved, that the interests Q
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
413
A 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.
C 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 as to provide that
such civil servants shall not be members of any trade union other
E 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
P 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.
G 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
1 A.C. 1985—18
414
Lord Roskill C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
staff had hitherto been conducted and was bitterly resented by some of A
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 Q
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 D
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 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 g
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 F
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 Q
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
415
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) Lord Roskill
A 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
Q 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
D action preceding the decision complained of and that that "reasonable
expectation" was not in the event fulfilled.
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
g 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"
F which was generally used. The principle may now be 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
Q 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 legitimate 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 legitimate expectation that they now principally complain. They say,
that deprivation 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,
416
Glidewell J., while in my view correctly rejecting all the other arguments A
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 C
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
instructions 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 n
the reviewability of executive acts done under the prerogative. Mr.
Alexander for the respondent understandably did not press the argument
that no 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 E
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 p
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 G
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: H
"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
417
A 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
B 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
C of mediaeval chains of the ghosts of the past: see United Australia Ltd.
v. Barclays Bank Ltd. [1941] A.C. 1, 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 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
E 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
p 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.
H 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
418
Lord Roskill C.C.S.U. v. Minister for Civil Service (H.L.(E.» [1985]
speeches I have had the advantage of reading in draft since completing A
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 are
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 Q
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. D
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 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 F
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 Q
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
419
A 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
B 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
Q clear opinion that the respondent's oral instructions of 22 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
D such instructions being given which radically affected the long-established
rights of the staff at GCHQ to be members of trade unions.
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
P 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
F 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
Q 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
420
theory civil servants are dismissible at will and the various documents A
shown to your Lordships seek to preserve the strict constitutional
position. But in reality the management-staff relationship is governed by
an elaborate code to which it is unnecessary to refer in detail. I have
little doubt that were management to seek to alter without prior
consultation the terms and conditions of civil servants in a field which
had no connection whatever with national security or perhaps, though
the matter does not arise in this appeal, with urgent fiscal emergency, "
such action would in principle be amenable to judicial review.
But that is not the present issue. It is asserted on behalf of the
respondent that the reason for the instructions being given without prior
consultation was that it was feared that so to consult would have given
rise to grave risk of industrial action through the reaction of the
appellants and others and thus have brought about the very situation Q
which the oral instructions were themselves designed to avoid, namely
the risk of industrial action by the staff at GCHQ caused or at least
facilitated by a membership of trade unions, and damaging to national
security. GCHQ was, it was said, and is, highly vulnerable to industrial
action and prior consultation would have revealed to those who had
previously organised disruption that high degree of vulnerability.
My Lords, the conflict between private rights and the rights of the D
state is not novel either in our political history or in our courts.
Historically, at least since 1688, the courts have sought to present a
barrier to inordinate claims by the executive. But they have also been
obliged to recognise that in some fields that barrier must be lowered and
that on occasions, albeit with reluctance, the courts must accept that the
claims of executive power must take precedence over those of the p
individual. One such field is that of national security. The courts have
long shown themselves sensitive to the assertion by the executive that
considerations of national security must preclude judicial investigation of
a particular individual grievance. But even in that field the courts will
not act on a mere assertion that questions of national security were
involved. Evidence is required that the decision under challenge was in
fact founded on those grounds. That that principle exists is I think F
beyond doubt. In a famous passage in The Zamora [1916] 2 A.C. 77,
107 Lord Parker of Waddington, delivering the opinion of the Judicial
Committee, said:
"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 G
of evidence in a court of law or otherwise discussed in public."
The Judicial Committee were there asserting what I have already sought
to say, namely that some matters, of which national security is one, are
not amenable to the judicial process. The force of the passage I have
quoted is in no way diminished by the fact, much relied on by Mr.
Blom-Cooper, that in that case the Crown failed because they had failed "
to adduce before the Prize Court the requisite evidence of urgent
necessity, proof of which was essential if the right of angary were to be
successfully invoked in relation to a cargo in the custody of the Prize
421
1 A.C. C.C.S.U. v. Minister for Civil Service (H.L.(E.)) Lord Roskiil
A Court. This last mentioned fact merely reinforces what I have just said—
that evidence and not mere assertion must be forthcoming.
A similar problem arose in Chandler v. Director of Public Prosecutions
[1964] A.C. 763, a case under section 1 of the Official Secrets Act 1911.
Lord Reid, at p. 790, expressly stated that he did not "subscribe to the
view that the Government or a minister must always or even as p
general rule have the last word" about the safety or interests of the
" state. But he agreed, in common with all the other members of the
House, that cross-examination was not permissible to challenge the
evidence of a senior Air Force officer that a proposed obstruction of an
airfield was contrary to the "safety or interests of the state" which were
the relevant words of the statute.
"The defence of the State from external enemies is a matter of real
C concern, in time of peace as in days of war. The disposition,
armament and direction of the defence forces of the State are
matters decided upon by the Crown and are within its jurisdiction
as the executive power of the State. So are treaties and alliances
with other states for mutual defence. . ." (p. 796).
The other noble and learned Lords then sitting shared Lord Reid's view,
^ though I venture most respectfully to question one observation of Lord
Devlin's, where after referring to The Zamora the learned Lord said, at
p. 810:
"It is said that in such cases the minister's statement is conclusive.
Certainly: but conclusive of what? Conclusive, in the absence of any
allegation of bad faith or abuse, that he does think what he says he
E thinks. The court refrains from any inquiry into the question
whether the goods are, in fact, necessary, not because it is bound to
accept the statement of the Crown that they are, and to find
accordingly, but because that is not the question which it has to
decide."
„ I respectfully suggest that that passage is out of line with the views
expressed by the other noble and learned Lords then sitting.
The same problem arose in Reg. v. Secretary of State for Home
Affairs, Ex parte Hosenball [1977] 1 W.L.R. 766 where the Court of
Appeal and in particular Lord Denning M.R., at p. 778, accepted that if
the case had been one "in which the ordinary rules of natural justice
were to be observed, some criticism could be directed upon it" but held
G that the interests of national security must override the appellants'
private rights and that where compliance with the requirements of
natural justice would itself have revealed that which it was in the
interests of national security not to reveal, private rights must yield to
the public interest: see especially pp. 782-783.
My Lords, I venture to think that today this principle cannot be
disputed. The question is whether, on the evidence before your
Lordships, the respondent is entitled to assert that it was for fear of
revealing the vulnerability of GCHQ to industrial action that it was
decided that advance consultation could not take place. Mr. Blom-
Cooper did not contest that there was evidence upon which a reasonable
422
minister might have taken that view or, indeed, that the respondent as a A
reasonable minister might have taken that view. His main contention
was that the submission on behalf of the respondent to be found
encapsulated in paragraph 27(i) of the respondent's case thus:
"It was considered that consultation would involve a real risk that it
would occasion the very kind of disruption which was a threat to
national security and which it was intended to avoid. Having regard n
to these factors a reasonable minister could properly take the
decision without consultation."
was an afterthought and unjustified by the evidence adduced on the
respondent's behalf.
In their judgment, the Court of Appeal set out three of the assertions
by or on behalf of the trade unions concerned regarding the possibility ^
of and the effect of disruption at GCHQ by industrial action. There are
many other similar statements in the evidence. I refer only to two of
these other statements. The first is:
"Walk-outs in key installations have affected Britain's defence
capability in general, and crippled the UK contribution to the
NATO exercise 'Wintex.' "
D
The other, under the heading "Government Communications," is:
"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. . . ."
Nevertheless, Mr. Blom-Cooper claimed that careful reading of Sir E
Robert Armstrong's first affidavit, and in particular paragraph 16 of that
affidavit, did not support the view that this was a consideration which
the respondent had ever had in mind. My Lords, with all respect,
paragraph 16 must not be divorced from its contents or read in isolation
from the paragraphs which both precede it and follow it. Paragraphs 13
to 18 inclusive must all be read together. In those paragraphs I read Sir p
Robert as explaining why the possibility of negotiating a non-disruption
agreement was considered and rejected. I draw particular attention to
the final sentence in paragraph 16 which reads:
"To have entered such consultations would have served to bring out
the vulnerability of areas of operations to those who had shown
themselves ready to organise disruption and consultation with
individual members of staff at GCHQ would have been impossible "
without involving the national unions."
Ministers also were of the view that the importance of the decision was
such as to warrant its first being announced in Parliament. This passage
read in the context of the documentary evidence exhibited to Sir
Robert's affidavit to which I have already referred seems to me to make
abundantly clear why the respondent and other ministers declined to
engage in consultations in advance of issuing the instructions. It was
argued that such consultation might have led to a non-disruption
agreement such as was later suggested on behalf of the appellants. But
423
A the draft of that agreement clearly does not achieve that which the
respondent sought to achieve by the instructions and the evidence
clearly shows that the national unions, without whose co-operation a
non-disruption agreement would have been valueless, were not prepared
to countenance such an agreement. It was also suggested that if
consultation had taken place regarding the polygraph there was no
reason why consultation should not take place regarding the intended
B instructions. My Lords, the short answer to that is that the two are not
comparable.
My Lords, I have therefore reached the clear conclusions, first, that
the respondent has established that the work at GCHQ was a matter of
grave national security, second, that that security would have been
seriously compromised had industrial action akin to that previously
Q encountered between 1979 and 1981 taken place, third, that consultation
with the appellants prior to the oral instructions would have served only
further to reveal the vulnerability of GCHQ to such industrial action,
fourth, that it was in the interests of national security that that should
not be allowed to take place, and fifth, that accordingly the respondent
was justified in the interests of national security in issuing the instructions
without prior consultation with the appellants.
D That conclusion accords with the conclusion reached by the Court of
Appeal and must lead to the result that the appeal should be dismissed.
I would only add, again in agreement with the Court of Appeal, that
had the matter been argued before the learned judge, as it was in the
Court of Appeal and before this House, he might well have reached a
different conclusion from that which he reached.
g For the sake of completeness I would add that I reject Mr. Blom-
Cooper's separate argument that the oral instructions were in any event
bad as insufficiently specific or precise. I am in complete agreement with
the views of both courts below on that submission.
I do not find it necessary to say anything about what became known
as the "futility argument," that is to say that even if consultation were
required it would have been futile because it would have been of no
F effect. On the view I take, that matter does not arise for decision.
LORD BRIGHTMAN. My Lords, I also would dismiss this appeal for

one reason only, namely, on the ground of national security. The
evidence is compelling that the Minister for the Civil Service acted
without prior consultation with the unions concerned because she
G believed, and reasonably believed, that such process of prior consultation
might result in disruption that would pose a threat to the security of the
nation. This factor overrode the right in public law which the unions
would otherwise have had, on the facts of this particular case, to be
consulted before the instruction of 22 December 1983 was given.
There is nothing which I can usefully add to the comprehensive
survey which your Lordships have already made of the authorities on
the reviewability of decisions taken under the royal prerogative. There is
no difference between the conclusions reached by your Lordships except
on one isolated point: whether the reviewability of an exercise of a
prerogative power is limited to the case where the power has been
424
Lord Brightman C.C.S.U. v. Minister for Civil Service (H.L.(E.)) [1985]
delegated to the decision-maker by Order in Council, so that the A
decision-making process which is sought to be reviewed arises under and
must be exercised in accordance with the terms of that order; or
whether reviewability may also extend, in an appropriate case, to a
direct exercise of a prerogative power. Like my noble and learned
friend, Lord Fraser of Tullybelton, I would prefer to leave the resolution
of that question to a case where it must necessarily be determined.
For the reason indicated, I would dismiss this appeal. °
Appeal dismissed.
No order as to costs in House of
Lords or below.
Solicitors: Lawford & Co.; Treasury Solicitor. Q
M. G.
[HOUSE OF LORDS]
E
LIVESEY (formerly JENKINS) RESPONDENT
AND
JENKINS APPELLANT
[On appeal from JENKINS V. LIVESEY (FORMERLY JENKINS)]
1984 Nov. 12, 13; Lord Hailsham of St. Marylebone L.C., F
Dec. 13 Lord Scarman, Lord Keith of Kinkel,
Lord Bridge of Harwich and
Lord Brandon of Oakbrook
Husband and Wife—Financial provision—Agreement—Disclosure of
material facts—Parties reaching agreement regarding financial
provision and property adjustment—Husband to transfer half- Q
share in matrimonial home to wife—Wife's claim for financial
provision for herself to be dismissed—Agreement embodied in
consent order—Non-disclosure by wife of intention to remarry—
Whether under duty of full and frank disclosure—Whether consent
order to be set aside—Matrimonial Causes Act 1973 (c. 18),
s. 25(1)
The Matrimonial Causes Act 1973 as originally enacted JJ
provided by section 25(1):
"It shall be the duty of the court in deciding whether to
exercise its powers under section 23(l)(a), (b) or (c) or 24
above in relation to a party to the marriage and, if so, in

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374

rfHar^Hf Defence Secretary v. Guardian Newspapers (H.L.(E.)) [1985]

Solicitors: Lovell White & King; Treasury Solicitor.

COUNCIL OF CIVIL SERVICE UNIONS

1984 Oct. 8, 9,10,11,15,16; Lord Fraser of Tullybelton, Lord Scarman,

APPEAL from the Court of Appeal.

Their Lordships took time for consideration.

Course of the proceedings

LORD SCARMAN. My Lords, I would dismiss this appeal for one

LORD DIPLOCK. My Lords, the English law relating to judicial

C LORD ROSKILL. My Lords, this appeal arises out of the exercise by

LORD BRIGHTMAN. My Lords, I also would dismiss this appeal for

Solicitors: Lawford & Co.; Treasury Solicitor. Q

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