Extract from the GCHQ case, Council of Civil Service Unions v Minister

Extract from the GCHQ case, Council of Civil Service Unions v Minister
for Civil Service [1985].
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…
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.
….
For a decision to be susceptible to judicial review the decisionmaker
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…. The ultimate source of the decision-making
power is nearly always nowadays a statute or subordinate
legislation made under the statute; but in the absence of any
statute regulating the subject matter of the decision the source
of the decision-making power may still be the common law itself,
i.e., that part of the common law that is given by lawyers the
label of "the prerogative." Where this is the source of decisionmaking
power, the power is confined to executive officers of
central as distinct from local government and in constitutional
practice is generally exercised by those holding ministerial rank.
It was the prerogative that was relied on as the source of the
power of the Minister for the Civil Service in reaching her decision
of 22 December 1983 that membership of national trade unions
should in future be barred to all members of the home civil
service employed at GCHQ.
…… there have unquestionably survived into the present day a
residue of miscellaneous fields of law in which the executive
government retains decision-making powers that are not
dependent upon any statutory authority but nevertheless have
consequences on the private rights or legitimate expectations of
other persons which would render the decision subject to judicial
review if the power of the decision-maker to make them were
statutory in origin. From matters so relatively minor as the grant
of pardons to condemned criminals, of honours to the good and
great, of corporate personality to deserving bodies of persons,
and of bounty from 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 latter as "national security."
My Lords, I see no reason why simply because a decisionmaking
power is derived from a common law and not a statutory
source, it should for that reason only be immune from judicial
review. Judicial review has I think developed to a stage today
when without reiterating any analysis of the steps by which the
development has come about, one can conveniently classify
under three heads the grounds upon which administrative action
is subject to control by judicial review. The first ground I would
call "illegality," the second "irrationality” and the third
"procedural impropriety." That is not to say that further
development on a case by case basis may not in course of time
add further grounds. I have in mind particularly the possible
adoption in the future of the principle of "proportionality" which is
recognised in the administrative law of several of our fellow
members of the European Economic Community; but to dispose
of the instant case the three already well-established heads that
I have mentioned will suffice.
By "illegality" as a ground for judicial review I mean that the
decision-maker must understand correctly the law that regulates
his decision-making power and must give effect to it. Whether he
has or not is par excellence a justiciable question to be decided,
in the event of dispute, by those persons, the judges, by whom
the judicial power of the state is exercisable.
By "irrationality" I mean what can by now be succinctly referred
to as "Wednesbury unreasonableness" (Associated Provincial
Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B.
223). It applies to a decision which is so outrageous in its
defiance of logic or of accepted moral standards that no sensible
person who had applied his mind to the question to be decided
could have arrived at it. Whether a decision falls within this
category is a question that judges by their training and
experience should be well equipped to answer, or else there
would be something badly wrong with our judicial system. To
justify the court's exercise of this role, resort I think is today no
longer needed to Viscount Radcliffe's ingenious explanation in
Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground
for a court's reversal of a decision by ascribing it to an inferred
though unidentifiable mistake of law by the decision-maker.
"Irrationality" by now can stand upon its own feet as an accepted
ground on which a decision may be attacked by judicial review.
I have described the third head as "procedural impropriety"
rather than failure to observe basic rules of natural justice or
failure to act with procedural fairness towards the person who
will be affected by the decision. This is because susceptibility to
judicial review under this head covers also failure by an
administrative tribunal to observe procedural rules that are
expressly laid down in the legislative instrument by which its
jurisdiction is conferred, even where such failure does not involve
any denial of natural justice. But the instant case is not
concerned with the proceedings of an administrative tribunal at
all.
My Lords, that a decision of which the ultimate source of power
to make it is not a statute but the common law (whether or not
the common law is for this purpose given the label of "the
prerogative") may be the subject of judicial review on the ground
of illegality is, I think, established by the cases cited by my noble
and learned friend, Lord Roskill, and this extends to cases where
the field of law to which the decision relates is national security,
as the decision of this House itself in Burmah Oil Co. Ltd. v. Lord
Advocate, 1964 S.C. (H.L.) 117 shows. While I see no a priori
reason to rule out "irrationality" as a ground for judicial review of
a ministerial decision taken in the exercise of "prerogative"
powers, I find it difficult to envisage in any of the various fields in
which the prerogative remains the only source of the relevant
decision-making power a decision of a kind that would be open to
attack through the judicial process upon this ground. Such
decisions will generally involve the application of government
policy. The reasons for the decision-maker taking one course
rather than another do not normally involve questions to which, if
disputed, the judicial process is adapted to provide the right
answer, by which I mean that the kind of evidence that is
admissible under judicial procedures and the way in which it has
to be adduced tend to exclude from the attention of the court
competing policy considerations which, if the executive discretion
is to be wisely exercised, need to be weighed against one
another - a balancing exercise which judges by their upbringing
and experience are ill-qualified to perform. So I leave this as an
open question to be dealt with on a case to case basis if, indeed,
the case should ever arise.
As respects "procedural propriety" I see no reason why it should
not be a ground for judicial review of a decision made under
powers of which the ultimate source is the prerogative. Such
indeed was one of the grounds that formed the subject matter of
judicial review in Reg. v. Criminal Injuries Compensation Board,
Ex parte Lain [1967] 2 Q.B. 864. Indeed, where the decision is
one which does not alter rights or obligations enforceable in
private law but only deprives a person of legitimate expectations,
"procedural impropriety” will normally provide the only ground on
which the decision is open to judicial review. But in any event
what procedure will satisfy the public law requirement of
procedural propriety depends upon the subject matter of the
decision, the executive functions of the decision-maker (if the
decision is not that of an administrative tribunal) and the
particular circumstances in which the decision came to be made.
*412 My Lords, in the instant case the immediate subject matter
of the decision was a change in one of the terms of employment
of civil servants employed at GCHQ. That the executive functions
of the Minister for the Civil Service, in her capacity as such,
included making a decision to change any of those terms, except
in so far as they related to remuneration, expenses and
allowances, is not disputed. It does not seem to me to be of any
practical significance whether or not as a matter of strict legal
analysis this power is based upon the rule of constitutional law to
which I have already alluded that the employment of any civil
servant may be terminated at any time without notice and that
upon such termination the same civil servant may be re-engaged
on different terms. The rule of terminability of employment in the
civil service without notice, of which the existence is beyond
doubt, must in any event have the consequence that the
continued enjoyment by a civil servant in the future of a right
under a particular term of his employment cannot be the subject
of any right enforceable by him in private law; at most it can only
be a legitimate expectation.
Prima facie, therefore, civil servants employed at GCHQ who
were members of national trade unions had, at best, in
December 1983, a legitimate expectation that they would
continue to enjoy the benefits of such membership and of
representation by those trade unions in any consultations and
negotiations with representatives of the management of that
government department as to changes in any term of their
employment. So, but again prima facie only, they were entitled,
as a matter of public law under the head of "procedural
propriety, " before administrative action was taken on a decision
to withdraw that benefit, to have communicated to the national
trade unions by which they had theretofore been represented the
reason for such withdrawal, and for such unions to be given an
opportunity to comment on it.
The reason why the Minister for the Civil Service decided on 22
December 1983 to withdraw this benefit was in the interests of
national security. National security is the responsibility of the
executive government; what action is needed to protect its
interests is, as the cases cited by my learned friend, Lord Roskill,
establish and common sense itself dictates, a matter upon which
those upon whom the responsibility rests, and not the courts of
justice, must have the last word. It is par excellence a nonjusticiable
question. The judicial process is totally inept to deal
with the sort of problems which it involves.
The executive government likewise decided, and this would
appear to be a collective decision of cabinet ministers involved,
that the interests of national security required that no notice
should be given of the decision before administrative action had
been taken to give effect to it. The reason for this was the risk
that advance notice to the national unions of the executive
government's intention would attract the very disruptive action
prejudicial to the national security the recurrence of which the
decision barring membership of national trade unions to civil
servants employed at GCHQ was designed to prevent.
There was ample evidence to which reference is made by others
of your Lordships that this was indeed a real risk; so the crucial
point of law in this case is whether procedural propriety must
give way to *413 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.