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GCHQ case 1984

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Mikel Lothan

on 9 December 2012

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Transcript of GCHQ case 1984

Judgement GCHQ case 1984 Furthermore... Significance THANKS FOR LISTENING The Government Communications Headquarters (GCHQ) is a British intelligence agency that provides signals intelligence to the British government and armed forces.[1] Prior to 1983 its existence was not acknowledged, despite the fact that it openly recruited graduate. What happened? Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case, was an English administrative law case which held that the Royal Prerogative was subject to judicial review. In 1984 the British government under Margaret Thatcher decided that employees of the Government Communications Headquarters (GCHQ) would not be allowed to join any trade union for national security reasons. This was enforced through an Order in Council, an exercise of the Royal Prerogative. The Council of Civil Service Unions chose to bring this matter to court through judicial review, first to the High Court of Justice, which ruled the Order in Council was invalid. The case then went to the Court of Appeal, which decided that the national security issues trumped any problems of propriety. The case first went to the High Court of Justice, where it was heard by Glidewell J. Glidewell found that the employees of GCHQ had some right to consultation beforehand, and that the lack of consultation made the decision invalid. The decision was then taken to the Court of Appeal, where it was heard by Lane CJ, Watkins and May LJJ. The Court of Appeal took a "strongly non-interventionist-stance", holding that judicial review could not be used to challenge the use of the Royal Prerogative, because it is an executive rather than a judicial right to judge national security requirements. It would be inappropriate for the courts to intervene.
The decision was again appealed, this time to the House of Lords, where it was heard by Lord Fraser, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman; judgment was given on 22 November 1984. The House of Lords chose to overrule the Court of Appeal in a similar fashion to statutory actions. The Lords differed on their approach to this; Diplock held that any prerogative power which impacted on the "private rights or legitimate expectations" of people, while Lords Fraser and Brightman held that only powers delegated from the monarch could be subject to judicial review. This case was a valid scenario for that review, in that the powers had been delegated from the monarch to the Minister for the Civil Service. Despite this attitude, the appeal failed due to the national security grounds. Lords Fraser, Scarman and Diplock all believed that the issue of national security was outside the remit of the courts, Scarman writing that "It is par excellence a non-justiciable question. The judicial process is totally inept [sic] to deal with the sort of problems which it [national security] involves". Fraser stated that while the courts would not by default accept a government statement that there was a national security issue, it was a "matter of evidence", and the evidence provided showed that the government was correct. The courts have traditionally been unwilling to subject prerogative powers to judicial review. Judges were only willing to state whether powers existed or not, not whether they had been used appropriately.They therefore applied only the first of the Wednesbury tests; whether the use was illegal. Constitutional scholars such as William Blackstone considered this appropriate.
The GCHQ case, therefore, was highly important; it held that the application of judicial review would be dependant on the nature of the government's powers, not their source. While the use of the Royal Prerogative for national security reasons is considered outside the scope of the courts, most other uses of the Prerogative are now judicially reviewable in some form.
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