Picture this– one day you wake up to the news that the union protecting your rights as a worker has now ceased to exist.
Trade unions have long been a topic of debate, often resulting in mixed reactions from the general public, discontent among workers, and a government striving to balance economic stability with political accountability. This triangular tension was at the crux of the landmark legal conflict involving the GCHQ (Government Communications Headquarters).
In today’s Decoding Judgements, we review the case of Council of Civil Service Union v Minister for the Civil Service [1984] UKHL 9.
Against the backdrop of what seemed to be the end of the Cold War during the 1980s, the Thatcher-led Conservative British government ruled that employees of GCHQ who were primarily involved in intelligence and security matters were not free to remain unionised as they previously had. Enforced by an Order in Council (an exercise of the royal prerogative), this decision limited access to unionised representation for GCHQ staff.
The Council of Civil Service Unions claimed that by completely refusing the access of GCHQ staff to participate in unions, workers' rights were frustrated. Alongside this, they argued that there was a failure to honour an established procedural legitimate expectation of conferring with a union before taking any decisions which may undermine the authority of the establishment and its workers.
On the other hand, the Crown argued that this was a matter of national security and that conferring with the union prior to such decisions would cause strikes, halting the duties of GCHQ workers and thereby suspending integral work. The Crown also argued that royal prerogatives were not subject to judicial review, making such a review non-justiciable.
This dispute culminated in a landmark judgment. With a 3:2 majority, the House of Lords agreed that prerogative powers were subject to review by the courts.
On matters of justiciability, Lord Diplock reasoned that he saw ‘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.' Lord Diplock classified the grounds of judicial review against administrative action as (1) illegality, (2) irrationality & (3) procedural impropriety.
The GCHQ case remains pivotal, setting the background for many debates on the scope of the Crown’s powers and the power of the judiciary in carrying out the role of scrutinizing the executive’s powers.
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