The decision of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) was a major step forward for review by the courts of the use of Royal Prerogative powers.
There are certain powers that are derived from the common law, where historically these powers were vested in the monarch, but at present times, the same powers are exercised by the government. These powers are called as the Royal Prerogative powers (Ryan and Foster, 2013, p.45). These Prerogative powers are generally exercised by ministers in the government. The monarch also exercises these powers under direction from ministers (Poole, 2010). The important Case of Proclamations, (1611) 12 Co Rep 74, laid down that the concept of the Royal Prerogatives was limited to those powers that were permitted under the law of the land. Be it as it may, prerogative powers were generally out of the purview of judicial review. Ryan and Foster (2013, p.249) say that in historic terms, the courts did not concern themselves with investigating the manner in which prerogative powers were used, rather the courts recognised and demarcated these powers. The recent case of GCHQ (1985) paved the way for judicial review of prerogative powers. This led to subsequent judgements where the courts upheld the judicial review of prerogative powers. This essay discusses the changes that have occurred in the law and manner in which the Royal Prerogative powers are reviewed by the judiciary after the decision of the court in the GCHQ case. The essay argues that the GCHQ case despite its immense impact on the reviewability of Royal Prerogatives, has a limited effect on the judicial review of prerogatives. The judgement has allowed a paradoxical situation to grow, where courts first decide that prerogative is amenable to review and then negate the effect in case where the prerogative subject matter is seen to be non-justiciable.
The GCHQ case - The decision and its impact
In Council for Civil Service Unions v Minister for the Civil Service (GCHQ case),  AC 374 HL, the court had to decide whether exercise of power by the Prime Minister in excluding the employees of the Government Communications Headquarters (GCHQ) could be reviewed by it. Here, because the use of the power was under the Royal prerogative, the argument for the Minister was that as such it was outside the scope of judicial review. The House of Lords did not accept this argument and it was rejected unanimously (Turpin and Tomkins, 2007, p.697). Lord Scarman in the judgement observed:
I believe that the law relating to judicial review has now reached a stage, where it can be said with confidence that, if the subject matter 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 that power is subject to review in accordance with the principles developed in respect of review of statutory power (quoted in Turpin and Tomkins, 2007, p.697).
The GCHQ case is seen as a watershed moment in the history of the Royal Prerogative because the House of Lords held that the use of the Royal Prerogative was subject to judicial review in certain cases. Lord Roskill accordingly came up with a list of non- justiciable areas, which include: dissolution of the parliament, ministerial appointments, treaties, defence of the realm, etc (Ryan and Foster, 2013, p.250). Therefore, other than providing that the courts can review Royal Prerogative action, the House of Lords also laid down the areas where such a review cannot be done. Fenwick et al (2007, p.211) writes that ever since the court’s decision in the GCHQ case, the courts have allowed judicial review on some exercises of Royal Prerogative powers but not the others. Therefore, the effect of the GCHQ decision is not to give unlimited power of review to the courts. Rather, very specific limits are provided in the case itself.
It is noteworthy here that because the ground of national security was used by the minister for exercise of the power to exclude the employees from trade unions, the court held in favour of the minister. Here, Lord Diplock said that the question of national security is for the executive or Parliament to decide and is outside the scope the judicial review. There are two things of importance here. First, the House of Lords held that Royal Prerogative exercise could be reviewed by the judiciary. This also paved the way for subsequent cases where the courts in England exercised judicial review in cases where Royal Prerogative had been used. Second, the House of Lords believed that national security issues were outside the scope of judicial review. Therefore, where Royal Prerogative was exercised in the name of national security, the court would not interfere. This position of the court is not an isolated case. British courts have always refrained from interfering with the executive actions related to national security issues. Instance of that position is seen in the war time cases. In R v. Halliday,  AC 260, the House of Lords allowed the internment order issued by the Secretary of State as against a British citizen who had German ancestry. In Liverside v. Anderson,  UKHL 1, the Secretary of State’s power to issue preventive detention orders against persons who he believed would be threat to the national security during the Second World War, could not be reviewed. The Secretary of the State exercised these powers under the Wartime legislation of the Defence of the Realm (Consolidation) Act, 1914. The House of Lords considered that these powers exercised with respect to national security issues, would restrain the judiciary from interfering with the order. Lord Donaldson MR in R v. Home Secretary, ex Parte Cheblak  1 WLR 890, also voiced similar reasoning, where he said that national security was an executive prerogative and the courts must not interfere with these powers. This has been the basic and consistent approach of the courts in the UK. The doctrine of political question is responsible for the position of the courts. As per the doctrine of political question, the legislature and the executive enjoy a prerogative power over questions of national security and the courts must not interfere with the actions of the other two organs that are based on national security concerns. Therefore, any understanding of the effect of the GCHQ case has to be considered in light of the principles of judicial review, doctrine of parliamentary sovereignty and the Royal Prerogatives.
Judicial review - The traditional doctrine
The scope of judicial review in the UK is to be seen in the context of doctrine of parliamentary sovereignty. The doctrine of parliamentary sovereignty in the traditional sense postulates that an Act of parliament, being the primary legislation is also the supreme law of the land. Therefore, the doctrine of parliamentary sovereignty has three important elements: first, the parliament can legislate on any matte; second, parliament cannot be bound by its predecessors, or bind its successors; and third, no body can question the validity of the Acts of the parliament. The last element is especially levelled at the courts. In the UK, the courts cannot review the Acts of the Parliament due to the doctrine of parliamentary sovereignty (Wilson v First County Trust Ltd (No 2), 3 WLR 568). To some extent this also has implications for scope of judicial review over executive action. Therefore, in R v Parliamentary Commissioner for Standards, Ex p Al Fayed,  1 WLR 669, Lord Woolf refused to review the report by the Parliamentary Commissioner for Standards. In McLoughlin v O’Brian,  1 AC 410, Lord Scarman had observed that “the objective of judges is the formulation of principles; policy is the prerogative of Parliament”.
The decision in the GCHQ case - Was it one step forward for review?
It is true that since the GCHQ case, most cases that have come before the courts have found the courts ready to hear matters related to exercise of prerogative powers (Poole, 2010). However, there have been cases where the court has held the nature of the power to be such that the issue becomes non-justiciable. An instance of that is in R (Gentle) v The Prime Minister,  UKHL 20, in which case, the House of Lords refused to set up an investigation into the death of British service personnel in Iraq. The relatives of the dead servicemen were asking for an inquiry into the lawfulness of the government decision to go to Iraq under article 2 of the ECHR. Lord Bingham specifically spoke about the questions of high policy, such as, war, treaties and foreign relations, that are traditionally not reviewed by the judiciary. In the case of mercy petitions, the GCHQ case has driven change in how the prerogative of the executive is viewed by the courts. Prior to the case, mercy petitions were seen completely at the prerogative of the executive. In R v Secretary of State for the Home Department, ex p Bentley  EWHC Admin 2, the court made an exception to the earlier held position. In this case, the court held that the prerogative of mercy should not now be seen as an arbitrary monarchical right. Rather, it should be seen as a ‘constitutional safeguard against mistakes’ (quoted in Poole, 2010, p.20). However, the GCHQ case cannot be seen to mean unrestricted power of review by the courts. After all, an important aspect of the GCHQ decision is in the articulation of the areas that are outside the scope of review. This has led one commentator to remark that the GCHQ case evidence a two step procedure of dealing with the prerogative. Poole (2010, p.20) explains these steps as: Step one, the refusal to countenance the idea of a gap in the normal framework of the law and the assertion that ordinary legal principles apply to prerogative law-making. Step two, the accommodation of government interests (‘act of state’; ‘national security’) and equivocation or uncertainty in the application of those principles. Poole (2010) gives the example of terrorism cases, where the two step procedure is evidenced. He says that “the courts have taken a hard line on government arguments asserting a right to be free from legal constraint. At the level of principle, that is, they emphasize the application of settled, standing law (step 1). But the cases also typically contain strong doses of deference in the application of those principles (step 2) (Poole, 2010, p.22).” Thus, the idea that GCHQ case has somehow completely changed the way courts deal with the prerogative is over-simplistic. Undoubtedly, the GCHQ case is important, in that it redefines the courts’ interaction with the prerogative. However, this has not been taken too far in the subsequent cases. Courts take the issue of national security and other areas of the prerogative to be in the domain of the legislature or the executive. This is evident from the judgements of the courts even after the GCHQ case.
The GCHQ case is important because it led to the paving of the way for courts’ future interactions with the Royal Prerogative. Thus, the case holding that the Royal Prerogative can be reviewed by the courts is an important step in that direction. Having said that, it is noteworthy here that the GCHQ case also was particular in laying down certain areas where the prerogative would be not open to review by the judicairy. The areas that are seen to be outside judicial purview are generally issues of national security, ministerial appointments, treaties, dissolution of the parliament, defence of the realm, etc. In these areas the Royal Prerogative should be exercised without the interference of the judiciary. Subsequent cases of the courts show that the courts have stuck to the principle laid down by the GCHQ case and therefore, we find a somewhat paradoxical situation where the court first says that prerogative is within the scope of judicial review and then negates such review in that particular case due to the non-justiciability of the subject matter.
- De Smith, Woolf and Jowell’s. (1999). Principles of Judicial Review. Sweet and Maxwell.
- Fenwick, H., Phillipson, G. and Masterman, R. (2007). Judicial Reasoning under the UK Human Rights Act. Cambridge: Cambridge University Press.
- Ryan, M. and Foster, S. (2013). Unlocking Constitutional & Administrative Law. Routledge.
- Poole, T. (2010). Judicial Review at the Margins: Law, Power, and Prerogative. Law, Society, Economy. Retrieved from https://www.lse.ac.uk/collections/law/wps/WPS2010-05_Poole.pdf
- Turpin, C. and Tomkins, A. (2007). British Government and the Constitution: Text and Materials. Cambridge: Cambridge University Press.
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