Council of Civil Service Unions v Minister for the Civil Service

An executive decision is not immune from judicial review merely because its power derives from the royal prerogative. Reviewability depends principally on whether the subject matter is suitable for judicial determination.

A regular practice or assurance may create a legitimate expectation of consultation, even though no corresponding private-law right exists. The resulting duty of procedural fairness may nevertheless yield where the executive establishes by evidence that consultation would create a real risk to national security. The court determines whether national security is genuinely engaged, but does not substitute its judgment for that of the responsible executive on what protection requires.

Council of Civil Service Unions v Minister for the Civil Service concerned an instruction made under article 4 of the Civil Service Order in Council 1982. It prohibited staff at Government Communications Headquarters from belonging to national trade unions. The instruction was issued without prior consultation, despite an established practice of consulting staff about important changes to conditions of service.

Glidewell J declared the instruction invalid for procedural unfairness. The Court of Appeal reversed that decision and dismissed the application for judicial review. The challenge to national-security certificates issued under employment legislation, and the request for certiorari, were abandoned.

The central questions were whether a power derived from the royal prerogative was reviewable, whether the established practice created a legitimate expectation of consultation, and whether national security justified departure from that expectation.

1. Disposition. The House unanimously dismissed the appeal. The Minister had established that prior consultation could have produced disruptive industrial action threatening national security. That consideration displaced the procedural entitlement which the unions would otherwise have enjoyed. No order was made as to costs in the House or below.

2. Review of prerogative powers. Lords Scarman, Diplock and Roskill held that the source of an executive power does not by itself determine reviewability. A prerogative-derived decision may be reviewed where its subject matter is justiciable. Lord Fraser and Lord Brightman reserved the position concerning a direct exercise of prerogative power, but all five Law Lords agreed that the Minister's delegated power under article 4 of the Civil Service Order in Council 1982 was amenable to review.

3. Grounds of review. Lord Diplock classified the established grounds as illegality, irrationality and procedural impropriety. Lord Roskill adopted that terminology, and Lord Scarman agreed with their speeches. The present case concerned procedural impropriety. Judicial review addressed the decision-making process rather than the merits of the policy.

4. Legitimate expectation. Lords Fraser, Diplock and Roskill held, consistently with the other members of the House, that the long and invariable practice of consultation created a legitimate expectation that the unions would be consulted before an important alteration of conditions of service. Such an expectation may arise from an express assurance or a regular practice. It may receive public-law protection even though the claimant has no enforceable private-law right to the benefit.

5. National security. The court required evidence that national security was genuinely engaged; a bare executive assertion would not suffice. Once that factual basis was established, the executive had the last word on what protection national security required, subject to the court's supervisory jurisdiction. The evidence showed that the Minister reasonably believed advance consultation would expose operational vulnerabilities and risk renewed disruption. The duty of consultation therefore yielded to national security.

6. Form of the instruction. The oral direction was an instruction providing for conditions of service within article 4. It did not have to be in writing or expressed in any prescribed form. The separate argument that it lacked sufficient specificity was rejected.

1. House of Lords: Unanimously dismissed the appeal from the Court of Appeal. The instruction remained effective, and no order was made as to costs in the House or below.
2. Court of Appeal: Reversed Glidewell J's declaration and dismissed the application for judicial review and the appellants' cross-appeal.
3. High Court: Glidewell J declared the instruction invalid and of no effect because the Minister had failed to consult before issuing it.