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Workshop 8.3 - Control of the prerogative: GCHQ and substantive review:…
Workshop 8.3 - Control of the prerogative: GCHQ and substantive review: Council for the Civil Services Unions v Minister for the Civil Service [1985] AC 374
The issue in GCHQ
This case was prompted by a decision by the then PM Margaret Thatcher to ban trade union membership at the government's listening base in Cheltenham.
Her authority to do this came from the PM's prerogative power to regulate the working terms and conditions of the Civil Service.
The issue wasn't whether the PM had the authority to do this, instead it was the manner in which she had used her power. The allegation was that she used it in an unfair way.
Legitimate expectation
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It means that the government made a promise, or acted consistently in the past, in a way which the claimant relied on.
In GCHQ the claimants claimed that they had a LE of being consulted before any notable changes were made to their working conditions.
The government's defence
The first lie of argument was that the courts were not allowed to review how the PM used her prerogative powers.
The House of Lords ruled against the PM on this as it made no constitutional sense for prerogative powers to be seen as having special status just because of its association with the Crown. Both prerogative and statute are forms of executive power so why differentiate?
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A word of caution
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They pointed that a number of prerogatives that considered high policy matters should not be susceptible to JR because of their nature and subject matter.
They include: making treaties; defence of the realm; mercy; granting of honours; dissolution of Parliament; and the appointment of ministers (and others).
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Non-justiciability
Some powers exercised under the prerogative involves matters which are not suitable for court adjudication, as they are essentially political judgement-calls.
For example: appointing ministers and granting honours. It is difficult to see how these assessments could be adjudicated upon in court.
Substance and not form
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Some of these involve considerations of high policy but a number of them do not. They could be described as being more administrative or operational.
The courts have increasingly taken an approach based on the nature of the power that the government has used rather than its form.