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| "The Doughnut", the headquarters of the GCHQ. |
In the last post, we discussed the famous Wednesbury Case. This case took the Wednesbury Principle a step ahead. Let us discuss the Jurisprudential development of "Wednesbury Unreasonableness" by studying important case laws in Common Law.
Facts
1. Government Communications
Headquarters ("GCHQ") is a branch of the public service under the
Foreign and Colonial Office, the main functions of which are to ensure the
security of the United Kingdom military and official communications, and to provide
signals intelligence for the Government.
2. Admittedly, according to the
court, these functions are of great importance and they involve handling secret
information which is vital to the national security.
3. In 1984, the British
Government announced in the House of Commons that the Government had decided to
introduce with immediate effect new conditions of service for staff at Government
Communications Headquarters (GCHQ), the effect, of which was that they would
no longer be permitted to associate themselves with the National Trade Unions
but would be permitted to associate with only a Departmental Staff Association
approved by the Director.
4. The announcement came as a
complete surprise to the trade unions and to the employees at GCHQ, as there
had been no prior consultation with them.
5. This announcement was enforced
through a Royal Prerogative under Article 4 of the Order in Council.
6. The Council of Civil
Service Unions decided to take this matter to the High Court of Justice
asking for Judicial Review of this Instruction. Subsequently, the matter came
up before the House of Lords.
Arguments Advanced
1. The appellants said that the Instruction
is invalid because there was a procedural obligation on part of the state to
act fairly by consulting the concerned persons before exercising such power.
2. However, the Government said
that the Order in Council was not issued under powers conferred by any
Act of Parliament. It was issued by the sovereign by virtue of her prerogative,
but of course on the advice of the Government of the day.
3. Hence, according to the
Government, the instruction was not open to review by the courts because it was
an emanation of the prerogative and in the interests of National Security.
Question of Law Involved
Whether the courts have power to review
the instruction on the ground of a procedural irregularity, having regard
particularly to the facts:
(a) That it was made in the exercise
of a power conferred under the royal prerogative and not by statute, and
(b) That it concerned national
security.
Discussion by the Court
Lord Diplock said that judicial
review provides the means by which judicial control of administrative action is
exercised. The subject matter of every judicial review is a decision made
or refusal to make a decision by some person (or body of persons) referred to
as "decision-maker".
He further stated that to qualify
as a subject for judicial review, the decision must have consequences which
affect some person (or body of persons) other than the decision-maker,
although it may affect him too. It must affect such other person either:
1. By altering rights or
obligations of that person which are enforceable by or against him in private
law; or
2. By depriving him of some
benefit or advantage which either
(i) He has in the past been
permitted by the decision-maker to enjoy and which he can legitimately
expect to be permitted to continue to do until there has been communicated to
him some rational ground for withdrawing it on which he has been given an opportunity
to comment; or
(ii) He has received assurance
from the decision-maker that the decision will not be withdrawn without giving
him first an opportunity of advancing reasons for contending that they should not
be withdrawn.
The Court said that it would
prefer to call that kind of expectation [(ii) Point] as a "legitimate expectation"
rather than a "reasonable expectation" as "Reasonable" bears
different meanings according to whether the context in which it is being used
is that of private law or of public law.
Lord Diplock continued by
saying that he sees no reason why simply because a decision-making power is
derived from a common law (A Royal Prerogative) and not a statutory source (Act
of Parliament), it should for that reason only be immune from judicial review.
“Illegality”, “Irrationality”
and “Procedural Impropriety”
According to Lord Diplock, one
can conveniently classify under three heads the grounds upon which
administrative action is subject to control by judicial review.
1. “Illegality” – “Illegality”
means that the decision-maker must understand correctly the law that regulates
his decision-making power and must give effect to it. Whether he has or not is a
question to be decided, by persons who exercise the Judicial Power of the State.
2. “Irrationality” – This
could also be referred to as “Wednesbury Unreasonableness”[1]. It applies to a decision
which is so outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to be decided
could have arrived at it.
3. “Procedural Impropriety”
– This head includes Principles of Natural Justice, Procedural Fairness and failure
by an administrative tribunal to observe procedural rules that are expressly
laid down in the legislative instrument by which its jurisdiction is conferred,
even where such failure does not involve any denial of natural justice.
Lord Diplock further said that
the present case fell within the head of “Procedural Impropriety”.
“Prima facie, therefore, civil
servants employed at GCHQ who were members of national trade unions had, at
best, in December 1983, a legitimate expectation that they would continue to
enjoy the benefits of such membership and of representation by those trade
unions in any consultations and negotiations with representatives of the
management of that government department as to changes in any term of their
employment. So, but again prima facie only, they were entitled, as a matter
of public law under the head of "procedural propriety," before
administrative action was taken on a decision to withdraw that benefit, to have
communicated to the national trade unions by which they had theretofore been
represented the reason for such withdrawal, and for such unions to be given an
opportunity to comment on it.”
Final
The reason why the Government
decided to withdraw this benefit was in the interests of national security.
All the Lordships unanimously believed that National Security is the
responsibility of the executive government, what action is needed to protect
its interests is a matter upon which those upon whom the responsibility rests,
and not the courts of justice, must have the last word. The judicial process is
totally inept to deal with the sort of problems which it involves.
The court said that it had ample
evidence that there was indeed a real risk of a disruptive action prejudicial
to National Security if the government decides to give advance notice to the
national unions in this regard.
The Court finally held that when
there is conflict between “Procedural Propriety” and “National Security”, the
latter must prevail over the former.
In the next post, we will discuss the doctrine of Proportionality.
[1] Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B.
223.
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