Executive powers and national security form the footing of this call for judicial review under the argument that changes to civil servant working conditions were executed without due consideration of those affected.
In a relationship with a chequered history, it was decided by the Minister of the Civil Service (aka Prime Minister Mrs Thatcher) that since the previous strike actions of key staff within the Government Communications Headquarters (GCHQ) had proven destructive, it was necessary to execute instructions to ban any affiliation by government employees with trade unions of any sort.
While this unprecedented move was carried out under legitimate sovereign powers, it directly conflicted with the principle that governmental decisions were first offered to consultation with the trade unions as an inherent duty to exercise fairness when carrying out executive function.
On this occasion, the instructions were carried out under article 4 of the Civil Service Order 1982, but orally released within the House of Commons; and so greeted with natural anger and confusion, while the aim of this sudden prohibition was simply to circumvent open discussion in lieu of avoiding future strike actions now considered a significant threat to national security.
When heard at court level, the presiding judge had held that the instructions were issued on grounds demonstrating no effort toward consultation and were therefore invalid in their application.
Under challenge, the Court of Appeal had held that the executive action itself was not exempt from judicial review because the order came from prerogative powers rather than statute, and that despite the latter source forming the premise for most reviews, the Court saw no distinction between a self-executed order and that of an act of Parliament.
In response, the defence used by the Minister for the Civil Service relied upon operational safety measures, and how under those circumstances it was felt that the same people responsible for the previous compromises were right to be excluded from using consultation as leverage to create further damage; while it was further argued that any discussions between trade unions and Government would have amounted to the same outcome, regardless of protests by those affected.
This position was further supported by the fact that sections (a) and (a)(ii) of article 4 of the Order in Council 1982 allowed the Minister to create regulations controlling the conduct of those employed, therefore denial of trade union membership lawfully fell within those remits.
When the Court upheld the Minister’s actions, the appellants pressed the issue, whereupon the House of Lords sought to establish whether judicial review was necessary, and whether the respondents had acted in manner that precluded fairness and a duty to follow precedent.
After which it was held that while the avoidance of discussion demonstrated a clear breach of that duty, it was not the responsibility of the courts to determine what constituted a threat to national security; and that the executive itself was empowered to prove or disprove itself as to its own actions; all of which, led the House to conclude that:
“[W]here a question as to the interest of national security arises in judicial proceedings the court has to act on evidence.”