Council of Civil Service Unions V Minister For The Civil Service - Significance

Significance

In the exertion therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution. And yet if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just and severe account.

The courts have traditionally been unwilling to subject prerogative powers to judicial review. Judges were only willing to state whether powers existed or not, not whether they had been used appropriately. They therefore applied only the first of the Wednesbury tests; whether the use was illegal. Constitutional scholars such as William Blackstone considered this appropriate.

The GCHQ case, therefore, was highly important; it held that the application of judicial review would be dependant on the nature of the government's powers, not their source. While the use of the Royal Prerogative for national security reasons is considered outside the scope of the courts, most other uses of the Prerogative are now judicially reviewable in some form.

The GCHQ case also confirmed that non-legal conventions might be subject to "legitimate expectation". A convention would not have usually been litigible, and it was necessary for the court to demonstrate that its was in the present case: such a rule had been established in respect of Cabinet conventions in Attorney General v Jonathan Cape Ltd. Although the court ruled against the union, it was accepted that the invariable practice of the executive as forming a basis for legitimate expectation.

The case also shows that National Security remains a political issue and not a legal one, it is not to be determined by a court.

It summarises the scope of judicial review.