Council of Civil Service Unions v Minister for the Civil Service
|Lord Fraser of Tullybelton,Lord Scarman,Lord Diplock,Lord Roskill,Lord Brightman
|22 November 1984
|House of Lords
|22 November 1984
 UKHL J1122-3
Lord Fraser of Tullybelton
House of Lords
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. These functions are of great importance and they involve handling secret information which is vital to the national security. The main establishment of GCHQ is at Cheltenham where over 4,000 people are employed. There are also a number of smaller out-stations one of which is at Bude in Cornwall.
Since 1947, when GCHQ was established in its present form, all the staff employed there have been permitted, and indeed encouraged, to belong to national trade unions, and most of them did so. Six unions were represented at GCHQ. They were all members, though not the only members, of the Council of Civil Service Unions ("CCSU"), the first appellant. The second appellant is the secretary of CCSU. The other appellants are individuals who are employed at GCHQ and who were members of one or other of the unions represented there. A departmental Whitley Council was set up in 1947 and, until the events with which this appeal is concerned, there was a well-established practice of consultation between the official side and the trade union side about all important alterations in the terms and conditions of employment of the staff.
On 25 January 1984 all that was abruptly changed. The Secretary of State for Foreign Affairs announced in the House of Commons that the Government had decided to introduce with immediate effect new conditions of service for staff at GCHQ, the effect of which was that they would no longer be permitted to belong to national trade unions but would be permitted to belong only to a departmental staff association approved by the director. 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. The principal question raised in this appeal is whether the instruction by which the decision received effect, and which was issued orally on 22 December 1983 by the respondent (who is also the Prime Minister), is valid and effective in accordance with article 4 of the Civil Service Order in Council 1982. The respondent maintains that it is. The appellants maintain that it is invalid because there was a procedural obligation on the respondent to act fairly by consulting the persons concerned before exercising her power under article 4 of the Order in Council, and she has failed to do so. Underlying that question, and logically preceding it, is the question whether the courts, and your Lordships' House in its judicial capacity, 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.
It is necessary to refer briefly to the events which led up to the decision on 22 December 1983. Between February 1979 and April 1981 industrial action was taken at GCHQ on seven occasions. The action took various forms — one day strikes, work to rule, and overtime bans. The most serious disruption occurred on 9 March 1981 when about 25 per cent. of the staff went on one-day strike and, according to Sir Robert Armstrong, the Secretary to the Cabinet, who made an affidavit in these proceedings, parts of the operations at GCHQ were virtually shut down. The appellants do not accept the respondent's view on the seriousness of the effects of industrial action upon the work at GCHQ. But clearly it must have had some adverse effect, especially by causing some interruption of the constant day and night monitoring of foreign signals communications. The industrial action was taken mainly in support of national trade unions, when they were in dispute with the Government about conditions of service of civil servants generally, and not about local problems at GCHQ. In 1981 especially it was part of a campaign by the national trade unions, designed to do as much damage as possible to Government agencies including GCHQ. Sir Robert Armstrong in his affidavit refers to several circular letters and "campaign reports" issued by CCSU and some of its constituent unions, which show the objects of the campaign. One of these is a circular letter dated 10 March 1981 from the Society of Civil and Public Servants. In a paragraph headed "Selective Strikes" the letter states as follows:
"Union members at certain key Government sites are now on permanent strike. This is the first phase of the selective action: it includes naval supplies and dockyards, locations where the Government finance machine can be disrupted, a Government surveillance centre and the DHSS contributions records computer." (Emphasis added.)
Among the selective strike areas referred to in the list appended to the letter is "GCHQ Bude, Cornwall." The seriousness of the intended challenge to the security system of this country can be guaged from the literature issued at the time by the CCSU, of which the following are examples:
"Our ultimate success depends upon the extent to which revenue collection is upset, defence readiness hampered, and trading relations disrupted by this and future action."
"Walk-outs in key installations have affected Britain's defence capability in general, and crippled the UK contribution to the NATO exercise 'Wintex.'"
"another vital part of the Government's Composite Signals Organisation … is to be hit by a strike from Friday, 3 April."
"48-hour walk-outs have severely hit secret monitoring stations belonging to the Composite Signals Organisation. The Government is clearly worried and will be subject to huge pressure from NATO allies."
"Defence plans have been upset by the continuing action at naval supplies depots, dock-yards, and other crucial establishments."
Approaches were made on behalf of the Government to local union officials, and later to national CCSU officials, to dissuade them from action which would directly adversely affect operations at GCHQ. Some co-operation was given by the local officials, but none at all by national officers. Sir Brian Tovey (former director of GCHQ) gave evidence to the Employment Committee of the House of Commons on 8 February 1984 and told them that, after one of his subordinates had sought to explain to the general secretary of one of the trade unions the serious consequences that might follow from disruption of certain parts of GCHQ work, the answer was "Thank you. You are telling me where I am hurting Mrs. Thatcher the most."
In 1982 the Government considered whether measures should be taken to prevent the reccurrence of such disruptive action. But at that time the intelligence functions of GCHQ had not been publicly acknowledged by the Government, although they had already been referred to in the newspapers, and it was decided that no action which would involve public acknowledgement of the activities should be taken. In May 1983 following the report of the Security Commission in the case of Geoffrey Prime who had been convicted of espionage at GCHQ, the intelligence role of GCHQ was for the first time publicly acknowledged, and the reason for avoiding public action to deal with disruption was thus removed. The report of the Security Commission on the Prime case is also relevant to this appeal in another way, because it recommended that a pilot scheme should be undertaken to test the feasibility of polygraph security screening at intelligence agencies including GCHQ. The CCSU were opposed to this recommendation and several meetings were held between their representatives and the Cabinet Office officials to discuss the matter. CCSU were concerned that the polygraph might be introduced without adequate consultation and on 9 January 1984 Sir Robert Armstrong wrote to the chairman of their general policy committee explaining that before a decision was taken for the definitive introduction of polygraph, as distinct from the experimental pilot scheme, there would certainly need to be consultations. That was the last word on the polygraph question before the announcement on 25 January 1984 that national trade unions were to be excluded from GCHQ. Their exclusion would necessarily prevent their playing any part in further consultations on the polygraph and that was one of their reasons for resenting the decision of 22 December 1983.
Course of the Proceedings
The trade unions, and some at least of the employees at GCHQ, objected strongly to the decision made on 22 December 1983 and announced on 25 January 1984. Representatives of the trade unions met the Minister for the Civil Service on two occasions in February 1984 to express their objections. They also met Sir Robert Armstrong several times. They presented a draft agreement to prevent disruption at certain parts of GCHQ but the draft was rejected by the Government and no agreement was reached about changing the Government's decision. Eventually the first and second appellants obtained leave from Glidewell J. on 8 March 1984 to bring proceedings for judicial review against the Minister for the Civil Service in respect of the instruction of 22 December 1983 and against the Foreign Secretary in respect of certificates which he had issued under the Employment Protection Act 1975, section 121 (4), and the Employment Protection (Consolidation) Act 1978, section 138 (4), to give effect to the instruction by discontinuing, on national security grounds, the right of staff to appeal to industrial tribunals....
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