The Council of Civil Service Unions and Others Respondents) v The Minister for the Civil Service Appellant)

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date06 August 1984
Judgment citation (vLex)[1984] EWCA Civ J0806-1
Docket Number84/0345
CourtCourt of Appeal (Civil Division)
Date06 August 1984

In the Matter of an Application by Ccsu and Jack Hart for an Order of Judicial Review

And in the Matter of Certificates Issued by the Secretary of State for Foreign and Commonwealth Affairs Dated 25 January 1984 Pursuant to Section 121(4) Employment Protection Act 1975 and Section 138(4) Employment Protection (Consolidation) Act 1978

And in the Matter of Instructions Purportedly Issued Undre Article 4 of the Civil Service Order in Council 1982 Set Out in Letters Dated 20 January 1984, 7 February 1984, 21 February 1984 and in General Notice 100/84 of 25 January 1984

Between:
(1) The Council of Civil Service Unions
(2) Jack Hart
(3) Anne Sarah Downey
(4) Christopher Hugh Braunholtz
(5) Jeremy Windust
(6) David Francis McCaffrey
(7) Dennis Mitchell
(Applicants) Respondents
and
The Minister for the Civil Service
(Respondent) Appellant
Before:

The Lord Chief Justice of England

(Lord Lane)

Lord Justice Watkins

and

Lord Justice May

84/0345

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (DIVISIONAL COURT)

(MR. JUSTICE GLIDEWELL)

Royal Courts of Justice.

MR. LOUIS BLOM-COOPER, Q.C., MR. PATRICK ELIAS and MR, RICHARD DRABBLE (instructed, by Messrs. Lawford & Co.) appeared on behalf of the (Applicants) Respondents.

MR. SIMON BROWN and MR. JOHN MUMMERY (instructed by the Treasury Solicitor) appeared on behalf of the (Respondent) Appellant.

THE LORD CHIEF JUSTICE
1

This is the judgment of the court.

2

This is an appeal from a decision of Mr. Justice Glidewell on the 16th July last, whereby he declared that the instructions issued by the Minister for the Civil Service (i.e. the Prime Minister) (to whom we shall refer as the appellant) on the 22nd December, 1983 to the effect that civil servants serving at the Government Communications Headquarters (GCHQ) should no longer be permitted to be members of any trade union other than a departmental staff association approved by the director of GCHQ were invalid and of no effect.

3

In view of the meticulous way in which the learned judge approached his task and his detailed exposition of the facts (to which reference can be made), we are able to deal with the factual background to this appeal more cursorily than would otherwise have been the case.

4

GCHQ is a branch of government service of whose purpose the public was only recently formally made aware. As an indirect result of the prosecution in 1982 of Geoffrey Arthur Prime for offences under the Official Secrets Acts, the Prime Minister publicly divulged that the function of GCHQ—a part of the Foreign and Commonwealth Office—is to ensure the security of the United Kingdom's military and official communications and to provide intelligence—mainly signals intelligence—for the government. The importance of this function and its delicate and confidential nature is obvious and needs no emphasis. The main establishment is at Cheltenham. About 4,000 people are employed there. There are other smaller branches of the organisation up and down the country.

5

There can be no dispute but that the activities of the civilian-manned GCHQ are of paramount importance in the interests of national security, and that it is essential that they should be maintained at all times without disruption or interference.

6

As Sir Robert Armstrong, Secretary of the Cabinet and head of the Home Civil Service, asserts in his affidavits sworn on behalf of the appellant, any significant interruption in the flow of intelligence from GCHQ would deprive the government of the day-to-day information which could be vital.

7

From 1957 until early 1984, it had been the policy of successive governments to encourage the civilian staff at GCHQ to become members of national unions, to recognise such unions where appropriate and to negotiate with them as representing the staff.

8

Between February 1979 and April 1981, there were seven occasions when industrial action was taken at GCHQ. Although the respondents do not regard the nature of these stoppages to have been as serious as Sir Robert Armstrong in his affidavit makes out, saying that they were more in the nature of publicity exercises than serious disruptions, nevertheless stoppages there undoubtedly were. Judging by the campaign reports issued by the Council of Civil Service Unions (CCSU) the sensitive nature of the operations at GCHQ represented a valuable target for their efforts. We quote from the report issued in or about March 1981 as follows:

"Selective strikes. The use of selective strike action by members in sensitive areas is a key part of our campaign. 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."

9

In the "Campaign Opinion"—journal of the Society of Civil and Public Servants—in a copy which is undated, under the heading "United we stand", appears the following:

" Signals. One of the most embarrassing effects of the strike for the Government has been the effect on its role in monitoring Soviet and other satellites and broadcasts. Action at several ultra secret signals and communication centres has taken place and will continue. Those already affected include…"

10

There have been other assertions in a similar vein. For instance, as appears from the parliamentary report of the debate on the 27th February, 1984, page 27, in a speech by the Foreign Secretary, a national officer of the Civil and Public Services Association was saying in February 1979:

"The strike would completely paralyse Government communications, both internally and externally."

11

In March 1981, the unions announced:

"There will be a range of selective and disruptive action which will affect Britain's secret communications surveillance network. There will be both national and international repercussions."

12

In these circumstances, ministers took the view that national unions were pressing staff at GCHQ to place their loyalty to their union above their loyalty to the service to the detriment of national security, and that industrial disruption of the kind which took place could do very real damage to national security.

13

The reason put forward by Sir Robert for the government's failure to act until the end of 1983, despite what must have been their fears in April 1981, was that it was not until May 1983, after the report on the Prime case already mentioned, that the intelligence role of GCHQ was officially acknowledged. This acknowledgment enabled a re-examination to be made of the problems which had been caused by the presence of national unions at GCHQ. Accordingly, in December 1983, the ministers concerned decided that the conditions of service of GCHQ staff should be brought into line with the arrangements prevailing in other security and intelligence agencies, by ensuring that national unions ceased to play a part in its affairs.

14

The ministers involved considered the possibilities of negotiating a no-disruption agreement with the national unions. This, however, was rejected as not providing a sufficient guarantee that no difficulties would arise in the future. They also regarded any such consultations as themselves being dangerous to the national security. Sir Robert Armstrong in paragraph 16 of his first affidavit said this:

"To have entered such consultations would have served to bring out the vulnerability of areas of operations to those who had shown themselves ready to organise disruption and consultation with individual members of staff at GCHQ would have been impossible without involving the national unions. Ministers were of the view that the importance of the decision was such as to warrant its first being announced in Parliament."

15

On the 22nd December, 1983, therefore, the Prime Minister issued her instructions, and on the 25th January, 1984 Sir Geoffrey Howe, Secretary of State for Foreign and Commonwealth Affairs announced in the House of Commons that he had issued two certificates under section 121(4) of the Employment Protection Act 1975 and section 138(4) of the 1978 Consolidation Act, excepting the employment of all persons employed at GCHQ from the provisions of these sections for the purpose of safeguarding the national security. This had the effect inter alia of withdrawing from those employees the right to belong to a trade union or to apply to an industrial tribunal.

16

In the Report of the Security Commission on the Prime case, a number of recommendations were made including, for example, the introduction of random exit searches in government establishments such as GCHQ, and that a pilot scheme should be introduced to test the feasibility of polygraph ("lie detector") security screening in the intelligence and security agencies. These recommendations were followed by discussions between the government on the one hand and the CCSU on the other on aspects of the Security Commission's Report which might affect the employees of GCHQ. Mr. Peter Derek Jones, the secretary of CCSU, sets out in his affidavit a number of meetings which took place between representatives of the government and representatives of the union at which discussions took place, particularly with regard to the introduction of the pilot scheme for the use of the polygraph. These discussions and meetings were going on at intervals from May 1983 onwards. In none of those discussions relating to security matters prior to the 25th January, 1984 was there any indication, either formal or informal, of any proposal by the government to ban unions at GCHQ or to remove employment legislation rights from the staff there. Mr. Jones asserts in his affidavit that he believes that the...

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