- GCHQ: branch of public service (public function)
- 1984 GCHQ staff not permitted to belong to national trade unions
Whether the oral instruction (exercise of royal prerogative) by PM is valid? A: Invalid - PM did not consult staffs prior to exercise of power, so this was a failure in procedural obligation.
Whether Courts have power to review instruction on the ground of procedural irregularity: (a) power exercised was royal prerogative (not statute)
(b) involves national security (GCHQ) --> EP Act '78 no right of appeal by staff if national security grounds concerned.
History of Appeal
(LC): R appealed because LC granted declaration; procedural irregularity, decision is to be remade. (CA): reverse of LC's decision - accepted R's appeal, rejected A's application for JR.
- Does art 4 Order give Minister the royal prerogative to issue instruction? - Order issued by sovereign (and her prerogative) and not by Act of P
- within the sphere of prerogative, Crown has absolute discretion [Dicey] "the remaining portion of Crown's original authority…the residual of discretionary power left at any moment in the hands of Crown [or his ministers]"
R's submission (1)
the way direct prerogative powers are exercised is not open to review by the Courts. - Courts should identify the existence of prerogative
Yes? Identify the extent of the power.
No further inquiry into the propriety of its exercise
---> J believed it was unnecessary to decide this questions; assumes it's correct So all powers exercised directly under prerogative are immune from challenge in Courts
R's submission (2)
non-direct exercise of prerogative (delegated power in Order but was made under prerogative) enjoys immunity from review, same as direct exercise of prerogative?