Editorial Committee of the Cambridge Law Journal

Prerogative. Judicial Review. National SecurityAuthor(s): K. D. EwingSource: The Cambridge Law Journal, Vol. 44, No. 1 (Mar., 1985), pp. 1-3Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506684 .

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THE

CAMBRIDGE LAW JOURNAL

YOLUME 44, PART I MARCH 1985

CASE AND COMMENT

PREROGAnVE-JUDIClAL REVIEW NA110NAL SEC.URITY

0s 22 December 1983 the Minister for the Civil Service decided that new conditions of service would be introduced at Government Communications Headquarters (G.C.H.Q.). Staff would no longer be permitted to belong to national trade unions and would be free only to join a departmental staff association. This change was a response to the history of industrial action at G.C.H.Q. and was made under the authority of an Order-in-Counci} which empowers the Minister to give instructions for controlling the conduct of the home civil serviceX The instruction in this case was given without any prior consultation with the civil servants concerned or with the appropriate trade unions which they had been permitted and indeed encouraged to join. The simple question before the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 W.L.R. 1l74 was whether this instruction was bad on the ground of procedural impropnety.

The immediate stumbling block to any challenge on this or any other ground was that the instruction was issued in the exercise of a power under the royal prerogative. Although the courts could determine the existence and extent of a prerogative power it seems to have been settled law that they had no authority to reviesv the way in which that power was exercised. The House of Lords, however, boldly discarded the constraints of settled law, with three of their Lordships (Diplocks Scarman and Roskill) holding that, as with the exercise of statutory powers, the exercise of the prerogative is in principle subject to judicial review. Their reliance on R. v. Criminal lnjuries Compensation Board, ex p. Laln [ 196?] o Q. B. 864 seems misguideds for tUs is surely not an example of the review of the exercise of the prerogatives which was employed to create the Board, but of the principle that any tribunal is amenable to the jurisdiction of

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The Cambridge Law Journal [1985] 2

the courts in so far as its own conduct is concerned. To say that the judgments therein "may without exaggeration be described as a landmark in the development of this branch of the law" (per Lord Roskill) seems an overstatement. To describe the decision as "comparable in its generation with the Case of Proclamations" (per Lord Scarmarl) is astounding.

In so holding, Lord Diplock adopted an expansive view of the prerogative, with his reasoning extending to all non-statutory powers of the Crown which have consequences on the private rights or legxtimate expectations of other persons. Lord Fraser, with whom Lord Bnghtman agreed on this point, was more cautious, holding only that the exercise by someone of powers delegated to him under the authority of the prerogative are reviewable. ln this case the Minister had exercised a delegated power: delegated to her by the Sovereign under the Order-in-Council.

Despite the caution of Lord Fraser, G. C.H. Q. is unquestionably a great breakthrough in principle. It is important to note, however, that the practical effect of this breakthrough may be rather limited. First, not all prerogative powers can be the subject of judicial review: the courts will intervene only if the issue in question is justiciable, that is to say, if it is a matter on which the courts can adjudicate. Lord Roskill indicated that the list of non-justiciab}e prerogative powers is a long one which includes the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers, "as well as others" which he did not specify. Indeed, the only power which was held to be subject to review is the regulation of the terms and conditions of engagement of civil servants. This is clearly of first importance to those engaged by the Crown, particularly in light of their precarious legal position. But without denying the great constitutional impos- tance of the case, this is unlikely to help the rest of us to sleep any easier in the Squire Library. It is true that there may be other non-statutory powers which are justiciable. But it is equally true that the issuing of passports is one of only a few such powers which leap from the pages of the textbooks with arms extended.

So the first point is that review depends on whether the subject-matter of the prerogative in question is justiciable, and many powers are not. A second point is that even if the subject-matter is justiciable, review may still be excluded if the action in question has been taken for reasons of national security. It was on this ground that the appellants failed, with the Minister having decided without prior consultation in order to avoid the risk of union-organised disruption of the monitoring services at G.C.H.Q. The exclusion of judicial review for this reason is not particularly novel: the courts typically

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C.L.J. Case and Comment 3

permit the rule of law to be subordinated to the external and internal

security interests of the State. It is true that the mere assertion by the

Government that they acted on security grounds is not enough. In the

G.C.H.Q. case the Lords confirmed that there must be evidence that

this was in fact a reason for the decision. A majority of the Lords also

confirmed, however, that the courts will go no further, and will not

question whether the steps taken are in fact necessary to protect national security. What is necessary is a matter on which the

Government must have the last word. In Chandler v. D.P.P. [1964] A.C. 763 Lord Devlin warned that "Men can exaggerate the extent of

their interests and so can the Crown" (at p. 811). But in the

G.C.H.Q. case only Lord Scarman in which was, on this point, an

otherwise timid performance by their Lordships seemed alert to this

fact. K. D. Ewing.

C.L.J. Case and Comment 3

permit the rule of law to be subordinated to the external and internal

security interests of the State. It is true that the mere assertion by the

Government that they acted on security grounds is not enough. In the

G.C.H.Q. case the Lords confirmed that there must be evidence that

this was in fact a reason for the decision. A majority of the Lords also

confirmed, however, that the courts will go no further, and will not

question whether the steps taken are in fact necessary to protect national security. What is necessary is a matter on which the

Government must have the last word. In Chandler v. D.P.P. [1964] A.C. 763 Lord Devlin warned that "Men can exaggerate the extent of

their interests and so can the Crown" (at p. 811). But in the

G.C.H.Q. case only Lord Scarman in which was, on this point, an

otherwise timid performance by their Lordships seemed alert to this

fact. K. D. Ewing.

LIBERTY IN BOPHUTHATSWANA: A NEW DIRECTION

In "Dreams of Liberty" ([1983] C.L.J. 5) I drew attention to the fact that there existed in the law of Bophuthatswana (one of the

"independent" states created in South Africa as part of the policy of

separate development) a judicially enforceable Bill of Rights, and that in S. v. Marwane [1982] 3 S.A. 717(A) the Appellate Division of the Supreme Court of South Africa (at that time the final court of

appeal for Bophuthatswana) had, in reliance upon that Bill of Rights, held that crucial parts of the draconian South African security laws were not applicable in Bophuthatswana. Now in Smith v. Attorney- General, Bophuthatswana [1984] 1 S.A. 196(B) the Bophuthatswana Supreme Court has struck down as invalid an enactment of the

Bophuthatswana Parliament because it was in confiict with the Bill of

Rights. Smith v. Attorney-General thus demonstrates that the judiciai review of statutes because of their denial of liberty is still a live issue in southern Africa. The judgment of Hiemstra C.J., however, gives considerable cause for concern. Although he struck down the

offending statute, he disapproved of Marwane and made some remarks which suggest that in future the Bill of Rights will not be

interpreted (as Marwane required) to give "full recognition and effect" to the fundamental rights and freedoms guaranteed therein.

Smith v. Attorney-General was an appeal against the refusal of bail by a magistrate. Smith faced charges of fraud and theft and was denied bail in terms of section 61A of the Criminal Procedure Code. This section provided, broadly speaking, that the court should deny bail to any accused not ordinarily resident in Bophuthatswana who the Attorney-General, according to information in his possession,

LIBERTY IN BOPHUTHATSWANA: A NEW DIRECTION

In "Dreams of Liberty" ([1983] C.L.J. 5) I drew attention to the fact that there existed in the law of Bophuthatswana (one of the

"independent" states created in South Africa as part of the policy of

separate development) a judicially enforceable Bill of Rights, and that in S. v. Marwane [1982] 3 S.A. 717(A) the Appellate Division of the Supreme Court of South Africa (at that time the final court of

appeal for Bophuthatswana) had, in reliance upon that Bill of Rights, held that crucial parts of the draconian South African security laws were not applicable in Bophuthatswana. Now in Smith v. Attorney- General, Bophuthatswana [1984] 1 S.A. 196(B) the Bophuthatswana Supreme Court has struck down as invalid an enactment of the

Bophuthatswana Parliament because it was in confiict with the Bill of

Rights. Smith v. Attorney-General thus demonstrates that the judiciai review of statutes because of their denial of liberty is still a live issue in southern Africa. The judgment of Hiemstra C.J., however, gives considerable cause for concern. Although he struck down the

offending statute, he disapproved of Marwane and made some remarks which suggest that in future the Bill of Rights will not be

interpreted (as Marwane required) to give "full recognition and effect" to the fundamental rights and freedoms guaranteed therein.

Smith v. Attorney-General was an appeal against the refusal of bail by a magistrate. Smith faced charges of fraud and theft and was denied bail in terms of section 61A of the Criminal Procedure Code. This section provided, broadly speaking, that the court should deny bail to any accused not ordinarily resident in Bophuthatswana who the Attorney-General, according to information in his possession,

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