Royal Prerogative: From GCHQ to the NHS

January 20th, 2016 | Posted by admin in Law & Politics

The New Year saw old problems for the government regarding public healthcare.

It was not the annual ‘winter crisis’ in the NHS, it was not the white elephant of endless NHS funding and spending, and not even the increased row over the creeping privatisation of the NHS. The matter that returned like an unwanted Christmas gift was the row over the new proposed Junior Doctor contracts.

Proposed last year, the British Medical Association (BMA) considered many of the new terms and conditions (particularly over unsociable hours and pay) to be detrimental to new doctors and have been actively fighting against the new contracts. That has ended in industrial action being taken by doctors.  There has been great deal of public and media support and sympathy for doctors as the row has escalated throughout 2015. Making the decision to strike was not easy for the BMA, despite 98% of BMA members approving the strike action last November. It is contrary to what doctors believe in, and hold dear. Doctors want to be there for their patients, and to be caring for those who need medical attention – not out on strike seeking media attention.

January saw the talks between the BMA and the Department of Health finally break down. Although ACAS has been invited in to facilitate further talks, currently the strike actions will unfortunately go ahead. As talks continue- it is to be hoped that a consensus will be reached soon, to avoid further strikes, or similar industrial action.

As unfortunate as it is for patients, and for the political hopes and future of the beleaguered Health Secretary Jeremy Hunt MP (Con- South West Surrey), in a democracy, workers have the right to form and join unions, and for the relevant unions to lobby and act on their behalf. Further, British law absolutely entitles and sets out out the right of all workers to take industrial action, or to strike, if appropriate. Any attempts to contravene that, or to prevent that, are illegal and immoral. Of course, there are situations and times where that right to strike and form a union can be suspended (for example, in the British military, any industrial action is legally considered as a mutiny, and those involved are treated as mutineers) , or worked around- but those are extremely few and far between.

That right to unionise and strike was seen in the celebrated case of Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL6.

Prior to 1983, the British Government did not even acknowledge the existence of Government Communication HQ (GCHQ, the signals and electronic interception intelligence agency). Following a 1983 espionage scandal, the agency came into the public spotlight. It was subsequently decided that employees of the intelligence agency would not be allowed to join a trade union for national security reasons.

Inevitably, this attracted even more unwelcome attention. Many trade unions were outraged at this, including various Civil Service unions. Despite various campaigns, the government did not reverse its decision.

The Minister for the Civil Service (an ex offiico honororary role held by the Prime Minister) enacted this decision through an Order in Council, and thus exercised the Royal Prerogative. Indeed, it was the Prime Minister and a select few advisers who has made the decision, and enacted it, as opposed to a discussion with the full Cabinet. The Royal Prerogative is essentially a body of independent power and authority that the Sovereign has accumulated over the centuries. These days, Royal Prerogative powers are exercised by the Prime Minister and Executive on behalf of the Sovereign.

To challenge this decision, the Council of Civil Service Unions brought a judicial review against the government. Prior to the GCHQ Case, judges were extremely reluctant on legal grounds to hear judicial review cases against the state, despite acknowledging that the legal right and process existed. As such, it was unsurprising that the initial hearings were unsatisfactory to both sides – and that the Court of Appeal held that judicial review could not be used to challenge the exercise of the Royal Prerogative. The Court of Appeal also felt that national security was a clear function of the Executive, and as such it was inappropriate for the courts to intervene in this matter.

The surprise for both the Civil Service unions and the government came in the House of Lords. In his key judgment, which set the framework and groundwork for modern, 21st century judicial review, the three judges found that there was a case for judicial review.

Lord Diplock, in a notable speech that is still very relevant concerning judicial review, found that the Royal Prerogative can actually be challenged by a judicial review. This was a grave departure form previous legal precedent. However, the House of Lords was at pains to stress that not all exercise of Royal Prerogative could be challenged by judicial review; it was very much on a case by cases basis. Further, national security was still considered to be a political, rather than a legal, issue. As such, any use of the Royal Prerogative concerning national security cannot be challenged by a judicial review.

The GCHQ case is still significant today. Essentially, the House of Lords admitted that more of the government’s actions could be called to account via a judicial review, and that that area of law was still emerging and developing. There was a clear distinction made between the source of the government’s power (in this case, use of Royal Prerogative) and the nature of that power (in this case, a political power concerning national security).

Royal Prerogative powers can be challenged via a judicial review on the grounds of ‘illegality’, ‘irrationality’, or ‘procedural impropriety.’ New contracts for doctors needs no judicial review to be challenged on similar grounds, as the BMA and the medical profession seem to be demonstrating quite clearly.

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