Control of the prerogative - GCHQ

Question 1

Before the mid-80s what did the courts restrict themselves to adjudicating on?

Answer 1

Only if the government had a prerogative power and on what the exact scope or limits of that power were.

Question 2

What was the main outcome of GCHQ?

Answer 2

The government can no longer shelter behind the fact a power came from the prerogative.

The courts are able to decide whether a prerogative power has been exercised lawfully.

Question 3

What was the facts of GCHQ?

Answer 3

The Prime Minister tried to ban union membership at the British Intelligence headquarters (GCHQ) without consulting civil servants.

Civil servants argued that they had always been consulted on this restriction because they had a legitimate expectation based on the government’s past conduct.
The government argued that the court was not able to interfere in how it had used its prerogative power to regulate the working conditions and terms of the Civil Service, The HoL disagreed (although the government eventually won the case on a different point).

Ultimately, the law lords found the PM used her prerogative power lawfully as there was a justifiable public interest in lot consulting the trade unions.

Question 4

In GCHQ what was the obiter in relation to what matters are not susceptible to judicial review?

Answer 4

*The making of treaties

*Defence of the realm

*Mercy

*Granting of honours

*Dissolution of Parliament

*Appointment of ministers

Question 5

How do the courts respect separation of powers in relation to judicial review of prerogative powers?

Answer 5

It was noted in GCHQ that the judiciary regulate the extent of their own involvement in the more political areas of public law.

Some of the powers exercised under the prerogative involve matters which are not suitable for court adjudication, as they are essentially political judgment calls.

Notable examples would be the appointment of ministers.