Sunday, June 20, 2010


The case first went to the High Court of Justice, where it was heard by Glidewell J. Glidewell found that the employees of GCHQ had some right to consultation beforehand, and that the lack of consultation made the decision invalid. The decision was then taken to the Court of Appeal, where it was heard by Lane CJ, Watkins and May LJJ. The Court of Appeal took a "strongly non-interventionist-stance", holding that judicial review could not be used to challenge the use of the Royal Prerogative, because it is an executive rather than a judicial right to judge national security requirements. It would be inappropriate for the courts to intervene.[2]
The decision was again appealed, this time to the House of Lords, where it was heard by Lord Fraser, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman; judgment was given on 22 November 1984. The House of Lords chose to overrule the Court of Appeal, with Diplock, Scarman and Roskill all holding that the use of the Royal Prerogative was by default subject to judicial review, in a similar fashion to statutory actions.[3] The Lords differed on their approach to this; Diplock held that any prerogative power which impacted on the "private rights or legitimate expectations" of people, while Lords Fraser and Brightman held that only powers delegated from the monarch could be subject to judicial review. This case was a valid scenario for that review, in that the powers had been delegated from the monarch to the Minister for the Civil Service.[4]
Despite this attitude, the appeal failed due to the national security grounds. Lords Fraser, Scarman and Diplock all believed that the issue of national security was outside the remit of the courts, Scarman writing that "It is par excellence a non-justiciable question. The judicial process is totally inept [sic] to deal with the sort of problems which it [national security] involves". Fraser stated that while the courts would not by default accept a government statement that there was a national security issue, it was a "matter of evidence", and the evidence provided showed that the government was correct.[5]

No comments:

Post a Comment