Illegality, Irrationality and Procedural Impropriety

In one line

Lord Diplock reduced two centuries of administrative law to three words, and every syllabus in the common law world has used them since.

In the wording a student can write in an exam: in Council of Civil Service Unions v Minister for the Civil Service, Lord Diplock classified the grounds on which administrative action is subject to control by judicial review under three heads, illegality, irrationality and procedural impropriety, and said that further development might add proportionality, which is recognised in the administrative law of several European countries.

The case

Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374.

Facts. Government Communications Headquarters at Cheltenham handles signals intelligence and secures official communications. Since 1947 its staff had been permitted and encouraged to belong to national trade unions, and there was a well established practice of consultation about important changes in conditions of service. On 25 January 1984 the Foreign Secretary announced that new conditions had been introduced with immediate effect, under an oral instruction given on 22 December 1983 by the Minister for the Civil Service under article 4 of the Civil Service Order in Council 1982, by which staff could no longer belong to national unions. There had been no consultation at all. The unions sought judicial review.

Held. A decision is not immune from review merely because the power to make it comes from the prerogative rather than from a statute; what matters is the subject matter. Lord Diplock classified the grounds under three heads. By illegality he meant that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it, and whether he has is a justiciable question for the judges. By irrationality he meant what can now be succinctly referred to as Wednesbury unreasonableness: a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it. He called the third head procedural impropriety rather than failure to observe natural justice because it covers also a failure to observe procedural rules expressly laid down in the instrument conferring jurisdiction, even where that failure involves no denial of natural justice.

Held on the fourth ground and on the facts. Lord Diplock added that further development on a case by case basis might add further grounds, having in mind particularly the possible adoption of the principle of proportionality recognised in the administrative law of several fellow members of the European Economic Community. On the facts the unions would have had a legitimate expectation of consultation, but the Government produced evidence that consultation would itself have risked the disruption it was intended to avoid, and the requirements of national security are for the Government and not the courts to judge, so the appeal failed.