HL Deb 17 July 1984 vol 454 cc1343-6

3.32 p.m.

Viscount Whitelaw

My Lords, with permission, I shall repeat a Statement which is being made by my right honourable friend the Prime Minister in another place on the subject of GCHQ.

"Mr. Speaker, with permission, I should like to make a Statement on GCHQ.

"Following the judicial review of the Government's action in respect of GCHQ, Mr. Justice Glidewell, in giving his judgment in the High Court, on four of the five grounds on which the Council of Civil Service Unions had based their case found in favour of the Government.

"The judge confirmed that the Minister for the Civil Service has the right to vary the terms and conditions of service of civil servants so as to exclude membership of trade unions and that an instruction may be given under Article 4 of the Civil Service Order in Council 1982 to this effect.

"Nevertheless, the judge concluded that, because of the lack of prior consultation with the unions concerned, the instruction given in this instance was invalid. His finding did not affect the certificates issued by my right honourable and learned friend the Secretary of State for Foreign and Commonwealth Affairs under the Employment Protection Act.

"In view of the implications of this judgment in the field of national security, the Government are appealing against it and are applying to the court later this afternoon for an early hearing of the appeal.

"The judge indicated that the status quo should be maintained at GCHQ pending consideration of an appeal.

"As the Government will be lodging an appeal later today, it would be inappropriate for me to make any further comment."

My Lords, that concludes the Statement.

Lord Cledwyn of Penrhos

My Lords, we are grateful to the noble Viscount the Leader of the House for repeating the Statement. As the House will appreciate, it raises extremely grave issues. The High Court ruling shows again how important it is that the Government should not ride roughshod over those who are affected by their policies. The necessity to consult is vital, and in this case the judge has ruled that the Government had ignored the rules of natural justice, and that Ministers exercising the royal prerogative through Orders in Council should he subject to the same scrutiny and control by the courts as if statute law were involved.

It is well to bear in mind that after the ban itself was announced unilaterally by the Government the unions offered a basis for a reasonable settlement, the so-called "no strike agreement". At the time, this formula was widely approved, but the Government, imprudently in my view, rejected it out of hand, thereby making confrontation inevitable and casting doubts upon the loyalty of the people employed at GCHQ.

In his ruling the judge gave some good advice when he said: I am confident that Ministers will give proper consideration to any further representations to them, and I cannot be sure that they will inevitably arrive at the same decision as before.". While we note that the Government are to lodge an appeal, and that therefore there are extensive matters with which one cannot deal today, does the noble Viscount not agree that the opportunity now exists to enter into negotiations with the civil service unions forthwith in order to arrive at a sensible and acceptable arrangement, and to avoid protracted and expensive legal proceedings? If they do this it will be to their credit as well as that of the unions concerned, and very much in the public interest.

Baroness Seear

My Lords, we on these Benches would wish also to thank the noble Viscount the Leader of the House for repeating the Statement. I personally must make my apologies for not being in my seat when he began his speech, but I had seen the previous legislation come on the screen and assumed that the Statement was not going to be made immediately.

We recognise that there is an appeal and that therefore this matter is sub judice, but the fact that it can be said in a court of law that the Government have acted contrary to natural justice is something which all of us must deplore. It should be assumed, surely, that any Government would fall over backwards to make certain that no such criticism could possibly be levelled against them.

We on these Benches could hardly be described as the poodles of the trade unions, and yet when this decision was made in the case of GCHQ we urged strongly that the Government were mistaken in the way in which they were acting, and we would certainly have urged that joint consultation at least should take place, as the judge has now said, before the decision was taken. The effect on industrial relations can only be deplorable, especially in dealing with a union which has a highly responsible record.

Viscount Whitelaw

My Lords, I am grateful to the noble Lord and the noble Baroness for their response to the Statement. May I first make my apologies and those of my noble friend the Chief Whip to the noble Baroness, Lady Seear, for the fact that we did not warn her in time before the Statement was made? The fault was entirely ours. I hope we shall not be accused of discourtesy. I do not think that either of us has the habit of being discourteous, and I apologise to the noble Baroness.

On what the noble Lord and the noble Baroness have said, I am advised very strongly that, as some of the matters that they have raised are likely to be the basis of the appeal that the Government are going to make, it would be highly improper for me in these circumstances to reply to their particular criticisms. I think it would also be right for me to say that, because I am not going to reply to them for that reason, it is not necessarily the case that I accept them.

Lord Dean of Beswick

My Lords, is the noble Viscount aware that on each occasion when the question of GCHQ has been raised in the Chamber from this side of the House it has been raised by me? As recently as a fortnight ago I brought to the notice of the Government that they had been found guilty by a committee of the ILO of breaking agreements to which we have been long-time signatories. They have now been found guilty, at present—though the appeal may decide otherwise—of being in breach of the law of this country. Does this not appear to be a case where the Government are in agreement with the referee so long as he always blows the whistle in their favour? I would urge the noble Viscount, who I know is a fair-minded man, that the best way to resolve this situation is not in the courts, but by arriving at an agreed solution with the trade unionists involved. That would avoid the appalling damage that would linger for a long time if the matter were decided in the courts in an adverse manner to those people.

Viscount Whitelaw

My Lords, I think it would be fair for me to say that since the Government feel that this judgment has substantial implications for national security, they are exercising their right to appeal, as I am sure has been the case with all Governments. The noble Lord would not deny that the Government have the right to appeal, just as the unions exercised their right to go to court. That is the position, and it is not unique in any way.

Lord Mottistone

My Lords, would my noble friend not agree that after the clever men of the Civil Service unions had unwisely involved GCHQ in their selective strikes at the beginning of the last Parliament, the action that the Government took in relation to trade union representation was inevitable? Does my noble friend not agree also that in the circumstances any preliminary discussion with trade unions would have led to unnecessary argument in a very sensitive area of national security?

Lord Elwyn-Jones

My Lords, while there is far more latitude in regard to the application of the sub judice rule to proceedings in the Court of Appeal, nevertheless the rule does apply especially to the desirability of avoiding sharp statement of facts that are in dispute in the case, as the noble Lord is now endeavouring to do.

Viscount Whitelaw

My Lords, I shall answer my noble friend as neutrally as I felt I had to do in the case of the noble Lord, Lord Cledwyn, and the noble Baroness, Lady Seear, and, indeed, the noble Lord, Lord Dean. It would he improper to do more, in view of the appeal; in this I am supported by no less an authority than the noble and learned Lord, Lord Elwyn-Jones. In the circumstances it would be wrong for me to comment either way on these matters.

Lord Diamond

My Lords, while thanking him very much indeed, may I ask the noble Viscount for his assurance that when the further proceedings are terminated—not necessarily in the court to which they are going at the moment—there will be at least an opportunity for further discussion, by way of a Statement being made, though with possibly a greater opportunity than that?

Viscount Whitelaw

My Lords, I can do no more than commit myself to the noble Lord, Lord Diamond, and to the fact that there will inevitably be a Statement at that stage. I expect that it will be at least a Statement, though probably it will amount to considerably more.

Baroness Phillips

My Lords, may I ask the noble Viscount the Leader of the House a very simple question? He stated that the judicial inquiry had found in favour of the Government. Why, then, is it necessary to appeal?

Viscount Whitelaw

My Lords, the noble Baroness will appreciate that while the judge found in favour of the Government on four of the five counts, he did not find in favour of them—in fact he found against them—on the lack of prior consultation with the unions concerned.

Lord Mountgarret

My Lords, may I ask my noble friend whether the Government in general and the Prime Minister in particular took legal advice on this matter before considering the propriety or legality of the situation which has now arisen? If they did, what was the advice so given; and if they did not, why not?

Viscount Whitelaw

My Lords, it would be wrong of me to reply to that, except to say that I cannot imagine any Government that I have ever been in not taking some legal advice on all their actions very properly from their law officers.