william blackstone
the courts have traditionally been unwilling subject prerogative powers judicial review. judges willing state whether powers existed or not, not whether had been used appropriately. therefore applied first of wednesbury tests; whether use illegal. constitutional scholars such william blackstone have considered appropriate.
the gchq case, therefore, highly important; held application of judicial review dependent on nature of government s powers, not source. while use of royal prerogative national security reasons considered outside scope of courts, other uses of prerogative judicially reviewable in form.
the gchq case confirmed non-legal conventions might subject legitimate expectation . convention not have been litigible, , necessary court demonstrate in present case: such rule had been established in respect of cabinet conventions in attorney general v jonathan cape ltd. although court ruled against union, accepted invariable practice of executive forming basis legitimate expectation.
the case shows national security remains political issue , not legal one, not determined court.
it summarises scope of judicial review.
further developments
lord brightman, ccsu v minister civil service
in r (bancoult) v secretary of state foreign , commonwealth affairs (no 2), heard @ house of lords, 1 of matters decided whether or not courts subject orders in council judicial review. lords unanimously agreed although orders in council defined primary legislation in human rights act, there significant difference in orders in council executive product, , lack representative character comes parliamentary authority , approval. such, lords saw no reason why prerogative legislation should not subject review on ordinary principles of legality, rationality , procedural impropriety in same way other executive action .
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