Discretion and Deference cases

Subscribe on YouTube

I help people navigate their law degrees

🎓 Simple and digestible information on studying law effectively.

🎬 One new video every week (I accept requests and reply to everything!)

📚 FREE courses, content, and other exciting giveaways.

Gareth Evans' personal youtube channel

Council of Civil Service Unions v Minister for the Civil Service [1985] (GCHQ case)

Facts: The Prime Minister (Thatcher) changed the terms and conditions of employment for workers at GCHQ (security service for intelligent gathering), such as to preclude the possibility of them going on strike. This was done using the prerogative without consultation with the unions. Thatcher claimed that the national security context (the vulnerability of the UK might be in if staff at GCHQ were to go on strike) necessitated or justified her actions, and that such decisions based on national security considerations are for her - not the courts - to make

Held: The court agreed

  • Lord Roskill said that in some areas (such as national security) “the courts must accept that the claims of executive power must take precedence over those of the individual” → this is deference

One interpretation of the case is that any national security context presented in court in judicial review proceedings will necessarily lead to the claim failing. This is not an accurate reading of the ratio of the decision, but it is certainly true that the invocation of national security makes a claim in judicial review considerably more difficult for the claimant (e.g. Bancoult No 2).

R (Corner House Research) v Director of the Serious Fraud Office [2009]

Facts: The SFO were investigating allegations of corruption at BAE Systems, in respect of a major arms deal with the Saudi Arabian Government. The investigations were high profile and well reported; the Saudi Government threatened the UK Government to drop the criminal investigation or otherwise lose their cooperation on global counter-terrorism. As if by magic, the SFO’s investigations were dropped

  • The claimants (Corner House Research) brought proceedings in judicial review on the grounds that the decision to drop the investigation was unlawful, for allowing the Saudi threat to influence the SFO’s discretion.

Held: CIn spite of the heavy national security context, the Administrative Court (High Court) agreed:

  • “The courts fulfil their primary obligation to protect the rule of law, by ensuring that a decision-maker on whom statutory powers are conferred, exercises those powers independently and without surrendering them to a third party.” (High Court, at [67] Moses LJ).

On appeal to the House of Lords, the SFO’s appeal was allowed

  • The House of Lords ruled that the decision to cease investigations, given the specific threat that goes to national security, was one that the SFO was lawfully entitled to make (so Moses LJ’s decision in the High Court is no longer good law)

The Art of Getting a First in Law - ONLY £4.99

FOOL-PROOF methods of obtaining top grades

SECRETS your professors won't tell you and your peers don't know

INSIDER TIPS and tricks so you can spend less time studying and land the perfect job

We work really hard to provide you with incredible law notes for free...

The proceeds of this eBook helps us to run the site and keep the service FREE!


R (Javed) v Secretary of State for the Home Department [2001]

Facts: The Minister sought to implement a new procedure in relation to immigration and claims for asylum. Countries would be placed on a ‘white list’ if they were designated ‘safe’—that is, where the return of a failed asylum seeker would pose no risk of treatment contrary to Article 3 ECHR (inhumane and degrading treatment or torture). This would allow for the swift return of failed asylum seekers from these countries

The Minister sought to include Pakistan on the ‘white list’ of safe countries. The House of Commons approved a resolution placed before it which, amongst other things, placed Pakistan on the ‘white list’ meaning that any failed asylum seeker from Pakistan could be returned without legal barrier (specifically those barriers relating to Article 3 ECHR).

The claimant was an Ahmadi woman whose claim for asylum was rejected. Before she could be deported to Pakistan, she sought judicial review of the Minister’s decision to include Pakistan on the ‘white list.’ She argued that as an Ahmadi woman she faced specific threats to her wellbeing that had not been taken into account when the decision was made to deem Pakistan ‘safe’ for the purposes of deportation

Held: Her claim was successful, and confirmed on appeal to the Court of Appeal. Even though both Houses of Parliament affirmed the Minister’s decision by resolution, the decision (which in law is the Minister’s) could be judicially reviewed on all grounds of review.

  • Lord Phillips MR (as he then was) gave a powerful judgment dismissing the Minister’s arguments and seeing no difficulty in treating the resolutions of both Houses as relevant but not decisive - in particular, Lord Phillips scrutinised what debate had taken place in Parliament. Since the debate did not cover the position of Ahmadi women in Pakistan, the deference due to Parliament would be altered accordingly.

R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986]

Facts: The Minister produced a report on local authority funding, which was approved by the House of Commons in a vote (not an Act of Parliament). The report was implemented, allowing for central government contributions to local authorities to be determined with reference to the financial prudence of the local authority in the previous financial year

Nottinghamshire CC (the claimant) was a local authority whose finances were not in the best shape. They would stand to lose a significant portion of their income with these new changes - no doubt worsening their financial position. They sought to judicially review the implementation of the report by the Minister

Held: The claim ultimately failed:

  • “I can understand that there may well arise a justiciable issue… but I cannot accept that it is constitutionally appropriate, save in very exceptional circumstances, for the courts to intervene on the ground of ‘unreasonableness’ to quash guidance framed by the Secretary of State and by necessary implication approved by the House of Commons” (per Lord Scarman)
  • In other words, Lord Scarman said the court should be reluctant to intervene because of the context

Law Application Masterclass - ONLY £9.99

Learn how to effortlessly land vacation schemes, training contracts, and pupillages by making your law applications awesome. This eBook is constructed by lawyers and recruiters from the world's leading law firms and barristers' chambers.

✅ 60+ page eBook

✅ Research Methods, Success Secrets, Tips, Tricks, and more!

✅ Help keep Digestible Notes FREE

Course on the art of learning effectively, a reading masterclass