Right to respect for private and family life - Military
R (on the application of Harrow Community Support Unit) v Secretary of State for Defence: QBD (Admin) (Mr Justice Haddon-Cave (judgment delivered extempore)): 10 July 2012
The claimant was a residents’ association formed by the residents of Fred Wigg Tower (the tower) in Leytonstone, east London.
The tower was a 15 storey residential tower with panoramic views over the Olympic Park. On 27 April 2012, the defendant secretary of state informed the residents that the military were to locate a ground based air defence system (GBAD) and military personnel on the roof of the tower during the Olympic and Paralympic Games. The GBAD system was part of a multi-layered strategy to protect the Olympic park from potential terrorist attacks.
The tower was to be one of two high-velocity missile (HVM) sites which formed the inner part of the GBAD system. The HVM system did not depend on high explosives but utilised kinetic energy relying on speed and mass on impact. In 2011, surveys were carried out of suitable sites for the GBAD system. Six sites were identified including only two HVM sites which met the technical and operational requirements. The tower was chosen by reason of its proximity to the Olympic Park and because it offered clear sitelines towards the Olympic Park and 360-degree views of the airspace. The secretary of state had previously announced to parliament the intention to provide a multi-layered protection system for the Olympic Games. The Ministry of Defence had engaged with the owners of the six sites to secure their use.
The MoD had also liaised with local councils and the police. Residents were advised, inter alia, that the tower was the only suitable site in the area for the HVM and assured that, rather than making the tower a potential target for terrorists, their safety would be improved by the presence of military personnel. A drop-in session was held at a local school to allow residents to find out more about the deployment. The claimant sought permission to apply for judicial review of the decision. The claim was served and filed on 28 June 2012, four weeks after the claimant was advised of the need for any application to be brought extremely promptly.
The claimant contended that the proposed deployment was unlawful by reason of: (i) the failure to carry out an adequate consultation process; (ii) the failure to comply with the public sector equality duty pursuant to section 149 of the Equality Act 2010; and (iii) a breach of, inter alia, article 8 of the European Convention on Human Rights. The secretary of state contended, inter alia, that the court should exercise its discretion to refuse any relief on the grounds of the delay in bringing proceedings. The claimant submitted that the delay was due to difficulties obtaining legal aid and the need to find after the event insurance. Consideration was given to the Town and Country Planning Act 1990. The application for permission would be dismissed.
(1) Applying established principles, the proposed deployment was clearly within the ambit of the secretary of state’s discretionary power and the decision had been made in good faith. There had been no statutory obligation to consult identified. If anything, the legislative scheme appeared to militate against any duty to consult. The proposed deployment fell within the scheme under the 1990 act for emergency development by the Crown, which disposed of the need for planning permission or consultation.
Furthermore, there was no evidence that there had been a promise to consult, nor evidence of it having been past practice to consult in respect of deployment decisions, nor could it be said to be conspicuously unfair not to do so. In any event, the MoD had voluntarily engaged with the community and residents and its consultation had been immaculate.
(2) The secretary of state had complied with the equality duty. There had been a careful environmental and disability impact assessment during the decision-making process. On the evidence, attention had been specifically drawn to the section 149 duty and had been conspicuously taken into account at all levels of decision making.
(3) The manifest purpose of the deployment was to prevent or deter attacks on the Olympic Park and a massive loss of life. Article 2 of the convention applied, even if any interference was to have a substantial impact on the residents. On the evidence, any detriment to the residents would be negligible. The system itself was small and involved a small number of trained operators.
Further, the exercise of the Crown’s discretion in respect of the deployment was in accordance with the law and deployment was for a legitimate purpose, namely national security and public safety. It was clearly necessary to protect the Olympic Park from potential terrorist attacks. The GBAD system had been subject to rigorous examination at the highest level and the two HVM sites were considered essential to the overall effectiveness of the air security plan.
(4) The reasons for the delay, while understandable were not immutable. In cases of the greatest urgency, it was incumbent on claimants to file proceedings, not withstanding difficulties in respect of funding. Failure to act promptly was seriously prejudicial to the secretary of state and the public interest in arranging appropriate measures for the security of the Olympics.
The claimants would be refused permission to apply for judicial review on the grounds that: (i) the claimants’ grounds were unarguable in law and fact; and (ii) the proceedings were not brought promptly.
Marc Willers and Owen Greenhall (instructed by Howe & Co) for the claimant; David Forsdick and Jacqueline Lean (instructed by the Treasury Solicitor) for the secretary of state.