Here’s a link to an interview with me on ABC Australia covering law and the Olympics, chiefly the Olympic missiles. The interview starts at about 19 minutes in.
Here’s a link to an interview with me on ABC Australia covering law and the Olympics, chiefly the Olympic missiles. The interview starts at about 19 minutes in.
The Guardian’s Olympic updater is reporting that the tenants have lost their judicial review of the MOD’s decision to place missiles on Fred Wigg tower:
“A group of council tenants have lost their high court battle to prevent surface-to-air missiles being stationed on the roof of their tower block during the Olympics. More details soon …”
“Mr Justice Haddon-Cave said the residents of the Fred Wigg tower had expressed “shock, anxiety and worry” over the prospect of missiles being stationed on top of their building, but they had been under “something of a misapprehension” about the nature of the equipment to be deployed and the risks deployment would bring.”
I understand that HHJ Haddon-Cave accepted that there was no consultation but found that there was no need to consult, as there was simply no alternative site for the missiles.
I will report more as I know it; the decision is not yet on Bailii, and as well as the actual judgment there may be developments in terms of appeals, etc.
UPDATE (Weds, 12.20) The decision is still not on Bailii, but Lawtel provides the following details:
R (on the application of HARROW COMMUNITY SUPPORT LTD) v SECRETARY OF STATE FOR DEFENCE (2012)
QBD (Admin) (Haddon-Cave J) 10/07/2012
ADMINISTRATIVE LAW – HUMAN RIGHTS – GOVERNMENT ADMINISTRATION – CIVIL PROCEDURE
CONSULTATION : COURTS’ POWERS AND DUTIES : DELAY : JUDICIAL REVIEW : NATIONAL SECURITY : OLYMPIC GAMES : PEACEFUL ENJOYMENT OF POSSESSIONS : PREROGATIVE POWERS : PUBLIC SECTOR EQUALITY DUTY : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : WEAPONS : SECRETARY OF STATE’S DECISION TO LOCATE GROUND BASED AIR DEFENCE SYSTEM ON TOWER BLOCK FOR OLYMPIC GAMES : EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.8, Protocol 1 art.1 : TOWN AND COUNTRY PLANNING ACT 1990 : TOWN AND COUNTRY PLANNING (GENERAL PERMITTED DEVELOPMENT) ORDER 1995 art.3
Residents of a tower block were refused permission to apply for judicial review of a decision of the Secretary of State for Defence to locate a ground based air defence system on the roof of their block during the Olympic games.
The applicant residents’ group (H) applied for permission to apply for judicial review of a decision of the respondent secretary of state to locate a ground-based air defence system, which included missiles, on the roof of the tower block.
H’s tower block was located in east London and had an unobstructed view of the Olympic park. Senior government officials had identified it as the only site suitable for the ground-based air defence system due to its proximity to the Olympic park and the vantage point that it offered. It intended to station the missiles on the tower block roof. No consultation took place and H were notified by leaflet in April 2012. The leaflet explained that the tower block was the only suitable site, the area would be permanently manned by armed guard and police, thus increasing security in the area, and that the missiles were safe. H made the instant application in June 2012.
H submitted that there had been (1) a failure to consult adequately; (2) a failure to comply with the public sector equality duty; (3) a breach of their rights under the European Convention on Human Rights art.8 and Protocol 1 art.1.
HELD: (1) A duty to consult arose in four limited circumstances: (i) where there was a statutory duty to consult; (ii) where there had been a promise to consult; (iii) where there had been an established practice of consultation; (iv) where in exceptional cases a failure to consult would lead to conspicuous unfairness, R. (on the application of Cheshire East BC) v Secretary of State for the Environment  EWHC 1975 (Admin),  N.P.C. 92 applied. Absent those circumstances, no duty to consult arose. The law would be slow to require a public body to engage in consultation where there was no obligation or promise to consult, R. (on the application of Niazi) v Secretary of State for the Home Department  EWCA Civ 755, Times, July 21, 2008 applied. That was especially the case where there were military deployments under the discretionary powers of the Crown for the purposes of national security and defence of the realm. No statutory power to consult had been identified. The only other applicable regime affecting military deployments was the possible requirement for planning permission under the Town and Country Planning Act 1990, which did not require a duty to consult. Even if the temporary use of the tower block constituted a material change of use and required planning permission, which the secretary of state did not accept, planning permission was automatically granted by the Town and Country Planning (General Permitted Development) Order 1995 art.3 and schedule 2. None of the four factors present in Chesire had been identified, Cheshire applied. (2) The secretary of state had complied with the public sector equality duty; an environmental and disability impact assessment was carried out during the decision making process and had been taken into account. (3) The first duty of the government was to defend the realm and protect national security, R. (on the application of Marchiori) v Environment Agency  EWCA Civ 3,  Eu. L.R. 225 applied. The Crown had an obligation to protect the public’s art.2 rights, R. (on the application of Middleton) v HM Coroner for Western Somerset  UKHL 10,  2 A.C. 182 followed. The purpose of the military deployment was to deter attacks. Article 2 considerations prevailed even if any interference substantially impacted on H’s other Convention rights, as the interference was necessary in the interests of national security. Article 8 and Art 1.Protocol 1 were qualified rights; their engagement did not mean that they had been breached. In order for there to be an actionable interference, a serious breach had to be shown, Gomes v Spain App no 4143/02, Dennis v Ministry of Defence  EWHC 793 (QB),  Env. L.R. 34 and Powell and Raynor v UK (1990) EHRR 355 considered. The proposed deployment would not affect H’s ability to use their properties, it was for a limited time and had been carried out in accordance with the law. (4) H had known about the deployment decision two months before making the instant application. Applications had to be made promptly, R v Director of Passenger Rail Franchising  CLC 589 applied. That requirement was even more pertinent in the instant case. It had been incumbent upon H to make the application promptly, notwithstanding the funding difficulties encountered. H’s failure to do so had seriously prejudiced the secretary of state and public interest. (5) The Ministry of Defence’s voluntary engagement with the community over the plans had been immaculate. Had H properly understood the facts, the instant application would not have been brought. The missiles had been rigorously tested and judged safe, and were essential to the air defence plan. Further, H had been notified that their tower block was the only suitable site and the plan had been approved by senior government officials. H’s fears were unfounded: the presence of missiles would not make them a target for terrorists, nor did they interfere with their use of the tower block. (6) In matters involving national security and deployment of armed forces, the courts would be slow to review prerogative powers, R. v Jones (Margaret)  UKHL 16,  1 A.C. 136 applied. The court recognised that there were aspects of decision-making which lay solely with the executive, namely national security, defence and foreign relations. The courts were ill-equipped to make such decisions, and they lay within the exclusive province of the executive.
I was in court 19 for 45 minutes or so of the case (c11.15-12) and am back in chambers now so can report the arguments in a little more detail.
Essentially, the residents say that the MoD has known about the Olympics for seven years. If it needed to station these missiles anywhere in the block, it should have warned the residents, and discussed the decision with them. It may be that the residents would have accepted the need for the missiles, or it may be that they could have assisted with the planning of them (eg by letting the authorities know what particular needs they have, such as in the event of an evacuation). But there has been no consultation at all.
The Fred Wigg tower is an unsuitable location: as their barrister Marc Willers put it, “missiles in a residential block are like oil and water, they don’t mix”. The tower was subject to a fire at the end of the last year. It is not more secure, indeed rather less secure than a normal council tower block.
There is a fob system on the main entry door only, which residents disregard (and they simply let in anyone who rings). There is then asecurity guard who sits by the main entry door, and during 10 visits by the residents’ lawyers, the guard did not stop them once. There is then a lift, which gives open access to the floor immediately below the roof on which the missiles will be located. The soldiers guarding the missiles will be unarmed, although on the top floor (i.e. immediately below them) the MoD proposes to station a permanent contingent of armed police. The MoD’s ostensible rationale for this level of security is supposedly to protect the missiles from theft, in reality (the residents say) the MoD is worried about terrorists trying to attack the missiles: the missiles are a well-known and vulnerable target to anyone planning an attack. Over time, inevitably, the MoD will step up security at the block (eg by introducing metal scanners, and a permanent block at the entry. This is the sort of security that you need to protect missiles, but grossly over the top, and offensive to article 8 ECHR, for an ordinary residential block.
Several of the residents suffer long-term health conditions which can incapacitate them for hours at a time. In the event of an emergency (i.e. terrorist attack, or another fire in the building) they would not be able to join in an evacuation.
Even if the missiles needed to be placed “somewhere” in the vicinity, there should have been an assessment of the adjoining Wanstead Flats, which are a large, relatively empty, green space on which a scaffolding tower might have been fixed. This alternative would not have been ideal, and there might have been protests against it, but it would have been a better option than to put the missiles in the middle of people’s homes.
The MoD case by contrast is that the army has an untrammeled right to station missiles wherever it sees fit and there is no obligation to consult residents. There was an exhaustive search for suitable locations (the details of which the MoD will not disclose), and the Fred Wigg tower was the only site in London capable of acting as a sixth site to host the missiles and thereby providing general protection against terrorist attack. The missiles could not have been placed even 50 metres to the North, East, South or West.
There are elderly and infirm people in the block, but it is not a hospital. Generally, their health is not so bad that they would be incapable of evacuation in an emergency.
The missiles will not be used recklessly, and can only be fired by an order of the Prime Minister himself.
The current security locations, lax as undoubtedly they seem, will be maintained. There is no terrorist threat against the missiles, and no need for the security measures protecting the block to be stepped up.
It will follow from this summary that perhaps the least credible argument being put in court was the MoD’s insistence that simultaneously: a) London is under immediate threat from terrorists, so unusual security measures are needed, which you would only normally consider in wartime, and b) the missiles in particular (and therefore the residents) are of no potential interest to terrorists, and can be housed in a residential block without raising the merest possibility of a health and safety risk.
The hearing continues…
UPDATE: 5pm Monday. The case has now adjourned, and judgment will be delivered first thing tomorrow. Some (brief) further coverage, including a quote from the MoD is on the Guardian’s rolling Olympics new page here.
The Fred Wigg Tower case (i.e the Leytonstone missiles) is listed in the Royal Courts of Justice today. Details as follows:
Before MR JUSTICE HADDON-CAVE
Monday 9 July, 2012
At half past 10
Applications for Permission
CO/6767/2012 The Queen on the application of Harrow Community Support Limited v Secretary Of State For Defence
Charles Haddon-Cave QC, is an interesting choice: he was a barrister specialising in cases about shipping and aviation, and is the former chairman of the Air Law Group Committee of the Royal Aeronautical Society (i.e. at a sufficient level of generality, we can say that he is someone who is unlikely to be made anxious by the thought of proximity to military technology).
He also chaired the 2009 Nimrod review blaming military deaths on a culture of government cuts.
It is a “permission” rather than a “substantive” hearing – i.e. a hearing as to whether the residents have a case which the MoD must answer, rather than the final hearing of the Judicial Review.
I hope to be there for at least some of it.
Much of the discussion at Saturday’s protest concerned the pending High Court case between Harrow Community Support (HCS) and the Ministry of Defence. HCS is the residents’ association for the people who live in the 117 flats of Fred Wigg Tower, a block of council housing in Leytonstone.
The MOD plans to station a Ground Based Air Defence (GBAD) missile systems on the roof of the tower, which was damaged in a fire as recently as December. (It’s not the only missiles site where the physical foundations have recently been weakened – Fairfields Road was struck by lightning just a month ago).
Even if the missiles are never fired, having a missile battery on your roof leads to an unwelcome degree of increased security. Soldiers have to guard the site 24 hours a day while the flats are to be patrolled by armed police with further police stationed outside in the streets. (The friend who wrote to me “Nothing wrong with missiles being situated on top of a block of flats. The problem is that they aren’t under workers control” is right, in his way, but having all these police around can hardly be adding to any resident’s feeling of control, collective or otherwise.)
The residents’ action is being launched by their housing association rather than individuals – hopefully this will deter the council from launching the pre-emptive eviction procedure that was used in an attempt to silence Brian Whelan of the Bow Quarter site.
The challenge is made on the grounds that the residents were not consulted at all about the plans to place explosive missiles on the roof of their home; that no assessment has been carried out under the Equality Act to comply with the MOD’s Public Sector Equality Duty; and that the siting of missiles above the heads of the residents is a breach of their human rights and in particular their right to family life under Article 8 of the European Convention on Human Rights (ECHR) and their right to peaceful enjoyment of their homes under Article 1 of Protocol 1 of the ECHR.
I understand that the Ministry of Defence has not yet filed its defence to the claim, so it will be interesting to see how they approach the case. The courts have tended to insit that the equality duty is substantive rather than procedural (i.e. the failure to prepare an impact assessment, by itself, won’t result in a successful review), but what is striking is the lack of consultation.
The London Olympic bid suceeded in 2005. If the missiles are needed at all, then nothing in the past 12 months has made their need more pressing; even a High Court judge may well accept that residents had a right to know they were being considered, and that there should have been some discussion with them of the potential effect of the missiles (eg what damage will the missiles do to the block if fired?) and a contingency plan – to include temporary rehousing (the Olympics will only last 3 weeks) for residents who objected to the missiles…
There will be a protest against the missiles at 9.30am on Monday 9 July (i.e. before the hearing starts), outside the Royal Courts of Justice on the Strand.