QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HARROW COMMUNITY SUPPORT LIMITED
|- and -
|THE SECRETARY OF STATE FOR DEFENCE
David Forsdick and Jacqueline Lean (instructed by Treasury Solicitors) for the Defendant
Hearing date: 9 July 2012
Crown Copyright ©
Mr Justice Haddon-Cave:
The 2012 Olympics
(1) a failure to carry out an adequate consultation process;
(2) a failure to comply with the public sector equality duty;
(3) a breach of Article 8 and/or Article 1 of the First Protocol (A1P1) of the European Convention on Human Rights (the 'Convention').
Claimants' Witness statements
"I am very worried and very anxious about the fact that the Defendant is going to put high explosive missiles on the top of the FWT. This worry and anxiety has caused me a lot of concern and I feel that it is not right that such missiles should be placed on the top of the flats where I live. We, the residents, were not even consulted about the plans or allowed to express our views in any meaningful process."
Claimant's alternative arguments
(1) First, the Secretary of State should order the Royal Engineers immediately to build a stand-alone tower or gantry somewhere on Wanstead Flats where there was plenty of space.
(2) Second, in the alternative, hotel accommodation should be made available to those residents who objected to living below the GBAD for the duration.
The Secretary of State's Response
(1) First, in the circumstances here pertaining to national security, operational deployment and the exercise of the Royal Prerogative to defend the State and its citizens and lawful visitors against threats, there was no duty on the Secretary of State to consult the residents of FWT or anyone else.
(2) Second, the Secretary of State did in fact carry out an Equality and Diversity Impact Assessment before coming to his decision.
(3) Third, whilst Article 8 Rights were potentially engaged (and the matter was justiciable), there was no breach of Article 8 (or A1P1) because (a) interference with the residents' enjoyment of their homes would be minimal, (b) it was 'in accordance with law', (c) it was manifestly proportionate in all the circumstances, in particular given the risks and the wide margin of appreciation accorded in this arena of security and the exercise of the Royal Prerogative, and (d) Article 8 rights were, in fact, taken into account during the decision making process, which was made at the very highest levels.
(4) Fourth, in any event, the Court should exercise its discretion to refuse the application because of delay in bringing it. The decision to deploy the GBAD system on FWT was notified to the residents on 27th April 2012, but the application was not filed until 2 months later and 1 month after the Claimants were warned than any challenge must be made "extremely promptly" given the imminence of the Olympic Games and the need for deployment.
(1) First, the construction of a stand-alone tower or a 'gantry' to house a GBAD had been dismissed at a high level as obviously impractical.
(2) Second, the claim for relocation to a hotel presupposed (a) there was a credible threat (which there was not), (b) there was more than negligible interference with Article 8 or A1P1 rights (which there was not) and (c) the only legitimate response of the State was relocation (which was not correct since the response of the State to the threat was proportionate).
Witness Statement from Joint Commander UK
The Background Facts
The air defences for the 2012 Olympics
(1) It is clearly necessary to protect the Olympic Park from potential terrorist attack, both from the air and ground. Previous Olympics have similarly had to be protected (particularly since 9/11). The 2012 Olympic are potentially a "major target" (as David Anderson QC, the independent reviewer of terrorist legislation, was reported as pointing out in the press only a couple of days ago). It is worth noting, however, that the threat state in London remains only at 'substantial' where it has been for much of the past decade (rather than 'severe' or 'critical') as emphasised by the Treasury Solicitors in a letter to the Claimant's solicitors dated 5 July 2012 which was specifically approved by the Head of Counter-Terrorism, Dr Campbell McCafferty CBE.
(2) The Air Security Plan, as described by General Parker (without disclosing valuable operational information), necessarily has to be multi-layered so as to ensure that the Olympic Park is protected by a number of inter linked lines of defence broadly consisting: (1) an outer layer based on fighter aircraft (based at RAF Northolt); (2) a middle layer consisting air observers and attack helicopters (including those based on HMS Ocean); and (3) an inner layer formed by ground based missiles – the GBAD.
(3) The GBAD consists of two parts: the Rapier sites which provide a ring of ground based missile defence at 7-14 km from the Olympic Park and two HVM sites within that ring close to and overlooking the Olympic Park. The GBAD arrangements are designed as an integrated whole providing complete surveillance and 360 degree coverage of the airspace over and around the Park. The two HVM systems are an essential part of this package as a 'last resort' measure in the unlikely event of any hostile air attack and the extremely unlikely event of any hostile aircraft being able to penetrate the outer layers of the GBAD.
(4) In 2011 surveys were conducted to identify suitable sites which could meet the technical and operational requirements for the GBAD, and in particular the HVM sites. Only six sites were identified which would meet operational and technical requirements (including only two HVM sites) and all are required to meet the operational requirements and integrity of the Air Security Plan.
(5) FWT was selected specifically because of its proximity to the Olympic Park, its clear sight lines towards the Olympic Park and the lack of obstructions from its roof, and its 360 degree views of the airspace. There was no alternative site which could perform this essential function as part of the last line of defence.
(6) On 15th December 2011, the Secretary of State for Defence announced to Parliament the intention to provide 'a multi-layered plan' including forward based Typhoon aircraft, helicopters and appropriate Ground Based Air Security Plans.
(7) The MOD engaged with the owners of the six sites to secure their use. In respect of FWT, the MOD entered into a lease with the landowner, the London Borough of Waltham Forest to provide exclusive rights over (and rights of access to) the roof of FWT. The MOD also liaised with local Councils and local police.
(8) At no stage did the MOD consult with any of those bodies, or any residents or members of the public, as to the need for, or elements of, the Plan or the appropriate sites for GBAD.
(9) A live test exercise of all security elements for the Olympic was planned for early May 2012 to ensure that the various security Plans worked in various scenarios and were properly integrated.
(10) Prior to this exercise, on 27th April 2012, the residents were informed of the deployment, the need for it and that FWT was the only suitable site in this location through a detailed leaflet. The leaflet also answered a number of questions which the residents might raise:
"Are there no other suitable buildings nearby? FWT proved to be the only suitable site in this area for the HVM system.
Will the equipment be noisy? The equipment is not noisy. It will be powered by mains electricity or, in the event of a power supply failure, a silent generator which will be procured especially for the Games.
Will the Armed Forces be there 24/7? During the rehearsal and the Games deployment, there will be a permanent presence of up to 10 soldiers at the building. They will be supported by the Police.
How can we be sure this is safe? The Air Security Plan will be manned by fully trained, professional soldiers. It will be securely protected, and it does not pose any hazard to residents. The system will be used to monitor the airspace and will only be authorised for active use following specific orders from the highest levels of Government in response to a confirmed and extreme security threat.
Will having missiles on our building make us a target? Having a 24/7 Armed Forces and Police presence will improve your local security and will not make you a target for terrorists."
(11) The live exercise was successful and the Secretary of State has therefore decided to confirm the deployment for the 2012 Olympic Games.
(12) A 'drop-in' session took place on at Buxton School, Cann Hall Road in Leytonstone, at which some 30 residents who turned up were able to find out more about the deployment and have any questions and concerns answered. In my judgment, the MOD's voluntary engagement with the community and residents has been both sensible and immaculate.
(1) First, the establishment of an Air Security Plan, involving the deployment of a GBAD system, is essential to protect the 2012 Olympics. In particular, deployment is necessary "for the purpose of preventing a situation which threatens serious damage to human welfare and for the protection of human life and is the least intrusive means possible to achieve that objective."
(2) Second, the GBAD system has been subject to the most rigorous examination at the highest level and the GBAD system generally, and the two High Velocity Missile (HVM) systems in particular, are considered essential to the overall coherence and effectiveness of the plan.
(3) Third, as the residents of FWT were informed in the leaflet, FWT is the "only suitable site in this area for the HVM system", given its unrestricted 360 degree view and perfect location overlooking the Olympic Park. General Parker said that he and his team had personally reviewed the position and concluded that "there were no other options or alterative sites which would secure the objectives of the plan." Further, each component of the GBAD is vital and "there is simply no alternative to FWT."
(4) Fourth, the Air Security Plan was approved by the Secretary of State following a conscientious analysis of all relevant factors, the Home Secretary, and the Cabinet Committee for the Olympics, chaired by the Prime Minister, all of whom agreed with the deployment. The decision was taken at the highest level because of the recognition that such deployment within the UK was unusual and should only occur if rigorously justified and decided at a high level.
(5) Fifth, General Parker, General Sir David Richards, the Home Secretary, the Deputy Prime Minister and the members of the Olympic Cabinet Committee consider that the decision to deploy to FWT and other sites is "essential to public safety, national security and the defence of the realm."
(6) Sixth, any fears as to the location of the HVM on the roof of FWT causing danger are objectively unfounded because the modern HVM system does not depend on "high explosives" but relies on kinetic energy (i.e. speed and mass on impact) to destroy its target and only contains a few grammes of explosive. The HVM is a discrete system. The missile is fired at two stages. The first is a 'soft launch' which gets the missile into the air without knocking the operator off his feet. The second stage (at about 10 metres distance) comprises an in-air boost to accelerate the missile to its design speed. The missile is not armed until after it is fired. The decision to fire the missiles would only be taken at the most senior levels of Government in the highly unlikely eventuality of any rogue aircraft having evaded the other layers of the Air Safety Plan.
(7) Seventh, any fears as to the location of the HVM on the roof of FWT would cause FWT to become a target for terrorism are objectively unfounded because the relevant agencies and military experts, including General Parker, have considered the matter carefully and determined that, given the presence of armed police and other measures, it is "inconceivable" that any attack on the HVM or FWT could occur. The location of a HVM system on the roof of FWT does not give rise to a credible threat to the residents of FWT (see the letter of 5th July 2012 approved by the Head of Counter-Terrorism). As the residents of FWT were informed in the leaflet, "Having a 24/7 Armed Forces and Police presence will improve your local security and will not make you a target for terrorism."
(8) Eighth, any fears as to the location of the HVM on the roof of FWT causing disruption are objectively unfounded because the HVM system is small and requires only small number of trained operators using civilian cars and the deployment would have no discernable impact on residents.
(9) Ninth, the notion of a tower or gantry being built by and dismissed in the Treasury Solicitor's letter dated 5 July 2012 in the following terms:
We have made it clear that the HVMs have to be able to look down on the Olympic Park and have an entirely unobstructed view (360 degrees) of the sky. Any such tower would therefore have to be at least as tall as FWT. It is inconceivable that such a tower could be built."
Approach of the Courts in matters of national security
Duty to consult
"There is an underlying reason for this. Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel."
"Where there has been no assurance either of consultation (the paradigm case of procedural expectation) or as to the continuance of the policy (substantive expectation) there will generally be nothing in the case save a decision by the authority in question to effect a change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power."
No statutory duty to consult
No legitimate expectation, past practice, abuse of power
Conclusion: no duty to consult in law
The Public Sector Equalities Duty
Human Rights legislation
"Even if the impacts on individuals or groups of residents was judged to be very substantial, I can confirm that I (and those above me in the chain of command) consider that the interference is overwhelmingly necessary in the interests of national security and public safety."
".. 'whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it: and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'"
Interference with the right
In accordance with law
Necessary in a democratic society
Duty of candour