Hosting the Olympic games clearly presents a huge logistical challenge not least the level of security required to keep both athletes and spectators safe (as can be seen from the problems that G4S has revealed this week). In this post, we consider a case concerning Olympic security and the placing of a Ground-Based Air Defence (GBAD) system on the roof of a residential block of flats in Leytonstone (Harrow Community Support Limited v Secretary of State for Defence [2012] EWHC 1921 (Admin)).
As part of the proposed security measures for the 2012 Olympics, following surveys of a number of potential sites, the Secretary of State for Defence (SoS) decided to place a GBAD system on the roof of a residential block of council flats in the London Borough of Waltham Forest. The claimant (a residents association formed by the residents of Fred Wigg Tower (FWT)) objected to this and applied for permission to judicially review the SoS’s decision. The claimant had submitted a petition signed by 61 of the 108 occupied flats in the building which stated that “we the undersigned residents of FWT, Montague Road, Leytonstone E11 3EP, do not want explosive missile systems placed on the roof of our home”.
Given the urgency of the matter, the court ordered an interpartes “rolled-up” hearing following the service and filing of the judicial review claim.
Challenges to the decision
The claim form submitted sought to challenge the SoS’s decision on three grounds:
- A failure to carry out an adequate consultation process.
- A failure to comply with the public sector equality duty.
- A breach of the Article 8 and/or Article 1 of the First Protocol of the European Convention on Human Rights (ECHR).
The claim form was also accompanied by witness statements from two residents with various health issues who were concerned about the decision to place a GBAD system on the roof of their tower because it may result in them becoming a terrorist target and because of the “high explosives” involved.
The claimant also put forward an alternative argument primarily based on Article 8 of the ECHR requiring the SoS:
- To order a stand-alone tower or gantry to be built on Wanstead Flats to house the GBAD system instead.
- To make hotel accommodation available for residents who objected.
SoS’s arguments
The SoS put forward the following arguments in support of his decision:
- There was no duty on him to consult residents because the placing of the GBAD system was a matter of national security, operational deployment and an exercise of the Royal Prerogative to defend the State and its citizens.
- An Equality and Diversity Impact Assessment had been carried out.
- Although the residents’ Article 8 rights were engaged, there was no breach of these (or of their Article 1 of the First Protocol rights) because any interference would be minimal, “in accordance with the law”, proportionate and the residents’ rights under the ECHR had been considered during the decision-making process.
- The suggestion that a stand-alone tower be constructed was totally impractical.
- The hotel relocation suggestion proposed by the claimant was based on a number of presuppositions, mainly that there was a credible threat, there was more than a negligible interference with the resident’s rights and the only legitimate response available to the SoS was to relocate the residents concerned.
High Court: discussion
The High Court refused permission to apply for judicial review primarily because the claim “founders on the facts” and was based on the claimant’s inherent misunderstanding of the facts themselves. The court based its decision on the following reasons:
- The deployment of the GBAD system was essential to protect the Olympics and the decision to place them on the FWT had been approved by the SoS, the Home Secretary and the Cabinet Committee for the Olympics which was chaired by the Prime Minister. Also there was no alternative site available which would fulfil the necessary requirements. On the role of the courts in matters of national security, the court concluded that, in the absence of bad faith and any ultra vires actions, operational deployments for reasons of national security were for the government and Parliament not for the courts to decide.
- The GBAD system and the missiles that it used had been subject to rigorous testing and were considered to be essential to the overall Air Security Plan for the Olympics.
- Concerns about the “high explosives” were misplaced as the system used relies on kinetic energy and only contains a few grammes of explosive.
- Concerns about the tower becoming a terrorist target were also unfounded as it was “inconceivable” that any attack could occur due to the presence of the military and armed guards.
- The suggestion that an alternative stand-alone tower could be constructed was not viable because of the requirement that the GBAD system had a 360 degree view of the Olympic site.
- There was not likely to be any disruption to residents because only a small number of operators would be deployed to man the GBAD system.
However, the court also considered the specific legal challenges put forward by the claimant:
- Whether there was a duty to consult the residents of FWT. The court held that there was no duty to consult in this case as there was no statutory duty to do so, there was no legitimate expectation that consultation would occur, there was no past practice that suggested consultation would take place and failing to consult residents would not lead to conspicuous unfairness.
- The SoS’s compliance with the public sector equality duty under section 149 of the Equality Act 2010. The High Court held that, despite the claimant’s arguments to the contrary, the SoS had complied with his equality duties as evidenced by an Equality and Disability Impact Assessment undertaken in which the SoS’s attention had been drawn to the section 149 duty (a copy of the assessment was not included in the judgment).
- The human rights arguments put forward. The government had an Article 2 duty to prevent or deter an attack on the Olympic Park. The court held that although Article 8 of the ECHR had been engaged it was necessary for the purposes of national security and public safety and also was in accordance with the law.
Finally the court agreed that there had been a lack of promptness in making the application. The claim had been brought two months after the public had been informed of the initial deployment because of difficulties in obtaining legal aid and after-the-event insurance. The High Court criticised the delay and stated that it was “seriously prejudicial” to the SoS and the public interest in ensuring that appropriate measures had been taken to defend the Olympics from attack.
So what does this ruling mean?
Well, firstly that the residents of FWT (and others in similar situations) are going to have to put up with missile systems on the roof of their building for the duration of the games and with the opening ceremony taking place in just over a week it is too late for any challenge to the High Court’s decision to be raised and effectively dealt with.
What is also of interest in this case is the issue of public defence and the unwillingness of the courts to intervene in matters involving it. Arguably the 2012 Olympics are, for London, one of the (if not the) biggest events it has undertaken during peacetime and with the expected number of visitors in the millions, security clearly needs to be a paramount consideration. This case sets out that unless there is demonstrable bad faith or the State has obviously acted ultra vires then the courts will be extremely reluctant to intervene in cases involving military operational deployments.
For more information on the duty to consult see our note on the subject.