In 776BC, the Olympics consisted of one day’s running and wrestling. A hundred years later, chariots and single horses arrived, thanks to the influence of Phaidon of Argos (a big shot in seventh-century Greece), and I dare say the civic pride which each participating Greek city-state brought to the Games was already running high. But I don’t suppose either Phaidon or Baron de Coubertin would have predicted the move which triggered this piece of litigation. The MoD decided to site a missile launcher and military personnel on the roof of a Council tower block in Leytonstone during the Olympics. Like all military hardware, it has a nice acronym, GBAD, being a Ground Based Air Defence system.
Anyway, a residents’ association formed by residents of Fred Wigg Tower, 15 storeys and containing 117 flats, decided to challenge the MoD. As their petition put it, “We, the undersigned residents of FWT, Montague Road, Leytonstone E11 3 EP, do not want explosive missile systems placed on the roof of our home”. Nor, I suppose, do any of us, but some of us may want someone else to have missile launchers on their roofs.
The challenge started out on three grounds, a failure to carry out an adequate consultation process, a failure to comply with the public sector equality duty, and a breach of Article 8 and/or Article 1 of the First Protocol (A1P1) of the European Convention on Human Rights. It then transmuted into claims for an order that 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, alternatively, that hotel accommodation should be made available to those residents who objected to living below the GBAD.
The response from the MoD:
(1) Given that the claim related 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 or anyone else.
(2) The Secretary of State did in fact carry out an Equality and Diversity Impact Assessment before coming to his decision.
(3) 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) The construction of a stand-alone tower or a ‘gantry’ to house a GBAD had been dismissed at a high level as obviously impractical.
(5) 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).
That the claim was dismissed is no surprise, so the law is hardly cutting-edge. But the judge sets out a useful summary on the law on defence issues:
24. I turn to consider the law. In matters of national security and deployment of the armed forces, it is well know that “the Courts will be very slow to review the exercise of prerogative powers…” and will avoid being drawn“into an area which, in the past, they have entered, if at all, with reluctance and the utmost circumspection” (per Lord Bingham in R v. Jones [2006] UKHL 16 at [30]). The deployment of military personnel and equipment for national security and defence of the realm purposes “has always been regarded as a discretionary power of the Crown into the exercise of which the courts will not inquire” [per Lord Hoffmann in Jones at [65]]…..
25. There are three limited exceptions to this principle. First, where the act in question falls outside the ambit of the discretionary power (see Jones (supra) at [66]). Second, where the act is not done in good faith…… Third, where a statute requires a review of the act in question….. The proposed deployment is clearly within the ambit of the discretionary power and is made in good faith and, accordingly, the first two exceptions can be dismissed. The only relevant exception is the third, in view of the Claimant’s claim under the Human Rights Act 1998.
Unsurprisingly, the response to the Article 8 point was that the Government had an Article 2 duty, to prevent or deter an attack on the Olympic Park which would lead to massive loss of life. The Article 2 consideration necessitated the deployment of the GBAD i.e. even if it was to have a substantial impact on the residents’ other rights.
As it was, the judge found that there was no interference under Article 8 because the effect on the locals was negligible, and in any event the response was necessary and proportionate.
Finally, just in case you were wondering, how does the GBAD fit in with the rest of the MoD’s plans. Well, the Court got a good description of the Air Security Plan from a very High-Up:
The Plan is necessarily ‘multi-layered’ to ensure that the Olympic Park is protected by concentric lines of defence. This will include the following: (a) temporarily restricted airspace over London for the period of the Games to be in place for the opening of the Olympic Village (mid July); (b) Typhoon fighter jets operating from RAF Northolt; (c) Helicopters operating from HMS OCEAN moored on the Thames at Greenwich and elsewhere; (d) a network of air observers and radars; (e) four Rapiers sites (Blackheath, Oxleas Meadows, Barn Hill, William Girling Reservoir) providing the first part of the Ground Based Air Defence (“GBAD”) system in a ring within 7-14 km of the Park; and (f) two High Velocity Missile (“HVM”) sites overlooking the Park and covering the airspace above and around it forming the inner part of the GBAD system.
Nice to know.
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