Harrow Community Support Limited v The Secretary of State for Defence

The claimant, a residents' association for Fred Wigg Tower (FWT), sought judicial review of the Secretary of State for Defence's decision to site Ground Based Air Defence (GBAD) High Velocity Missile (HVM) systems on the roof of FWT for the 2012 Olympic Games. The claimant relied on three grounds: failure to consult, failure to comply with the public sector equality duty (section 149 Equality Act 2010), and breach of Convention rights (Article 8 and/or Article 1 of Protocol 1).

The court emphasised the strong principle of judicial restraint in national security and military deployment matters, identifying only limited exceptions (acts outside the Crown's discretion, bad faith, or a statutory obligation to review). Applying that principle, the court found: (i) there was no legal duty to consult the residents in these circumstances; (ii) the Secretary of State had carried out an Equality and Disability Impact Assessment and complied with the public sector equality duty; and (iii) although Convention rights were engaged, any interference was lawful, justified by national security and public safety, and proportionate. The court also dismissed the claim for delay and exercised its discretion against the claimant.

Background and parties: The claim arose five weeks before the opening of the Olympic Village. Harrow Community Support Limited, a residents' association for FWT, challenged the MOD's decision to deploy GBAD HVM systems on the tower's roof for the duration of the 2012 Olympic and Paralympic Games. The Secretary of State defended the deployment as essential to a multi-layered Air Security Plan approved at the highest levels of government.

Nature of the claim and relief sought:

• The claimant sought injunctive relief to prohibit use of FWT for stationing the GBAD system until consultation and a proper Equality Impact Assessment were completed, and a declaration that the decision was unlawful.
• The claim relied on (1) failure to consult, (2) breach of the public sector equality duty (s149 Equality Act 2010), and (3) breach of Article 8 and/or Article 1 of Protocol 1 of the Convention.

Procedural posture: The claim was brought by way of an urgent rolled-up inter partes hearing and determined in a single-judge hearing on 9 July 2012; judgment delivered 10 July 2012. The court heard detailed factual evidence including a full statement from the Standing Joint Commander responsible for the MOD contribution.

Issues framed by the court:

1. Whether the Secretary of State was under a duty to consult the residents before deployment.
2. Whether the public sector equality duty under section 149 Equality Act 2010 was breached.
3. Whether Convention rights (Article 8/A1P1) were engaged and, if so, whether any interference was permissible, lawful and proportionate in light of national security obligations (including Article 2 considerations).
4. Whether the claim should be refused for delay.

Court's reasoning and findings:

• On consultation: absent any statutory duty, promise, established practice or conspicuous unfairness, there was no legal duty to consult in respect of a military deployment made under the Crown's discretionary powers for national security. The Town and Country Planning regime (including the General Permitted Development Order) militated against implying a duty to consult for such emergency/deployment uses.
• On the equality duty: the court accepted unchallenged evidence that an Equality and Disability Impact Assessment had been conducted, taken into account at all relevant decision-making levels, and addressed relevant concerns. The PSED challenge therefore failed.
• On Convention rights: while Article 8 was potentially engaged, the deployment furthered the paramount legitimate objective of protecting life and public safety (Article 2 considerations). The interference was "in accordance with law", rationally connected to the objective and proportionate given the multi-layered defensive plan and the minimal, time-limited intrusion on residents. Expert evidence showed the HVM was not a high-explosive device and that deployment did not create a credible increased risk to residents.
• On delay and discretion: the claim was brought two months after notification and the court found there had been undue delay, causing prejudice to national security preparations. The court exercised its discretion to refuse relief because of delay.

Outcome: Permission to apply for judicial review was refused and the claim was dismissed on grounds of lack of arguability and delay.

The court refused permission to apply for judicial review and dismissed the claim. The decision was based on (1) established deference to the Executive in national security and military deployment matters so that no duty to consult arose here; (2) the Secretary of State had complied with the public sector equality duty via an Equality and Disability Impact Assessment; (3) any engagement of Article 8 was justified, lawful and proportionate in light of the Article 2 imperative to protect life and national security; and (4) the claim was brought with undue delay and the court exercised its discretion against the claimant.