Harrow Community Support Ltd v The Secretary of State for Defence

In matters of national security and military operational deployment, the courts exercise substantial restraint. Review remains possible where the action falls outside the relevant prerogative power, is undertaken in bad faith, or is subject to statutory review, including review under the Human Rights Act 1998.

A duty to consult arises only where imposed by statute, promised, established by practice, or required in an exceptional case to avoid conspicuous unfairness. Article 8 does not create a freestanding right to consultation. A deployment affecting the enjoyment of a home will be lawful where any interference is negligible, occurs in accordance with law, pursues national security and public safety, and is proportionate. Judicial review proceedings concerning urgent national-security measures must be brought with the utmost promptness.

The claimant, a residents’ association representing occupants of a tower block, challenged the Secretary of State for Defence’s decision to deploy a ground-based air-defence system and military personnel on the building’s roof during the 2012 Olympic Games.

The claim alleged inadequate consultation, breach of the public sector equality duty, and breach of Article 8 and Article 1 of the First Protocol to the Convention. The claimant sought to prevent deployment pending consultation and an equality assessment, and proposed a separate tower or hotel accommodation for objecting residents. The central issues were whether consultation was required, whether the equality duty had been complied with, whether the deployment unlawfully interfered with Convention rights, and whether the claim had been brought too late.

1. Permission and outcome. Permission to apply for judicial review was refused. The grounds were unarguable in law and fact, and the proceedings had not been brought promptly.
2. National-security review. The deployment of military personnel and equipment for national security and defence of the realm fell within the discretionary power of the Crown. The court would not review the merits of the operational decision. The recognised exceptions were action outside the ambit of the power, bad faith, and statutory requirements for review. None applied, save that Convention rights remained reviewable under the Human Rights Act 1998.
3. Consultation. A duty to consult could arise from statute, a promise, established practice, or exceptional circumstances in which non-consultation would cause conspicuous unfairness. No statutory duty, promise, or practice existed. In the context of military operational deployment and national security, the court held that non-consultation could not constitute conspicuous unfairness. Article 8 did not create a separate right to consultation.
4. Equality duty. The Secretary of State had conducted and conscientiously considered an Equality and Diversity Impact Assessment, including the needs of disabled residents. The claim under section 149 of the Equality Act 2010 therefore failed.
5. Convention rights and proportionality. Article 8 was potentially engaged, but engagement did not establish breach. Any interference with residents’ homes was negligible and temporary. The deployment was in accordance with law and pursued the legitimate aims of national security and public safety. Applying the proportionality approach in R (Daly) v SSHD [2001] 2 WLR 1622, the measures were rationally connected to the objective and no more intrusive than necessary. The State’s positive obligation to protect life under Article 2 reinforced the necessity of the deployment.
6. Delay. The residents knew of the deployment and its urgency approximately two months before issuing the claim. The delay prejudiced the Secretary of State and the public interest, and made consultation or exploration of alternatives impracticable. The court therefore exercised its discretion against the claimant.