I’m amazed the case against the Government’s placement of missiles on the roof of the Fred Wigg estate in Leytonstone got off the ground, even on a “Human rights” basis, before it got shot down at the Royal Courts of Justice yesterday.
While I await the judgment of Haddon-Cave J to be posted up on Bailli, [Update: Harrow Community Support Ltd v The Secretary of State for Defence  EWHC 1921 (Admin) (10 July 2012)] there are some fundamental Public law principles that appear to have been missed in the excitement.
In deciding to put missiles around London as a form of defence during the Olympic games, the Executive branch of Government is exercising its prerogative power of the defence of the realm.
In GCHQ (1985, AC), the House of Lords held that not all prerogative powers will be subject to judicial review. That means the courts cannot over-rule some Executive decisions. These include the making of treaties, the grant of honours, the appointment of ministers and defence of the realm.
The reason for this non-justiciability, this non-suitability of Judicial branch review, is because the Separation of Powers precludes the Judiciary interfering with the Executive function in matters of “high policy”, as per Gentle (2008, UKHL).
Further, in Gentle, Lord Bingham held that, “the restraint traditionally shown by the courts in ruling on what has been called high policy – peace and war, the making of treaties, the conduct of foreign relations – does tend to militate against the existence of the right [to an inquiry]”.
So if the Government, pursuant to the prerogative power of defence of the realm, considers that missiles on flat roof-tops are required for the defence of the realm, it’s not a matter for approval by residents – or review by the court.
Now have a look at Northumbria Police Authority, (1989, QBD). In that case, the Court of Appeal recognised the prerogative power of the Executive to do whatever was necessary to meet either an actual or apprehended threat to the peace. Some academics say maintenance of law and order is beyond the scope of “defence of the realm” and that the Court of Appeal in this case effectively created a new prerogative power for the Executive to exercise without judicial over-sight.
None of that was ever going to stack up in favour of the residents of the Fred Wigg tower block of flats.
I don’t know how I’d feel about missiles on my roof. Perhaps I would feel safer having soldiers and more police around the place – on the other hand, maybe an arsenal over my head might make me nervous.
In any event, when it comes to the Executive’s defence policy, it’s not our call. Our only recourse is at the ballot-box next election.