R v Secretary of State for the Defence, ex parte Camden London Borough Council

Development of Government departments — Proposal to build car park near military barracks — Expectations of consultation — Interest of national security — Extent to which expectations modified — Whether there could have been further consultation — Whether expectation unfulfilled — Whether making material difference — Council’s application for judicial review refused The Secretary of State for Defence gave notice in November 1991 to Camden London Borough Council of his intention to develop a car-park building with 175 spaces and supporting technical facilities at the north end of Albany Street, London NW1, on the site of a former hospital, which was to be demolished. As a result of discussion the proposal was sub- stantially modified. However, further discussion did not produce any other compromise and the Ministry of Defence informed the Department of the Environment accordingly. It also stated that it did not want to reveal details of the operation of the car park, which would compromise national security. Camden assumed that the proposals had been abandoned. On 19 October 1993 the MoD wrote that “due to a change to the operational requirement” the car park had to be provided as soon as possible. It would proceed with the development in “accordance with the national security clause”, which in Circular 18/84, para 8, stated that “none of these consultations…can fully apply to proposals involving national security”. The work to demolish the old hospital was to begin immediately. Camden expressed concern that the procedures in the circular did not appear to have been complied with. They sought judicial review on the ground that Circular 18/84 created a legitimate expectation that the Secretary of State for Defence would follow the procedures so far as they did not conflict with his appreciation of the interests of national security and that the Secretary of State acted unlawfully in so far as he did not do so. Held The application was refused. 1. The authorities established that a legitimate expectation had to be based on a clear unambiguous and unqualified representation by a public authority that they would act in a particular way. 2. The proposals involving considerations of national security could not, for obvious reasons, be full; however, the procedure was to be followed in so far as those considerations permitted. 3. The expectation was that the Secretary of State would: (1) decide that considerations of national security were involved; (2) decide the extent to which those considerations inhibited the adoption of the procedures of Circular 18/84; (3) adopt those procedures in so far as those they were so inhibited. He also had to consider what aspects of the proposal could, or could not be the subject of consultation consistent with the interests of national security and what constraints of time would be imposed. 4. Considerations of national security had not prevented consultation of the proposal in the preceding months concerning the siting of the garage and other aspects of the proposal. The court therefore accepted that Camden had been deprived of the opportunity to have those latter aspects discussed, and if need be, resolved in the way Circular 18/84 provided. 5. However, all they had lost was the opportunity to have any unresolved issues determined under para 25 of Circular 18/84 and there was nothing which led the court to believe that that was any deprivation of substance. Andrew Collins QC and Simon Airey (instructed by the solicitor to Camden London Borough Council) appeared for the applicants; Stephen Richards (instructed by the Treasury Solicitor) appeared for the Secretary of State for Defence. Aviva Golden, barrister