There has been lots of consternation down my end of London about the deployment of Surface to Air missiles on our local common in aid of securing the Olympics. Is this legal? Unlike in the USA where the Posse Comitatus Act, would prevent such a deployment without an Act of Congress, HMG can deploy the military anywhere in the UK with absolute discretion - it's that Royal Perogative in the hands of the Govt. again; & as Lord Diplock said in CCSU v Minister for the Civil Service - the national security royal prerogratives are off-limits to the Court:
National security is the responsibility of the executive government; what action is needed to protect its interests is, as the cases cited by my learned friend, Lord Roskill, establish and common sense itself dictates, a matter upon which those upon whom the responsibility rests, and not the courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves.
I actually prefer Blackstone himself on the topic:
In the exertion therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution. And yet if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just and severe account.
So if you are not happy about SAMs in your back yard - complain to your MP, don't consult lawyers.......
I have always disliked this "non-justiciability" argument. There is always a question as to whether what any Minister is doing is properly grounded in law. For example, was the Iraq War of 2003 grounded in law? Non-justiciability is an abdication of judicial responsibility in certain areas where the judges do not wish to upset Ministers.
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