APPENDIX 11
Memorandum submitted by WoMenwith Hill
Peace Group (9 January 2003)
This letter is additional to our previous submissions
and in response to the reassurances given on 6 January 2003, by
the Secretary of State for Defence in reply to concerns expressed
by residents in the Fylingdales' area.
On 15 December 2002 I wrote to you on behalf
of WoMenwith Hill women (copy enclosed for convenience) concerning
the lack of any legislation which could allow the Secretary of
State for Defence to authorise use of UK Defence Lands for USA's
NMD installations. We maintain that NMD is a system for the unilateral
defence of the continental USA and to allow UK Defence Lands to
be used for such would be contrary to UK law.
1. A policy statement by the Secretary of
State for Defence in July 2000 committed the MoD to follow the
planning system as closely as possible: "Departmental standards
and arrangements are to be introduced which will be, so far as
is reasonably practical, at least as good as those required by
legislation. I will only invoke any powers given to me to disapply
legislation on the grounds of national security when such action
is absolutely essential for the maintenance of operational capability".
2. "The Physiological and Environmental
Effects of Non-ionising Electromagnetic Radiation", by G
J Hyland, Private Treaty No EP/IV/A/STOA/2000/07/03.
On 18 December 2002 I wrote to the North York
Moors National Park Authority (copy enclosed), That letter considers
the position of the local authority Planning Department, to which
planning proposals for developments on Crown Land, occupied by
the Ministry of Defence and visiting forces, are submitted.
Although the Secretary of State for Defence
(January 6 2003) has publicly given assurances that the USA's
NMD X-Band Radar will not be developed at RAF Fylingdales, there
are still components of the USA's NMD at that base, installed
and operated by US Space Command. There are plans in the pipeline
to "refurbish all the buildings", which must be to service
the NMD role. Our argument, that USA's unilateral defence system
(NMD) is unlawful use of the UK's Defence Lands, is still applicable.
Components of the Space Based Infra Red System
are already installed at RAF Menwith Hill and during the past
year or so there have been 25 development plans for Menwith Hill,
submitted to and approved by the Harrogate Borough Planning Department.
We believe these developments comprise an upgrading of the infrastructure
of the base to support its NMD role.
With one exception, all the Acts of Parliament,
which govern the Defence Secretary's acquisition and use of land
for the Defence of the Realm, and which govern the use of Defence
Lands by Visiting Forces are based on ". . . arrangements
for our common defence. . ."
The Visiting Forces Act 1952 and International
Headquarters Act 1964 specify ". . . arrangements for common
defence . . ."
In 1999 these were updated by Order in Council,
(to take account of recent changes in legislation eg Town and
Country Planning Act 1990). They are now amended by Statutory
Instrument 1999 1736: Visiting Forces and International Headquarters
(Application of Law) Order 1999. In this SI there appears to be
no reference to ". . .arrangements for common defence . .
."
This Statutory Instrument is flawed, however,
because it fails to take account of implied repeal of Acts of
Parliament, on which sections of the Visiting Forces Act 1952
were based. The Defence Act 1842 is repealed by implication because
its provisions were incorporated into the Military Lands Act 1892.
Article 5 of the Statutory Instrument: Exercise
of powers by the Secretary of State in relation to land, section
(4) states: "In this Article the `Defence Acts' means the
Defence Acts 1842 to 1873. . .".
Schedule 3: Enactments relating to land: cites
the Defence Act 1842.
[Public Rights of Way at RAF Fylingdales were
closed and diverted by Dr Lewis Moonie, Under Secretary of State
for Defence, on 25 September 2002, ". . . under powers arising
from the Defence Act 1842 . . ."
Dr Moonie states:
"Under the Defence Act there is no need
for a period of public consultation, and in this case I am satisfied
that there is sufficient evidence of a pressing need in the public
interest to exercise the 1842 Act power to stop up part of one
bridleway and divert the other." (Dr Lewis Moonie to Alice
Mahon, 13 December 2002).
The powers to close and divert Rights of Way
are governed by the Military Lands Act 1892. There cannot be two
Acts of Parliament, which grant the same powers. The later Act
repeals the earlier.
Article 11 of the Statutory Instrument 1999
1736: Town and country planning:
Allows continuation of the exemptions and privileges
of the Crown in relation to developments on land occupied by visiting
forces.
Section (2) "(c) any reference to the appropriate
authority was a reference to the Ministry of Defence." This
clause would appear to authorise continuance of the procedural
subterfuge, under which development plans, for bases occupied
by forces of the US Federal Government, are submitted to the local
authority's Planning Department by the Ministry of Defence Estates'
Office. As NMD has no relevance to the defence of the UK, the
MoD cannot properly be used as cover for any NMD developments.
In relation to NMD developments at Fylingdales,
Geoff Hoon stated that ". . .no new land would be required.
. .".
The MoD is in occupation of a vast area of land
outside the perimeter of the built-up and fenced "Secure
Area".
The land is owned by the Duchy of Lancaster.
The legislation governing the lease of the land is incorporated
into the Military Lands Act 1892, Part 1 section 10:
". . .the Council of the Duchy of Lancaster.
. .may lease land for military purposes to a Secretary of State.
. .for a term not exceeding twenty-one years, but the lease shall
cease to have effect if the land ceases to be used for military
purposes."
It is evident that the land occupied by the
MoD outside the "Secure Area", has not been used "for
military purposes" (apart from the access road and the sewage
disposal plant) since demolition of the infamous "golf balls"
in the early 1990s. Even when the "golf balls" were
in situ, only about one fifth of the total area of land
was "used for military purposes".
We should like to know:
When was a lease for the MoD's use of Fylingdales
last renewed?
Why the Secretary of State continues to occupy
the land outside the "Secure Area"?
We oppose the use of the UK for the USA's NMD
system, on grounds of its illegality in International Law: the
consequence of escalation of an arms race: the inadequacy of the
technology: the threat of an attack on the NMD bases and its implication
for people living in the locality. We support totally the arguments
presented by the Campaign for Nuclear Disarmament.
Our recent letters examining the enabling legislation
will be submitted to the Defence Committee for consideration as
part of the current public consultation exercise.
COPY OF
LETTER FROM
WOMENWITH
HILL PEACE
CAMPAIGN TO
ALICE MAHON
MP
We have been unable to discover any Act of Parliament,
which would authorise the UK Government to permit the use of UK
Defence Lands by a foreign sovereign power (ie the United States)
in pursuit of its unilateral defence interests.
The appropriation of land for the purpose of
the defence of the UK is governed by a number of Acts of Parliament,
such as the Defence Lands Act 1842, the Military Lands Acts 1892
to 1903 and subsequent amendments. Defence Lands are held in trust
for the national security by the Secretary of State for Defence.
The legislation defines the responsibilities and powers of the
Defence Secretary and also his limitations.
The occupation of Defence Lands by visiting
forces is under the conditions of the NATO Status of Forces Agreement
(London June 19th 1951), ratified as the Visiting Forces Act 1952:
Article IX (s.3) states:
". . .the authorities of the receiving State
shall assume sole responsibility for making suitable arrangements
to make available to a force or a civilian component the buildings
and grounds which it requires. . ."
The "Agreement Between the Parties to the
North Atlantic Treaty Regarding the Status of Their Forces"
(Title) is
". . .appropriate to the relationship which
exists between the United Kingdom and the United States for the
purposes of our common defence. . ." (Jeremy Hanley, former
Minister of State for the Armed Forces, in reply to Bob Cryer
MP, 25 March 1994. Hansard).
". . .arrangements for common defence. .
." is also reiterated by the International Headquarters and
Defence Organisations Act 1964.
The proposed X-Band Radar at Fylingdales is
not for our common defence, but to give early warning of intercontinental
ballistic missiles aimed at the USA.
Menwith Hill is significantly excluded from
this request because the components of the USA's NMD system, which
have already been installed at the base, the Space Based Infra
Red System (SBIRS), are stated to be required by NATO even if
the USA's NMD system is not developed. (John Spellar, former Minister
of State for the Armed Forces, in reply to Harold Best MP, April
2001).
If SBIRS is perceived by the UK Government to
be for our common defence, then it does not require any special
permission?
We believe that permission for the use of Fylingdales
for the USA's National Missile Defense system will require a new
Act of Parliament.
COPY OF
LETTER FROM
WOMEN WITH
HILL PEACE
CAMAPAIGN TO
NORTH YORK
MOORS PARK
AUTHORITY
Prior to the anticipated permission of the UK
Government in compliance with this request, we should appreciate
your consideration of, and comments in response to, the following
points of concern:
Enclosed please find a copy of a letter written
to Alice Mahon MP.
We have asked that she raise with the Secretary
of State for Defence the question of the legality of use of UK
Defence Lands by a foreign power, namely the US Government, to
establish its unilateral National Missile Defense (NMD) system.
We believe that the UK Government does not have the authority
to grant such use of the UK Defence Lands, which it holds in its
trust for the nation. To comply with the USA's request could require
a new Act of Parliament.
Were the UK Government, nevertheless, to grant
permission for the use of RAF Fylingdales for USAs NMD, the Defence
Estates' Organisation and the North York Moors National Park Planning
Authority would then be placed in a uniquely anomalous position.
Currently, developments at RAF Fylingdales are
governed by the provisions of Department of the Environment Circular
18/84, "Crown Land and Crown Development Part IV"
and Circular 12/96, "Development in a National Park".
In this unique case, the DoE Circular 18/84
would not be applicable to the USA's NMD development, because
the required X-Band Radar system cannot be defined as a "Crown
Development". It would neither be a development on behalf
of the Royal Air Force nor be required for the North Atlantic
Treaty Organisation (NATO), of which the UK is a member, but is
for the unilateral defence interest of a foreign State.
It would be improper misuse of (and possibly
unlawful for) the office of the UK Ministry of Defence Estates'
Organisation (which functions on behalf of the nation and is funded
by UK taxpayers) to prepare development plans for a foreign State
and submit "Notice of Proposed Development" for the
plans, under the cover of the UK's DoE Circular 18/84. There is
no legislation, we believe, which would allow this.
We should like an assurance that paragraph 56
of Circular 12/96 would be applied were any plans for NMD developments
to be submitted to the North York Moors Planning Office. This
states:
". . . new, renewed or intensified use of
land in the National Parks for defence purposes should be subject
to formal consultation with the National Park Authorities and
the Countryside Commission and to an environmental impact assessment,
and should be tested against any provisions set out in planning
policy guidance."
We are also concerned that the UK taxpayers
are expected to subsidise the USA's NMD developments. Which nation
has provided funds for the current and future upgrading of the
security and for expansion and refurbishment of the infrastructure
at RAF Fylingdales? Which nation would be responsible for services,
such as Police, Fire Brigade, sewage disposal, highways maintenance,
etc, provided to USA nationals, employed at Fylingdales, but engaged
in their unilateral sovereign interests?
The current legislation governing the hosting
and status of visiting forces is under the auspices of the NATO
Status of Forces Agreement, 1951, which is not applicable in this
case.
Also to be taken into consideration is the possibility
that large-scale protests will result from the USA's NMD developments.
This begs the question of which nation would be responsible for
funding police operations to "control" protest demonstrations.
For example, a huge police operation was mounted in order to ensure
that Lt Gen Kadish, Head of the USA's Missile Defense Agency,
managed to visit RAF Fylingdales on November 21st. Who paid the
cost?
We are researching further the public rights,
which exist at RAF Fylingdales. We should appreciate your assistance
if you have any records of the same.
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