AS TO THE ADMISSIBILITY OF
Application No. 21482/93
by Campbell CHRISTIE
against the United Kingdom
The European Commission of Human Rights sitting in private on
27 June 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 February 1993
by Campbell Christie against the United Kingdom and registered on
9 March 1993 under file No. 21482/93;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
25 November 1993 and the observations in reply submitted by the
applicant on 10 February 1994 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1937, and resident
in Falkirk. He is represented before the Commission by Mr. John Wadham
of the organisation "Liberty".
The facts of the present case, as submitted by the parties, may
be summarised as follows:
A. Particular circumstances of the case
Since April 1986, the applicant has been the General Secretary
of the Scottish Trades Union Congress, a confederation of trade unions.
In that capacity, the applicant has been in regular contact with trade
unions in Eastern Europe and elsewhere and from time to time he has
received telexes from trade unions in Eastern Europe.
In or about July 1991, it came to the attention of the applicant,
in the context of a Granada television documentary "Defending the
Realm", that telexes addressed to himself from East European trade
unions were being routinely intercepted by GCHQ (Government
Communications Headquarters) which is the United Kingdom's central
intelligence-gathering centre. Information from these telexes had been
collated and reported to other government agencies, including the
Security Service. The evidence for these allegations was provided
anonymously by a former GCHQ employee, who also stated that at a
particular address in London all telexes passing in and out of London
were intercepted and fed into a programme known as "the Dictionary",
which picked out key names and words. He stated that "the Dictionary"
was monitored by carefully vetted British Telecom employees to give the
impression that GCHQ was not carrying out the interception and that
warrants were not obtained for this activity.
In a letter dated 10 March 1992 to the applicant's
representatives, the documentary presenter explained that at a time
between 1984 and 1987 -most probably in 1985- one of the clerical staff
at GCHQ had made a fuss when he found himself filing a report in which
the applicant appeared. The clerk, who was in the same civil service
union as the applicant, made an objection to the head of section and
the incident was well-known within GCHQ.
On 19 June 1992, the applicant made an application to the
Interception of Communications Tribunal complaining of the interception
of his telexes. He also made an application to the Security Services
Tribunal concerning Security Service involvement in the collection and
retention of information derived from the telexes.
By letter dated 16 September 1992, the Interception of
Communications Tribunal informed the applicant that his complaint had
been investigated and that the Tribunal was satisfied that there had
been no contravention of Sections 2 to 5 of the Interception of
Communications Act 1985 with respect to a relevant warrant or
certificate.
By letter dated 4 December 1992, the Security Services Tribunal
informed the applicant that his complaint had been investigated and no
determination in his favour made.
B. Relevant domestic law and practice
i. Interception of communications
Interception of Communications Act 1985
Following the decision of the Court in the Malone case (Eur.
Court H.R., Malone judgment of 2 August 1984, Series A no. 82), the
Interception of Communications Act 1985 was enacted. This came into
force on 10 April 1986.
Pursuant to section 1 of the 1985 Act, a person who intentionally
intercepts a communication in the course of its transmission by post
or by means of a public telecommunications system is guilty of an
offence. A person convicted of this offence is liable on summary
conviction to a fine not exceeding £5000 and, on conviction on
indictment, to imprisonment for up to two years and/or a fine.
A number of exceptions are made, the relevant one in this case
relating to authorised interceptions:
"1. (2) a person shall not be guilty of a criminal offence
under this section if-
(a) the communication is intercepted in obedience to a
warrant issued by the Secretary of State under section 2
below ..."
Warrants for interception
The Secretary of State may issue a warrant of interception
subject to the provisions of the Act. These provide, inter alia, that
he shall not issue a warrant unless he considers that the warrant is
necessary:
"(a) in the interests of national security;
(b) for the purpose of detecting serious crime; or
(c) for the purpose of safeguarding the economic well-being of
the United Kingdom." (section 2(2)).
Warrants in respect of (c) are not considered necessary unless
the information to be acquired relates to the acts or intentions of
persons outside the British Islands (section 2(4)).
Warrants must be issued under the hand of the Secretary of State
or a permitted official of high rank with the written authorisation of
the Secretary of State. If issued under the hand of the Secretary of
State, the warrant is valid for two months; if by another official, it
is valid for two days. Only the Secretary of State may renew a warrant.
If the Secretary of State considers that a warrant is no longer
necessary for the purposes set out in section 2 (2), he is under a duty
to cancel it (section 4).
Use and retention of information
Section 6 provides that the Secretary of State is under a duty
to ensure that the dissemination and retention of information obtained
by interception under a warrant are strictly controlled. This includes
the requirement that arrangements are made to ensure that material is
disclosed only to the extent that it is necessary for the permitted
purposes and that material is destroyed as soon as its retention is no
longer necessary for the permitted purposes (section 6 (2)-(3)).
The Tribunal
Section 7 of the Act provides for a tribunal to investigate
complaints from any person who believes that communications sent by or
to him have been intercepted. Its jurisdiction, so far as material, is
limited to investigating whether there is or has been a relevant
warrant and, where there is or has been, whether there has been any
contravention of sections 2-5 of the 1985 Act in relation to that
warrant.
The Tribunal applies the principles applicable by a court on an
application for judicial review. If it finds there has been a
contravention of the provisions of the Act, it shall give notice of
that finding to the applicant, make a report to the Prime Minister and
to the Commissioner appointed under the Act and, where it thinks fit,
make an order quashing the relevant warrant, directing the destruction
of the material intercepted and/or direct the Secretary of State to pay
compensation. In other cases, it must give notice to the applicant
stating that there has been no contravention of sections 2-5 of the
Act.
The Tribunal consists of 5 members, each of whom must be a
qualified lawyer of not less than 10 years standing. They hold office
for a five year period and may be re-appointed. Its decisions are not
subject to appeal.
Since its inception, the Tribunal has not found that any
contravention of the provisions of sections 2-5 of the Act has
occurred. During 1992, it received 45 complaints.
The Commissioner
Section 8 provides that a Commissioner be appointed by the Prime
Minister. He is required to be a person who holds, or who has held,
high judicial office. The present Commissioner is Sir Thomas Bingham,
Master of the Rolls.
The Commissioner's functions include the following
- to keep under review the carrying out by the Secretary of State
the functions conferred on him by sections 2-5;
- to keep under review the adequacy of the arrangement under
section 6 for safeguarding intercepted material and destroying
it where its retention is no longer necessary;
- to report to the Prime Minister if there appears to have been
a contravention of sections 2-5 which has not been reported by
the Tribunal or if the arrangements under section 6 are
inadequate;
- to make an annual report to the Prime Minister on the exercise
of the Commissioner's functions. This report must be laid before
the Houses of Parliament. The Prime Minister has a power to
exclude any matter from the report if publication would be
prejudicial to national security, to the prevention or detection
of serious crime or to the well-being of the United Kingdom. The
report must state if any matter has been so excluded.
There have been seven annual reports published by the
Commissioner to date. In these reports the Commissioner explains his
exercise of his functions and the results of his review of the
procedure for obtaining warrants and the adequacy of the safeguards in
practice.
The Commissioner's reports
The 1986 Report
In the 1986 report, the Commissioner (then Lord Justice Lloyd,
a member of the Court of Appeal) noted that while he was not concerned
with the investigation of unlawful interception, the Secretary of State
had said during the passage of the Bill through the House of Commons
that he assumed that if the Commissioner came across a case of unlawful
interception he would report it.
In the report, the Commissioner also explained his approach to
the term "national security":
"27. National security is not defined in the Act, or in
Article 8 of the European Convention of Human Rights and
Fundamental Freedoms where the same term is used. It has usually
been taken to include threats to the security of the Nation by
terrorism, espionage and major subversive activities, but it is
not confined to these three matters. Nor, of course, is
subversion defined. But I have taken as the test the well known
language of Lord Harris of Greenwich in February 1975 namely,
activities `which threaten the safety or well-being of the State
and which are intended to undermine or overthrow Parliamentary
democracy by political, industrial or violent means' ..."
He continued that, given the sensitivity of the area of
subversion which was less clear cut than terrorism or espionage, he had
taken care to review all warrants issued on those grounds. He found no
indication that the warrants issued had not satisfied the requisite
test.
In relation to the ground of "economic well-being" the
Commissioner noted that it also was undefined, but considered that
there was an important negative qualification in that no warrant can
be issued unless the information sought related to the acts or
intentions of those outside the British Islands. His review revealed
no case where a warrant had not been so directed.
The Commissioner explained that he had adopted the practice of
selecting warrants at random to examine save in the case of those
pursuing the purpose of counter-subversion.
The Commissioner concluded that his overall impression was of the
high value of the intelligence obtained from interception and also of
the care taken by all concerned to observe not only the letter but also
the spirit of the Act.
The 1987 Report
In this report the Commissioner indicated that he applied the
test of "really needed" to the requirement under the Act of whether a
warrant was "necessary". He found that all the warrants which he
reviewed fulfilled this criterion. He recounted a number of incidents
however where problems had occurred.
The 1988 Report
The Commissioner made further comments on the term "national
security":
"10. Now national security, as I pointed out in my first report,
is not defined in the Act... It is narrower than the term "public
interest" which is found in section 4 of the Official Secrets Act
1920, now repealed. But it is obviously wider than the three
heads of counter-terrorism, counter-espionage and
counter-subversion. To take a simple example, nothing could be
more directly related to national security than defence. So if
an interception is judged necessary for the defence of the realm
against a potential external aggressor, then clearly it is
necessary in the interests of national security. Further than
that I do not think it would be wise or indeed possible to go in
defining what is covered by national security. Each case must be
judged on its merits. That is what is done by the Secretary of
State; and this is what I do when fulfilling my functions as
Commissioner."
The 1989 Report
In this report, the Commissioner referred to that fact that the
Security Service Act 1989 had come into force and an independent
Commissioner been appointed. He noted the similarity in the provisions
of the two Acts and that they overlapped in some areas. He concluded
that it was desirable that the two Commissioners applied the principles
of judicial review in broadly the same way in exercising their
functions and stated that they would consult together for this purpose.
The 1990 Report
The Commissioner referred to the evidence that interceptions were
assisting in the prevention of crime and terrorism: over 40% of
interceptions at the request of the police resulted in arrests and, in
respect of HM Customs, the equivalent figure was just under 50%.
The 1991 Report
In this report, the former Commissioner at the end of his term
of office reviewed the previous six years:
"... 3. The Commissioner has two main functions. His
principal function is to keep under review the system
whereby, subject to certain limited exceptions set out in
section 1 of the Act, interception cannot lawfully take
place without a warrant issued by the Secretary of State.
The grounds on which the Secretary of State can issue a
warrant, if he considers it necessary to do so, are set out
in section 2 of the Act, namely (i) national security, (ii)
the prevention or detection of serious crime, (iii)
safeguarding the economic well-being of the United Kingdom.
During my six years in office I have not come across a
single warrant which could not be justified on one or other
of these grounds.
4. The great majority of all warrants issued by the Home
Secretary are, and have always been, concerned with the
prevention or detection of serious crime, especially the
importation and distribution of dangerous drugs. Success
in this field has been marked. Thus half the record
quantity of cocaine and heroin seized by HM Customs in 1991
owed something to interception intelligence.
5. The pattern of warrants issued on the ground of
national security has changed over the last six years. In
particular the threat of subversion has steadily declined.
For example, in 1985 there were a number of warrants issued
against individual subversives who were regarded as being
a major threat to Parliamentary democracy. Last year there
were only two. Now there are none. But just as the threat
of subversion has declined, so the threat of terrorism has
increased. Over the same period the number of warrants
issued on the ground of counter-terrorism has, not
surprisingly, risen.
6. There have never been more than a few warrants issued
on the ground of safeguarding the economic well-being of
the United Kingdom. There is no question of this ground
being used for the purpose of industrial espionage within
the United Kingdom, as it is sometimes thought, or being
otherwise abused. The Act requires that the information
sought must relate to the acts or intentions of persons
outside the United Kingdom. This is how it works in
practice.
7. I am confident that the Secretaries of State, who sign
warrants, take great care to satisfy themselves that the
warrants are necessary for the purposes stated in the Act.
If they are not so satisfied they decline to issue, or
renew, the warrant as the case may be. But this is not
all. As part of my duties, I make regular visits to HM
Customs, the police, and the security and intelligence
agencies in England, Scotland and Northern Ireland. From
the start I have been impressed by the determination of the
agencies not only to obey the letter of the law, but also
the spirit. I have given illustrations of this from time
to time in previous reports. Where mistakes have been
made, they have been acknowledged. On doubtful points they
have asked for guidance. I am satisfied that the system is
working as intended by Parliament, and is working well.
8. What I have said about the agencies applies equally to
those operating the postal and public telecommunications
services. Unless they have a warrant in their hands, or
are satisfied that it has been signed, they do not carry
out the interception. This is one of the main safeguards
built into the Act.
9. My second function is, as I see it, to reassure members
of the public that interception of communications is
serving an important public objective, and that it is not
being abused by the Government, the police or anybody else.
This function is not spelt out in the Act. But I regard it
as implicit in my appointment.
10. The task of reassuring the public would have been
easier if I could publish everything which has appeared in
the unpublished appendices to my report. I could then give
chapter and verse. But for obvious reasons I cannot do
that. I can only attempt to reassure in general terms.
11. In this connection, I may be allowed to mention certain
comments which have appeared in the press, and on the radio
or television during the last year. On 14 June 1991, in a
radio interview, John McWilliam, MP for Blaydon, a former
telephone engineer, said that police officers down to the
rank of superintendent could in certain circumstances issue
warrants. This is simply not so.
12. On the same day, the Guardian carried an article which
estimated that the number of interceptions had reached a
record level of 35,000 lines. This was based on an alleged
increase in the number of specialist engineers employed by
British Telecom to 70. Since the Home Secretary and the
Secretary of state for Scotland had together only issued
539 warrants during 1990, the implication was that there
were thousands of unauthorised interceptions. Mr.
McWilliam was quoted as saying:
"My suspicion is that a lot of perfectly innocent
citizens are being subject to surveillance for no
particularly good reason."
It cannot be said too strongly that there is no basis
whatever for this speculation.
13. On 15 July a programme was shown by Granada in the
World in Action series. I cannot comment in this part of
my report on the individual allegations in the programme;
but there is not the slightest truth in the suggestion,
repeated in the Guardian on 16 July, that the law is being
"bent" by GCHQ, and that British businessmen are being
"ambushed" as a matter of routine."
The 1992 Report
The current Commissioner, Sir Thomas Bingham, the Master of the
Rolls, referred to the safeguards in operation against abuse of power.
He was impressed by the scrupulous adherence to the statutory
provisions of those involved in the procedures. He commented on the
stories which occasionally circulated in the press with regard to the
interceptions by GCHQ and MI5 and MI6, stating that in his experience
they were without exception false and gave an entirely misleading
impression to the public both of the extent of official interception
and of the targets against which interception is directed.
The Commissioner detailed a number of contraventions and errors
which had occurred during the year. These included incidents where
mistakes were made in relation to the telephone number to be
intercepted and where there were delays in acting on the cancellation
of warrants being acted on. On discovery of such errors, the
intercepted material was destroyed. The Commissioner stated that steps
were being taken to remedy deficiencies in the procedures which had
allowed errors to occur and hoped that he would find fewer such errors
in the following year.
Number of warrants issued and in force
Each of the Commissioner's reports includes the statistics for
the number of warrants in force and issued by the Home Secretary and
the Secretary of State for Scotland each year.
In relation to interceptions of telecommunications over the year
1992, authorised by warrant of the Home Secretary, there were 265
warrants in force on 31 December 1992, while 756 had been issued during
the year.
ii. The Security Service
The Security Service Act 1989
The Security Service Act 1989 places the Security Service on a
statutory basis under the authority of the Secretary of State. The
function of the Service is "the protection of national security and,
in particular, its protection against threats from espionage, terrorism
and sabotage, from the activities of agents of foreign powers and from
actions intended to overthrow or undermine parliamentary democracy by
political, industrial or violent means" (section 1(2)). It also has the
function to safeguard the economic well-being of the United Kingdom
against threats posed by the actions or intentions of persons outside
the British Islands (section 1(3)).
The operations of the Service are under the control of a
Director-General appointed by the Secretary of State. He has the
responsibility for the efficiency of the Service. He has the duty of
ensuring that there are arrangements for securing that no information
is obtained by the Service except so far as necessary for the proper
discharge of its functions, that no information is disclosed by it
except so far as necessary for that purpose or for the purpose of
preventing or detecting serious crime, and that the Service does not
take any action to further the interests of any political party
(sections 2(1)-(2)). The Director-General must also make an annual
report on the work of the Service to the Prime Minister and the
Secretary of State and may at any time report to either of them on any
matter relating to its work.
The Security Service Tribunal
The Act also provides for a tribunal, known as the Security
Service Tribunal, to deal with complaints. Its decisions are not
subject to appeal.
Schedule 1 to the Act provides, inter alia, that any person may
complain to the Tribunal if he is aggrieved by anything which he
believes the Service has done in relation to him or to any property of
his.
Under paragraph 2 of the Schedule 1, the Tribunal has the role
of investigating whether a complainant has been the subject of
inquiries by the Service and, if so, whether the Service had reasonable
grounds for deciding to institute inquiries about the complainant in
the discharge of its functions and, if the inquiries are continuing,
whether the Service had reasonable grounds for deciding to continue
inquiries about the complainant in the discharge of its functions.
Where the Tribunal determines that the Service did not have reasonable
grounds for the decision or belief in question, it is provided that
they shall give notice to the complainant that they have made a
determination in his favour under that paragraph and make a report of
their findings to the Secretary of State and to the Commissioner. Where
in the case of any complaint no such determination is made, the
Tribunal shall give notice to the complainant that no determination in
his favour has been made on his complaint.
Where a determination has been made in favour of a complainant,
the Tribunal may order inquiries by the Service about the complainant
to be ended and any records relating to such inquiries to be destroyed.
They may also direct the Secretary of State to pay to the complainant
such sum by way of compensation as they may specify. In addition, the
Tribunal may quash any warrant in respect of any property of the
complainant which the Commissioner has found to have been improperly
issued or renewed and which he considers should be quashed. If the
Commissioner considers that a sum should be paid to the complainant by
way of compensation, the Tribunal may direct the Secretary of State to
pay to the complainant such sum as the Commissioner may specify.
Pursuant to Schedule 2, the Tribunal consists of three to five
members each of whom must be a barrister, solicitor or advocate of not
less than ten years' standing. Members are appointed for a period of
five years by Her Majesty by Royal Warrant and may be removed from
office by Her Majesty on an address presented to her by both Houses of
Parliament.
Pursuant to para. 9(1) of Schedule 1, the Tribunal is limited as
follows:
"9. (1) No complaint shall be entertained under this Schedule if
and so far as it relates to anything done before the date on
which this Schedule comes into force."
The Security Service Commissioner
Pursuant to Section 4 of the Act, the Prime Minister appoints as
a Commissioner a person who holds or has held high judicial office. He
has the role, inter alia, of keeping under review the exercise by the
Secretary of State of his powers under section 3 to issue warrants in
respect of entry on and interference with property.
Pursuant to paragraph 7 of Schedule 1, matters may be referred
to the Commissioner by the Tribunal:
"7. (1) If in a case investigated by the Tribunal under
paragraph 2 above they consider that the Service may not be
justified in regarding all members of a particular category as
requiring investigation they shall refer that matter to the
Commissioner.
(2) If in any case investigated by the Tribunal -
(a) the Tribunal's conclusions on the matters which they
are required to investigate are such that no determination
is made by them in favour of the complainant; but
(b) it appears to the Tribunal from the allegations made by
the complainant that it is appropriate for there to be an
investigation into whether the Service has in any other
respect acted unreasonably in relation to the complainant
or his property,
they shall refer that matter to the Commissioner.
(3) The Commissioner may report any matter referred to him under
this paragraph to the Secretary of State who may take such action
in the light of the report as he thinks fit, including any action
which the Tribunal have power to take or direct under paragraph 6
above."
The Commissioner makes an annual report to the Prime Minister on
the discharge of his functions and the report is then laid before
Parliament.
COMPLAINTS
The applicant complains that his correspondence from East
European trade unions has been intercepted by GCHQ, or that it is
reasonably likely that such interception has taken place, and
information from it collated and reported to other government agencies,
including the Security Service. He submits that this constitutes an
interference with his right to respect for his correspondence contrary
to Article 8 of the Convention. He further submits that this
interference cannot be justified under the second paragraph for the
following reasons:
The interference was and is not "in accordance with the law"
since the interception of communications and functions of the Security
Service are still not sufficiently regulated by legislation. In
particular:
- the definition of the type of activity likely to be susceptible
to interception is not precise;
- the circumstances in which information gathered is destroyed
and in which use may be made of the information are not defined;
- the function of the Security Service provided for in the 1989
Act, namely "the protection of national security", is not
adequately defined and includes protection against threats from
actions intended to undermine parliamentary democracy by
political means;
- the function of the Security Service to safeguard the economic
well-being of the United Kingdom is undefined;
- the safeguards provided by the two Tribunals are grossly
inadequate.
The interference was and is not "necessary" since there is no
pressing social need for the measures in this case and there are no
adequate and effective safeguards against abuse in existence. In
particular:
1. Concerning the Interception of Communications Tribunal
i. the Tribunal has no jurisdiction to investigate
interceptions which ceased before 10 April 1986;
ii. the Tribunal has no power to consider the correctness of the
Secretary of State's decision to issue a warrant, only whether
the decision was one which no reasonable Secretary of State could
have reached; it also has no jurisdiction to investigate cases
where no warrant has been issued;
iii. the Tribunal is prevented from giving reasons for a decision
which is not in the applicant's favour and its decisions are not
subject to any appeal to a court;
iv. the Tribunal has never upheld any of the complaints made to
it;
v. Parliamentarians, as such, play no role in the process;
2. Concerning the Security Service Tribunal:
i. the Tribunal has no competence to consider complaints where
the inquiries ceased before 18 December 1989;
ii. the Tribunal has no power to consider the correctness of the
Service's decision that inquiries were justified in the discharge
of its functions, only whether it had reasonable grounds for so
deciding;
iii. if inquiries are made by the Service on the basis that a
person is a member of a particular group, the Tribunal's
examination is limited to whether the Service had reasonable
grounds for believing the person to be a member of the group. The
question of whether it is justifiable to regard all members of
a group as requiring investigation can be referred by the
Tribunal to the Security Service Commissioner, but he has only
the ability to make recommendations to the Secretary of State;
iv. the same points as are made concerning the Interception of
Communications Tribunal in 1. iii.-v. above.
The applicant also complains that he has no effective remedy for
his complaints as required by Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 February 1993 and registered
on 9 March 1993.
On 6 July 1993, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 25 November 1993,
after two extensions in the time-limit fixed for this purpose, and the
applicant's observations in reply were submitted on 10 February 1994.
THE LAW
1. The applicant complains that his correspondence has been
interfered with contrary to Article 8 (Art. 8) of the Convention, the
relevant part of which provides as follows:
"1. Everyone has the right to respect for ... his
correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The applicant alleges that his telexes from East European trade
unions were intercepted by GCHQ.
The Government neither confirm nor deny that such interception
took place. They are, however, willing for the applicant's complaints
to be dealt with on the basis that there is a reasonable likelihood
that the communications which referred to the applicant may have been
intercepted by GCHQ and come to the attention of the Security Service.
The Commission therefore considers that an interference with the
applicant's correspondence under Article 8 para. 1 (Art. 8-1) may be
assumed in this case. It has accordingly examined whether this
interference is justified under the second paragraph, namely, whether
it was "in accordance with the law" and if so, whether it was necessary
in a democratic society for one or more of the reasons specified.
"In accordance with the law"
This expression has been interpreted by the Court, firstly, as
requiring that the interference must have some basis in domestic law
and secondly, as referring to the quality of the law (see eg.
Eur. Court H.R., Kruslin and Huvig judgments of 24 April 1990,
Series A no. 176-A, p. 20, paras. 26-27, and no. 176-B, p. 52,
paras. 54-55).
The Commission notes that the provisions governing interception
of communications and the functions of the Security Service are
contained in statute, the Interception of Communications Act 1985 and
the Security Service Act 1989 respectively. It finds accordingly that
the interference had sufficient basis in domestic law.
The criterion of "in accordance with the law" however extends
further to the quality of the law, requiring it to be compatible with
the rule of law in providing a measure of protection against arbitrary
interferences. In this context, it should be accessible to the person
concerned, who must moreover be able to foresee its consequences for
him (see e.g. Eur. Court H.R., the Sunday Times judgment of
26 April 1979, Series A no. 30, p. 31, para. 49, and the Malone
judgment of 2 August 1984, Series A no. 82, p. 32, para. 67).
The criterion of "accessibility" does not raise any problem in
the instant case, the relevant provisions being set out in the
above-mentioned statutes.
As regards "foreseeability", the Court has emphasised that the
law must be sufficiently clear in its terms to give citizens an
adequate indication as to the circumstances in which and the conditions
on which public authorities are empowered to interfere. A law which
conferred a discretion would not be inconsistent with this requirement
provided that the scope of the discretion and the manner of its
exercise were indicated with sufficient clarity to give the individual
adequate protection against arbitrary interference (see e.g. Eur. Court
H.R., Olsson judgment of 24 March 1988, Series A no. 130, p.30,
para. 61).
The applicant submits that the terms "national security" and
"economic well-being" are not even partially defined in the 1985 Act.
The latter term is also unelaborated in the 1989 Act. To the extent
that "national security" is partially defined in the 1989 Act, it is
still unacceptably vague. He submits that, while a certain flexibility
is acceptable in the context of terms subject to judicial
interpretation, this is not the case where the interpretation and
application are done secretly by the Government without public
adversarial argument on the issues involved. Further the applicant
alleges that the circumstances in which information obtained from
interceptions should be destroyed, and the use which may be made of it,
are inadequately defined.
The Government contend that the terms of the relevant legislative
provisions sufficiently indicate the type of activity likely to be
susceptible to interception of communications, and that safeguards are
imposed which regulate the retention and use of information obtained
from interceptions.
The Commission notes that the case-law of the Commission and
Court establishes that the requirement of foreseeability in the special
context of sectors affecting national security cannot be the same as
in many other fields. In the Leander case the Court stated:
"Thus, it cannot mean that an individual should be enabled to
foresee precisely what checks will be made in his regard by the
Swedish special police service in its efforts to protect national
security. Nevertheless, in a system applicable to citizens
generally, as under the Personnel Control Ordinance, the law has
to be sufficiently clear in its terms to give them an adequate
indication as to the circumstances in which and the conditions
on which the public authorities are empowered to resort to this
kind of secret and potentially dangerous interference with
private life ...
In addition, where the implementation of the law consists of
secret measures, not open to scrutiny by the individuals
concerned or by the public at large, the law itself, as opposed
to the accompanying administrative practice, must indicate the
scope of any discretion conferred on the competent authority with
sufficient clarity, having regard to the legitimate aim of the
measure in question, to give the individual adequate protection
against arbitrary interference (see the above-mentioned Malone
judgment, Series A no. 82, pp. 32-33, para. 68)." (Eur. Court
H.R., Leander judgment of 26 March 1987, Series A no. 116, p. 23,
para. 51).
The Commission recalls that it has considered the compatibility
with the requirements of foreseeability of the partial definition of
"interests of national security" in the 1989 Act (see section 1(2) in
Relevant Domestic Law and Practice) in two previous cases, Esbester
v. the United Kingdom (No. 18601/91, Dec. 2.4.93 to be published in
D.R.) and Hewitt and Harman v. the United Kingdom (No. 20317/92,
Dec. 1.9.93 to be published in D.R.). It considered that the principles
referred to above did not necessarily require a comprehensive
definition of the notion of "the interests of national security",
noting that many laws, which by their subject-matter require to be
flexible, are inevitably couched in terms which are to a greater or
lesser extent vague and whose interpretation and application are
questions of practice. It held that, given the express limitations on
the exercise of the Security Service's functions and the supervision
of a Tribunal and Commissioner, the law was formulated with sufficient
precision.
In the present case, the Commission notes that the term "national
security" in the 1985 Act and that of "economic well-being" in the 1985
and 1989 Acts are not expressly defined. It appears however that the
Commissioner appointed under the 1985 Act has in his public annual
reports given elaboration on how the provision is to be interpreted,
with reference in the context of "national security" to the definition
given by Lord Harris of Greenwich (the 1986 report p. 8 above). He has
also given further consideration as to its ambit in the 1988 report
(p. 9 above). As regards the criterion of economic well-being, this is
subject to the express limitation that it may only justify interception
where the information, which it is considered necessary to obtain, is
information relating to the acts or intentions of persons outside the
British Islands. A similar limitation applies in the context of the
1989 Act.
While, as the applicant points out, the provisions of the 1985
and 1989 Acts are not subject to the influence of the adversarial input
which forms part of the judicial process of interpretation, the
Commission does not consider that the concept of foreseeability
requires that questions of interpretation and practice must be decided
in a judicial forum. It is compatible with the requirements of
foreseeability that terms which are on their face general and unlimited
are explained by administrative or executive statements and
instructions, since it is the provision of sufficiently precise
guidance to enable individuals to regulate their conduct, rather that
the source of that guidance, which is of relevance (cf. Eur. Court
H.R., Silver judgment of 25 March 1983, Series A no. 61, pp. 33-34,
paras. 88-89).
As regards the use and retention of information obtained by
interception, the Commission notes that section 6 of the 1985 Act
imposes an obligation on the Secretary of State to provide arrangements
to ensure that material is disclosed only to the extent necessary to
fulfil the purposes allowed and that it must be destroyed once its
retention ceases to be necessary for those purposes. The Commissioner,
a senior member of the judiciary, exercises the function of reviewing
the adequacy of those arrangements and reports annually on his
findings.
In light of the above, the Commission considers that the scope
and manner of exercise of the powers to intercept communications and
make use of the information obtained are indicated with the requisite
degree of certainty to satisfy the minimum requirements referred to
above.
The Commission thus concludes that any interference in the
present case was "in accordance with the law".
Legitimate aim
It is not contested that the aims pursued by the interference in
the present case were the "interests of national security" and/or the
"economic well-being of the country", which are legitimate aims
provided for in the second paragraph of Article 8 (Art. 8) of the
Convention.
"Necessary in a democratic society ..."
The Commission recalls that the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued.
Regard must also be had in this context to the margin of appreciation
of the respondent state which in the area of assessing the requirements
of national security and choosing the means of achieving its protection
has been held by the Court to be wide (Leander judgment loc. cit.
p. 25, paras. 58-59).
The Court has acknowledged the necessity for States to collect
and store information on persons but has emphasised that it is however
crucial, given the potential seriousness of resulting invasions of a
person's private sphere, that there exist adequate and effective
guarantees against abuse (Eur. Court H.R., Klass judgment of
6 September 1979, Series A no. 28, p. 23, para. 50).
The Government have pointed to the framework of supervision set
up under the 1985 and 1989 Acts.
The applicant contends that the protection offered is inadequate
and ineffective. He alleges a number of defects.
Insofar as the applicant complains that the Tribunal has no
jurisdiction to investigate interceptions which ceased before
10 April 1986, the Commission notes that the substance of the present
complaint relates effectively to the adequacy of existing safeguards
under the 1985 Act and not to pre-existing law. In any event, all
outstanding warrants were reconsidered under the 1985 Act and fresh
warrants issued if appropriate. Information gathered prior to the
1985 Act which might still be retained by the Security Service would
be subject to the limitations set out in the 1989 Act, namely, it could
be retained only insofar as it was necessary for the proper discharge
of its functions and this retention could be reviewed by the Security
Service Commissioner.
The applicant criticises the limited nature of the examination
of complaints carried out by the Tribunal which has no power to
consider the correctness of the Secretary of State's decision to issue
a warrant, only whether the decision was one which no reasonable
Secretary of State could have reached. The Commission considered
similar complaints in the context of the scope of review of the
Security Service Tribunal in the Esbester case (loc. cit.), but found
that the supervisory role which it exercised in combination with the
Commissioner was sufficient. In the context of the 1985 Act, the
Commission notes that the Tribunal is similarly constituted by lawyers
of ten years' experience who act in an independent capacity. While it
could not reconsider the merits of a decision to issue a warrant, it
does have the competence, applying the judicial review standard, to
investigate whether there has been a contravention of sections 2-5 of
the 1985 Act, which would include reviewing whether the Secretary of
State issued a warrant for a proper purpose. Further the Commissioner
is under an obligation to review warrants under section 8 (1)(a) of the
1985 Act. It appears from his 1987 report that in reviewing the issue
of warrants he applies a rigorous test of whether they were "really
needed" for the purpose.
While the Tribunal and Commissioner under the 1985 Act have no
express jurisdiction to investigate cases where no warrant has been
issued, the Commission recalls that interceptions without a warrant are
criminal offences and accordingly a matter for the police. If, however,
the Tribunal or Commissioner came across an instance of an unauthorised
interception, it is apparent from the Secretary of State's statement
before Parliament that it would be expected that they would report it.
Insofar as the applicant complains that the Tribunals under the
1985 and 1989 Acts are prevented from giving reasons for a decision
which is not in the applicant's favour, this limitation has already
been considered by the Commission in the context of the 1989 Act in the
Esbester case where it found, on the basis of established case-law,
that States may legitimately fear that the efficacy of a system might
be jeopardised by the provision of information to complainants and that
the absence of such information cannot in itself warrant the conclusion
that the interference was not "necessary" (see Klass judgment loc. cit.
p. 27, paras. 57-58, and the Leander judgment loc. cit. p.27,
para. 66).
The applicant has also criticised the fact that the decisions of
the Tribunals are not subject to any appeal to a court and casts doubt
on their effectiveness, pointing out that neither Tribunal has ever
made a determination in favour of a complainant. In addition, no
Parliamentarians play a role in the process and, he submits, the
effectiveness of the Commissioner must be in doubt since he has no
independent source of information and cannot personally review every
warrant.
While the Commissioner does appear to choose warrants to review
on the basis of random selection (save where he decides, as in the case
of "subversion", to review a particular category in its entirety), the
Commission is satisfied that his existence must in itself furnish a
significant safeguard against abuse. The annual reports indicate that
the Commissioner, a senior member of the judiciary, takes a thorough
and critical approach to his function in identifying any abuse of the
statutory powers. In his 1991 report, however, he found no evidence to
substantiate the rumours, reported in the media (and referred to by the
applicant in the present case), of widespread use of surveillance
powers and in particular of routine interception of British businessmen
by GCHQ.
The fact that the Tribunals have never made a determination in
favour of an applicant is insufficient, in the Commission's view, to
indicate that the system of safeguards is not effectively functioning
as intended by domestic law. The Commission notes that the possibility
of review by a court or involvement of Parliamentarians in supervision
would furnish additional independent safeguards to the system. Having
regard however to the wide margin of appreciation accorded to the
Contracting Parties in this area, the Commission finds that the 1985
Act nonetheless satisfies the threshold requirements of Article 8 para.
2 (Art. 8-2) of the Convention in providing a framework of safeguards
against any arbitrary or unreasonable use of statutory powers in
respect of an individual in the position of the applicant. It also
finds no reason in the present case to depart from its finding with
regard to the 1989 Act in the cases of Esbester and Hewitt and Harman
(loc. cit.).
The Commission concludes that any interference in the present
case can be regarded as necessary in a democratic society in the
interests of national security and/or the economic well-being of the
country. It follows that this part of the application must be rejected
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains that he has no effective remedy for his
complaints contrary to Article 13 (Art. 13) of the Convention, which
provides that:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls however that Article 13 (Art. 13) does not
require a remedy under domestic law in respect of any alleged violation
of the Convention. It only applies if the individual can be said to
have an "arguable claim" of a violation of the Convention (Eur. Court
H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,
p. 23, para. 52). The Commission finds that the applicant cannot be
said, in light of its findings above, to have an "arguable claim" of
a violation of his Convention rights. It follows that this complaint
must also be dismissed as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy