AS TO THE ADMISSIBILITY OF
Application No. 12015/86
by Isabel HILTON
against the United Kingdom
The European Commission of Human Rights sitting in private
on 6 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 February 1986
by Isabel HILTON against the United Kingdom and registered on
26 February 1986 under file No. 12015/86;
Having regard to the Commission's decision of 18 July 1986 to
communicate the application to the respondent Government under Rule 42
para. 2 (b);
Having regard to the submissions of the parties;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1947 and resident
in London. She is represented before the Commission by Ms. Madeleine
Colvin, Legal Officer of the National Council for Civil Liberties
(N.C.C.L.), London. The facts, which are not in dispute between
the parties unless indicated otherwise, may be summarised as follows:
The applicant gained an M.A. Degree in Chinese at Edinburgh
University in 1970 and after conducting research and lecturing, she
was awarded a scholarship to study in China. From 1973 to 1975 she
studied Chinese literature in Peking and Shanghai.
The applicant returned to Scotland in July 1975 to resume her
academic studies. In autumn of that year, the Head of the Chinese
Department at Edinburgh University asked the applicant to act as
Secretary to the Scotland-China Association which was a group under
the patronage of the Department and to which most of the Department's
students belonged.
In autumn 1976, the applicant was employed as an on-screen
reporter for Scottish Television (an independent company). She
applied at the same time to the BBC for the job of reporter/
presenter on BBC Scotland's current affairs programme called
"Current Account". The applicant received an interview but was not
offered the job. After many weeks, believing she would not receive
the job, she accepted in January 1977 the offer of a job as a
journalist for the Daily Express in London. The applicant was
subsequently informed by letter from the BBC dated 7 March 1977 that
she had not been selected for the job.
Before she left Scotland, Mr. Alastair Hetherington, former
Controller of BBC Scotland, asked the applicant why she had not
taken the job with the BBC. On being told the job had not been
offered to her, Mr. Hetherington disclosed that her appointment had
been recommended by the interviewing Board in Scotland. Afterwards,
the Head of BBC Personnel in Scotland telephoned the applicant to
offer her the job and apologised for the delay. However, the
applicant by that time had accepted a job in London with the Daily
Express and had to decline. She duly took the job in London but it
proved unsatisfactory and she left after six months and joined the
Sunday Times.
In the summer of 1985, the applicant was questioned by
journalists from the Observer concerning her application for the
BBC job in 1976. On reading an article in the Observer of 18
August 1985 entitled "How MI5 vets BBC staff", she discovered the
details of what had occurred in 1976. The content of the article has
been confirmed as accurate by Mr. Alastair Hetherington, now a Research
Professor at the University of Stirling. He had not informed her
previously because of the Official Secrets Act 1911.
The applicant alleges that the events surrounding her job
application were as follows. In late 1976 the interview board had
unanimously decided that the applicant was the best candidate and
should be offered the job. The decision was referred to London, where
the News and Current Affairs Division had a right of veto and where
applications had to go through a security check. Mr. Hetherington,
who has submitted an affidavit which supports in some particulars the
applicant's version of events, but provides no dates of the relevant
events under dispute, states that "although I cannot recall the exact
timing of events in respect of Ms Hilton's application, I have no
reason to believe that there was any unusual delay in referring her
particulars to the Personnel Department in London." He states that he
was subsequently informed by a senior official of the Personnel
Directorate "approximately a week after the referral had been made
to London" that the appointment of the applicant could not go ahead.
This was confirmed several days later by a security liaison officer -
a BBC employee. He insisted, however, that the security liaison
officer should explain the reason for this and was finally told three
to four weeks later that the applicant was refused because she had
been the Secretary of a suspect organisation associated with China.
After enquiries, Mr. Hetherington was of the opinion that the
security personnel had confused the university organisation with which
the applicant was associated with another association considered
suspect. He informed the security officer of this serious mistake and
after further delay, he was informed it was permissible to offer the
applicant the job. However, by that time (January 1977), the applicant
had accepted a job with a London newspaper. She resigned as Secretary
of the Scotland-China Association in February 1977.
The applicant states that at no time did any person in
authority inform her that information relevant to security was
obtained, retained and used in relation to her job application and at
no time was she given an opportunity to know the contents of that
information so that its accuracy could be checked. She believes that
the security procedures applied by the BBC are carried out by, or
at the insistence of, the Security Services of the United Kingdom and
she may in the future wish to apply for a job with the BBC.
She stresses that while she is uncertain as to the
precise dates of the relevant events, she is certain that she accepted
the offer of the job as a journalist in London in January 1977 because
she knew that she would not be appointed to the BBC Scotland job.
The respondent Government accept that the applicant was
subject to a security check but state that it was only on 14 February
1977 that the BBC made enquiries of the Security Service in respect of
her candidature by which date the applicant had accepted alternative
employment. The Security Service, according to the Government,
responded to the BBC's enquiry on 16 March 1977 after the applicant
had accepted alternative employment. The Government also point out
that the Security Service assessment of the applicant provided to the
BBC was not based upon a confusion between the Scotland-China
Association and any other organisation. The assessment concluded by
advising against offering the applicant the job unless the BBC were to
decide that there were good reasons for doing otherwise. They state
that it was at all times exclusively for the BBC to decide what
attitude to take in the light of the Security assessment. On 21 April
1977 the Security Service advised that since the applicant was no
longer the Secretary of the Scotland-China Association, she should not
be debarred from working for the BBC.
The Government state that the applicant has been informed
by the BBC in a letter dated 2 December 1985 that no files exist
concerning the events she complains of. Furthermore, as a result of
discussions with trade union representatives, the BBC agreed to
destroy files and other materials concerning security matters after a
period of two years which might have existed in respect of current and
previous members of staff. The only file now held by the BBC
referring to the applicant is a programme contracts file which
contains only copies of contributors' contracts.
The applicant, however, notes that the BBC's letter only
relates to files kept about her by the BBC. She believes that files
are kept about her by the Security Service and points out that the
BBC's letter did not concern the existence of such files. She states
that this is a matter of continuing concern to her since as a
freelance journalist who works occasionally for the BBC she may be
subject to prejudice as a result of files relating to her kept by the
Security Service.
COMPLAINTS
The applicant complains that the obtaining, retention and
application of personal information by the BBC and the Security
Service so as adversely to affect her prospects of being appointed to
a particular post, without any opportunity for her to know or to
comment on the accuracy of the information, constitutes a breach of her
right under Article 8 (Art. 8) of the Convention to respect for her private
life. She claims that as a result of not being offered the job with the BBC
she suffered personal financial loss and disruption to her personal and
professional life in Scotland.
She further complains, in the following terms, of the
continuing retention and potential use of such information:
"Ms. Hilton believes that the BBC continues to
operate security 'procedures' of the sort applied to her
in 1976. She has, without success, asked the BBC to give
her access to any and all files held concerning her so that
she can check the accuracy of the information.
...
Ms. Hilton believes that the 'security procedures'
applied by the BBC are carried out by, or at the
insistence of, the Security Service of the
United Kingdom Government."
She submits that these measures are not "in accordance
with the law" as required by Article 8 para. 2 (Art. 8-2) since the relevant
law (if any) is not adequately accessible or formulated with sufficient
precision. The applicant also argues that the post in question had no
implications for national security and therefore could not be
justified under this provision as being in the interests of national
security. Further, there were no safeguards applied to ensure the
"procedures" operated fairly and effectively.
The applicant also claims that she has no effective remedy
before a national authority in respect of the matters of which she
complains. She accordingly invokes Article 13 in conjunction with
Article 8 (Art. 13 + Art. 8) of the Convention.
The applicant, in her observations in reply dated 12 June 1987
and 29 January 1988, further complains under Article 10 (Art. 10) of the
Convention. She contends that the refusal to appoint her because of
her association with the Scotland-China Association amounts to a
penalty for the expression of her views. She further submits that the
Security Service interfered with her right to impart information and
ideas to the public by advising that she should not be employed as a
reporter. Finally, she submits that the continuing situation created
by the practice and procedure of the obtaining, retention and
potential use of information about her private life by the Security
Service constitutes a breach of Article 10 (Art. 10) of the Convention.
OBJECT OF THE APPLICATION
The applicant's object is:
(1) to obtain a finding by the organs established under
the Convention that she is a victim of a violation of
Articles 8 and 13 (Art. 8, Art. 13) of the Convention;
(2) to obtain confirmation that no data concerning her
private activities are retained by the BBC or, if they are,
to know the contents of such data so that she can check
their accuracy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 February 1986 and
registered on 26 February 1986. It was first considered by the
Commission on 18 July 1986 when it was decided that the Government
should be invited to submit written observations on the admissibility
and merits of the application insofar as it raised issues under
Articles 8 and 13 (Art. 8, Art. 13) of the Convention. These observations were
submitted by the respondent Government on 9 February 1987. The applicant's
observations in reply were submitted on 12 June 1987.
By a decision of 28 October 1987 the President of the
Commission granted a request from the respondent Government to submit
further observations in respect of the issues raised in the
application. These further observations were submitted on 26 November
1987 and were communicated to the applicant for observations in reply.
The applicant's observations in reply were submitted on 29 January 1988
and a supporting affidavit was further submitted on 19 February 1988.
SUBMISSIONS OF THE PARTIES
Respondent Government
As to Fact
The Government note the applicant's claim that the check by
the Security Service took place prior to the applicant's accepting
alternative employment. They make the following observations with
reference to the applicant's submissions on this issue:-
- a possible explanation for the BBC's delay in contacting
the Security Service after the applicant had been selected
by the Board in late 1976 may be the fact that, on a
previous application by the applicant for an appointment
with the BBC, the BBC had obtained in December 1975 an
assessment from the Security Service to the effect that
there were no security considerations against offering the
applicant the job. The fact remains that it was not until
February 1977 that the BBC made enquiries of the Security
Service and the Service responded to the enquiry on
16 March 1977;
- the BBC's letter of 7 March 1977 merely informed the
applicant that she had not been selected for the job and
gave no reason for rejecting her application. The letter
does not show that the assessment by the Security Service
must have occurred at an earlier date;
- the Government are unable to comment on the recollection
of Mr. Hetherington or of the applicant as to when either
was told of the reasons for her non-appointment, save to
repeat that it was not until 16 March 1977 that the Security
Service responded to the BBC's request for an assessment;
- the Government do not accept that there is any
inconsistency between the account of the facts given by the
Government and the applicant's claim to have resigned from
the Scotland-China Association in February 1977;
- the first request made by the BBC to the Security Service
in relation to the applicant's job application in 1976 was
made in February 1977. No prior requests of an oral or
written nature were made and no response to the request,
whether written or oral, was given by the Security
Service prior to 16 March 1977.
Domestic law and practice
The BBC is an independent corporate body which was
incorporated by Royal Charter granted in exercise of the Royal
Prerogative on 20 December 1926. The objects of the BBC include
the provision of radio and television broadcasting services (Article 3
(a)) and, for this purpose, the BBC is empowered to acquire from
the Secretary of State a licence for such period subject to such terms
as he might prescribe. The conduct of the Corporation's affairs is
the responsibility of the Governors who are, by Article 1 of the
Charter, expressed to be members of the Corporation.
The status under domestic law of the BBC was fully
considered by the Court of Appeal in the case of British Broadcasting
Corporation v. Johns [1965] 1 Ch. 32 in which the Court was required
to determine whether the BBC was an instrument of Government which
was entitled to the immunities and privileges of the Crown, in
particular, in relation to taxation. The Court of Appeal concluded
that the BBC was not a servant or agent of the Crown and did not
enjoy any of the privileges or immunities of the Crown. The reasons
of the Court can be summarised as follows:
- neither the Crown nor Parliament had asserted a
monopoly over broadcasting or asserted that it should be
within the province, or a function, of Government;
- in determining how broadcasting should be regulated,
Parliament had specifically chosen not to make it a function
of Government by, for instance, imposing a duty on a
Government Minister to organise a broadcasting service.
Instead the BBC had been created by Charter and had been
given an independent legal personality which was licensed to
carry out a broadcasting service. The BBC had been
deliberately incorporated in the form in which it was
created because it was considered to be in the public
interest that broadcasting should not be conducted by a
Government agency;
- the mere fact that the BBC was created by Charter
does not make the Corporation an agent of the Crown. There
was nothing in the terms of the BBC's Charter to
constitute the BBC as such an agent. Equally, the
licence and agreement was drafted so as to make clear that
broadcasting services were to be provided by the BBC as
an independent contractor and not as a Government agent;
- although the licence and agreement contained
provisions under which the Postmaster-General could exercise
control over the stations and transmissions of the BBC in
their technical aspects, the general conduct and operation
of broadcasting remained free from the control of the
Government.
The system of carrying out security checks on BBC employees
in respect of employees was introduced in 1937. Their purpose was to
protect the BBC from penetration by those who might pose a threat
to security and to safeguard official classified information held by
the BBC. The Security Service provides a service to the BBC in
connection with these checks.
At the time of the applicant's application for employment the
security vetting procedures were applied to current affairs staff on
the ground of the overriding requirement to preserve the impartiality
and integrity of the BBC's News Service. However, consistently
with the provisions of the BBC's Charter (Article 12) (Art. 12) it is the
BBC which decides whom to appoint to any post or whether to invoke
a security checks procedure. Neither the Security Service nor any
other external agency has the right of veto on the appointment or
promotion of any member of staff. The BBC's security officer, who
implements the procedure and liaises with the Security Service, is a
BBC employee who is responsible only to BBC management.
In October 1985 the criteria for invoking the checks were
revised to apply only to members of the staff who were necessarily
involved in sensitive areas who required access to official classified
information. In the domestic services they now apply only to staff
involved in the planning and preparation of the war-time broadcasting
service and who therefore have access to official classified
information.
The six months rule (Article 26 of the Convention) (Art. 26)
The Government contend that the applicant raises for the first
time in her reply to the Government's observations the following
complaints:
- that the role of the Security Service in 1976-1977
in relation to her job application constituted a breach of
Article 8 of the Convention (Art. 8) ;
- that the Government had failed to fulfil the
positive obligations inherent in effective respect for the
rights guaranteed by Article 8 (Art. 8);
- that there was a breach of Article 10 (Art. 10) of the
Convention in her case in that she was being penalised for
expressing her views in circumstances which could not be
justified under the second paragraph of this provision.
The Government submit that, while the six months rule could be
held to be satisfied in relation to the complaint in the original
application which was directed exclusively to the acts of the BBC, it
is not met by the above new complaints.
Article 8 (Art. 8) of the Convention
The Government submit that there is no factual basis on which
the applicant can complain that the obtaining, retention or
application of information about her adversely affected her prospects
in her application to the BBC. They point out that the applicant
had accepted alternative employment before any security checks had
even been initiated by the BBC. Moreover, there is no factual basis
for the complaint as to the continuing retention of information about
her by the BBC since she has been informed that all of the
information gathered about her has since been destroyed.
It is further submitted that, in any event, the acts of the
BBC do not engage the responsibility of the United Kingdom
Government under the Convention. The BBC enjoys a separate legal
personality and autonomy of administration and management and is not a
department of Government. The Government refer to the analysis of the
status of the BBC by the Court of Appeal in the Johns case (loc.
cit.).
In particular, the control and management of the BBC is
vested by the Charter in the Governors of the Corporation who are
appointed by the Queen-in-council and do not perform their duties as
servants or agents of the State. Furthermore, the Governors'
managerial functions are carried out wholly independently of
Government control.
The respondent Government thus submit that this complaint
should be rejected as incompatible with the Convention ratione
personae or alternatively should be dismissed as manifestly
ill-founded.
Article 10 (Art. 10) of the Convention
The Government state that the applicant has at all times been
free to hold and express opinions, whether of a political nature or
otherwise, and has not substantiated her complaint under this
provision. No evidence has been adduced to show that the provision of
information to the BBC by the Security Service concerning the
applicant's membership of the Scotland-China Association was aimed at
penalising the applicant for exercising her right to express opinions.
Article 13 (Art. 13) of the Convention
It is submitted that the applicant's claim of a breach of
Article 8 (Art. 8) in respect of the acts of the BBC is incompatible with the
Convention ratione personae or, alternatively, the claim is manifestly
ill-founded. It follows that the applicant has no arguable claim to
be a victim of a violation by the Government of this provision.
Accordingly, Article 13 (Art. 13) of the Convention is inapplicable in respect
of this complaint.
The Applicant
As to Fact
The applicant disputes the Government's contention that the
BBC's enquiries to the Security Services were made after the
applicant had accepted alternative employment. She points out that
- she was selected by the Board for the job in late 1976 and
there is no explanation for the delay until March 1977;
- the BBC wrote to the applicant on 7 March 1977 informing
her that she had not been selected for the job. The relevant letter
shows that the vetting by the Security Services must have occurred at
an earlier date;
- Mr. Alastair Hetherington (then Controller of BBC Scotland)
recalls that he was told of the security reasons for her
non-appointment soon after the referral of the interviewing board's
decision for clearance to the Personnel Department in London;
- the Government fail to provide an explanation why the Security
Service gave further consideration to the matter. The true reason
lies in Mr. Hetherington's protests. Moreover it is possible that
oral requests had been made to the Security Service prior to the first
written request;
- the reason relied on by the Security Service, namely the
applicant's position in the Scotland-China Association pre-dates March
1977 since she resigned from that Association in February 1977.
With respect to the Government claim that the Security Service
advised against appointment because of her association with the
Scotland-China Association, the applicant submits that either this
was a perverse decision since there was no reason whatsoever for
suspecting the bona fides of a person because of contact with that
organisation or the Security Service confused that organisation
with another organisation.
The Scotland-China Association was formed in 1966 and involves
many eminent persons and Chinese scholars. The Association never
adopted any political position on events in China and did not accept
funds from the Chinese Government.
Six months rule
As regards the applicant's complaints of the obtaining,
retention and application of such information by the BBC and the
Security Service in 1976 to 1977 she could not have been aware of the
practice and procedure as applied to her until she read the article in
the Observer of 18 August 1985. The applicant submits that the time
does not run for the purposes of Article 26 (Art. 26) until the victim of an
alleged violation becomes aware or should reasonably be aware of the taking of
the final decision. Accordingly, the relevant date for the purposes of Article
26 (Art. 26) is the date of the Observer article, i.e. 18 August 1985.
As far as the applicant complains of the still continuing
situation created by the practice and procedure of obtaining and
retaining information about her private life by the Security Service
as being contrary to Article 10 (Art. 10), the six months rule is irrelevant.
Insofar as the applicant complains of the obtaining,
retention and application of information by the BBC and the Security
Service in 1976 to 1977, the applicant accepts that she did not
specifically complain in her original application of a breach of
Article 10 (Art. 10). However, she does not seek to rely on any additional
facts. She maintains that the same facts constitute a violation of
Article 8 (Art. 8) as well as Article 10 (Art. 10). Moreover, it was not until
she became aware of the contents of the Government's observations that she knew
that the reason for the adverse reports upon her by the Security Service was
alleged to be to satisfy "the overriding requirement to preserve the
impartiality and integrity of the BBC's News Service". The applicant was
entitled to complain of a breach of Article 10 (Art. 10) based partly on
information disclosed for the first time in the Government's observations.
Article 8 (Art. 8) of the Convention
To the extent that the substance of the applicant's complaint
relates to the actions of the BBC it is submitted that such actions
engage the responsibility of the Government by virtue of the positive
obligations inherent in an effective respect for private life. Such
actions also engage the responsibility of the United Kingdom for the
following reasons:
(1) the practice of carrying out security checks on BBC employees, and
the procedures relating thereto, have been agreed at a senior level in
the Home Office, the Security Service and the BBC so as to give effect
to the "overriding requirement to preserve the impartiality and
integrity of the BBC's News Service";
(2) the relevant practice and procedures applied to the BBC as one of
the country's most important public institutions in relation to the
provision in the public interest of public service broadcasting;
(3) although the BBC enjoys a separate legal personality and an
autonomy of administration, it has been entrusted by the Secretary of
State with the performance of public functions, subject to conditions
prescribed by the Secretary of State, on behalf of the United Kingdom;
(4) the character of the BBC as a public authority is further
evidenced by a clause 13.7 of the current BBC licence which contains
the following proviso:
"The Corporation shall at all times refrain from sending any
broadcasting matter expressing the opinion of the Corporation on
current affairs or matters of public policy"
and by the fact that a resolution by the Board of Governors of the
BBC, annexed to the licence, reaffirms the Board's objectives "to
treat controversial subjects with due impartiality and they intend to
continue this policy both in the Corporation's News Service and in the
more general field of programmes dealing with matters of public
policy";
(5) the duties imposed upon the BBC by these provisions are similar to
the duties imposed upon the other main broadcasting body of the
United Kingdom - the Independent Broadcasting Authority (IBA) which is
obliged by Section 4(1) of the Broadcasting Act 1981 to comply with
the requirement that a sufficient amount of time in the programmes is
given to news and news features and that all news given in the
programmes is presented with due accuracy and impartiality. Moreover,
the fact that the BBC's public duties are prescribed by the Secretary
of State, whereas the IBA's public duties are prescribed by Parliament
does not affect the "public" character of the BBC for the purposes of
the United Kingdom's obligations under the Convention;
(6) the public character of both the BBC and the IBA is further
evidenced by the fact that each is a "broadcasting body" as defined by
Section 54(3) of the Broadcasting Act 1981 complaints about whose
allegedly unjust or unfair treatment or unwarranted infringements of
privacy in sound or television broadcasts are considered and
adjudicated upon by the Broadcasting Complaints Commission under Section
54 of that Act;
(7) the courts of the United Kingdom have decided that, in determining
whether the decisions of a particular body were subject to judicial
review, the court was not confined to considering the source of that
body's powers and duties but could also look at their nature.
Accordingly, if a duty imposed on a body, whether expressly or by
implication, was a public duty, the body was exercising public law
functions and a court had jurisdiction to entertain an application for
judicial review. (See R. v. Broadcasting Complaints Commission, ex
parte Owen [1985] 2 All ER 522 (Divisional Court) and R. v. Panel
on Take-overs and Mergers, ex parte Datafin [1987] 1 All ER 564 (Court
of Appeal);
(8) the case of British Broadcasting Corporation v. Johns [1965]
1 Ch. 32, merely decided that the BBC is not the servant or agent of
the Crown and does not enjoy the privileges and immunities of the
Crown. The Johns case did not decide that the BBC was immune to
judicial review as a public law body, still less that it is not a
public authority;
(9) the Court of Justice of the European Communities has recently
examined whether the Chief Constable of the Royal Ulster Constabulary
was a public authority so as to be bound by the principle of equal
treatment for men and women guaranteed by Council Directive No.
76/207/EEC of 9 February 1976. The Government had argued that the
Chief Constable is constitutionally independent of the State and that
in the particular case he was involved only as an employer. The Court
of Justice found that whatever the relationship of the Chief Constable
might be with other organs of the State "such a pubic authority,
charged by the State with the maintenance of public order and safety,
does not act as a private individual. It may not take advantage of
the failure of the State, of which it is an emanation, to comply with
community law."
The applicant contends that this principle applies mutatis
mutandis in relation to compliance with the law of the Convention by
the BBC. The BBC is a public authority charged by the Secretary of
State with the performance of public service broadcasting functions.
The applicant's complaints are directed against the BBC in its
capacity as a public authority and not as a private employer
performing exclusively private functions.
The applicant recalls that, to the extent that the Security
Service was responsible for the matters she complains of, her
complaint is directed to the acts of the Security Service for which
the Government are clearly responsible. She submits that the
obtaining, retention and use of personal information about her without
having an opportunity to refute it amounts to an interference with her
right to respect for private life as guaranteed by Article 8 para. 1
(Art. 8-1) of the Convention (Eur. Court H.R., Leander judgment of 26 March
1987, Series A no. 116, p. 22 para. 48). She further claims that the
obtaining, retaining and use of such information did adversely affect her
prospects of obtaining employment because they resulted in a negative
assessment by the Security Service and a long delay after she had been
interviewed by the BBC Scotland. The applicant would have preferred to work
for the BBC in Scotland both because of the nature of the work and because she
wished to remain in Scotland.
She further submits that obtaining and continuing retention of
such personal information about her is not "in accordance with the
law" as required by Article 8 para. 2 (Art. 8-2) of the Convention (see p. 23
para. 51 of the Leander case, loc. cit.). She also contends that the
interference with her respect for private life was not necessary in a
democratic society in the interests of national security and that it did not
correspond to a pressing social need and was not proportionate to any
legitimate aim pursued. Moreover, there exist no adequate and effective
safeguards against abuse under the law of the United Kingdom. She maintains
that these submissions have not been addressed by the respondent Government in
their observations and that the Government's submissions are silent as to
whether such a file of personal information is held by the Security Service.
Article 10 (Art. 10) of the Convention
It is submitted that the Security Service interferes with the
applicant's right to impart information and ideas to the public by
advising that she should not be employed as a reporter/presenter in
current affairs programmes. The BBC further interfered with her right
to impart information and ideas to the public by accepting the advice
of the Security Service. Unlike the position in the Leander case, the
practices and procedures complained of were concerned with the content
of the information and ideas imparted by the BBC to the public and the
Security Service's view that someone like the applicant should not be
concerned with such communication. Accordingly, an interference with
the exercise of freedom of expression by journalists rather than
access to the public service is at the heart of this issue.
Article 13 (Art. 13) of the Convention
It is submitted that the applicant's claims of breaches of
Articles 8 and 10 (Art. 8, Art. 10) are arguable and give rise to prima facie
issues under the Convention. The absence of effective remedies before a
national authority is a central element in the applicant's complaint to the
Commission.
THE LAW
1. The applicant complains of the obtaining and application of
personal information about her by the BBC and the Security Service.
She further complains of the continued retention of such information.
In particular, she complains that the information on file about her
personal background was used to deny her a job as a reporter with the
BBC in Scotland in 1977. She invokes Articles 8, 10 and 13 (Art. 8,
Art. 10, Art. 13) of the Convention.
Six months rule (Article 26 of the Convention) (Art. 26)
The respondent Government first submit that the applicant
raised the following aspects of her complaint for the first time in
her reply dated 12 June 1987 to the Government's observations and that
they should be rejected on the basis of the six month rule having
regard to the date of the introduction of the application (7 February
1986):
1. that the role of the Security Service in
carrying out the Security check in 1976-1977
constituted a breach of Article 8 (Art. 8);
2. that the Government had failed to fulfil the
positive obligation inherent in Article 8 (Art. 8);
3. that she was, in effect, penalised for the
'expression' of her views in breach of Article 10
(Art. 10).
The Government note that the 'final decision', for the purposes
of Article 26 (Art. 26), is the obtaining from the Security Service and alleged
use by the BBC of personal information concerning the applicant in relation to
her application for employment by the BBC in 1976-1977. The above submissions
are made on the assumption that Article 26 (Art. 26) could be held to be
satisfied, having regard to the fact that the applicant claims to have
discovered the facts relating to the security check on her background in the
article in the Observer newspaper of 18 August 1985.
Article 26 (Art. 26) of the Convention reads as follows:
"The Commission may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken."
The Commission notes that in accordance with constant case-law
the 'final decision' for purposes of the six months rule must
normally be regarded as the date of the acts or decisions complained
of where there exists no domestic remedy in respect of the complaint
(see No. 8206/78, Dec. 10.7.81, D.R. 25 p. 147). The Commission
further recalls that the six months rule contained in this provision
does not apply to a complaint which concerns a continuing situation
(see No. 6852/76, Dec. 5.12.78, D.R. 15 p. 5). Finally, the
Commission observes that the running of the six months period might
be interrupted or suspended by the existence of special circumstances
and, in any event, can only begin to run from the moment the
applicant learns of the act or decision of the public authority of
which he complains (see No. 9991/82, Dec. 12.7.84, D.R. 39 p. 147).
In the present case, it is not disputed by the respondent
Government that there is no remedy under the law of the United Kingdom
in respect of the matters complained of. It follows, therefore, that
the final decision for purposes of Article 26 (Art. 26) in respect of the
applicant's complaint concerning the compilation and use of personal
information about her in 1976-1977 must relate back to the acts of the
BBC and the Security Service in 1977. However, the Commission notes
that it is not disputed by the Government that the applicant first
learned that a security check had been carried out in respect of her
candidature for a post in the BBC in an article in the Observer
newspaper on 18 August 1985. In these circumstances, the Commission
considers that the absence of knowledge on the applicant's part of the
matters which form the subject of the complaint constitute special
circumstances which interrupt the running of the six months period.
The Commission further observes that the six months rule does
not apply to that part of the applicant's complaint under Articles 8
and 10 (Art. 8, Art. 10) of the Convention which relates to the continued
retention of personal information about the applicant since such a complaint
concerns a continuing situation.
The Commission accordingly finds that the six months period,
where it applies, begins to run from 18 August 1985. It must now turn
to the Government's specific objections under this head as formulated
above.
As regards the first aspect mentioned by the Government, the
Commission notes that the relevant part of the applicant's original
memorial to the Commission reads as follows:
"(19) Ms. Hilton believes that the security 'procedures'
applied by the BBC are carried out by, or at the insistence
of, the security services of the United Kingdom Government."
The Commission is therefore satisfied that the applicant had
raised this complaint concerning the role of the Security Service at
the outset of her application.
As regards the second aspect, the Commission considers that
this constitutes a legal submission in respect of the applicant's main
complaint under Article 8 (Art. 8) of the Convention as opposed to the
introduction of a new factual element in the case or a new head of
complaint.
Finally, as regards the third aspect, the Commission notes
that the applicant's complaint under Article 10 (Art. 10) of the Convention was
raised for the first time in her observations in reply dated 12 June 1987.
However, the Commission observes that this complaint was based on the facts of
the case as set out in the original memorial to the Commission. It is not
based on additional factual material introduced for the first time in the
applicant's observations in reply.
The Commission recalls, in this context, that "Article 25
(Art. 25) requires that individual applicants should claim to be the victim 'of
a violation of the rights set forth in the Convention'; it does not oblige
them to specify which Article, paragraph or sub-paragraph or even which right
they are praying in aid" (see Eur. Court H.R., Guzzardi judgment of 6 November
1980, Series A no. 39, p. 22 para. 61). Moreover, the Commission and Court
possess an inherent power to decide upon the characterisation in law to be
given to a matter (loc. cit., at p. 23 para. 63).
It follows, therefore, that it is open to an applicant to make
new complaints based on the essential facts as originally presented, at
a subsequent stage of the procedure, and that the six months rule is
not opposable to such new complaints.
The Commission concludes that the application, as a whole,
satisfies the six months requirement in Article 26 (Art. 26) of the Convention.
2. Article 8 (Art. 8) of the Convention
The Commission notes that the applicant's complaints under
this head fall into two parts. First, she complains that as a result
of a security check carried out by the BBC and the Security Service
based on personal information which had been compiled and retained
about her and which she had no opportunity to refute she was denied a
job with the BBC in 1977. Second, she complains of the compilation,
continued retention and potential use of personal information about
her.
The applicant submits that the compilation and use of
information in 1977 and the continued retention of such information
constitutes an interference with her right to respect for private life
which is not "in accordance with the law" or justified under paragraph
2 of Article 8 (Art. 8).
The Government do not contest that the applicant can claim to
be a victim of a breach of this provision. However, they contend that
the applicant could not have been prejudiced by the security check
which was carried out since she had accepted alternative employment in
January 1977 before the BBC had requested a security check on 14
February 1977.
They further submit that, in any event, the acts of the BBC do
not engage the responsibility of the United Kingdom since it is not a
department of Government. Finally, they point out that there is no
factual basis for her complaint as to the continuing retention of
information by the BBC since she had been informed that the BBC has
destroyed all of the information gathered about her. In their
submissions the Government do not address that aspect of the
applicant's complaint relating to the continuing retention of
information about her by the Security Service.
The applicant maintains that the security check was carried
out before February 1977 and that the reason she accepted the job in
London was because she had been informed that her candidature with the
BBC had been turned down. She further submits that the BBC is a
public authority for which there is state responsibility and that in
any event the acts of the Security Service engage the responsibility
of the respondent State.
Article 8 (Art. 8) of the Convention provides as follows:
"1. Everyone has the right to respect for his private
and family life, his home and 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."
A. As regards the applicant's first complaint, the Commission
notes that there is substantial disagreement between the parties as to
when the request for a security check was actually made by the BBC.
The applicant contends that she accepted the offer of the job as a
journalist in London in January 1977 because she knew by that time
that she was not successful in her job application to the BBC. She
admits, however, that she is uncertain as to the precise dates of the
relevant events. In support of her account of the facts she submits
an affidavit sworn on 15 February 1988 by Mr. Alastair Hetherington
who was Controller of BBC Scotland during the relevant time.
Mr. Hetherington states in his affidavit that he has no reason
to believe that there was any unusual delay in referring the
applicant's "particulars" to the Personnel Department in London after
the Interview Board's recommendation and that he was notified of the
negative report and outcome within a week after the referral had
been made to London. On the other hand, he concedes that he cannot
recall the exact timing of events and his affidavit mentions few dates
in support of his recollection of the relevant events.
The Government maintain that the enquiry of the security
service by the BBC concerning the applicant was not made until
14 February 1977 by which date the applicant had accepted alternative
employment. They, therefore, contest that the applicant suffered any
prejudice as a result of the Security Service check.
The applicant points to a number of circumstantial elements
which, she claims, support her contention. She submits that the BBC
letter of 7 March 1977 informing her that she had not been selected
for the job shows that the Security Service check must have occurred
at an earlier date. However, this letter, which has been submitted to
the Commission, merely informed the applicant that she had not been
selected for the job and provides no indication of when a check
occurred.
She further suggests that the security check must have
occurred at an earlier date since the reason relied on by the Security
Services - the fact that she was Secretary to the Scotland-China
Association - predates March 1977. She had, in fact, resigned from
the Association, in February 1977. The Commission, however, agrees
with the Government, that this is not inconsistent with the
Government's claim that the request for a security check was made on
14 February 1977.
The applicant further points out that she was recommended for
the post in late 1976 but there is no explanation for the delay in
contacting the Security Service and notifying her of the outcome until
March 1977. The Government provide the tentative explanation that the
delay in contacting the Security Service may be explained by the fact
that on a previous job application by the applicant the Security
Service had advised that there were no security considerations against
offering the applicant the job. In any event the Commission cannot
draw any firm conclusions from this delay as to the date of the
request by the BBC to the Security Service.
Finally, the applicant suggests that a previous oral request
for security clearance may have been made prior to the written
request. She adds that the Government offer no explanation as to why
the Security Service gave further consideration to the matter,
submitting that the true reason lies in the protests by
Mr. Hetherington on behalf of the applicant. The Government deny that
any prior written or oral requests were made and explain that the
reason for the further consideration of the matter lay in the fact
that the applicant had resigned as Secretary of the Scotland-China
Association. In the light of her resignation, the BBC was advised on
26 April 1977 that the applicant should not necessarily be debarred
from employment with the BBC.
The Commission again sees no inconsistency between the
Government's version of events and the further consideration of the
applicant's position in the light of her resignation from the
secretaryship of the Association.
The Commission has had regard to the fact that the above
factual dispute relates to events which occurred more than eleven
years ago. It is therefore not surprising that the recollection of the
exact pattern of events is difficult. Nevertheless against the above
background, in particular, the admitted difficulty that the applicant
and Mr. Hetherington have of recalling the timing of events, the
Commission finds that the applicant has not substantiated her claim
that the security check took place before February 1977. The
Commission accepts, therefore, the Government's statement that the
check was requested by the BBC on 14 February 1977 after the applicant
had decided to accept an offer of employment with a newspaper in London.
In the light of this finding the Commission considers that it
is unnecessary to express a view on whether the acts of the BBC give
rise to the responsibility of the United Kingdom under the Convention.
It follows that the applicant's first complaint under this
head that information concerning her personal background was used by
the BBC and the Security Service to her detriment must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
B. It remains to examine the applicant's more general complaint
under this provision relating to her allegation concerning the
compilation and continued retention of personal information about her
by both the BBC and the Security Service
The Commission does not consider that a security check per se
constitutes an interference with the right to respect for private life
guaranteed by this provision. An interference with the right to
respect for private life only occurs when security checks are based on
information about a person's private affairs. Moreover it is not
necessary that the person actually show that such information has been
used to his detriment (See Eur. Court H.R., Leander judgment of
26 March 1987, Series A no. 116, p. 22 para. 48).
In the present case the question arises whether the applicant
has sufficiently proved the compilation and retention of such a
dossier.
As regards the BBC the Commission considers that there is no
indication from the case-file that the information compiled by the BBC
in respect of the applicant's job application in 1977 contained any
material other than information contained in documents relating to her
application for employment. Moreover, it notes that the applicant has
been informed by the BBC in a letter dated 2 December 1985 that no
files exist in respect of her job application in 1977.
In these circumstances the Commission does not consider that
the applicant has substantiated her complaint under this provision in
so far as it relates to the compilation and continued retention of
personal information by the BBC.
It follows that it is again not incumbent on the Commission to
express a view on whether the acts of the BBC give rise to the
responsibility of the United Kingdom under the Convention.
With regard to the alleged continued retention of personal
information by the Security Service, the Commission notes that this
complaint has not been made expressis verbis by the applicant
until her supplementary observations in reply dated 29 January 1988.
The Government, in their submissions, have interpreted this complaint
as relating to the continued retention of information by the BBC
alone. The Commission, nevertheless, considers that this complaint
can be reasonably inferred from the applicant's general complaint
relating to the continued retention of information made in her
original application.
In this connection the Commission considers that the applicant
has not substantiated her allegation that the Security Service
compiled and continue to maintain a file of personal information about
her.
However, the Commission recalls that "an individual may, under
certain conditions, claim to be the victim of a violation occasioned
by the mere existence of secret measures ... without having to allege
that such measures were in fact applied to him" (Eur. Court H.R.,
Klass judgment of 6 September 1978, Series A no. 28, p. 18, para. 34).
The Court in the Klass case added that the relevant conditions
were "to be determined in each case according to the Convention right
or right alleged to have been infringed, the secret character of the
measures objected to, and the connection between the applicant and
those measures" (ibid.).
This approach was followed by the Commission in a similar case
against Luxembourg (See Nos. 10439-41/83, 10452/83, 10512-13/83, Dec.
10.5.85, to be published in D.R.).
The Commission does not consider that this passage can be
interpreted so broadly as to encompass every person in the United
Kingdom who considers that the Security Service may have compiled
information about them.
The Commission considers that the Klass case falls to be
distinguished from the present case in that there existed a
legislative framework in that case which governed the use of secret
measures and that this legislation potentially affected all users
of postal and telecommunications services. In the present case the
category of persons likely to be affected by the measures in question
is significantly narrower.
On the other hand, the Commission considers that it should be
possible in certain cases to raise a complaint such as is made by the
applicant without the necessity of proving the existence of a file of
personal information. To fall into the latter category the Commission
is of the opinion that applicants must be able to show that there is,
at least, a reasonable likelihood that the Security Service has
compiled and continues to retain personal information about them.
In the present case the Commission recalls that the security
check which is at the basis of the applicant's complaint occurred in
1977. It is apparent that the Security Service recommended that the
applicant not be eligible for appointment to the BBC because of her
secretaryship of the Scotland-China Association. Once the applicant
ceased to be the Secretary to this Association the Security Service
recommended that there were no further obstacles to her appointment.
There is no indication that the Security Service then had or have
retained any information of a personal character relating to the
applicant. The evidence is only to the effect that it was known that
she was Secretary of the Scotland-China Association. The Commission
has not been apprised of any reason since that date as to why the
Security Service should continue to show further interest in the
applicant. Nor is there any indication that the applicant, as a
journalist, or in any other capacity, belongs to a category of persons
that might be the subject of such interest. The Commission recalls
that the only reason for her present fears lies in the Observer
Newspaper report of 18 August 1985 which informed her for the first
time of the security check in 1977. The Commission is therefore of
the opinion that the applicant has not shown that there is at least a
reasonable likelihood that the Secret Service has compiled and
continues to retain personal information about her.
The Commission concludes that there has been no interference
with the applicant's right to respect for private life since she has
not substantiated her allegation. It follows that that the above
complaint must also be rejected as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Article 10 (Art. 10) of the Convention
The applicant complains under this provision that the refusal
to appoint her to the BBC job constitutes, in effect, a penalty for
the expression of her views. She further complains that by advising
that she should not be employed as a reporter, the Security Service
interfered with her right to impart information and ideas to the
public. She has also suggested, in her submissions, that a further
Article 10 (Art. 10) issue arises in respect of the continuing situation
created by the practice and procedure of the obtaining, retention and potential
use of information about her private life by the Security Service. She has not
elaborated her complaint in this respect.
Article 10 (Art. 10) of the Convention provides as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers.
...
2. The exercise of these freedoms, since it carries with it
duties and responsibiities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
The Commission recalls that it has rejected as inadmissible
for non-substantiation, the applicant's complaint that she failed to
secure the BBC job because of the negative report from the Security
Service as well as her allegations concerning the continuing retention
and potential use of personal information by the Security Service. It
follows that the above complaints which are founded on the same
allegation must also be dismissed on the same basis. These complaints
must therefore be rejected as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. Article 13 (Art. 13) of the Convention
The applicant complains under this provision that she lacks
an effective remedy under the law of the United Kingdom in respect of
her complaints. This provision states as follows:
"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 that for Article 13 (Art. 13) to apply the claim
that a provision of the Convention has been breached must be an 'arguable' one.
The Commission notes that it has rejected the applicant's
complaints under Articles 8 and 10 (Art. 8, Art. 10) of the Convention on the
basis that she has not substantiated her allegations of an interference with
these rights. In such circumstances the Commission does not consider that the
applicant's claims can be described as 'arguable' (see, in this context, Eur.
Court H.R., Boyle and Rice judgment of 27 April 1980, paras. 51 - 86; and
Plattform "Ärzte für das Leben" judgment of 21 June 1988, paras. 24 - 39).
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)