AS TO THE ADMISSIBILITY OF
Application No. 16709/90
by Steven HOPKINS
against the United Kingdom
The European Commission of Human Rights sitting in private
on 7 January 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 May 1990
by Steven HOPKINS against the United Kingdom and registered
on 13 June 1990 under file No. 16709/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1960 and resident
in Sheffield. He is represented by Madeleine Colvin of the National
Council for Civil Liberties. The facts as submitted by the applicant
may be summarised as follows.
The applicant applied for a post in the Civil Service and by
letter of 28 April 1988 was informed that he had been assigned to the
Welsh Office. Following his application to join the Foreign and
Commonwealth Office (the FCO) he was informed that before an
appointment was made, enquiries would need to be made (i.e. "positive
vetting"). By a letter of 31 August 1988, the FCO asked the applicant to
attend a training course before his conditional appointment to a
post. On 13 September 1988 during the course, the applicant was
informed that a problem had arisen with his security clearance and he
was required to attend an interview with the FCO security
investigating unit. Following the interview on 4 October 1988, the
applicant was informed that his post in the Diplomatic Service was not
to be confirmed in light of the enquiries made during the positive
vetting procedure. He was not given further details.
In December 1988, the applicant was informed by the Civil
Service Commission that the assignment mentioned in its letter of
28 April 1988 had to be withdrawn following his rejection by the FCO.
No other reasons were given.
On 1 March 1989, the applicant instituted proceedings in the
High Court seeking judicial review of the decision not to appoint
him. On 19 May 1989, the Civil Service Commission served an
affidavit stating inter alia that they were under no duty to give
reasons. In an opinion dated 25 August 1989, counsel advised that it
would be impossible to challenge their argument. The applicant
applied to withdraw the action and on 11 January 1990 the High Court
made an order ending the proceedings.
COMPLAINTS
The applicant complains of the obtaining, retention and
application of personal information about the applicant (beyond that
provided by himself) through the positive vetting procedures so as
adversely to affect his prospects of being appointed to the relevant
job, without any opportunity for him to know the nature and extent of
the procedures to be adopted in that exercise or to comment on the
accuracy of the information and submits that this constitutes a breach
of his right to respect for private life under Article 8 para. 1
of the Convention.
The applicant submits that the obtaining, retention and
application of personal information about the applicant (beyond that
provided by himself) through the positive vetting procedures carried
out by the security investigation unit of the Foreign and Commonwealth
Office is not 'in accordance with the law'. Contrary to the
principles stated in the MALONE case (Eur. Court H.R., Malone judgment
of 2 August 1984, Series A no. 82, p. 31-33, paras. 66-68), the
relevant law (if any) is not adequately accessible or formulated with
sufficient precision. The Security Service Act 1989 relates only to
the activities of the security service known as MI5 and does not
include the security activities of any other Government Department.
Further, the applicant was not informed in sufficient detail
of the nature and extent of the positive vetting procedures or given
the opportunity to comment on the accuracy or the information
obtained, retained and applied during the positive vetting exercise.
There were thus no safeguards applied to ensure that the 'procedures'
operated fairly and effectively.
The applicant also submits that he has no effective remedy
before a national authority in respect of the matters of which
he complains, contrary to Article 13 of the Convention. Although the
Security Service Act 1989 introduces the Security Service Tribunal to
which individuals can complain in relation to the activities of the
security service known as MI5, it fails to provide an 'effective
remedy' since it only applies to MI5 and to acts done by MI5 on or
after 18 December 1989.
THE LAW
The applicant complains of the obtaining, retention and
application of information about himself through the positive vetting
procedure carried out by the FCO. He invokes Articles 8 (Art. 8)
and 13 (Art. 13) of the Convention.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of these provisions, as Article 26 (Art. 26) of the
Convention provides that the Commission "may only deal with a 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 recalls that the applicant instituted judicial
review proceedings in respect of his complaints and that he
subsequently withdrew these proceedings. In these circumstances, the
Commission has considered whether the applicant can be said to have
exhausted the domestic remedies available to him. The applicant has
submitted that it became apparent following the service of the Civil
Service Commission's affidavit on 19 May 1989 that he stood no
prospect of success and that he was advised of this by counsel's
opinion. The Commission's case-law establishes that only remedies
which are "effective and sufficient" can be considered in the context
of Article 25 (Art. 25) of the Convention (see e.g. No. 654/59,
Dec. 3.6.60, Yearbook 4 pp. 155, 187). Even assuming therefore that
the judicial review proceedings did not constitute an effective remedy
which the applicant was obliged to exhaust, the Commission must
determine whether the applicant has introduced his complaints within
six months from the date on which the final decision was taken. In
these circumstances, the six month time-limit cannot be considered as
starting to run later than the moment when the applicant became aware
that the judicial review proceedings did not constitute an effective
remedy for his complaints, i.e. when he received notice of counsel's
opinion. This opinion was dated 25 August 1989 whereas the
application was submitted to the Commission on 24 May 1990, that is,
more than six months after this date.
It follows that the application has been introduced out of
time and must be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
The Secretary to the Commission The President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy