Application No. 12327/86
Ian NIMMO
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 9 May 1989)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-14) ............................ 1-2
A. The application (paras. 2-4) ...................... 1
B. The proceedings (paras. 5-9) ...................... 1
C. The present Report (paras. 10-14) ................. 2
II. ESTABLISHMENT OF THE FACTS (paras. 15-22) ............. 3-5
A. The particular circumstances of the case
(paras. 15-19) .................................... 3
B. The relevant domestic law and practice
(paras. 20-22) .................................... 4
III. OPINION OF THE COMMISSION (paras. 23-51) .............. 6-10
A. Points at issue (para. 23) ........................ 6
B. Article 8 of the Convention (paras. 24-42) ........ 6
C. Article 13 of the Convention (paras. 43-49) ....... 9
D. Recapitulation (paras. 50-51) ..................... 10
APPENDIX I History of the proceedings
before the Commission ......................... 11
APPENDIX II Decision on the admissibility
of the application ............................ 12
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights and of the procedure before the
Commission.
A. The application
2. The applicant is Ian Nimmo, a British citizen, born in 1957
and resident in Welwyn. He is represented before the Commission by
Ms. Madeleine Colvin of the National Council of Civil Liberties
(N.C.C.L.).
3. The application is directed against the United Kingdom. The
respondent Government are represented by their Agent, Mr. Michael Wood
of the Foreign and Commonwealth Office, London.
4. The case relates to the applicant's complaint of being refused
a post following a security check. It raises issues under Articles 8
and 13 of the Convention.
B. The proceedings
5. The application was introduced on 17 April 1986 and registered
on 18 August 1986.
6. On 14 December 1987, the Commission decided that notice of the
application should be given to the respondent Government, pursuant to
Rule 42 para. 2 (b) of the Commission's Rules of Procedure, and that
they should be invited to submit before 4 March 1988 their written
observations on the admissibility and merits of the application.
7. The Government's observations were received on 2 March 1988
and the applicant's observations in reply were submitted on 5 May 1988.
8. On 11 October 1988, the Commission decided to declare the
application admissible. The parties were then invited to submit any
additional observations on the merits of the application which they
wished to make. Neither party submitted further observations on the
merits.
9. After declaring the case admissible the Commission, acting in
accordance with Article 28 para. b of the Convention, placed itself at
the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions the
Commission now finds that there is no basis on which a friendly
settlement can be effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes, the following members being present:
MM. J.A. FROWEIN, Acting President
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
11. The text of this Report was adopted by the Commission on
9 May 1989 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. The applicant is a financial analyst. On 6 September 1985 the
applicant attended an interview at M.E.L., a member of the Philips
Electronic and associated industries group, in connection with a
vacancy for a financial analyst. The post involved providing an
accounting service to the electronic warfare division, which dealt,
inter alia, with Government defence contracts. He was informed by the
Senior Personnel officer that he would have to go through a vetting
procedure.
16. On 13 September the applicant attended a second interview and
he was verbally offered the post subject to security clearance. The
applicant was not himself asked to provide any references. A few days
later, the applicant received a letter from M.E.L., dated 13 September
1985, offering him the position of financial analyst "subject to our
obtaining satisfactory references". By letter of 19 September, the
applicant accepted the offer and the conditions and terms of
employment referred to in the letter.
17. The applicant was subsequently informed by letter of 22 October
from M.E.L. that "references have not proved satisfactory. We shall
not therefore be proceeding with an unconditional offer of employment."
18. The applicant knew of no reason which could have been
responsible for his failure to obtain security clearance. At no time
did any person in authority inform the applicant that information
relevant to his security status had been obtained or retained or that
it had been used in connection with his job application. Further, at
no time did any such person give him an opportunity to know the
contents of that information so that its accuracy could be checked or
so that the applicant could comment upon it. The applicant believes
that security clearance procedures are operated in connection with
applications for all jobs in private sector companies who are engaged
in defence contracts and that such procedures are carried out by
and/or at the insistence of the Security Services of the United
Kingdom.
19. On 6 January 1986, the N.C.C.L. wrote to the Cabinet Office
(Security Division) on the applicant's behalf to inquire whether the
"Three Advisers" procedure permitted an appeal by an individual such
as the applicant, who had applied for a post in a commercial company
engaged in defence contracts and had been refused on security grounds.
By this procedure, an existing employee, who is found to be unsuitable
on security grounds, may appeal either in writing or in person, to the
Minister in charge of the department to which the firm was contracted
and then to the "Three Advisers". The Cabinet Office replied by
letter of 27 February 1986 that the appeal procedure of the "Three
Advisers" only applied to existing employees of companies engaged in
classified Government work and not to applicants for employment.
B. The relevant domestic law and practice
20. The Security Service was established and exists for the
exclusive purpose of the defence of the Realm. The activities of the
Security Service are governed by the published Directive of the Home
Secretary to the Director-General of the Service, a Crown Servant,
dated 24 September 1952 ("the Directive") as follows:
"1. In your appointment as Director-General of the Security
Service you will be responsible to the Home Secretary
personally. The Security Service is not, however, a part of
the Home Office. On appropriate occasion you will have
right of direct access to the Prime Minister.
2. The Security Service is part of the Defence Forces of
the country. Its task is the Defence of the Realm as a
whole, from external and internal dangers arising from
attempts at espionage and sabotage, or from actions of
persons and organisations whether directed from within or
without the country, which may be judged to be subversive to
the State.
3. You will take special care to see that the work of the
Security Service is strictly limited to what is necessary
for the purposes of this task.
4. It is essential that the Security Service should be kept
absolutely free from any political bias or influence and
nothing should be done that might lend colour to any
suggestion that it is concerned with the interests of any
particular section of the community, or with any other
matter than the Defence of the Realm as a whole.
5. No enquiry is to be carried out on behalf of any
Government Department unless you are satisfied that an
important public interest bearing on the Defence of the
Realm, as defined in paragraph 2, is at stake.
6. You and your staff will maintain the well-established
convention whereby Ministers do not concern themselves with
the detailed information which may be obtained by the
Security Service in particular cases, but are furnished with
such information only as may be necessary for the
determination of any issue on which guidance is sought."
21. Members of the Security Service are public officials but
unlike, for example, police officers, immigration officers or officers
of HM Customs and Excise, they have conferred on them no special
powers whether under any law or by virtue of the Directive. Members
of the Service are Crown Servants, subject to the disciplinary control
of the Crown but are otherwise in no position different from private
citizens. Their activities are constrained by the criminal law and
the law of torts in the same way as the activities of citizens
generally are so constrained. Thus, if they carry out or engage in
matters which it is unlawful for citizens generally to carry out or
engage in, it is likewise unlawful for them to do so and they would
thereby be liable to be proceeded against for any offence which was
thereby committed, or liable in any civil proceedings in respect of
any tort which had resulted.
22. From June to September 1963 Lord Denning, one of the then
most senior Judges of the Supreme Court, at the request of the Prime
Minister, undertook an examination of the operation of the Security
Service in the light of the resignation of the then Secretary of
State for War. At paragraph 239 of his Report dated 16 September 1963
(Cmnd. 2152), Lord Denning, after hearing a considerable body of
evidence, found general approval that the Directive embodied the
correct principles, which principles (inter alia) he summarised as
follows:
"(1) The Head of the Security Service is responsible
directly to the Home Secretary for the efficient and proper
working of the Service and not in the ordinary way to the
Prime Minister.
(2) The Security Service is, however, not a department of
the Home Office. It operates independently under its own
Director-General, but he can and does seek direction and
guidance from the Home Secretary, subject always to the
proviso that its activities must be absolutely free from any
political bias or influence.
(3) The function of the Security Service is to defend the
Realm as a whole from dangers which threaten it as a whole,
such as espionage on behalf of a foreign Power, or internal
organisations subversive of the State. For this purpose, it
must collect information about individuals, and give it to
those concerned. But it must not, even at the behest of a
Minister or Government Department, take part in
investigating the private lives of the individuals except
in a matter bearing on the Defence of the Realm as a whole.
(4) The Head of the Security Service may approach the Prime
Minister himself on matters of supreme importance and
delicacy, but this is not to say that the Prime Minister has
any direct responsibility for the Security Service. He has
certainly none in day-to-day matters. It would be a
mistake for the Prime Minister to take such responsibility
because he cannot in practice exercise adequate supervision,
and he has not the secretariat for the purposes."
III. OPINION OF THE COMMISSION
A. Points at issue
23. The principal issues to be determined are:
- Whether there has been a violation of Article 8 (Art. 8) of the
Convention in the obtaining, retention and application of personal
information concerning the applicant;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention.
B. Article 8 (Art. 8) of the Convention
24. The applicant complains that he has been subject to the
obtaining, retention and application of personal information about
himself. He submits that the security check and associated enquiries
to which he was subjected on applying for the post at M.E.L. were
carried out by or at the insistence of the Security Service. He
contends that this constitutes an unjustified interference with his
right to respect for his private life as guaranteed by Article 8 of
the Convention.
25. Article 8 (Art. 8) of the Convention provides:
"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."
26. The Government, in line with their policy of not disclosing
information about the operations of the Security Service, have neither
confirmed nor denied the applicant's allegations.
27. The Commission does not consider that a security check per se
constitutes an interference with the right to respect for private life
guaranteed by Article 8 (Art. 8) of the Convention. An interference
with this right occurs when security checks are based on information
about a person's private life (see e.g. Eur. Court H.R., Leander
judgment of 26 March 1987, Series A no. 116, p. 22 para. 45).
28. A question arises as to whether the evidence before the
Commission as to the compilation and retention of information
concerning the applicant's private life leads to the conclusion that
there has been interference with his right to respect for private
life.
29. The Commission notes that the applicant has no concrete proof
to support his allegation that the Security Service compiled and
continue to retain a file of personal information about him. The
Commission recalls however that "an individual may, under certain
conditions, claim to be a 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).
30. The Court in the Klass case added that the relevant conditions
were "to be determined in each case according to the Convention right
or rights alleged to have been infringed, the secret character of the
measures objected to, and the connection between the applicant and
those measures" (ibid.).
31. Similarly, in the Malone case, the Court agreed with the
Commission that the existence of laws and practices permitting and
establishing a system for effecting secret surveillance amounted in
itself to an interference with the applicant's rights under Article 8
(Art. 8) of the Convention, apart from any measures actually taken
against him (Eur. Court H.R., Malone judgment of 2 August 1984,
Series A no. 82, p. 31 para. 64).
32. The Commission does not consider that this case-law can be
interpreted so broadly as to encompass every person in the United
Kingdom who fears that the Security Service may have compiled
information about him. The Commission, however, considers that an
applicant cannot be reasonably expected to prove that information
concerning his private life has been compiled and retained. It is
sufficient, in the area of secret measures, that the existence of
practices permitting secret surveillance be established and that there
is a reasonable likelihood that the Security Service has compiled and
retained information concerning his private life (see e.g. Application
No. 12015/86, Dec. 6.7.88, to be published in D.R.).
33. In the present case, the Commission recalls that the applicant
was applying for a post in a company involved in the sensitive area of
Government defence contracts. He was informed that he was offered the
job subject to a security check and was subsequently informed that the
offer was withdrawn as a result of these enquiries. In these
circumstances, the Commission finds that the applicant's contention
that the security check was carried out by the Security Service and
involved reference to information concerning his private affairs is a
reasonable inference from the facts.
34. The Government have not contested this interpretation of the
situation.
35. Against the above background, the Commission finds that the
existence of practices permitting secret surveillance has been
established and that the applicant has established a reasonable
likelihood that the Security Service has compiled and retained a file
concerning his private life, which was referred to in the course of
the security check. It follows that there has been an interference
with the applicant's right to respect for his private life guaranteed
under Article 8 para. 1 (Art. 8-1) of the Convention.
36. The Commission must next determine whether this interference
is justified under Article 8 para. 2 (Art. 8-2). It has first
considered whether the interference is "in accordance with the law".
37. The Commission recalls that the phrase "in accordance with the
law" includes requirements over and above compliance with the domestic
law. The "law" in question must be adequately accessible in the sense
that the citizen must be able to have an indication that is adequate
in the circumstances of the legal rules applicable to a given case.
In addition, "a norm cannot be regarded as law unless it is formulated
with sufficient precision to enable the citizen to regulate his
conduct. He must be able - if need be with appropriate advice - to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail." (See Eur. Court H.R.,
Sunday Times judgment of 26 April 1979, Series A no. 30, p. 31 para.
49).
38. The Court in the Malone case has further elucidated the
concept of foreseeability and highlighted its importance as a
safeguard against the arbitrary application of measures of secret
surveillance. The Court stated as follows (loc. cit., p. 32 para.
67):
"The Court would reiterate its opinion that the phrase
'in accordance with the law' does not merely refer back
to domestic law but also relates to the quality of the
law, requiring it to be compatible with the rule of law,
which is expressly mentioned in the preamble to the
Convention (see, mutatis mutandis, the [above-mentioned]
Silver and Others judgment, p. 34, para. 90, and the Golder
judgment of 21 February 1975, Series A no. 18, p. 17, para.
34). The phrase thus implies - and this follows from the
object and purpose of Article 8 (Art. 8) - that there must be a
measure of legal protection in domestic law against
arbitrary interferences by public authorities with the
rights safeguarded by paragraph 1 (Art. 8-1) (see the report of the
Commission, paragraph 121). Especially where a power of the
executive is exercised in secret, the risks of arbitrariness
are evident (see the above-mentioned Klass and Others
judgment, Series A no. 28, pp. 21 and 23, paras. 42 and
49). Undoubtedly, as the Government rightly suggested, the
requirements of the Convention, notably in regard to
foreseeability, cannot be exactly the same in the special
context of interception of communications for the purpose of
police investigations as they are where the object of the
relevant law is to place restrictions on the conduct of
individuals. In particular, the requirement of
foreseeability cannot mean that an individual should be
enabled to foresee when the authorities are likely to
intercept his communications so that he can adapt his
conduct accordingly. Nevertheless, 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
resort to this secret and potentially dangerous interference
with the right to respect for private life and
correspondence."
39. The Commission notes that the activities of the Security
Service are governed by a Directive of the Home Secretary to the
Director-General of the Security Service dated 24 September 1952.
Although the Directive is published, it is not claimed by the
Government that it has the force of law or that its contents
constitute legally enforceable rules concerning the operation of the
Security Service. Nor does the Directive provide a framework which
indicates with the requisite degree of certainty the scope and manner
of the exercise of discretion by the authorities in the carrying out
of its activities.
40. The Commission finds that in these circumstances the
interference with the applicant's right to respect for private life
was not "in accordance with the law' as required by Article 8 para. 2
(Art. 8-2) of the Convention.
41. In view of the above finding, the Commission considers it
unnecessary to examine whether the interference in the present case
was necessary in a democratic society within the meaning of Article 8
para. 2 (Art. 8-2) of the Convention.
Conclusion
42. The Commission concludes, by 14 votes to 1, that there has
been a violation of Article 8 (Art. 8) of the Convention in the
present case.
C. Article 13 (Art. 13) of the Convention
43. The applicant complains under Article 13 (Art. 13) of the Convention
that there exists no effective remedy under the law of the United
Kingdom in respect of his complaints under Article 8 (Art. 8) of the
Convention.
44. The Government have not commented on the applicant's complaint
of a breach of Article 13 in conjunction with Article 8 (Art. 13+8).
45. Article 13 (Art. 13) provides 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."
46. This provision has been interpreted in the following way by
the European Court of Human Rights in the case of Silver and Others
(Eur. Court H.R., Silver and Others judgment of 25 March 1983, Series
A no. 61, p. 42 para. 113):
"(a) where an individual has an arguable claim to be
the victim of a violation of the rights set forth in the
Convention, he should have a remedy before a national
authority in order both to have his claim decided and,
if appropriate, to obtain redress (see the ... Klass and
others judgment, Series A no. 28, p. 29, para. 64);
(b) the authority referred to in Article 13 (Art. 13) may not
necessarily be a judicial authority but, if it is not,
its powers and the guarantees which it affords are
relevant in determining whether the remedy before it is
effective (ibid., p. 30, para. 67);
(c) although no single remedy may itself entirely satisfy
the requirements of Article 13 (Art. 13), the aggregate of remedies
provided for under domestic law may do so (see, mutatis
mutandis, ... X v. the United Kingdom judgment, Series A
no. 46, p. 26, para. 60 and the Van Droogenbroeck judgment
of 24 June 1982, Series A no. 50, p. 32, para. 56);
(d) neither Article 13 (Art. 13) nor the Convention in general lays
down for the Contracting States any given manner for ensuring
within their internal law the effective implementation of any
of the provisions of the Convention - for example, by
incorporating the Convention into domestic law (see the
Swedish Engine Drivers' Union judgment of 6 February 1976,
Series A no. 20, p. 18, para. 50).
It follows from the last-mentioned principle that the
application of Article 13 (Art. 13) in a given case will depend
upon the manner in which the Contracting State concerned
has chosen to discharge its obligation under Article 1
(Art. 1) directly to secure to anyone within its jurisdiction the
rights and freedoms set out in section I (see ... Ireland
v. the United Kingdom judgment, Series A no. 25, p. 91,
para. 239)."
47. The Commission recalls the above conclusion that there is a
breach of Article 8 (Art. 8) in the present case. Article 13 (Art. 13)
is applicable in these circumstances.
48. The Commission has not been informed of the existence of an
effective remedy under the law of the United Kingdom in respect of
the applicant's complaint under Article 8 (Art. 8) of the Convention.
The Commission therefore finds that the applicant does not have an
effective remedy as required by Article 13 (Art. 13) of the
Convention.
Conclusion
49. The Commission concludes, by 14 votes to 1, that there has
been a violation of Article 13 in conjunction with Article 8 (Art. 13+8)
of the Convention in the present case.
D. Recapitulation
50. The Commission concludes, by 14 votes to 1, that there has
been a violation of Article 8 (Art. 8) of the Convention.
51. The Commission concludes, by 14 votes to 1, that there has
been a violation of Article 13 (Art. 13) of the Convention in respect of the
applicant's complaint under Article 8 (Art. 8) of the Convention.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)
APPENDIX I
History of the proceedings before the Commission
Date Item
--------------------------------------------------------------------
17 April 1986 Introduction of the application
18 August 1986 Registration of the application
Examination of admissibility
14 December 1987 Commission's decision to invite the
Government to submit observations
in writing
2 March 1988 Government's observations
5 May 1988 Applicant's reply
11 October 1988 Commission's decision on admissibility
Examination of the merits
11 October 1988 Commission's deliberations on the merits
11 March 1989 Consideration of the state of proceedings
5 May 1989 Commission's deliberations on the merits
and final votes
9 May 1989 Commission's adoption of the Report