FOURTH SECTION
DECISION
Application no. 60646/14
PRIVACY INTERNATIONAL
against the United Kingdom
(see appended table)
The European Court of Human Rights (Fourth Section), sitting on 19 May 2022 as a Committee composed of:
Armen Harutyunyan, President,
Jolien Schukking,
Ana Maria Guerra Martins, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having regard to the above application lodged on 4 September 2014,
Having regard to the formal declaration signed by the parties accepting a friendly settlement of the case,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant’s details are set out in the appended table.
The applicant was represented by Mr W. Sheikh, a lawyer practising in London with Leigh Day Solicitors.
The applicant’s complaints under Articles 10 and 13 of the Convention concerning the refusal by the Government Communications Headquarters (“GCHQ”) of its request for access to information under the Freedom of Information Act 2000 were communicated to the United Kingdom Government (“the Government”).
The Court received the following friendly-settlement declaration, under which the applicant agreed to waive any further claims against the United Kingdom in respect of the facts giving rise to this application. According to the declaration, the parties accept that:
“(a) Notwithstanding that GCHQ is not subject to the Freedom of Information Act 2000 (“FOIA”), the FOIA does not require a public authority to rely on the exemptions provided by the Act, nor does it limit a Public Authority from releasing information held by it by means other than those under the FOIA: see s. 78 FOIA. Further, it would have been open to Privacy International to argue before the Investigatory Powers Tribunal (“IPT”) that GCHQ had power to disclose the information it sought, having regard to s. 4 of the Intelligence Services Act 1994.
(b) The analysis of the Article 10 right of access to information carried out by the Supreme Court (“UKSC”) in the case of Kennedy v The Charity Commission [2014] UKSC 20 (“Kennedy”) is obiter and the issue may be revisited by the UKSC in light of Magyar Helsinki Bizottstag v Hungary (GC) (“Magyar Helsinki”).
(c) In the event that the analysis of the Article 10 right of access to information in Kennedy was regarded as binding by the IPT, it would have been open to the applicant to seek to review the IPT’s conclusion for error of law in the High Court, and such a challenge could have been appealed to the UKSC.
(d) Insofar as it is contended that a refusal by a security body to provide information conflicts with the Human Rights Act 1998 (“HRA”), that is a matter over which the IPT has jurisdiction.
(e) GCHQ is a public authority for the purposes of s. 6 HRA.
(f) Privacy International performed the functions of a public watchdog in the circumstances of this case.
(g) A decision of the Investigatory Powers Tribunal can be subject to a claim for judicial review or an appeal to the Court of Appeal under section 67A of the Regulation of Investigatory Powers Act 2000 (as amended).
(h) The information relating to intelligence warrants and intelligence sharing with foreign partners sought in this case is of public interest, albeit the UK considers its disclosure would manifestly undermine national security.
(i) The Parties agree to each bear their own costs.”
THE LAW
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and the Protocols thereto and finds no reasons to justify a continued examination of the application.
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.
Done in English and notified in writing on 9 June 2022.
Viktoriya Maradudina Armen Harutyunyan
Acting Deputy Registrar President
APPENDIX
Application raising complaints under Articles 10 and 13 of the Convention
Application no.
Date of introduction
Applicant’s name
Representative’s name
and location
Date of receipt of Government’s declaration
Date of receipt of Applicant’s declaration
60646/14
04/09/2014
PRIVACY INTERNATIONAL
Waleed Sheikh of Leigh Day Solicitors,
London
19/04/2022
14/03/2022