PARTIAL
AS TO THE ADMISSIBILITY OF
Application Nos. 18600/91, 18601/91 and 18602/91
by T.D., D.E. and M.F.
against the United Kingdom
The European Commission of Human Rights sitting in private on
12 October 1992, 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
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 applications introduced on 24 May 1990, 26
March 1991 and 4 April 1991 by T.D., D.E. and M.F. against the United
Kingdom and registered on 25 July 1991 under file Nos. 18600/91,
18601/91 and 18602/91;
Having regard to
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
13 and 28 May 1992 and the observations in reply submitted by the
applicant on 13 August 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are represented by Ms. Madeleine Colvin of
LIBERTY. The facts as submitted by the parties may be summarised as
follows:
THE FIRST APPLICANT
The first applicant is a British citizen born in 1956 and
resident in Turkey. He is a teacher by profession.
On 10 October 1989, the applicant was informed that he had been
recommended by the Civil Service Commissioners for appointment as an
Intelligence Officer Grade II in the Ministry of Defence (Army
Department) subject to satisfactory completion of enquiries into "age,
health and other matters". On 24 November 1989, he was informed by the
Ministry of Defence that the Army Department was unable to proceed with
his application. The Government submit that the post entailed access
to top secret information and required positive clearance.
While at university, the applicant was actively involved in left-
wing student policies, in particular, he was from 1978 to 1979 a member
of the International Marxist Group. He has worked in Poland, West
Germany and Turkey. His political views have since changed and he
delivered leaflets for the Conservative Party in the 1987 general
election.
He applied on 15 May 1990 to the Security Services Tribunal. He
alleged that he had been subject to "negative vetting" involving the
disclosure of information on him collected and held by the Security
Service, which was likely to be used in the future in similar
circumstances.
By letter dated 30 October 1990 from the Tribunal, the applicant
was informed that his complaint had been investigated but no
determination had been made in his favour.
THE SECOND APPLICANT
The second applicant is a British citizen born in 1940 and
resident in London. He is a clerical officer by profession.
On 11 June 1990, he was offered a post as Administrative Officer
at the Central Office of Information (hereinafter "the COI") "subject
to the satisfactory completion of our enquiries into your age, health
and other matters".
By letter dated 19 July 1990, the COI informed the applicant that
"having completed our inquiries ... we are unable to offer you an
appointment." No further explanation was given.
At the time of his application, the second applicant had been a
member of the Communist Party of Great Britain for many years. He had
also been active in the Campaign for Nuclear Disarmament (CND), anti-
apartheid and various anti-deportation campaigns. In 1977, he had been
arrested and fined £15 for obstruction of the police at the Grunwick
industrial dispute and in 1984 arrested and cautioned after a CND
demonstration.
The applicant unsuccessfully attempted to discover the reasons
for the refusal of the post at COI through his Member of Parliament.
On 1 November 1990, the applicant submitted an application to the
Security Services Tribunal alleging that the Security Services had
provided "vetting information" on him to the COI with the result that
their offer of employment was withdrawn.
On 14 January 1991, the Tribunal Secretary replied that his
complaint had been investigated and that no determination in his favour
had been made.
THE THIRD APPLICANT
The third applicant is a British citizen born in 1945 and
resident in Padham. He is an air traffic engineer.
From 1962 to 1973, the applicant served in the Royal Air Force.
He then worked on a number of short-term contracts in the Middle East
until 1988.
In 1989, he applied for a post of Air Traffic Engineer with
British Aerospace Ltd. He was interviewed on 27 September 1989 and
given the distinct impression that he would be offered the job subject
to a security clearance because of his many years working outside the
United Kingdom.
By letter of 10 January 1990, British Aerospace informed the
applicant, without giving reasons, that his job application would not
be successful. An acquaintance from the company who worked in a senior
position informed him off the record that the security people objected
to him on the grounds of his time overseas. The Government have
submitted that the post entailed entry to classified sites.
The applicant has no previous convictions and has never belonged
to a political party or trade union. He applied to the Security
Services Tribunal on 2 October 1990 alleging that he was refused the
post because of adverse reports from a security vetting. By letter of
6 December 1990, he was informed that the Tribunal had investigated his
complaint but had made no determination in his favour.
Relevant Domestic Law and Practice
The Security Service Act 1989 is intended to place the Security
Service on a statutory basis.
Section 1 provides:
"(1) There shall continue to be a Security Service (in this
Act referred to as "the Service") under the authority of
the Secretary of State.
(2) The function of the Service shall be the protection of
national security and, in particular, its protection
against threats from espionage, terrorism and sabotage,
from the activities of agents of foreign powers and from
actions intended to overthrow or undermine parliamentary
democracy by political, industrial or violent means.
(3) It shall also be the function of the Service to safeguard the
economic well-being of the United Kingdom against threats posed
by the action or intentions of persons outside the British
Islands."
The Act provides in Section 4 for the appointment of a Security
Service Commissioner, who has inter alia the function of reviewing the
exercise by the Secretary of State of the power to issue warrants to
enter or interfere with property. He makes an annual report to the
Prime Minister, who must lay a copy before Parliament, though material
prejudicial to the continued discharge of the functions of the Security
Service may be excluded.
Pursuant to Section 5, a tribunal has been set up to investigate
complaints about the Security Service. The scope and manner of the
investigation is set out in Schedule 1.
COMPLAINTS
The applicants complain that information as to their private
lives was kept on secret files by MI5 and/or police special branches
and/or the Police National Computer and/or the Government
Communications Headquarters (GCHQ). They submit that it is at very
least reasonably likely that the intelligence services have compiled
and retained information about their private lives and this, taken with
the existence of practices permitting secret surveillance, constitutes
an infringement of Article 8 para. 1 of the Convention. The use of
this information in the course of negative vetting procedures is an
additional interference, especially since they did not have the
opportunity to refute the information in question.
The applicants further submit that the interference was not in
accordance with law since there is no law governing the compilation and
use of information by police special branches, the police national
computer or GCHQ. While the Security Service Act 1989 was passed in
response to applications before the Commission, they submit that it
only covers the activities of MI5 and in any case fails to offer an
adequate definition of the function of the Security Service. Further,
the Security Service Tribunal set up by the Act does not provide
adequate protection from abuse.
The applicants submit that the interference fails to satisfy the
other criteria of Article 8 para. 2 of the Convention. In particular,
the Tribunal does not offer adequate and effective protection against
abuse since it only has jurisdiction over the Security Service and
cannot consider the correctness of the Security Service decisions on
whether the Service was justified in retaining the records of its
enquiries. Moreover, its jurisdiction is further limited where
enquiries are made by the Service on the ground that a person is a
member of a category of persons regarded by the Service as requiring
investigation. The Tribunal is also prevented from giving reasons for
its decisions.
The applicants also complain that they had no effective remedy
in respect of their complaints, contrary to Article 13 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 May 1990 and registered on
25 July 1991.
On 12 December 1991 the Commission decided to communicate the
application to the respondent Government and to ask for written
observations on the admissibility and merits of the application.
The Government's observations were submitted on 13 and 28 May
1992 after one extension in the time-limit and the applicant's
observations in reply were submitted on 13 August 1992 also after one
extension in the time-limit.
THE LAW
A. The first and third applicants
1. Article 8 (Art. 8) of the Convention
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."
The first and third applicants complain that information as to
their private lives has been compiled and retained by the Security
Service or other agency in violation of Article 8 (Art. 8) of the
Convention. They allege that this claim is substantiated by the way
their job applications were initially successful, then rejected
following enquiries for the purpose of security clearance.
The Government have submitted that the job applications of the
first and third applicants were not referred to the Security Service
or other agency since their long residence abroad rendered it
impossible to carry out a satisfactory security clearance.
The Commission recalls that the problem of security service files
in the United Kingdom arose in two previous cases - Hewitt and Harman
v. the United Kingdom, Comm. Report 9.5.89, and N. v. the United
Kingdom, Comm. Report 9.5.89.
The latter case concerned the allegations by the applicant that
he was refused a post in an electronics firm in circumstances giving
rise to the suspicion that he had failed to obtain a security
clearance. The Commission said that a security check per se was not
incompatible with Article 8 (Art. 8) but that an interference occurs
when security checks are based on information about a person's private
life. As in the present applications, the applicant had no concrete
proof that the Security Service had compiled and continued to retain
personal information about him.
The Commission noted:
"... 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).
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.).
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).
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.)."
The Commission recalls that in the present case the first and
third applicants had applied for posts in the Ministry of Defence and
British Aerospace respectively. The Government have submitted that the
former would entail access to "top secret" information and the latter
entry to classified sites and accordingly the successful candidates for
the posts would have to obtain a security clearance.
The Commission sees no ground for rejecting the Government's
contention that the long periods of residence abroad rendered a
security check impossible in these cases. The first applicant has
argued that a security check is the only explanation for the delay of
six weeks between being recommended by the Civil Service Commission and
being rejected by the Ministry of Defence. The Commission however does
not consider that the delay is such as to support that inference. The
applicants also dispute the Government's version on the basis that it
amounts to a de facto bar on any person who has lived abroad in which
case such persons would not be invited for interview in the first
place. The Commission notes however that only a very small percentage
of posts require security clearance. Neither the Civil Service
Commission nor British Aerospace carried out security clearance
procedures which it appears were the responsibility of the Ministry of
Defence. The third applicant also submits that he knows of other
persons at Britsh Aerospace who were appointed despite periods of
residence abroad. The Commission however is unable to give this
assertion any weight in the absence of any concrete indication that the
posts or the persons concerned were comparable in security terms.
In light of the above, the Commission finds that the first and
third applicants have failed to establish that there is a reasonable
likelihood that the Security Service or other agency have compiled or
retained information about their private life. Consequently, their
complaints do not disclose any interference with their right to respect
for their private life as guaranteed by Article 8 para. 1 (Art. 8-1)
of the Convention.
It follows that these complaints must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Article 13 (Art. 13) of the Convention
The first and third applicants complain that they do not have an
effective remedy in respect of their complaints as required by Article
13 (Art. 13) of the Convention which provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls however that Article 13 (Art. 13)
does not require a remedy under domestic law in respect of any alleged
violation of the Convention. It only applies if the individual can be
said to have an "arguable claim" of a violation of the Convention (Eur.
Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,
p.23, para. 52).
The Commission finds that the applicants cannot be said, in light
of its findings above, to have an "arguable claim" of a violation of
their Convention rights.
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.
B. The second applicant
The second applicant complains also that information concerning
his private life has been compiled and retained by the Security Service
or other agency. He invokes Articles 8 and 13 (Art. 8, 13) of the
Convention.
The Government submit that there is not sufficient material to
support his claim of an interference.
The Commission notes that this applicant was refused a post in
the Central Office of Information after initial approval had been
given subject to satisfactory completion of "enquiries". The factor of
residence abroad played no role in this case.
The Commission concludes that serious issues of fact and law
arise which require further examination. It therefore adjourns
consideration of this application.
For these reasons, the Commission by a majority
DECLARES INADMISSIBLE Applications Nos. 18600/91 and 18602/91;
ADJOURNS the examination of Application No. 18601/91.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy