Lexploria

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

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NIMMO v. UNITED KINGDOM

NIMMO v. UNITED KINGDOM