FIRST CHAMBER

                      AS TO THE ADMISSIBILITY OF

                      Application No. 20317/92

                      by Patricia HEWITT and Harriet HARMAN

                      against the United Kingdom

      The European Commission of Human Rights (First Chamber) sitting

in private on 1 September 1993, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Sir   Basil HALL

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 G.B. REFFI

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 9 July 1992 by by

Patricia HEWITT and Harriet HARMAN against the United Kingdom and

registered on 17 July 1992 under file No. 20317/92;

      Having regard to :

-     the observations submitted by the respondent Government on

      25 February 1993 and the observations in reply submitted by the

      applicant on 28 May 1992;

-     the report provided for in Rule 47 of the Rules of Procedure of

      the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The first applicant is a British citizen born in 1948 and

resident in London. The second applicant is a British citizen born in

1950 and resident in London. The applicants are represented before the

Commission by John Wadham of Liberty. The facts as submitted by the

parties may be summarised as follows.

      The first applicant was General Secretary of the National Council

of Civil Liberties (now known as "Liberty") between September 1973 and

May 1983. She is now Deputy Director of the Institute of Public Policy

Research.

      The second applicant was employed as a legal officer by Liberty

from 1978 until 1982.  She has been a Member of Parliament since 1983

and has become a leading member of the Labour Party.

      Liberty is an unincorporated association which since its

inception has worked to monitor and defend civil and political rights

in the United Kingdom. Liberty's constitution requires the organization

to remain non-party and non-denominational.  Its individual members,

local groups and affiliates nominate and elect an executive committee

which is responsible for the appointment of its staff and for ensuring

that it carries out policies democratically determined by the

membership at an Annual General Meeting.  Liberty works within the law

to uphold human rights, by, inter alia, briefing and lobbying Members

of Parliament, submitting evidence to official enquiries, conducting

research and issuing publications, and taking test cases to local and

international courts.  It sometimes sends impartial observers to

monitor demonstrations as part of its function to defend the right of

freedom of assembly, but it does not sponsor or organize demonstrations

of any kind.  Its history, which has been the subject of several books,

demonstrates that it has never been a subversive organization: on the

contrary its concern has always been to uphold the unwritten

constitution of the united Kingdom in relation to individual freedom,

and to draw attention to any lapse by government agencies from treaty

obligations in the field of human rights.

      In 1985, evidence emerged that M15 (also known as the Security

Service) was systematically infringing the applicants' rights under the

Convention when a former officer of M15, Ms Cathy Massiter, made

certain allegations to this effect on a television program.  According

to Ms Massiter, the applicants had been classified as subversive and

as communist sympathizers, and these grave libels were published within

M15 and were available for publication to other agencies with whom M15

had a relationship.  Their files recorded details of passport

applications, data from surveillance by local police, Special Branch

and by special agents, and references to them or by them on telephone

intercepts picked up under warrants issued in relation to other

persons.  Such intercepts, in the second applicant's case, were likely

to include confidential conversations which she, as a practising

solicitor, had had with certain of her clients.  The first applicant's

file included information about her personal relationship with a former

member of the Communist Party.  Surveillance of both applicants was

continued after they had left the National Council for Civil Liberties

on the basis that they were both candidates for elected office.

      On 19 May 1986, the applicants lodged an application with the

European Commission of Human Rights against the United Kingdom

government alleging breaches of their right to privacy (Article 8),

their right to freedom of expression (Article 10), their right to

freedom of association (Article 11) and their right to an effective

remedy (Article 13) in respect of the violations arising from the

nature and consequences of the surveillance to which they had been

subjected by M15.  The application was declared admissible on 12 May

1988.      In its Report dated 9 May 1989 the Commission concluded by a

majority that given the existence of practices in the United Kingdom

permitting secret surveillance and given further the reasonable

likelihood that the applicants were the subjects of surveillance the

compilation and retention by the Security Service of information

concerning the private lives of the applicants constituted an

infringement of their right to privacy under Article 8 (1) of the

Convention.  The Commission further concluded that the domestic law of

the United Kingdom contained neither legal rules formulated with

sufficient precision nor a framework indicating with the requisite

degree of certainty the scope and manner of the exercise of discretion

by the Security Service in the carrying out of secret surveillance

activities to render interference "in accordance with the law" within

Article 8 (2).  Finally the Commission concluded that since no

information was forthcoming in relation to how the United Kingdom had

chosen to provide an effective remedy under its domestic law that the

applicants did not have an effective remedy as required by Article 13.

      On 13 December 1990, the Committee of Ministers of the Council

of Europe adopted a Resolution under Article 32 of the Convention

agreeing with the opinions expressed by the Commission and decided that

in relation to the gathering and storing of information about the

applicants by M15, the United Kingdom had violated Article 8 and

Article 13 of the Convention (see Resolution DH (90) 36).  During the

examination for the case, the Government of the United Kingdom informed

the Committee that it had enacted the Security Service Act 1989 in

order to place the Security Service on a statutory basis, define the

purposes for which its activities might be carried out and establish

a Security Service Commissioner and an independent Tribunal for the

investigation of complaints about the Service.  Taking note of this

information, the Committee decided that no further action was called

for in the case.

      In light of the proceedings before the Committee, the applicants'

legal adviser wrote on 28 February 1990 to the Foreign and Commonwealth

Office of the Government of the United Kingdom seeking assurances that

the Security Service no longer held personal information on the

applicants.  In a letter dated 27 March 1990, the Foreign and

Commonwealth Office replied:

      "It is the Government's established and published policy not to

      give assurances of the kind sought on behalf of the applicants."

      On 1 July 1991, written complaints were made under section 5 and

Schedule 1 of the Security Service Act 1989 to the Security Service

Tribunal on behalf of the applicants.  It was requested that the

Tribunal investigate whether the Security Service continued to retain

personal information on the applicants and if this proved to be the

case to use its powers under the Act to order their removal or

destruction.

      In letters dated 18 October 1991, the Tribunal dismissed the

complaints on the ground that it lacked jurisdiction to determine

whether the alleged continued holding of personal information compiled

before the Act came into force was in breach of its provisions.  The

Tribunal further decided to refer the matter as a point of general

principle to the Commissioner in accordance with paragraph 7 (2)(b) of

Schedule 1 to the Act, namely, whether or not the Security Service had

acted unreasonably in allegedly retaining files on the complainants.

As regarded any investigations carried out since the Act came into

force, the Tribunal informed the applicants that it made no

determination in their favour.

      On 17 January 1992, the applicants applied for leave in the High

Court of Justice to apply for judicial review and seeking an order of

mandamus requiring the Security Service Tribunal to investigate whether

the Security Service continued to hold personal information about the

applicants.  On 14 February 1992, the Court refused to grant leave.

      In May 1992, the Security Service Commissioner's Report for 1991

was laid before Parliament. In it, the current Commissioner, Lord

Justice Stuart-Smith referred to the references made to him by the

Security Service Tribunal under Schedule 1 para. 7(2)b. as concerned

the retention of files which contained information compiled before the

Act came into force on 18 December 1989. He reported as follows:

      "Three cases raise the same issue, namely whether or not the

      Service have acted unreasonably in allegedly retaining files on

      the complainants.  The retention of records per se is not a

      matter which is covered by the 1989 Act. The Tribunal is

      empowered by the Act to investigate whether a complainant has

      been the subject of inquiries by the Service and, if so, whether

      there were reasonable grounds for such inquiries. The Tribunal

      is also empowered to investigate the circumstances under which

      the Service may have disclosed information for use in determining

      whether a person should be employed or continue to be employed.

      The Tribunal is precluded by the Act from investigating

      complaints relating to anything done before 18 December 1989. The

      fact that the Service may hold a record on a complainant does

      not, in itself, provide grounds under the Security Service Act

      for investigation by the Tribunal.

      Notwithstanding this it is clear that the retention of records

      is a matter of concern to some complainants and I have therefore

      thought it appropriate to inquire into the Service's policy in

      this respect. With the full support of the Director General I

      have investigated the matter and I have made a report to t

      Secretary of State pursuant to paragraph 7(3) of the Schedule.

      I have considered the Service's policy in relation to retention

      of files and their motivations for doing so. It is obviously not

      appropriate that I should discuss the details of individual

      cases. But I think it is right that the general policy as I

      describe it below should be known.

      The Service's general policy is to retain records indefinitely

      in case they are of relevance at any time in the future to the

      Service's work. In the past, espionage investigations have been

      seriously hampered because the Service's earlier practice had not

      prohibited destruction. Reconstruction of a number of files was

      attempted but this was not satisfactory. Since then the Service

      has changed its policy and, save in exceptional cases, files are

      retained. The Service instituted its present general policy on

      retention of records on the basis that they are the key to their

      work and they cannot accurately predict when files will ever be

      needed again. In my opinion as a general policy this is

      acceptable.

      The procedure for opening a file is strictly controlled. It may

      start as a temporary file, which has a maximum life of three

      years, when there is uncertainty whether the criteria for opening

      a permanent file are satisfied. These criteria have their basis

      in the Service's functions and require high standards of

      accuracy. If and when these criteria are satisfied, the permanent

      file will be opened. The Service then applies a system of colour

      coding which controls how files are used. Once a file is opened,

      there is a period coded "green:, during which inquiries may be

      made about the subject. The length of the green period varies

      according to the reason why the particular file was made.  It may

      be extended as a result of the receipt of new information. At the

      end of the green period it changes to "amber", under which

      inquiries are prohibited, but any relevant information that the

      Service receives about the subject may be added to the file.

      After the designated amber period the file is coded "red". During

      this period, inquiries continue to be prohibited and any addition

      of substantive information is also prohibited. Finally, after a

      period of red coding, the file is microfilmed. The hard copy is

      destroyed and the entry for the file in the Service's central

      index is transferred from the Live Index to the Research Index.

      The Research Index is usually consulted only when it is thought

      that old files may exist which are relevant to current work. In

      practice the volume of check against the Research Index is small:

      for instance, it is not consulted in vetting checks.

      It may be argued that it is not the continued retention of files

      that is damaging to an individual, provided that the use which

      is made of them is consistent with the Service's functions and

      responsibilities under the Act.

      It is true that the Act, and particularly paragraphs 2 and 3 of

      the first Schedule, are concerned with enquiries and the use made

      of them, and do not deal with the question of retention. But I

      take the view that for the Service to retain a file on a subject,

      even if it is only on microfilm, no use is made of it and the

      subject is unaware of its existence, retention must in each case

      be justified. In the great majority of cases it will be justified

      by the general principle stated above, but the Service must

      assess each case on its merits. It is then my function to

      consider the Service's decision and, applying the principles of

      judicial review, decide when it is unreasonable."

Relevant domestic law and practice

The Security Service

      The Security Service Act 1989 places the Security Service

on a statutory basis.

      It provides inter alia:

      "1. (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 actions or intentions of persons outside the British

      Islands.

      2. (1) The operations of the Service shall continue to be under

      the control of a Director-General appointed by the Secretary of

      State.

      (2) The Director-General shall be responsible for the efficiency

      of the Service and it shall be his duty to ensure

           (a) that there are arrangements for securing that no

           information is obtained by the Service except so far as

           necessary for the proper discharge of its functions or

           disclosed by it except so far as necessary for that purpose

           or for the purpose of preventing or detecting serious

           crime; and

           (b) that the Service does not take any action to further

           the interests of any political party.

      (3) The arrangements mentioned in subsection (2)(a) above shall

      be such as to ensure that information in the possession of the

      Service is not disclosed for use in determining whether a person

      should be employed, or continue to be employed, by any person,

      or in any office or capacity, except in accordance with

      provisions in that behalf approved by the Secretary of State.

      (4) The Director-General shall make an annual report on the work

      of the Service to the prime minister and the Secretary of State

      and may at any time report to either of them on any matter

      relating to its work.

      3.   (1) No entry on or interference with property shall be

      unlawful if it is authorized by a warrant issued by the Secretary

      of State under this section.

      (2) The Secretary of State may on an application made by the

      Service issue a warrant under this section authorizing the taking

      of such action as is specified in the warrant in respect of any

      property so specified if the Secretary of State

           (a) thinks it necessary for the action to be taken in order

           to obtain information which

                 (i) is likely to be of substantial value in assisting

                 the  Service to discharge any of its functions; and

                 (ii) cannot reasonably be obtained by other means; and

           (b) is satisfied that satisfactory arrangements are in

           force under section 2(2)(a) above with respect to the

           disclosure of information obtained by virtue of this

           section and that the information obtained under the warrant

           will be subject to those arrangements."

The Security Service Tribunal

      The Act also provides for a tribunal, known as the Security

Service Tribunal, to deal with complaints:

      "5. (1) There shall be a Tribunal for the purpose of

      investigating complaints about the Service in the manner

      specified in Schedule 1 to this Act...

      (4) The decisions of the Tribunal and the Commissioner under that

      Schedule (including decisions as to their jurisdictions) shall

      not be subject to appeal or liable to be questioned in any

      court."

      Schedule 1 to the Act provides, inter alia :

      "1.  Any person may complain to the Tribunal if he is aggrieved

      by anything which he believes the Service has done in relation

      to him or to any property of his; and, unless the Tribunal

      consider that the complaint is frivolous or vexatious, they shall

      investigate it in accordance with this Schedule.

      2. (1) The Tribunal shall investigate whether the complainant has

      been the subject of inquiries by the Service.

      (2) If the Tribunal find that the Service has made inquiries

      about the complainant but that those inquiries had ceased at the

      time when the complaint was made, they shall determine whether,

      at the time when the inquiries were instituted, the Service had

      reasonable grounds for deciding to institute inquiries about the

      complainant in the discharge of its functions.

      (3) If the Tribunal find that inquiries by the Service about

      the complainant were continuing at the time when the complaint

      was made, they shall determine whether, at that time, the Service

      had reasonable grounds for deciding to continue inquiries about

      the complainant in the discharge of its functions...

      5. (1) Where the Tribunal determine under paragraph 2 or 3 above

      that the Service did not have reasonable grounds for the decision

      or belief in question, they shall

           (a) give notice to the complainant that they have made a

           determination in his favour under that paragraph; and

           (b) make a report of their findings to the Secretary of

           State and to the Commissioner.

      (2) The Tribunal shall also give notice to the complainant of any

      determination in his favour by the Commissioner under paragraph

      4 above.

      (3) Where in the case of any complaint no such determination as

      is mentioned in sub-paragraph (1) or (2) above is made by the

      Tribunal or the Commissioner the Tribunal shall give notice to

      the complainant that no determination in his favour has been made

      on his complaint.

      6. (1) Where the Tribunal give a complainant notice of such a

      determination as is mentioned in paragraph 5(1) above the

      Tribunal may

           (a) if the determination is under paragraph 2 above, order

           inquiries by the Service about the complainant to be ended

           and any records relating to such inquiries to be destroyed;

           (b) if the determination is under that paragraph or

           paragraph 3 above, direct the Secretary of State to pay to

           the complainant such sum by way of compensation as may be

           specified by the Tribunal.

      (2) Where the Tribunal give a complainant notice of such a

      determination as is mentioned in paragraph 5(2) above the

      Tribunal may

           (a) quash any warrant in respect of any property of the

           complainant which the Commissioner has found to have been

           improperly issued or renewed and which he considers should

           be quashed;

           (b) if the Commissioner considers that a sum should be paid

           to the complainant by way of compensation, direct the

           Secretary of State to pay to the complainant such sum as

           the Commissioner may specify."

      Pursuant to para. 9(1) of Schedule 1, the competence of the

Tribunal is limited as follows:

      "9. (1) No complaint shall be entertained under this Schedule if

      and so far as it relates to anything done before the date on

      which this Schedule comes into force."

      Pursuant to Schedule 2, the Tribunal consists of 3-5 members each

of whom must be a barrister, solicitor or advocate of not less than ten

years' standing. Members are appointed for a period of five years by

Her Majesty by royal warrant and may be removed from office by Her

Majesty on an address presented to her by both Houses of Parliament.

The Security Service Commissioner

      Pursuant to Section 4 of the Act, the Prime Minister appoints as

a Commissioner a person who holds or has held high judicial office. He

has the role, inter alia, of keeping under review the exercise by the

Secretary of State of his powers under Section 3 to issue warrants. He

makes an annual report to the Prime Minister on the discharge of his

functions and the report is then laid before Parliament.

      Pursuant to paragraph 7 of Schedule 1, matters may be referred

to the Commissioner by the Tribunal:

      "7. (1) If in a case investigated by the Tribunal under

      paragraph 2 above they consider that the Service may not be

      justified in regarding all members of a particular category as

      requiring investigation they shall refer that matter to the

      Commissioner.

      (2) If in any case investigated by the Tribunal -

           (a) the Tribunal's conclusions on the matters which they

           are required to investigate are such that no determination

           is made by them in favour of the complainant; but

           (b) it appears to the Tribunal from the allegations made by

           the complainant that it is appropriate for there to be an

           investigation into whether the Service has in any other

           respect acted unreasonably in relation to the complainant

           or his property,

      they shall refer that matter to the Commissioner.

      (3) The Commissioner may report any matter referred to him under

      this paragraph to the Secretary of State who may take such action

      in the light of the report as he thinks fit, including any action

      which the Tribunal have power to take or direct under paragraph 6

      above."

COMPLAINTS

Article 8 of the Convention

      The applicants complain about the continued holding of personal

information about the applicants by the Security Service and submit

that this has breached the applicants' rights to have their private

lives respected.  There is no legal basis for such retention which, in

the applicants' cases, is not necessary in a democratic society because

they are not subversive or in any way threatening to public order,

morality or the freedom of fellow citizens.

      Furthermore, the retention of personal information in relation

to the applicants cannot be justified under Article 8 (2) because it

is not "in accordance with the law".  Notwithstanding the Security

Service Act 1989, the retention of personal information gathered before

the commencement of the Act is still not "in accordance with the law".

The statute does have the force of law.  However, its contents do not

constitute legally enforceable rules concerning the retention of

information gathered before the commencement.  Nor does the statute

provide the requisite degree of certainty concerning the scope and

manner of the exercise of discretion by the authorities in deciding

whether or not to retain information gathered before the statute's

commencement date.

Article 13 of the Convention

      The applicants also submit that there is no effective remedy for

their complaints contrary to Article 13 of the Convention.  The

Security Service Act 1989, gives the Security Service Tribunal no power

to investigate the applicants' complaints.  No complaint to the

Tribunal may be entertained if and so far as it relates to anything

done before that date (Schedule 1 paragraph 9).  Mr. Justice Kennedy

rejected submissions by the applicants that the retention of records

or information constituted a form of continuing inquiry.

      The Tribunal referred to the Security Service Commissioner the

applicants' complaints about the retention of information concerning

them.  However, such investigation as the Commissioner may carry out

is not an effective remedy.  The applicants will not know the outcome

of the investigation, what conclusion the Commissioner comes to or his

reasons for reaching the views at which he arrives.  Furthermore the

Commissioner has a discretion as to whether or not to report to the

Secretary of State, who in turn has a discretion to take such action

as he thinks fit in the light of the Commissioner's report.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 9 July 1992 and registered on

17 July 1992.

      On 10 September 1992,  the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

      The Government's observations were submitted on 25 February 1993

after one extension in the time-limit and the applicant's observations

in reply were  submitted on 28 May 1993 also  after one extension in

the time-limit.

THE LAW

1.    The applicants complains that information concerning their

private life has been compiled and retained by the Security Service.

They invoke Article 8 (Art. 8) of the Convention which provides insofar

as relevant:

      "1.  Everyone has the right to respect for his private ...

      life...

      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 Government, in line with their policy of not disclosing

information about the operations of the intelligence services, have

neither confirmed nor denied the applicants' allegations.

      The Commission notes that the applicants have no concrete proof

to support their allegation that the Security Service continues to

retain a file of personal information about them.  The Commission

recalls however that "an individual may, under certain conditions,

claim to be the 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).

      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 has held that this case-law cannot 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.  An

applicant however 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, D.R. 57 p.108).

      In the present case, the respondent Government, noting the

Commission's finding in the applicants' previous application, states

that it is content to deal with the application on the basis that the

applicants have established a "reasonable likelihood" that the Security

Service has compiled and retained information concerning their private

lives.  In these circumstances the Commission finds  that there has

been an interference with the applicants' rights to respect for their

private lives guaranteed under Article 8 para. 1 (Art. 8-1) of the

Convention.

      The Commission must next determine whether this interference is

justified under the second paragraph of Article 8 (Art. 8) of the

Convention, namely whether it was "in accordance with the law" and if

so, whether it was necessary in a democratic society for one or more

of the reasons specified.

"in accordance with the law"

      This expression has been interpreted by the Court as importing

three requirements - the interference must have some basis in domestic

law, the law in question must be accessible to the individual concerned

and its consequences for him must also be foreseeable. The Court has

further held that the requirement of foreseeability in the special

context of employment "vetting" in sectors affecting national security

cannot be the same as in many other fields. In the LEANDER case (Eur.

Court H.R., Leander judgment of 26 March 1987, Series A no. 116) it

stated:

      "Thus, it cannot mean that an individual should be enabled to

      foresee precisely what checks will be made in his regard by the

      Swedish special police service in its efforts to protect national

      security.  Nevertheless, in a system applicable to citizens

      generally, as under the Personnel Control Ordinance, the law has

      to be sufficiently clear in its terms to give them an adequate

      indication as to the circumstances in which and the conditions

      on which the public authorities are empowered to resort to this

      kind of secret and potentially dangerous interference with

      private life (ibid., p. 32, para. 67)...

      In addition, where the implementation of the law consists of

      secret measures, not open to scrutiny by the individuals

      concerned or by the public at large, the law itself, as opposed

      to the accompanying administrative practice, must indicate the

      scope of any discretion conferred on the competent autho

      sufficient clarity, having regard to the legitimate aim of the

      measure in question, to give the individual adequate protection

      against arbitrary interference (see the above-mentioned Malone

      judgment, Series A no. 82, pp. 32-33, para. 68)."

      The Commission recalls that the legal framework governing the

functioning and supervision of the Security Service is now contained

in the Security Service Act 1989 which placed the Security Service on

a statutory footing for the first time.

      The applicants have submitted however that the domestic law

nonetheless lacks the requisite accessibility and foreseeability. In

this context they refer to the 1989 Act's only partially defined term

of "the interests of national security" and the fact that this

definition extends to actions intended to overthrow parliamentary

democracy by non-violent means.

      The Commission considers however that the principles referred to

above do not necessarily require a comprehensive definition of the

notion of "the interests of national security". Many laws, which by

their subject-matter require to be flexible, are inevitably couched in

terms which are to a greater or lesser extent vague and whose

interpretation and application are questions of practice. The

Commission notes that the exercise of the Security Service's functions

is subject to express limitations and to the supervision of a tribunal

and commissioner appointed pursuant to the 1989 Act. The fact that a

number of other jurisdictions restrict security service activity to a

narrower ambit ie to those persons or organisations which advocate the

use of force (see e.g. Leander judgment loc. cit.) does not thereby

render the wider terms of the 1989 Act unacceptably vague.

      The applicants also complain in this context that there is no

proper legal basis for the retention by the Security Service of

information compiled before the entry into force of the 1989 Act, which

is intended to cover the subsequent activities of the Security Service.

The Commission would however agree with the Government's contention

that it is implicit from the terms of the Act that the Service may

retain the information which it has complied insofar as it is necessary

for the proper discharge of its functions. While the Tribunal found

that it did not have jurisdiction to examine the continued holding of

information gathered before the Act came into force, the Commission

recalls that this problem was referred to the Security Service

Commissioner who held that he could and would review the Service's

decision to retain a particular file, applying the principles of

judicial review to decide whether or not it was unreasonable.

      In light of the above, the Commission considers that in the

present case the law is formulated with sufficient precision to enable

the applicants to anticipate the role of the Security Service with

regard to the collection, recording and retention of information

relating to themselves.

"necessary in a democratic society ..."

      The Commission recalls that the notion of necessity implies that

the interference corresponds to a pressing social need and, in

particular, that it is proportionate to the legitimate aim pursued.

Regard must also be had in this context to the margin of appreciation

of the respondent state which in the area of assessing the requirements

of and means of pursuing interests of national security has been held

by the Court to be wide (Eur. Court H.R., Leander judgment, loc. cit.,

p. 25 paras. 58-59).

      The aim pursued by the interference in the present case was the

"interests of national security". The Court has acknowledged that

States may find it necessary to collect and store information on

persons and to use this information when assessing the eligibility of

persons for posts of importance for national security. It is however

crucial given the potential seriousness of resulting invasions of a

person's private sphere that there exist adequate and effective

guarantees against abuse (Eur. Court H.R., Klass judgment, loc. cit.,

p. 23 para. 50).

      The Government have pointed to the framework of supervision set

up under the 1989 Act.

      The applicants contend that the protection offered is inadequate

and ineffective. They allege, inter alia,  the following defects:

      - the wide scope of the term "interests of national security";

      - the Director-General of the Security Service and the Secretary

      of State are not independent;

      - the fact that the Tribunal does not give reasons for its

      failure to make a determination in favour of an applicant;

      - the inability of an applicant to verify or correct information

      recorded;

      - the limited scope of the Tribunal's inquiries, in particular,

      it cannot decide whether the Service was justified in fact in

      instituting inquiries (it may only investigate whether there were

      reasonable grounds);

      - the Tribunal cannot hear witnesses on oath and gives only a

      one-sentence determination from which an applicant is told

      nothing of the substantive outcome of an investigation;

      - the inability of the Commissioner to make binding decisions or

      to order the destruction of records where he finds it

      unreasonable to retain them.

      Insofar as the applicants have also referred to other systems

whose security legislation are alleged to provide much greater respect

for the rights of the individual, the Commission again finds this to

be of limited relevance. One particular system may be more ideal or

more sophisticated than another. While it may lend force to the

argument that the Government is not  correct in an assumption that

other methods are not practicable, it nonetheless aids the  Commission

little in its task of  determining whether the system under examination

in the concrete case before it passes the threshold imposed by the

Convention guarantees.

      The Commission has already stated above that the term "national

security" is not amenable to exhaustive definition and since sufficient

indication is given of the scope and manner of exercise of the

functions of the Security Service, it considers that no problem arises

in this respect. As regards the lack of reasons for the decisions of

the tribunal, the Court considered a similar problem in the KLASS case

(Eur. Court H.R. Klass judgment, loc. cit., p. 27 paras. 57-58) but

found that the State could legitimately fear that the efficacy of

surveillance systems might be jeopardised if information is divulged

to the person concerned. Similarly, as found in the LEANDER case (Eur.

Court H.R., Leander judgment, loc. cit., p. para. 66) the absence of

communication to the applicant of the information recorded may ensure

the efficacy of the procedure and cannot in itself warrant the

conclusion that the interference was not "necessary".

      The Commission has examined the applicants' remaining complaints

against the background of the 1989 Act as a whole. It notes that the

Tribunal consists of lawyers of ten years' experience and who act in

an independent capacity. While it does not have jurisdiction to

substitute its opinion for that of the Security Service, it has a

supervisory role which includes examination of whether the Service had

reasonable grounds for a particular belief or decision.  It must also

refer to the Commissioner cases where it finds that the Service is not

justified in treating a person as a legitimate object of enquiry merely

on the ground that he is member of a particular group and where it

considers that the Service has acted unreasonably with respect to a

complainant.

      The Commissioner is required to be a person who holds or who has

held high judicial office. At the relevant time, he was a Lord Justice

of the Court of Appeal. He may make recommendations concerning

complaints to the Secretary of State in addition to making an annual

report to the Houses of Parliament. That the Commissioner takes an

active and authoritative  approach to his role is indicated in the

Commission's view by the Reports laid before Parliament where he

explains the aspects of the Security Service's procedures, which have

raised concern and which he has investigated, and elaborated his own

role in supervising those aspects. In particular as regarded the

concerns raised with him as to the continued retention of files, he set

out in his published 1991 report the results of his investigation into

Security Service practice and explained his role in reviewing the

decisions of the Security Service as to whether the retention of a file

was necessary for the discharge of their statutory functions.

      The Commission therefore finds no reason to depart from its

conclusion in the Esbester case (No. 18601/91, Dec. 2.4.93 to be

reported in D.R.) where it stated:

      "In the absence of any evidence or indication that the

      system is not functioning as required by domestic law, the

      Commission finds that the framework of safeguards achieves

      a compromise between the requirements of defending

      democratic society and the rights of the individual which

      is compatible with the provisions of the Convention.

      Consequently the Commission  concludes that the interference in

the present case can be regarded as necessary in a democratic society

in the interests of national security.

      It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.    The applicants also invoke Article 13 (Art. 13) of the

Convention, which provides that :

      "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 his

Convention rights.

      It follows that this complaint must be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

     (M.F. BUQUICCHIO)                        (A. WEITZEL)