Lexploria

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)

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T.D., D.E. AND M.F. v. THE UNITED KINGDOM

T.D., D.E. AND M.F. v. THE UNITED KINGDOM

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