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AS TO THE ADMISSIBILITY OF

Application No. 16709/90

by Steven HOPKINS

against the United Kingdom

The European Commission of Human Rights sitting in private

on 7 January 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 application introduced on 24 May 1990

by Steven HOPKINS against the United Kingdom and registered

on 13 June 1990 under file No. 16709/90;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1960 and resident

in Sheffield. He is represented by Madeleine Colvin of the National

Council for Civil Liberties. The facts as submitted by the applicant

may be summarised as follows.

The applicant applied for a post in the Civil Service and by

letter of 28 April 1988 was informed that he had been assigned to the

Welsh Office. Following his application to join the Foreign and

Commonwealth Office (the FCO) he was informed that before an

appointment was made, enquiries would need to be made (i.e. "positive

vetting"). By a letter of 31 August 1988, the FCO asked the applicant to

attend a training course before his conditional appointment to a

post. On 13 September 1988 during the course, the applicant was

informed that a problem had arisen with his security clearance and he

was required to attend an interview with the FCO security

investigating unit. Following the interview on 4 October 1988, the

applicant was informed that his post in the Diplomatic Service was not

to be confirmed in light of the enquiries made during the positive

vetting procedure. He was not given further details.

In December 1988, the applicant was informed by the Civil

Service Commission that the assignment mentioned in its letter of

28 April 1988 had to be withdrawn following his rejection by the FCO.

No other reasons were given.

On 1 March 1989, the applicant instituted proceedings in the

High Court seeking judicial review of the decision not to appoint

him. On 19 May 1989, the Civil Service Commission served an

affidavit stating inter alia that they were under no duty to give

reasons. In an opinion dated 25 August 1989, counsel advised that it

would be impossible to challenge their argument. The applicant

applied to withdraw the action and on 11 January 1990 the High Court

made an order ending the proceedings.

COMPLAINTS

The applicant complains of the obtaining, retention and

application of personal information about the applicant (beyond that

provided by himself) through the positive vetting procedures so as

adversely to affect his prospects of being appointed to the relevant

job, without any opportunity for him to know the nature and extent of

the procedures to be adopted in that exercise or to comment on the

accuracy of the information and submits that this constitutes a breach

of his right to respect for private life under Article 8 para. 1

of the Convention.

The applicant submits that the obtaining, retention and

application of personal information about the applicant (beyond that

provided by himself) through the positive vetting procedures carried

out by the security investigation unit of the Foreign and Commonwealth

Office is not 'in accordance with the law'. Contrary to the

principles stated in the MALONE case (Eur. Court H.R., Malone judgment

of 2 August 1984, Series A no. 82, p. 31-33, paras. 66-68), the

relevant law (if any) is not adequately accessible or formulated with

sufficient precision. The Security Service Act 1989 relates only to

the activities of the security service known as MI5 and does not

include the security activities of any other Government Department.

Further, the applicant was not informed in sufficient detail

of the nature and extent of the positive vetting procedures or given

the opportunity to comment on the accuracy or the information

obtained, retained and applied during the positive vetting exercise.

There were thus no safeguards applied to ensure that the 'procedures'

operated fairly and effectively.

The applicant also submits that he has no effective remedy

before a national authority in respect of the matters of which

he complains, contrary to Article 13 of the Convention. Although the

Security Service Act 1989 introduces the Security Service Tribunal to

which individuals can complain in relation to the activities of the

security service known as MI5, it fails to provide an 'effective

remedy' since it only applies to MI5 and to acts done by MI5 on or

after 18 December 1989.

THE LAW

The applicant complains of the obtaining, retention and

application of information about himself through the positive vetting

procedure carried out by the FCO. He invokes Articles 8 (Art. 8)

and 13 (Art. 13) of the Convention.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of these provisions, as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with a matter

after all domestic remedies have been exhausted according to the

generally recognised rules of international law and within a period of

six months from the date on which the final decision was taken".

The Commission recalls that the applicant instituted judicial

review proceedings in respect of his complaints and that he

subsequently withdrew these proceedings. In these circumstances, the

Commission has considered whether the applicant can be said to have

exhausted the domestic remedies available to him. The applicant has

submitted that it became apparent following the service of the Civil

Service Commission's affidavit on 19 May 1989 that he stood no

prospect of success and that he was advised of this by counsel's

opinion. The Commission's case-law establishes that only remedies

which are "effective and sufficient" can be considered in the context

of Article 25 (Art. 25) of the Convention (see e.g. No. 654/59,

Dec. 3.6.60, Yearbook 4 pp. 155, 187). Even assuming therefore that

the judicial review proceedings did not constitute an effective remedy

which the applicant was obliged to exhaust, the Commission must

determine whether the applicant has introduced his complaints within

six months from the date on which the final decision was taken. In

these circumstances, the six month time-limit cannot be considered as

starting to run later than the moment when the applicant became aware

that the judicial review proceedings did not constitute an effective

remedy for his complaints, i.e. when he received notice of counsel's

opinion. This opinion was dated 25 August 1989 whereas the

application was submitted to the Commission on 24 May 1990, that is,

more than six months after this date.

It follows that the application has been introduced out of

time and must be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

The Secretary to the Commission The President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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HOPKINS v. the UNITED KINGDOM

HOPKINS v. the UNITED KINGDOM