MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
examining whether the applicant can possibly be affected by it,
either because he or she belongs to a group of persons targeted
by the contested legislation or because the legislation directly
affects all users of communication services by instituting a
system where any person can have his or her communications
intercepted. Secondly, the Court will take into account the
availability of remedies at the national level and will adjust the
degree of scrutiny depending on the effectiveness of such
remedies. As the Court underlined in Kennedy, where the
domestic system does not afford an effective remedy to the
person who suspects that he or she was subjected to secret
surveillance, widespread suspicion and concern among the
general public that secret surveillance powers are being
abused cannot be said to be unjustified (see Kennedy… para
124). In such circumstances the menace of surveillance can be
claimed in itself to restrict free communication through the
postal and telecommunication services, thereby constituting for
all users or potential users a direct interference with the right
guaranteed by Article 8. There is therefore a greater need for
scrutiny by the Court and an exception to the rule, which denies
individuals the right to challenge a law in abstracto, is
justified. In such cases the individual does not need to
demonstrate the existence of any risk that secret surveillance
measures were applied to him. By contrast, if the national
system provides for effective remedies, a widespread suspicion
of abuse is more difficult to justify. In such cases, the individual
may claim to be a victim of a violation occasioned by the mere
existence of secret measures or of legislation permitting secret
measures only if he is able to show that, due to his personal
situation, he is potentially at risk of being subjected to such
measures.
172. The Kennedy approach therefore provides the Court with
the requisite degree of flexibility to deal with a variety of
situations which might arise in the context of secret
surveillance, taking into account the particularities of the legal
systems in the member States, namely the available remedies,
as well as the different personal situations of applicants.”
In paragraph 288 the Court makes a further reference to Kennedy v UK and its
compatibility with the Convention because “in the United Kingdom any person who
suspected that its communications were being or had been intercepted could apply to
the Investigatory Powers Tribunal.”
19.
The Tribunal considers that the appropriate approach in the United Kingdom is
accordingly that “the individual may claim to be a victim of a violation occasioned by
the mere existence of secret measures or of legislation permitting secret measures
only if he is able to show that, due to his personal situation, he is potentially at risk of
being subjected to such measures.”