MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
such as to set out any basis for the asserted belief or to show any potential risk, if they
otherwise satisfy the requirements for jurisdiction, to which we turn below.
48.
Subject therefore to the second issue, we conclude that the Six alone have established
locus. With regard to the balance of the Ten and (subject to possible reconsideration
in relation to the seventeen referred to) the balance of the 663, we do not propose to
direct any enquiries or investigation by the Agencies. We shall leave open the
question as to whether, as the Respondents submit, there is in these circumstances a
power, explicit pursuant to s.68(1) or implicit, to dismiss such claims, or to make no
determination without having investigated them, but we are satisfied that we can in
any event take the course, which Mr Jaffey agrees is available if we decide, as we do,
that the claims are not sustainable, to reject them as frivolous within s.67(4).
The jurisdiction issue
49.
As appears from paragraph 11 above, of the five individual Claimants among the Six,
two have not, at any material time, been resident in the United Kingdom; Mr Wieder
is a citizen of the United States of America and lives there and G is a citizen of one
Council of Europe state, resident in another. Both have submitted a human rights
claim in Form T1 as well as a complaint in Form T2. They both use the standard
form Statement of Grounds. As set out above, they assert a belief that the
Respondents have performed a number of actions, including interception, use and
storage of “my information and/or communications” and may have received “my
information” from the NSA prior to 5 December 2014. In consequence, each claims
that his rights under Articles 8 and 10 ECHR have been infringed. The Respondents
contend that if, which is neither confirmed nor denied, any such interception or
sharing has occurred, it cannot, as a matter of principle, give rise to a claim under s.6
Human Rights Act 1998, because the United Kingdom has no obligation under the
ECHR to secure the rights under Articles 8 and 10 to them.
50.
The foundation for the argument is Article 1 ECHR:
“The high contracting parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section 1
of this convention.”
Mr Eadie submits that neither Claimant is or was at any material time within the
jurisdiction of the United Kingdom, and such is not in issue. In consequence, the UK
owed no obligation to them to secure Article 8 or 10 rights in relation to their
“information” or “communications”.
51.
Mr Jaffey submits that the point has never been taken before in the Tribunal, in
circumstances in which it could have been; and while that does not prevent it from
being taken, it is a reliable indicator that the point is not good. His more principled
argument is that, by analogy with other circumstances in which the ECtHR has held
that the Convention does apply to persons not present in the territory of a contracting
state, the obligation exists. We understand him to accept that the issue can be
determined under Article 8 and that Article 10 adds nothing to his argument. Article
8(1) provides,