MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
irrespective of any measures actually taken against them… In
all of the above cases the applicants made general complaints
about legislation and practice permitting secret surveillance
measures. In some of them they also alleged actual interception
of their communications…
169 Finally, in its most recent case on the subject, Kennedy v.
UK, the Court held that sight should not be lost of the special
reasons justifying the Court’s departure, in cases concerning
secret measures, from its general approach which denies
individuals the right to challenge a law in abstracto. The
principal reason was to ensure that the secrecy of such
measures did not result in the measures being effectively
unchallengeable and outside the supervision of the national
judicial authorities and the Court. In order to assess, in a
particular case, whether an individual can claim an
interference as a result of the mere existence of legislation
permitting secret surveillance measures, the Court must have
regard to the availability of any remedies at the national level
and the risk of secret surveillance measures being applied to
him or her. Where there is no possibility of challenging the
alleged application of secret surveillance measures at domestic
level, widespread suspicion and concern among the general
public that secret surveillance powers are being abused cannot
be said to be unjustified. In such cases, even where the actual
risk of surveillance is low, there is a greater need for scrutiny
by this Court (see Kennedy v UK… at para 124).”
It was in Kennedy that the ECtHR approved the role of this Tribunal.
18.
What the ECtHR described as its “harmonisation of the approach to be taken” then
appears in the following paragraph:
“170. The Court considers, against this background, that it is
necessary to clarify the conditions under which an applicant
can claim to be the victim of a violation of Article 8 without
having to prove that secret surveillance measures had in fact
been applied to him, so that a uniform and foreseeable
approach may be adopted.
171. In the Court’s view the Kennedy approach is best tailored
to the need to ensure that the secrecy of surveillance measures
does not result in the measures being effectively
unchallengeable and outside the supervision of the national
judicial authorities and of the Court. Accordingly, the Court
accepts that an applicant can claim to be the victim of a
violation occasioned by the mere existence of secret
surveillance measures, or legislation permitting secret
surveillance measures, if the following conditions are satisfied.
Firstly, the Court will take into account the scope of the
legislation permitting secret surveillance measures by