19. The Respondent accepts that if, in the course of its investigation of the
complaint and claim, the Tribunal finds that relevant data are held on the
Complainant, the NCND response to the request for access would have amounted
to an interference with the Complainant's Convention right under Article 8(1). It is.
also agreed that the NCND response amounts to "conduct" of the intelligence
services within s 65(4) RIP A, which the Tribunal has power to investigate. The
Tribunal would then have to consider whether the Respondent could justify the
interference as being for a legitimate aim, such as "in the interests of national
security," and as "necessary in a democratic society", on which issues of the
principles of proportionality would arise. Those issues do not arise at this
preliminary stage, which concerns the approach to justification dealt with below
as the second preliminary issue.
20. The Complainant's case on interference is that, if the Respondent in fact held
no relevant data on him, the giving of an NCND response would be (a) an
interference with the Convention right in Article 8(1) and (b) irrational and
unlawful in the judicial review sense. It is argued that, from the Complainant's
point of view, the NCND response is unsatisfactory:
(a) if relevant data are held, the Complainant is denied the opportunity
to refute or correct them, or
(b)
if relevant data are not held, but there were reasonable grounds to
believe that they were, the non-committal NCND response leaves the
lingering suspicion of an interference with the Complainant's exercise of