because Article 8 does not apply and because the interference with private life by
way of the NCND response is, on any basis, at the lower end of the scale of such
interference, even had Article 8 applied (see e.g. Brind at CD 83). It is accepted
by both parties that, in the balancing act to be carried out on Wednesbury
principles, it will be necessary that the Respondent has considered the detriment
caused by the interference. In this case the only detriment would be the failure to
allay the suspicion. In the context of the NCND policy and its reasonable
application in this case, the question would presumably be whether it would be
reasonable, in relation to a question from this Complainant as to the existence of
relevant data (which in this context would have been found not to exist in his
case) to give an NCND, rather than a negative, response: set against
consideration of the risk that others might make similar applications in relation to
similar files and draw conclusions if they obtained a different response, and of
the potential consequences of that, if any, to national security.
Conclusions
39. Our rulings on the preliminary issues are accordingly as follows:
(1) On the assumption that no relevant data are held,
(a) the giving of the NCND response to the request under s7(l)
DP A is not an interference with the Complainant's right to private
life under Article 8(1) and is not incompatible with it.