case, national security interests justify the policy of NCND, which is relied
on by the Respondent to refuse to confirm whether or not such personal
data is in fact held. The approach which the Tribunal should adopt in this
regard has been argued at this stage of the proceedings. This is the
Justification Issue. It focuses on the standard of review applicable to the
justification of an interference with the Complainant's rights under Article
8(1), namely: how the Tribunal should approach its task of deciding:
(i) whether any interference with the Complainant's rights under Article
8(1) is justified under Article 8(2) as being in pursuit of "the interests of
national security" and as "necessary in a democratic society" and
(ii) insofar as Article 8 is found not to apply, after resolution of the
Interference Issue, whether the giving of an NCND response was
reasonable. The differences between the parties, such as they are,
centre on the degree of intensity of review appropriate to the Tribunal's
determination of those matters.
12.
The Complainant's legal representatives have made it clear that the
Tribunal is not being asked to review the lawfulness of the exemption certificate
signed by the Secretary of State under s 28 (2) of the DPA (for example, on
grounds of incompatibility with Article 6). Nor does the Respondent contend
that the existence of that certificate bars the present challenge under RIP A.