that the Government will require a certificate whilst someone is in
Britain, but will not – and may access any s8(4) material
unimpeded – once they are on holiday abroad. This shows that the
regime is arbitrary, but it also makes it unjustifiable in Article 14
terms. Present geographical location has no necessary connection
with what the Government does and does not know about someone.
V.
VIOLATION OF ARTICLE 6
A.
Determination of civil rights and obligations
272.
Article 6 §1 “secures to everyone the right to have a claim relating to his
civil rights and obligations brought before a court” (Roche v United
Kingdom, App. no. 32555/96, 19 October 2005, §120). The Court has set
out that, in determining whether civil rights and obligations are engaged,
“the starting point must be the provisions of the relevant domestic law and
their interpretation by the domestic courts” (Fazia Ali v United Kingdom,
App. no. 40378/10, 20 October 2015, §54). Further, the Court has
explained that it “would need strong reasons to differ from the conclusions
reached by the superior national courts by finding, contrary to their view,
that there was arguably a right recognised by domestic law.” (§54).
273.
In Kennedy, this Court noted that “the IPT was satisfied that rights of
confidentiality and of privacy for person, property and communications
enjoyed a broad level of protection in English private law and that the
proceedings therefore involved the determination of ‘civil rights’ within the
meaning of Article 6 § 1.” (§179). While this Court formally left open in
Kennedy the question of “whether Article 6 applies to proceedings of this
nature”, it nevertheless proceeded to an examination on the merits in that
case.
106