MR JUSTICE BURTON
Approved Judgment
which and the conditions on which public authorities are
entitled to resort to such covert measures . . .
78. . . . In particular, in order to comply with the requirement
of the “quality of the law”, a law which confers discretion must
indicate the scope of that discretion, although the detailed
procedures and conditions to be observed do not necessarily
have to be incorporated in rules of substantive law. The degree
of precision required of the “law” in this connection will
depend upon the particular subject-matter. Since the
implementation in practice of measures of secret surveillance
of communications is not open to scrutiny by the individuals
concerned or the public at large, it would be contrary to the
rule of law for the legal discretion granted to the executive – or
to a judge – to be expressed in terms of an unfettered power.
Consequently, the law must indicate the scope of any such
discretion conferred on the competent authorities and the
manner of its exercise with sufficient clarity to give the
individual adequate protection against arbitrary interference.”
38.
It is quite plain, as we have said at paragraph 6 above, that in the field of national
security much less is required to be put in the public domain, and the degree of
foreseeability must be reduced, because otherwise the whole purpose of the steps
taken to protect national security would be at risk. The views of the Court to that
effect in paragraphs 67 and 68 of Malone are encapsulated by the Court in Leander
v Sweden [1987] 9 EHRR 433 at paragraph 51:
“However, the requirement of foreseeability in the special
context of secret controls of staff in sectors affecting national
security cannot be the same as in many other fields. Thus, it
cannot mean that an individual should be enabled to foresee
precisely what checks will be made in his regard by the
Swedish special police service in its efforts to protect national
security. Nevertheless, in a system applicable to citizens
generally, as under the Personnel Control Ordinance, the law
has to be sufficiently clear in its terms to give them an adequate
indication as to the circumstances in which and the conditions
on which the public authorities are empowered to resort to this
kind of secret and potentially dangerous interference with
private life.
In assessing whether the criterion of foreseeability is satisfied,
account may be taken also of instructions or administrative
practices which do not have the status of substantive law, in so
far as those concerned are made sufficiently aware of their
contents.
In addition, where the implementation of the law consists of
secret measures, not open to scrutiny by the individuals
concerned or by the public at large, the law itself, as opposed
to the accompanying administrative practice, must indicate the