MR JUSTICE BURTON
Approved Judgment
from trade unions in Eastern Europe, which had been
considered necessary under s2(2) (now s5(3)). Accessibility
and foreseeability were addressed, and there was express
reference not only to the Sunday Times judgment but also to
paragraph 67 of the Malone judgment. The Commission
concluded at 133ff as follows:”
"The Government contend that the terms of the relevant
legislative provisions sufficiently indicate the type of activity
likely to be susceptible to interception of communications,
and that safeguards are imposed that regulate the retention
and use of information obtained from interceptions.
The Commission notes that the case law of the Commission
and Court establishes that the requirement of foreseeability
in the special context of sectors affecting national security
cannot be the same as in many other fields. In the Leander
case [[1987] 9 EHRR 433] the Court stated:
"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 ... 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 ... "
The Commission recalls that it has considered the compatibility
with the requirements of foreseeability of the partial definition
of "interests of national security" ... in two previous cases,
Esbester v United Kingdom [[1994]18 EHRR CD 72] ... and
Hewitt and Harman v United Kingdom [Commission decision
1.9.93] ... It considered that the principles referred to above
did not necessarily require a comprehensive definition of the
notion of "the interests of national security", noting that many
laws, which by their subject matter require to be flexible, are
inevitably couched in terms which are to a greater or lesser
extent vague and whose interpretation and application are
questions of practice. It held that, given the express limitations
on the exercise of the Security Service's functions and the
supervision of a Tribunal and Commissioner, the law was
formulated with sufficient precision ...
While, as the applicant points out, the provisions of the 1985 ...
[Act] are not subject to the influence of the adversarial input
which forms part of the judicial process of interpretation, the
Commission does not consider that the concept of foreseeability
requires that questions of interpretation and practice must be