MR JUSTICE BURTON
Approved Judgment
in Kennedy, in specifically approving the availability of reference
to the Code, approved (at paragraph 156) its earlier judgment in
Silver, reference to which had formed part of the conclusion of this
Tribunal in British Irish Rights Watch.
119.
It is plain that what underlies the Weber requirements is that which the Court firmly
articulates in Weber itself at paragraph 106, namely:
“The Court reiterates that when balancing the interest of the
respondent State in protecting its national security through
secret surveillance measures against the seriousness of the
interference with an applicant’s right to respect for his or
her private life, it has consistently recognised that the
national authorities enjoy a fairly wide margin of
appreciation in choosing the means for achieving the
legitimate aim of protecting national security (see, inter alia,
Klass and Others, cited above, p. 23, § 49; Leander, cited
above, p. 25, § 59; and Malone, cited above, pp. 36-37,
§ 81). Nevertheless, in view of the risk that a system of secret
surveillance for the protection of national security may
undermine or even destroy democracy under the cloak of
defending it, the Court must be satisfied that there exist
adequate and effective guarantees against abuse (see Klass
and Others, cited above, pp. 23-24, §§ 49-50; Leander,
cited above, p. 25, § 60; Camenzind v. Switzerland,
judgment of 16 December 1997, Reports 1997-VIII,
pp. 2893-94, § 45; and Lambert, cited above, p. 2240, § 31).
This assessment depends on all the circumstances of the
case, such as the nature, scope and duration of the possible
measures, the grounds required for ordering them, the
authorities competent to authorise, carry out and supervise
them, and the kind of remedy provided by the national law
(see Klass and Others, cited above, pp. 23-24, § 50).”
This is reiterated in paragraph 77 of the Court’s judgment in Association for
European Integration and Human Rights v Bulgaria App No. 62540/00 28
June 2007.
120.
In that context it is made clear by the Court in S v UK [2009] 48 EHRR 1169 at
paragraph 96 that: “The level of precision required of domestic legislation – which
cannot in any case provide for every eventuality – depends to a considerable degree
on the content of the instrument in question, the field it is designed to cover and the
number and status of those to whom it is addressed”. We have already considered
and set out in paragraphs 38 and 40 above the relevant passages of the Court’s
judgment in Leander and the Commission’s in Esbester. We have no doubt that
we are entitled to look at the rules, requirements and arrangements, both those
expressly set out in statute or in the Code and those set out in more detail in
arrangements below the waterline, but which are sufficiently signalled in publicly
available documents to ensure both that any abuse is avoided and a sufficient degree
of accessibility and foreseeability is secured.