European Court back MI5
01 September 1993
The European Commission on Human Rights has ruled that MI5 has the right to keep files on Harriet Harman MP, shadow chief secretary to the Treasury, and Patricia Hewitt, deputy director of the Institute of Public Policy Research. The Commission though acknowledging that this amounted to interference in their right to privacy nevertheless ruled that: "it is necessary in a democratic society in the interests of national security".
The files on Harman and Hewitt were opened when they were the Legal Officer and General Secretary of NCCL (now Liberty). It was in 1985 that Ms Cathy Massiter, a former MI5 official, revealed that files were held on them. The files recorded:
details of passport applications, data from surveillance by local police, Special Branch and by special agents, and references to them or by them on telephone intercepts picked up under warrants issued in relation to other persons...Surveillance of both applicants continued after they had left the National Council for Civil Liberties on the basis that they were both candidates for elected office. (Decision of the Commission, application no 20317/92)
The Commission decision also recorded that intercepts in the case of Harriet Harman "were likely to include confidential conversations which she, as a practising solicitor, had had with certain of her clients". In the case of Patricia Hewitt the file "included information about her personal relationship with a former member of the Communist Party".
In a previous case they brought the Commission ruled in 1990 that MI5 surveillance of the two was in breach of the European Convention on Human Rights but added that the complaints tribunal set up under the 1989 Security Service Act should offer them an effective remedy. However, the complaints tribunal said that it did not have the authority to take a view on MI5's decision to keep records on them. They then went back to the Commission arguing that the tribunal was ineffective.
The Commission in reaching its judgment took into account previous rulings. In the Klass judgment it was decided that it was not necessary for an applicant to have to prove the actual existence of a file - as the UK government in its response refused to confirm or deny files existed - because an individual could "claim to be the victim of a violation occasioned by the mere existence of secret measures...without having to allege that such measures were in fact applied to him" (Eur.Court H R., Klass judgment of 6 September 1978, Series A no 28, p18 para 34). Similarly in the Malone case the Court had agreed that "the existence of laws and practices permitting and establishing a system for effecting secret surveillance amounted in itself to an interference with the applicant's rights under Article 8 (the right to private life) of the Convention, apart from any measures actually taken against him" (Eur.Court H R., Malone judgment of 2 August 1984 Series A no 82 p31 para 64).
The Commission in its ruling accepted that there was a "reasonable likelihood", on the basis of the UK government's response, that MI5 had "compiled and retained information concerning their private lives". It thus agreed that there had been interference with the applicants rights under Article 8 but then said that this was "in accordance with the law" and necessary in a democratic society.
Part of the applicants case was the vagueness of the term "in the interest of national security" in the 1989 Security Service Act. The Commission's decision says that "many laws...are inevitably couched in terms which are to a greater or lesser extent vague and whose interpretation and application are a question of practice". There was also the problem of the 1989 Act's wide definition of "subversion" which extends to actions intended to overthrow parliamentary democracy by non-violent means. The fact that in many other countries security service activity is restricted to "persons and organisations which advocate th