Malone v Metropolitan Police Commissioner  2 All ER 620
Megarry VC:....I turn to counsel's second main contention for the plaintiff, based on the convention. As I have mentioned, there were two limbs: first, that the convention conferred direct rights on citizens of the United Kingdom, and, second, that the convention should be applied as a guide in interpreting and applying English law in so far as it is ambiguous or lacking in clarity. I have already read arts 8 and 13 of the convention, but although I have mentioned the Klass case, I have not discussed it. It was a case referred to the European Court of Human Rights by the commission in respect of an application by five German citizens against the Federal Republic of Germany under the convention. The decision was by the court in plenary session. Fifteen judges joined in the main judgment, and one judge delivered a separate judgment, concurring in the result but giving different reasons. The complaint was that a statute of the Republic, which was called 'the G10', was contrary to the convention in that, in permitting governmental surveillance of the post and telecommunications, (a) it did so without obliging the authorities in every case to notify those concerned after the event, and (b) it excluded any remedy in the courts against ordering and executing the surveillance. There was no challenge to the right of the state to carry out the surveillance; the challenge was as to the absence of these safeguards.
The government stated flatly that none of the applicants had in fact been subject to any surveillance. The case was thus argued as a matter of principle on the validity of the G10 in the light of the convention, rather than on the legality of any acts done. The G10, as construed by the German courts, lays down a series of limitations and restrictions on the use of the power of surveillance. These are set out in the judgment at some length; I shall do no more than summarise them. The powers may be used only in the following circumstances. (i) There must be some imminent danger in certain fields of security, or there must be factual indications for suspecting a person of planning, committing or having committed certain crimes. Other persons who provide a means of communication for the suspect are included only if clear facts point to this. (ii) No surveillance is permitted unless other methods of detection have no prospects of success, or are considerably more difficult. (iii) An application for surveillance may be made only by the head of certain specified services, or his deputy; and the application must be in writing, and give reasons. (iv) The order for surveillance must be made either by the supreme authority of one of the Lšnder or by a Federal Minister authorised by the Chancellor. (v) Surveillance must cease when it is no longer necessary, or the requisite conditions have ceased to exist. An order remains in force for a maximum of three months, and can be renewed only on a fresh application. (vi) The person subjected to surveillance must be notified of it as soon as this will not jeopardise its purpose. (vii) The process of surveillance is subject to supervision. The process, which the judgment of the European Court appears to describe for the Federal authorities, has, it was said, an appropriate counterpart in each of the Lander. The process is as follows. (a) An official qualified for judicial office considers the information obtained to see whether it is within the safeguards, and transmits only information that satisfies these requirements, destroying the rest. What is transmitted must not be used for purposes other than those for which it was obtained, and documents must be destroyed when they are no longer needed for those purposes. (b) There is a board consisting of five MPs, to which the appropriate minister must report at least once every six months on the operation of the G10. The MPs are appointed by the Bundestag in proportion to the parliamentary representation of the parties, so that the opposition is represented on the board. (c) There is a commission consisting of a chairman, who must be qualified to hold judicial office, and two assessors. This is appointed by the board after consultation with the government. As soon as any surveillance ceases, the appropriate Minister considers whether the person who has been subjected to it ought to be notified that it has taken place; and if necessary the Minister reconsiders this at regular intervals. His decision is submitted to the commission, and the commission may direct him to notify the person concerned. The Minister must give the commission a monthly account of the surveillances that he has ordered; and in practice he seeks the commission's prior consent. The commission may also, either on its own motion or on application by anyone believing himself to be under surveillance, order the Minister to terminate forthwith any surveillance that the commission considers to be illegal or unnecessary. (viii) Although the G10 in terms excludes any legal remedy before the courts against ordering and executing any surveillance, there is not a total exclusion of all relief. First, a person who suspects that he is under surveillance may apply to the commission, as I have just mentioned; and thence he may apply to the Constitutional Court. That court may require the authorities to supply information or produce documents, even if secret; and the court may then decide whether the information or documents may be used. Second, once notified of a surveillance, the person concerned may have the legality and conformity of the surveillance reviewed in an action for a declaration; he may sue for damages if he has been prejudiced; he may sue for the destruction or restitution of documents; and if these proceedings fail, he may seek a ruling in the Constitutional Court that there has been a breach of the basic law of the Republic.
Those, then, are the safeguards of the system of surveillance operating in West Germany which the European Court of Human Rights had to consider. Certain other provisions authorising surveillance in criminal cases were not in issue before the court. The court first considered whether the applicants had any locus standi. Article 25(1) gives the right of access to the commission to anyone 'claiming to be the victim of a violation' of rights under the convention by any of the contracting parties. Even though there had been no actual surveillance of any of the applicants, it was held that they could each claim to be 'the victim of a violation' in that they were exposed to the risk of surveillance without their knowledge, and that this risk of surveillance, by restricting free communication, constituted a direct violation of art 8. It was also held that although art 8(1) did not in terms mention telephone conversations, the notions of 'private life' and 'correspondence' extended to them. Secret surveillance by telephone was thus a breach of art 8(1), and could be justified only if it fell within art 8(2).
The court then examined the safeguards in the German legislation in some detail to see whether they provided 'adequate and effective guarantees against abuse'. The court accepted that the national legislature enjoyed a certain discretion in the provisions that it made. In principle, said the court, it was desirable to entrust supervisory control to a judge, since this would offer the best guarantee of independence, impartiality and a proper procedure. Nevertheless, the German system, while not providing for judicial control, had established a board and a commission with adequate powers of control which were independent of the authorities carrying out the surveillance, not least having regard to the representation of the opposition on the board. The exclusion of any subsequent notification of surveillance until this could be given without jeopardising its purpose (instead of as soon as surveillance has ceased) could not carry the case outside art 8(2), since ex hypothesi to require an earlier notification would jeopardise the surveillance. In the result, the court held that there was no breach of art 8.
The court then turned to art 13, dealing with the right to an effective remedy before 'a national authority' if the rights and freedoms in the convention 'are violated'. Not surprisingly, it was held that this must mean that there must be an effective remedy for everyone who claims that his rights or freedoms have been violated. It should not be read literally as being confined to cases where it has already been established that a violation has in fact occurred. On this footing, the court held, first, that the term 'national authority' need not always mean 'a judicial authority' in the strict sense. Other bodies might have sufficient 'powers and procedural guarantees' to provide an effective remedy. Second, the convention had to be construed as a whole; and, as art 8 permitted the authorities to refrain in some cases from giving the person concerned a prompt notification of surveillance that had been carried out, such a withholding of notification could not be treated as a deprivation of an effective remedy under art 13, even though it made it practically impossible in such cases to pursue a remedy. The 'effective remedy' under art 13 must be a remedy that is consistent with art 8. Third, when the notification could be given without jeopardising the object of the surveillance, German law required it to be given, and thereupon the person concerned would be able effectively to pursue the remedies that German law provided; and the aggregate of these remedies satisfied art 13. For these reasons the court held that there had been no breach of arts 8 or 13, so that the claim failed. There was a further point, based on art 6, but I need not consider that.
I have devoted some space to setting out a summary of the Klass decision because counsel for the plaintiff placed so much weight on it, and because of the background that it provides for the present case. The main thrust of his argument, which had a number of facets to it, was that although a treaty forms no part of the law of this country, it might nevertheless have some effect in English law. In this case, he said, the convention, as construed in the Klass case, could and should have a significant effect in determining what the law was on a point which, like this, was devoid of any direct authority. On this, he put before me a number of recent authorities in the Court of Appeal. In these, the high-water mark for his purpose was, I think, the judgment of Scarman LJ in Pan-American World Airways Inc v Department of Trade ( 1 Lloyd's Rep 257 at 261). After stating that the treaty there in question was 'no part of the law of England', Scarman LJ referred to a situation where it would be proper for the courts to take note of an international convention. That arose when two courses were reasonably open to the court, but -
"one would lead to a decision inconsistent with Her Majesty's international obligations under the convention while the other would lead to a result consistent with those obligations. If statutory words have to be construed or a legal principle formulated in an area of the law where Her Majesty has accepted international obligations, our Courts - who, of course, take notice of the acts of Her Majesty done in the exercise of her sovereign power - will have regard to the convention as part of the full content or background of the law. Such a convention, especially a multilateral one, should then be considered by Courts even though no statute expressly or impliedly incorporates it into our law".
There was then a reference to two of the cases which were cited to me, both of which concerned the convention now before me. See also the subsequent case of R v Chief Immigration Officer, Heathrow Airport, ex parte Salamat Bibi ( 3 All ER 843 at 847,), especially per Lord Denning MR, and contrast per Roskill LJ ( 3 All ER 843 at 848(849), questioning the dictum of Scarman LJ.
It is not for me, sitting at first instance, to resolve the variant shades of meaning in the dicta, and I do not attempt to do so. For the present, all that I say is that I take note of the convention, as construed in the Klass case, and I shall give it due consideration in discussing English law on the point. As for the direct right which the convention confers, it seems to me to be plain that this is a direct right in relation to the European Commission of Human Rights and the European Court of Human Rights, the bodies established by the convention, but not in relation to the courts of this country. The convention is plainly not of itself law in this country, however much it may fall to be considered as indicating what the law of this country should be, or should be construed as being.....