“In 1985, evidence emerged that MI5 (also known as the Security Service) was systematically infringing the applicants’ rights under the [Euro Human Rights] Convention when a former officer of MI5, Ms Cathy Massiter, made certain allegations to this effect on a television program. According to Ms Massiter, the applicants had been classified as subversive and as communist sympathizers, and these grave libels were published within MI5 and were available for publication to other agencies with whom MI5 had a relationship. Their 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. Such intercepts, in the second applicant’s case, were likely to include confidential conversations which she, as a practising solicitor, had had with certain of her clients. The first applicant’s file included information about her personal relationship with a former member of the Communist Party. Surveillance of both applicants was continued after they had left the National Council for Civil Liberties on the basis that they were both candidates for elected office.
“On 19 May 1986, the applicants lodged an application with the European Commission of Human Rights against the United Kingdom government alleging breaches of their right to privacy (Article 8), their right to freedom of expression (Article 10), their right to freedom of association (Article 11) and their right to an effective remedy (Article 13) in respect of the violations arising from the nature and consequences of the surveillance to which they had been subjected by MI5. The application was declared admissible on 12 May 1988.
“In its Report dated 9 May 1989 the Commission concluded by a majority that given the existence of practices in the United Kingdom permitting secret surveillance and given further the reasonable likelihood that the applicants were the subjects of surveillance the compilation and retention by the Security Service of information concerning the private lives of the applicants constituted an infringement of their right to privacy under Article 8 (1) of the Convention. The Commission further concluded that the domestic law of the United Kingdom contained neither legal rules formulated with sufficient precision nor a framework indicating with the requisite degree of certainty the scope and manner of the exercise of discretion by the Security Service in the carrying out of secret surveillance activities to render interference “in accordance with the law” within Article 8 (2). Finally the Commission concluded that since no information was forthcoming in relation to how the United Kingdom had chosen to provide an effective remedy under its domestic law that the applicants did not have an effective remedy as required by Article 13.”
“The procedure for opening a file is strictly controlled. It may start as a temporary file, which has a maximum life of three years, when there is uncertainty whether the criteria for opening a permanent file are satisfied. These criteria have their basis in the Service’s functions and require high standards of accuracy. If and when these criteria are satisfied, the permanent file will be opened. The Service then applies a system of colour coding which controls how files are used. Once a file is opened, there is a period coded “green:, during which inquiries may be made about the subject. The length of the green period varies according to the reason why the particular file was made. It may be extended as a result of the receipt of new information. At the end of the green period it changes to “amber”, under which inquiries are prohibited, but any relevant information that the Service receives about the subject may be added to the file. After the designated amber period the file is coded “red”. During this period, inquiries continue to be prohibited and any addition of substantive information is also prohibited. Finally, after a period of red coding, the file is microfilmed. The hard copy is destroyed and the entry for the file in the Service’s central index is transferred from the Live Index to the Research Index. The Research Index is usually consulted only when it is thought that old files may exist which are relevant to current work. In practice the volume of check against the Research Index is small: for instance, it is not consulted in vetting checks.”