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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Butt, R (On the Application Of) v The Secretary of State for the Home Department [2019] EWCA Civ 256 (08 March 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/256.html Cite as: [2019] EWCA Civ 256, [2019] WLR(D) 148, [2019] 1 WLR 3873, [2019] WLR 3873, [2019] HRLR 10 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Ouseley J
EWHC
1930 (Admin)
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE SHARP
and
LORD JUSTICE IRWIN
____________________
R (on the application of Salman BUTT) |
Appellant |
|
- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Oliver Sanders QC and Amelia Walker (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : 11 & 12 December 2018
____________________
Crown Copyright ©
Sir Terence Etherton MR, Lady Justice Sharp and Lord Justice Irwin:
Introduction
The Government's Prevent strategy
"Compliance with the Prevent duty requires that properly thought through procedures and policies are in place. Having procedures and policies in place which match the general expectations set out in this guidance will mean that institutions are well placed to comply with the Prevent duty. Compliance will only be achieved if these procedures and policies are properly followed and applied. This guidance does not prescribe what appropriate decisions would be - this will be up to institutions to determine, having considered all the factors of the case."
"… when deciding whether or not to host a particular speaker, RHEBs should consider carefully whether the views being expressed, or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups. In these circumstances the event should not be allowed to proceed except where RHEBs are entirely convinced that such risk can be fully mitigated without cancellation of the event. This includes ensuring that, where any event is being allowed to proceed, speakers with extremist views that could draw people into terrorism arechallenged
with opposing views as part of that same event, rather than in a separate forum. Where RHEBs are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed."
"vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas."
The EAU
Dr Butt
The legal framework
CTSA, the Terrorism Act 2000 ("TA") and the Education (No.2) Act 1986 ("E2A")
"(b) … designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause."
"(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system."
"(1) [RHEBs] shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.
(2) The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—
(a) the beliefs or views of that individual or of any member of that body; or
(b) the policy or objectives of that body.
(3) The governing body of every such establishment shall, with a view to facilitating the discharge of the duty imposed by subsection (1) above in relation to that establishment, issue and keep up to date a code of practice setting out—
(a) the procedures to be followed by members, students and employees of the establishment in connection with the organisation—
(i) of meetings which are to be held on premises of the establishment and which fall within any class of meeting specified in the code; and
(ii) of other activities which are to take place on those premises and which fall within any class of activity so specified; and
(b) the conduct required of such persons in connection with any such meeting or activity;
and dealing with such other matters as the governing body consider appropriate.
(4) Every individual and body of persons concerned in the government of any such establishment shall take such steps as are reasonably practicable (including where appropriate the initiation of disciplinary measures) to secure that the requirements of the code of practice for that establishment, issued under subsection (3) above, are complied with.
…
(8) Where a students' union occupies premises which are not premises of the establishment in connection with which the union is constituted, any reference in this section to the premises of the establishment shall be taken to include a reference to the premises occupied by the students' union."
The Regulation of Investigatory Powers Act 2000 ("RIPA")
"(a) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications;
(b) recording anything monitored, observed or listened to in the course of surveillance; and
(c) surveillance by or with the assistance of a surveillance device."
The expression "surveillance device" is defined in section 48(1) as "any apparatus designed or adapted for use in surveillance".
"(2) Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken–
(a) for the purposes of a specific investigation or a specific operation;
(b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
(c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance."
"(a) that the authorisation is necessary on grounds falling within subsection (3); and
(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out."
"(a) in the interests of national security;
(b) for the purpose of preventing or detecting crime or of preventing disorder;
(c) in the interests of the economic well-being of the United Kingdom;
(d) in the interests of public safety;
(e) for the purpose of protecting public health;
(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution orcharge
payable to a government department; or
(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State."
The Data Protection Act 1998 ("the DPA")
The Human Rights Act 1998 ("the HRA") and the Convention
The proceedings
The judgment
The appeal
Discussion
Appeal Ground 4
Engagement of Article 8(1)
The Supreme Court authorities: Catt and JR38
"5 In Rotaru v Romania (2000) 8 BHRC 449, para 43, the GrandChamber
held that "public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities." Cf Segerstedt-Wiberg v Sweden 44 EHRR 2, para 72. In Kingdom (2008) 46 EHRR 51, the court found a violation of article 8 by covertly recording the applicants' voices at a police station in the presence of police officers, for the purposes of future voice recognition. At para 57, the court said:
"There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similarcharacter.
Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. It is for this reason that files gathered by security services on a particular individual fall within the scope of article 8, even where the information has not been gathered by any intrusive or covert method."
In BB v France (Application No 5335/06) (unreported) given 17 December 2009, a case concerning the inclusion of persons in a register of convicted sex offenders, it was held at para 57 that the "mere storing by a public authority of data relating to the private life of an individual" engaged article 8 of the Convention so as to require to be justified. In S v United Kingdom 48 EHRR 50 the Strasbourg court held that article 8 was engaged by the mere storage of cellular samples, DNA profiles and fingerprints: see paras 77, 86. This was because of the sensitivity and amount of the personal information in question, and the uses to which it might "conceivably" be put: paras 70-86. The same principle has been recognised and applied in English case law. As Lord Hope of Craighead DPSC observed in R (L) v Comr of Police of the Metropolis (Secretary of State for the Home Department intervening) [2010] 1 AC 410, para 27, even public information such as a criminal conviction may become part of a person's private life once it recedes into the past and other people are likely to have forgotten about it."
"6 These cases, and others like them, all have particular features which differentiate them both from each other and from the present cases. But it is clear that the state's systematic collection and storage in retrievable form even of public information about an individual is an interference with private life."
"84 In the leading case Von Hannover v Germany 40 EHRR 1, concerning press photographs of the applicant engaged in various informal activities with members of her family or friends in locations outside her own home, the Strasbourg court said, at paras 50–52:
"50. The court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person's name (see Burghartz v Switzerland (1994) 18 EHRR 101, para 24) or a person's picture (see Schüssel v Austria (Application No 42409/98) (unreported) given 21 February 2002, [2002] ECHR 845).
Furthermore, private life, in the court's view, includes a person's physical and psychological integrity; the guarantee afforded by article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings: see, mutatis mutandis, Niemietz v Germany (1992) 16 EHRR 97, para 29, and Botta v Italy (1998) 26 EHRR 241, para 32. There is therefore a zone of interaction with others, even in a public context, which may fall within the scope of 'private life': see, mutatis mutandis, PG v United Kingdom (2008) 46 EHRR 51, para 56, and Peck v United Kingdom (2003) 36 EHRR 41, para 57.
51. The court has also indicated that, in certain circumstances, a person has a 'legitimate expectation' of protection and respect for his private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant 'would have had a reasonable expectation of privacy for such calls': see Halford v United Kingdom (1997) 24 EHRR 523, para 45.
52. As regards photos, with a view to defining the scope of protection afforded by article 8 against arbitrary interference by public authorities, the Commission had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public: see, mutatis mutandis, Friedl v Austria (1995) 21 EHRR 83, Friendly Settlement, Commission opinion, at paras 49–52; PG v United Kingdom (2008) 46 EHRR 51, para 58; and Peck v United Kingdom 36 EHRR 41, para 61."
"The Court recalls that it is well established in its case-law that the mere storing of information amounts to an interference with the applicants' right to respect for private life as secured by Article 8(1) of the Convention (see S. and Marper, cited above, § 67 and Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 73, ECHR 2006-VII with further references)."
We do not consider that either statement precludes the conclusion that Article 8(1) is not engaged on the facts of this case.
"72. The Court, having regard to the scope of the notion of "private life" as interpreted in its case-law (see, in particular, Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II, and Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000-V), finds that the information about the applicants that was stored on the Security Police register and was released to them clearly constituted data pertaining to their "private life". Indeed, this embraces even those parts of the information that were public, since the information had been systematically collected and stored in files held by the authorities. Accordingly, Article 8 § 1 of the Convention is applicable to the impugned storage of the information in question."
"67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116). The subsequent use of the stored information has no bearing on that finding (see Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000-II). However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see, mutatis mutandis, Friedl, cited above, §§ 49-51, and Peck, cited above, § 59)."
"is thechief
editor of Islam21c, a publication that hosts material contrary to British values, and has himself expressed views of concern in this publication and on social media, appearing to compare homosexuality to paedophilia as a sin and supporting FGM. He has spoken alongside CAGE and used social media to support CAGE's position on Mohammed Emwazi ("Jihadi John"), which has been to try to justify his resort to violence."
"I do not consider that what they did in this case reached the level of "surveillance" at all, and certainly not directed surveillance. I have considered the frequency of examination, the circumstances, the public nature of the data, its mode of collection, the lack of what I regard as the sort of exercise, to which the comments and concerns are addressed, of drawing conclusions about personal matters from the systematic assembly of data from multiple sources; the absence of focused monitoring of the Claimant or of a group to which he belonged."
Other authorities
"As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached … The fact of an investigation, as a general rule, will of itself carry some stigma, no matter how often one says it should not."
"it may be that a given public figure waives at least a degree of privacy by courting publicity, or adopting a public stance which would be at odds with the privacy rights claimed".
Justification under Article 8(2)
"although the claimant may not have seen himself in that light [viz as a non-violent extremist], he readily could have contemplated that others might in the light of the PDG and made a subject access request".
Appeal Ground 5
Appeal Grounds 1, 2 and 3
(1) Appeal Ground 1: The PDG and the HEPDG were ultra vires the powers of the Secretary of State to promulgate guidance under section 29 CTSA in that they required RHEBs to take steps to prevent people being drawn into "non-violent extremism", where "extremism" is defined as "opposition to fundamental British values".
(2) Appeal Ground 2: The Secretary of State failed to comply with his duty under section 31(3) CTSA to have a "particular regard to the duty to ensure free speech". Section 31(2) CTSA requires RHEBs, in the discharge of their duty under section 26 CTSA, to "have particular regard to the duty to ensure freedom of speech", and the Secretary of State in promulgating guidance under section 29 CTSA "must have particular regard to the duty to ensure freedom of speech". The Guidance as promulgated, particularly paragraph 11 of HEPDG, disproportionately restricted free speech.
(3) Appeal Ground 3: The PDG and the HEPDG breached common law and Article 10 Convention rights in relation to free speech "in their lack of clarity, absence of connection between the interference and any legitimate aim and their lack of proportionality". It is acknowledged that this ground turns on the same alleged flaws in the Guidance already identified: the over-broad definition of "extremism" and the mandate to RHEBs to prevent speakers from attending events "where RHEBs are in any doubt that the risk cannot be fully mitigated".
Appeal Ground 1
"Being drawn into terrorism included being drawn into support for terrorism. There was no clear dividing line between extremism and terrorism; the two were closely related. Preventing people being drawn into terrorism required the extremist ideologies used to legitimise terrorism to bechallenged,
and their promotion disrupted, …. "Non-violent extremism" was always "caveated" in Guidance by the concept of a "risk of being drawn into terrorism"."
"The whole context of the Guidance, the CTSA and the Prevent strategy is to reduce the risk of people being drawn into terrorism by extremism, violent or non-violent. The Guidance did not apply to "non-violent" extremism however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism."
The submissions on Appeal Ground 1
"Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance." [129]
"140. I regard it as plain that if non-violent extremism does risk drawing people into terrorism, then a degree of consideration, which may lead to RHEBs countering, mitigating or restricting that effect on its students towards whom they owe some safeguarding duty, (and ultimately that effect on the wider society of which they form part) is a legitimate objective for government to set for achievement through guidance. I am far from clear that Mr Bowen submitted otherwise."
Appeal Ground 2
"Furthermore, when deciding whether or not to host a particular speaker, RHEBs should consider carefully whether the views being expressed, or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups. In these circumstances the event should not be allowed to proceed except where RHEBs are entirely convinced that such risk can be fully mitigated without cancellation of the event. This includes ensuring that, where any event is being allowed to proceed, speakers with extremist views that could draw people into terrorism arechallenged
with opposing views as part of that same event, rather than in a separate forum. Where RHEBs are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed." [emphasis added].
"56. I entirely understand why the last and second last sentences of paragraph 11 can be seen as very restrictive. The RHEB must be "entirely convinced" that the risk is "fully mitigated", or "fully mitigated" without any doubt. Otherwise, the RHEB should exercise caution and not allow the event to proceed. In this context, I would have thought that was a nigh-on impossible task with some speakers, though the suggestion that it was a requirement that all who opposed fundamental British values should be banned is rather wide of the mark.
57. Mr Sanders' interpretation of the guidance is close however to submitting in effect that the proper interpretation of the guidance, albeit in context and read alongside other guidance, is not what an ordinary reading of the words would yield. His analysis was more nuanced, less absolute, and more reflective of the fact that the HEPDG concerned but one strand of the duties to which the institutions were subject.
58. In my judgment, paragraph 11 of the HEPDG means what it says on a straightforward reading of its quite simple language. The notion of "full mitigation" could mean mitigation as far as reasonably practicable or mitigation so that there was no significant risk, and without doubt could mean without any reasonable or significant doubt. But in the context of cancellation if full mitigation cannot be achieved beyond doubt, I do not think that that Mr Sanders' more nuanced reading is right. If the guidance meant what Mr Sanders said, it should have said so. But I have to add, that where RHEBs have interpreted the HEPDG as Mr Sanders submitted they should have done, it will lie ill in the mouth of the SSHD to complain. And if she wishes to revise the wording to reflect his submission, she can always do so. Even on Mr Sanders' reading, though some of the sting might be removed, many of the issues about the relationship between the guidance and the section 31 duties would remain."
"98. But the Guidance needs to be read and understood for what it is. It is just that: guidance. It does not direct an outcome, let alone "ban" or "direct" the banning of speakers. It must be considered, but "following it" in the absence of good reason can be a misleading approach, notwithstanding Mr Sanders' apparent concession. "Following it" requires no particular outcome but a consideration of factors, processes and steps. The guidance leaves it to the judgment of the RHEB as to whether the event should not proceed or proceed in whatever format or with whatever organisation itchooses.
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99. As I have already explained, the balancing act, which Mr Bowen said failed to give due weight to the rights of the individual, does not need to be carried out within the guidance itself. The balancing act is for the RHEBs, having considered the Guidance, and their duties in s31 CTSA and s43 EA 1986. Mr Bowen said that the Guidance contained no explicit recognition of the importance of freedom of speech or political and religious matters. I do not agree with that, but the specific provisions of the CTSA show that when RHEBs reach decisions, they have to have particular regard to those issues. It is at that stage in the decision-making process that the balance is to be struck, and it is struck by the decision-maker not the SSHD."
"the HEPDG could have set out more fully what I concluded the position is; but it was not unlawful to say what it did, and leave the institutions to make the clear judgment that the other interests overrode its application in any particular case."
"the guidance had to be applied in the absence of good reasons not do so … based on R (Munjaz) v Merseyside Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148."
The Judge doubted, however, the value of that "simple proposition" where the institution was subject to separate and "differently expressed duties". At [68], the Judge addressed Dr Butt's submission that the HEPDG would have the effect that RHEBs "are likely to give insufficient weight to their duty to ensure free speech under section 43 of the 1986 Act". The Judge characterised
that as "not even an allegation that [RHEBs] would err in law, let alone that the SSHD has erred". If the RHEBs failed in their duty, that was a matter for
challenge
to their decisions. As the Judge put it:
"Guidance cannot be unlawful simply because, through misunderstanding their duties, others may act unlawfully."
Appeal Ground 3
Conclusion
7.— Proceedings.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
…
4.— The data protection principles.
(1) References in this Act to the data protection principles are to the principles set out in Part I of Schedule 1.
(2) Those principles are to be interpreted in accordance with Part II of Schedule 1.
…
(4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.
7.— Right of access to personal data.
(1) Subject to the following provisions of this section and to sections 8, 9 and 9A, an individual is entitled—
(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,
(b) if that is the case, to be given by the data controller a description of—(i) the personal data of which that individual is the data subject,(ii) the purposes for which they are being or are to be processed, and(iii) the recipients or classes of recipients to whom they are or may be disclosed,(c) to have communicated to him in an intelligible form—(i) the information constituting any personal data of which that individual is the data subject, and(ii) any information available to the data controller as to the source of those data, and
(d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his credit worthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.
(2) A data controller is not obliged to supply any information under subsection (1) unless he has received—
(a) a request in writing, and
(b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require.
…
…
(8) Subject to subsection (4), a data controller shall comply with a request under this section promptly and in any event before the end of the prescribed period beginning with the relevant day.
…
SCHEDULE 1 THE DATA PROTECTION PRINCIPLES
PART I THE PRINCIPLES
1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
4. Personal data shall be accurate and, where necessary, kept up to date.
5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
6. Personal data shall be processed in accordance with the rights of data subjects under this Act.
7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
8. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.
Part II
Interpretation of the principles in Part I
The first principle
1.—(1) In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purpose or purposes for which they are to be processed.
(2) Subject to paragraph 2, for the purposes of the first principle data are to be treated as obtained fairly if they consist of information obtained from a person who—
(a) is authorised by or under any enactment to supply it, or
(b) is required to supply it by or under any enactment or by any convention or other instrument imposing an international obligation on the United Kingdom.
2.—(1) Subject to paragraph 3, for the purposes of the first principle personal data are not to be treated as processed fairly unless—
(a) in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him, the information specified in subparagraph (3), and
(b) in any other case, the data controller ensures so far as practicable that, before the relevant time or as soon as practicable after that time, the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3).
(2) In sub-paragraph (1)(b) "the relevant time" means—
(a) the time when the data controller first processes the data, or
(b) in a case where at that time disclosure to a third party within a reasonable period is envisaged—(i) if the data are in fact disclosed to such a person within that period, the time when the data are first disclosed,(ii) if within that period the data controller becomes, or ought to become, aware that the data are unlikely to be disclosed to such a person within that period, the time when the data controller does become, or ought to become, so aware, or(iii) in any other case, the end of that period.
(3) The information referred to in sub-paragraph (1) is as follows, namely—
(a) the identity of the data controller,
(b) if he has nominated a representative for the purposes of this Act, the identity of that representative,
(c) the purpose or purposes for which the data are intended to be processed, and
(d) any further information which is necessary, having regard to the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.
3.—(1) Paragraph 2(1)(b) does not apply where either of the primary conditions in sub-paragraph (2), together with such further conditions as may be prescribed by the Secretary of State by order, are met.
(2) The primary conditions referred to in sub-paragraph (1) are—
(a) that the provision of that information would involve a disproportionate effort, or
(b) that the recording of the information to be contained in the data by, or the disclosure of the data by, the data controller is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
SCHEDULE 2
Conditions relevant for purposes of the first principle: processing of
any personal data
1. The data subject has given his consent to the processing.
2. The processing is necessary—
(a) for the performance of a contract to which the data subject is a party, or
(b) for the taking of steps at the request of the data subject with a view to entering into a contract.
3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
4. The processing is necessary in order to protect the vital interests of the data subject.
5. The processing is necessary—
(a) for the administration of justice,
(b) for the exercise of any functions conferred on any person by or under any enactment,
(c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or
(d) for the exercise of any other functions of a public nature exercised in the public interest by any person.
6.—(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.
ARTICLE 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
ARTICLE 10 Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
ARTICLE 34 Individual applications
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.