Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Applications Nos. 20390/92 & 21322/93

John Tinnelly & Sons Ltd and Patrick and Gerard Tinnelly

and

Kevin, Michael, Paddy and Barry McElduff

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 8 April 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-21). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-6). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 7-16) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 17-21). . . . . . . . . . . . . . . . . . .3

II. ESTABLISHMENT OF THE FACTS

(paras. 22-55) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 22-46). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law

(paras. 47-55). . . . . . . . . . . . . . . . . . 13

III. OPINION OF THE COMMISSION

(paras. 56-122). . . . . . . . . . . . . . . . . . . . 15

A. Complaints declared admissible

(para. 56). . . . . . . . . . . . . . . . . . . . 15

B. Points at issue

(para. 57). . . . . . . . . . . . . . . . . . . . 15

C. As regards Article 6 of the Convention

(paras. 58-103) . . . . . . . . . . . . . . . . . 15

CONCLUSION

(para. 103) . . . . . . . . . . . . . . . . . . . 26

D. As regards Article 8 of the Convention

(paras. 104-108). . . . . . . . . . . . . . . . . 26

CONCLUSION

(para. 108) . . . . . . . . . . . . . . . . . . . 27

E. As regards Article 13 of the Convention, taken together with

Article 8 of the Convention

(paras. 109-113). . . . . . . . . . . . . . . . . 27

CONCLUSION

(para. 113) . . . . . . . . . . . . . . . . . . . 27

TABLE OF CONTENTS

Page

F. As regards Article 14 of the Convention, taken together with

Article 6 of the Convention

(paras. 114-118). . . . . . . . . . . . . . . . . 27

CONCLUSION

(para. 118) . . . . . . . . . . . . . . . . . . . 28

G. Recapitulation

(paras. 119-122). . . . . . . . . . . . . . . . . 28

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 29

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The first applicant in Application No. 20390/92,

John Tinnelly & Sons, is a limited company carrying on business as a

demolition contractor in Northern Ireland. The second and third

applicants, Patrick and Gerard Tinnelly, both Catholics, are the

managing director and company secretary of the first applicant. They

are represented by Ms. F. Cassidy, solicitor, of Messrs Jones and

Cassidy, Belfast.

3. The applicants in Application No. 21322/93, Kevin, Michael, Paddy

and Barry McElduff, are self-employed joiners from Omagh, County

Tyrone, in Northern Ireland. They are all Catholics, and are

represented by Ms. D. Hawthorne, of the Fair Employment Commission,

Belfast.

4. Observations on behalf of all applicants have been submitted by

Lord Lester of Herne Hill, QC, Mr P. Goulding, Mr. B. Macdonald and

Mr. J. O'Hara, of counsel.

5. The application is directed against the United Kingdom. The

respondent Government were represented by their agent,

Mr. D.J. Bentley, of the Foreign and Commonwealth Office, London.

6. The case concerns the reasons for and the proceedings subsequent

to refusals to award the applicants public works contracts in Northern

Ireland. The applicants invoke Articles 6, 8, 13 and 14 of the

Convention.

B. The proceedings

7. Application No. 20390/92 was introduced on 27 May 1992 and

registered on 29 July 1992.

8. Application No. 21322/93 was introduced on 26 August 1992 and

registered on 3 February 1993.

9. On 1 September 1993 (Application No. 20390/92) and 31 August 1993

(Application No. 21322/93) the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the applications to the respondent Government and to invite

the parties to submit written observations on their admissibility and

merits.

10. The Government's observations on both applications were submitted

on 2 March 1994 after three extensions of the time-limit. The

applicants replied jointly on 7 July 1994 after an extension of the

time-limit.

11. On 21 February 1995 the Commission decided to transfer further

consideration of the applications to the Plenary Commission, and

on 27 February 1995 it decided to put further questions to the parties

and to join the applications. The Government submitted their further

observations on 13 April 1995, and the applicants submitted their reply

on 17 May 1995.

12. On 27 November 1995 the Commission decided to hold a hearing on

the admissibility and merits of the applications. At the hearing,

which was held on 20 May 1996, the parties were represented as follows:

The Government:

Mr. D. Bentley, Agent of the Government

Mr. R. Weatherup, Counsel

Mr. B. McCloskey, Counsel

Mr. H. Carter, Home Office, Adviser

Mr. D. McCartney, Department of Finance and Personnel,

Northern Ireland, Adviser

Mr. O. Paulin, Assistant Crown Solicitor, Northern Ireland,

Adviser

The applicants:

Lord Lester of Herne Hill, Counsel

Mr. P. Goulding, Counsel

Mr. B. Macdonald, Counsel

Mr. J. O'Hara, Counsel

Ms. F. Cassidy, Solicitor (Application No. 20390/92)

Ms. D. Hawthorne, Senior Complaints Officer, Fair Employment

Commission (Application No. 21322/93)

13. On 20 May 1996 the Commission declared the applications

admissible.

14. On 24 May 1996 the Commission granted the applicants in

Application No. 21322/93 legal aid for the representation of their

case.

15. The text of the Commission's decision on admissibility was sent

to the parties on 4 June 1996 and they were invited to submit further

observations. The Government submitted observations on 4 July 1996,

and the applicants on 19 July 1996.

16. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

17. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mr. S. TRECHSEL, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

L. LOUCAIDES

M.P. PELLONPÄÄ

M.A. NOWICKI

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

18. The text of this Report was adopted on 8 April 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

19. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

20. The Commission's decision on the admissibility of the

applications is annexed hereto.

21. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

Application No. 20390/92

22. In or about March 1985 the first applicant tendered for a

contract with Northern Ireland Electricity Services ("NIE") including

demolition work at a power station. It was on a list of approved

contractors for NIE. Its tender was the best in terms of payment for

NIE (the work involved the removal of valuable scrap material for sale)

and, following an NIE engineer's recommendation which recorded the

first applicant's experience of carrying out sub-contract demolition

work on power stations in England, its tender was approved by the

Executive of NIE at a meeting on 2 May 1985. In June 1985, however,

NIE accepted a revised recommendation to award the contract to the

second best tenderer, McW. NIE declined to inform the first applicant

of the reasons for this decision.

23. Subsequently, the first applicant submitted the lowest tender for

a sub-contract with McW. relating to part of the demolition project.

The sub-contract was withheld from the first applicant after NIE

informed McW. that the first applicant would not receive security

clearance to enter the site.

24. The first applicant lodged complaints with the Fair Employment

Agency for Northern Ireland ("FEA") contending that it had been the

victim of unlawful discrimination on the ground of religious belief and

political opinion in relation to the contract and the sub-contract.

In the course of subsequent correspondence between the FEA and NIE, NIE

stated that it had chosen the contractor with the proven record of

safely dismantling power stations. The FEA agreed to investigate the

first applicant's complaint that there were suspicions that the NIE

decision had been brought about by sectarian trade union pressure,

under Section 23 of the Fair Employment (Northern Ireland) Act 1976

("the 1976 Act": see below, Relevant domestic law).

25. NIE sought to prevent this investigation by seeking a court order

declaring, amongst other things, that the protection afforded by

Section 23 was not available to corporate bodies. This argument was

rejected by Mr. Justice Nicholson on 8 September 1987 and the

investigation was allowed to proceed.

26. On 28 October 1987, at the request of NIE, the Secretary of State

for Northern Ireland issued a certificate pursuant to Section 42 (2)

of the 1976 Act to the effect that the decision not to grant the first

applicant the contract in question was "an act done for the purpose of

safeguarding national security or the protection of public safety or

order". By virtue of Section 42 (2), the certificate was conclusive

evidence that the act was done for the stated purpose.

27. The FEA commenced judicial review proceedings seeking, inter

alia, to quash the Section 42 certificate. It was contended that the

certificate was issued in bad faith, unfairly, irrationally and on the

basis of irrelevant considerations. In the course of those proceedings,

the FEA requested an order for discovery of a number of documents in

the possession of the Secretary of State. The order was made on

10 May 1988. Some of the documents discovered were sealed or covered

up on the grounds that their production, except as sealed or covered

up, would be injurious to the public interest.

28. On 13 September 1988, the Secretary of State issued a public

interest immunity ("PII") certificate in relation to several such

documents. He stated, inter alia:

"6. To enable me to be satisfied that ... genuine reasons did

exist in [signing the Section 42 certificate], I considered it

necessary for me to know the information upon which NIE claimed

to have acted. I also considered that I should independently

obtain information to enable me to confirm, so far as possible,

that national security and/or public order was, in fact,

endangered in that case.

7. NIE is responsible for the provision... of an uninterrupted

supply of electricity in Northern Ireland. To fulfil this

responsibility it must have available to it all relevant

information which may reduce or avoid the risk of disruption to

the supply... for any unlawful reason including acts of

terrorism, and in case of the [relevant] contract, I believe that

it did obtain such information. The disclosure of certain

information which was obtained by NIE would reveal to those who

are engaged in unlawful activities including acts of terrorism,

the nature of that information, the extent of the information

known about them and possibly the source from which it

originated. This could endanger life and would make it more

difficult to obtain such information in the future. ...

disclosure of the process by which this information is obtained

could impair the effectiveness of that process.

8. I am of the view that if the independent information which

I obtained in the present case were to be disclosed it could

enable terrorist organisations to know the nature and extent of

the information known about them and would aid them in their

unlawful acts...

9. I have read ten documents which are produced to me. Each

of the said documents contains in part information of the kind

described in paragraph 7 or paragraph 8. ... I am of the opinion

that for the safeguarding of national security and the protection

of public safety and public order, it would be contrary to the

public interest that any of the said documents should be

disclosed in these proceedings except as sealed and covered up

to prevent disclosure of the aforesaid information."

29. On 8 December 1988, the FEA - again in the context of the

judicial review proceedings - applied for an order for discovery of

documents by NIE, which had been brought into the proceedings. An

order to produce a list of documents was made on 9 December 1988. The

FEA applied for an order requiring the Secretary of State to produce

for inspection certain of the documents in NIE's list.

30. The Secretary of State on 13 December 1988 issued a further

public interest immunity certificate. It repeated the substance of

paragraph 7 of the certificate of 13 September 1988, and continued:

"5. I have read what I am informed are copies of 17 documents

held by NIE ... These documents reveal the methods used by NIE

to gain information which is required to protect the electricity

system, the sources of the information and the information

obtained.

6. I have also read what I am informed are copies of a

memorandum dated 7 September 1987 ... minutes of a [meeting]

dated 26 April 1985 and a letter of 8 September 1987 ...

7. For the reasons I have given in the foregoing paragraphs,

I am of the opinion that for the safeguarding of national

security, the protection of public safety and public order, none

of the documents referred to in paragraph 5 or their contents

should be admitted in evidence in these proceedings because they

fall within the class of communication which I have described and

because of the information they contain. I am also of the

opinion that for these reasons the document [sic] referred to in

paragraph 6 should not be admitted in evidence except as sealed

and covered up."

31. On 16 March 1989, Mr. Justice Nicholson considered an

interlocutory application by the FEA challenging the Secretary of

State's public interest immunity certificate of 13 December 1988. He

prefaced his judgment with comments to the effect that, because he had

seen certain documents which had not been seen by all sides, he was of

the opinion that it would be better if a different judge determined the

substantive judicial review application.

32. Mr. Justice Nicholson found that the documents or some of the

documents already disclosed on which NIE based their decision gave rise

to a prima facie case of bad faith on the part of NIE and the advisers

to the Secretary of State, in particular because the original reasons

given for the refusal of the contract did not refer to security

grounds, and the original reasons were repeated for a considerable

time. He also noted that there were inconsistencies in the alleged

ground for refusing the contract: at one point the company had been

described as having experience of handling asbestos and having carried

out subcontract demolition work on power stations, and later (after

security information had been received) as having "no experience" in

demolishing power stations. He recalled that the applicants had

alleged that McW., the successful tenderer, had said that the

applicants were the favourites to obtain the contract but were not

given it "as the unions at B. would not allow it" and that the unions

had said that "there was no way they were going to have IRA

sympathisers working with them".

33. The judge continued, "I am satisfied that if evidence is

acceptable to the court that objection to production has been properly

based on national security grounds, the court should not balance that

interest against the interests of justice. The balancing act is not

justiciable."

34. Mr. Justice Nicholson ordered that the 17 documents for which a

"class claim" had been made should be produced for inspection by the

court, and that the two [sic] documents which had been partly sealed

or covered up should also be produced for inspection.

35. On 19 April 1989, having read the documents covered by the

certificate of 13 December 1988 (which were not disclosed to the FEA

or the applicants), the judge held that none of the withheld documents

assisted the application for judicial review. He accepted the claim

for PII in respect of documents 1 - 14, which related to confidential

record checks carried out by the Royal Ulster Constabulary ("RUC") on

the first applicant and on persons employed by it. He considered that

documents 15 - 18, internal NIE documents, could be partly disclosed

and that document 19 could be disclosed as a whole. He concluded:

"I am satisfied that the claim for immunity from production for

all these documents was made in good faith. But in my opinion

no person could reasonably say that for the safeguarding of

national security or for the protection of public safety or

public order documents 15 - 19 should not be produced or, if

admissible, should not be admissible in evidence - so long as my

directions are carried out about covering over portions of some

of them."

36. Mr. Justice Nicholson granted the Secretary of State leave to

appeal on 24 April 1989. In so doing, he held:

"It is implicit in my ruling that I have rejected the "class"

claim set out in the certificate of the Secretary of State, as

I take the view that it is too wide and too vague. It could

involve, for example, protection of documents internal to NIE

which emanated from a private detective agency or organization

within NIE acting as a private police force, independently of and

outside the control of the RUC. A court might hold that no

reasonable person could claim that national security was

endangered by the production of documents emanating from such an

agency or organization. Such an agency or organization might be

a positive danger to national security. Such a "class" claim

could involve, for example, protection of documents emanating

from employees of NIE about contractors and their employees based

on gossip or hearsay or malice or sectarianism. Such documents

might have existed in the present case, if the affidavit of McW.

is true.

The five documents of which I have ordered production could have

been caught by this wide and vague formula. ..."

37. At the substantive hearing on 3 December 1991, the judicial

review application was dismissed. Mr. Justice McCollum found, inter

alia, as follows:

"The issue of course before me is not whether the Secretary of

State was right or wrong in signing the certificate, but whether

he had jurisdiction to do so, which is basically accepted by the

parties, and whether the events leading up to his decision are

such that his decision to certify can or cannot stand.

I must also remember that the process of judicial review is

ill-suited to the resolution of disputed issues of fact, and

particularly so when the primary issue is not the determination

of what occurred, but the motives of those engaged in the

relevant acts...

Even taking NIE's case at its highest, [one particular letter]

was misleading because it made no mention of the true reason,

according to them, i.e. the withdrawal of the contract from

Tinnelly on security considerations...

It is a sad fact of life that in spite of the patient endeavours

of the Agency there still remain those in Northern Ireland who

hold deep hostility to the objectives and activities of the

Agency.

I have no doubt whatever that such attitudes existed within NIE

in 1985, and possibly still do, and I am afraid that the

assurances by [G] and [N] did nothing to persuade me to the

contrary, when viewed against their overt activities in this

case.

Paradoxically this view gives credence to part of the evidence

of [G] on the important issue of the true reason for the

withdrawal of the contract from Tinnelly.

It is virtually inconceivable that a man who had risen to the

eminence of Chairman of an important public body like NIE would

conceal under a veil of untruths the making of what he saw as a

perfectly justified and reasonable decision based on his concern

for the safety and continued operation of a vital public utility,

and in effect to lay a false trail to mislead those investigating

the matter.

Two factors persuade me that it is a possibility that he might

act thus:

(1) The attitude of quite unjustified mistrust and hostility

towards the Agency which I have referred to, and which might

greatly exaggerate his fears of an investigation; and

(2) The problems arising from pursuing the uncharted course of

obtaining a Section 42 certificate ...

Therefore while NIE for two years failed to acknowledge the true

reason for its decision, according to it, and gave untrue reasons

which would in normal circumstances lead to the inevitable

conclusion that the true reason was illegal or so shameful as to

merit concealment, the factors I have referred to leave me in a

state of mind where I can accept the proposition that the

security factor may have been the factor uppermost in [G.'s] mind

when he made his decision.

It must also be said that information did come to NIE from the

Royal Ulster Constabulary at the end of May and the early June

of 1985. I do not know its exact nature, and of the apparently

29 applications for clearance, I have only seen 12 replies, of

which a number (I think seven) appear not to give security

clearance. And exactly when they arrived is difficult to say,

but I think they may well have arrived in early June which was

around the time of the apparent change of heart.

I do not know the exact nature of that security information,

although I have a general picture, but I do know enough about it

to realise that it may have been significant ...

... It is impossible not to harbour suspicions since many of the

actions taken by NIE give rise to suspicions and will do so in

the mind of any reasonable person. Among other suspicious

factors is indeed the fact that Nicholson J. was assured that

Tinnelly was still an acceptable contractor during the course of

the hearing before him of the privilege claim. That was even

more particularly so when coupled with the removal, after his

judgment, of their names as prospective tenderers. Moreover, the

second application for authorization to [recommend] McW. on the

basis of superior experience appears to have been an undoubted

attempt to lay a false trail among the documents and records of

NIE.

In spite however of all those matters I have referred to, I am

nonetheless not satisfied that the application for the Section

42 certificate by NIE was an abuse of the process as it is

understood by the parties, nor that it was an act of fraud in the

legal sense on the part of NIE.

I am not satisfied that the security information received by

Mr. G. was not the deciding factor in the decision to withdraw

the contract from Tinnelly. While NIE's actions and attitudes

can be roundly criticised ..., and are such that they leave

considerable doubt in the matter, nevertheless they of themselves

do not vitiate the making of the Section 42 certificate and do

not in the event satisfy me that the application was in legal

terms a fraudulent one.

I believe that it is possible that [G] was unsure of his position

when he received the RUC's response to the application for

routine clearance of Tinnelly's workers, and that rather than

face up to the possible problems arising from a withdrawal of the

contract on security grounds he decided to follow the course he

did, i.e. to choose McW. on the spurious grounds of their greater

experience in the demolition of power stations.

He no doubt expected that Tinnelly would never discover that they

were the lowest tenderers and when they did so and involved the

Agency, it would seem that a decision was made to continue and

elaborate upon the original false premise for choosing McW.

One of the great problems which is quite beyond my power to

resolve is that Tinnelly insists that it previously had always

received security clearance for workers in highly sensitive

installations. ...

I have not been permitted to inspect the RUC response to the

individual requests for clearance. I do not understand why

persons who may have got clearance earlier, may have been refused

in this case. ... However, having regard to the evidence given

and to the unchallenged affidavit of the Secretary of State about

the effect of the RUC response, and indeed to those parts of the

documents which I have been permitted to see, I must accept that,

in response to some individuals at least, the response was

unfavourable, and this may have been to such a degree as to

justify the view that a serious security risk was involved if the

contract was granted to Tinnelly. ...

... [The] heart of the matter was whether security information

had in fact become available to NIE at the relevant time which

would have justified its decision to withdraw the contract. ...

Had it transpired that no such information existed, then the

application for the Section 42 certificate would have been

exposed as bogus...

As I have already indicated, I have not seen that information in

detail, but I am bound to accept the judgment of the Secretary

of State that the information was such as to justify the

decision. And I may add that those parts of the documents that

I have seen confirm that view. When it was confirmed that such

security information was made available, it was in my view

reasonable for the Department to accept that the NIE application

was made in good faith. ...

[G] ... could not have been expected to undertake an

investigation similar to that which the Agency might have

undertaken ... There was no machinery by which he could bring in

other parties. There was no machinery by which he could

interrogate NIE, or compel it to produce documents to him, except

by the use of what one might describe as moral persuasion. Once

he accepted that the application was made in good faith for

genuine reasons, then he was bound to support it whatever view

he might have taken of the follies and inconsistencies which were

apparent.

It is clear from this hearing that he was not going to get any

acknowledgment from NIE or any of its officials that anything

untoward had occurred, and he had no remit, as I indicated, to

consult with any other person who might have alleged to the

contrary, and if he had, he had no machinery of procedures to

resolve the consequent dispute.

I find it difficult to imagine how he could have adopted an

inquisitorial role and cross-examined [N] about the

contradictions and inconsistencies in NIE's case. All that he

could do was to record what seemed to him to be relevant and to

try to gather the facts by interview with [N]. ...

It seemed to me that the Department acted with the utmost

propriety in pursuing its own investigations into the central

issue of security, and that the application to the Secretary of

State was only processed further when the Department were

satisfied that there was a genuine security consideration

involved in the case. ...

The Secretary of State [in his affidavit to the court] goes on

to say `having seen [the RUC report on which [G's] submission had

been based] I was quite satisfied that there would have been a

genuine risk to national security, public safety or public order,

if the contract had been awarded to Tinnellys' and that

notwithstanding that a different reason had been given by NIE for

not awarding the contract to the Tinnellys, he felt satisfied

that he could accept the assurance by NIE that the security issue

had been the fundamental one from the outset. ...

It would be impossible for any court to hold that this was not

a tenable view reached after due consideration of the submissions

presented to him, and having regard to the fact that the

consideration of what constitutes a risk to national security,

public safety or public order, are matters very much within the

exclusive competence of the Secretary of State to determine...

Much of the criticism of the [Department] arose from the fact

that it did not appear to act in the role of court or tribunal,

and to sift the evidence and follow up inconsistencies. As I

have indicated, the procedure used was necessarily quite

unsuitable for determining the real motives which lay behind the

decision taken.

However, once it is accepted that it was appropriate for NIE to

seek a Section 42 certificate to justify its withdrawal of the

contract from Tinnelly, and that the procedures followed were

lawful, and did not fall short of any legal requirement, and add

to that the finding that the procedures were followed in good

faith and with proper attention and consideration, then clearly

it is not open to the court to interfere by way of judicial

review.

It is not the function of judicial review to re-try issues."

38. The judge expressed sympathy for the position of the Fair

Employment Agency and the civil servants at the Department of Economic

Development, and again criticised the NIE for misleading the other

parties to the dispute over a period of years. He concluded:

"However, I am satisfied that there was sufficient evidence,

honestly and competently presented to the Secretary of State in

accordance with reasonable procedures, and carefully considered

by the Secretary of State to justify the decision taken by him,

which decision is therefore unimpeachable in this court."

39. Senior Counsel advised the FEA that an appeal against the

decision of 3 December 1991 would not succeed. The Section 42 (2)

certificate being valid, the applicant's complaint to the Fair

Employment Agency did not receive further investigation, settlement

attempts or county court proceedings under the Fair Employment

(Northern Ireland) Act 1976.

Application No. 21322/93

40. In or about May 1990 the applicants were informed by a building

contractor that he had a contract with the Department of the

Environment for Northern Ireland (DOE) to build premises at the site

of the Northern Ireland Area Architect's Office in Omagh, Co Tyrone.

The contractor invited the applicants to tender for the joiner

sub-contract. Their tender was accepted and they were advised by the

contractor that they could start the work, subject to security

clearance from the DOE.

41. The applicants supplied their names, addresses and dates of birth

to the contractor, who forwarded them to the Contracts Branch of the

DOE. Approximately six weeks later they were informed that they had

not been granted security clearance and that they could not therefore

be awarded the sub-contract. The recommendation that security clearance

be refused emanated from the Security Branch of the Department of

Finance and Personnel ("DFP"), a Government department in Northern

Ireland, which based its recommendation on information supplied by the

Royal Ulster Constabulary (including officers of its Special Branch).

42. The applicants have no criminal convictions of any kind, except

minor motoring offences. They state that they are not and never have

been involved in any criminal or terrorist activity and know of no good

reason why they should have been refused security clearance. They

believe that they were discriminated against by the DOE on the grounds

of religious belief or political opinion. In broad terms they would

be perceived as having nationalist views, although they are not members

of any political party and are not engaged in any form of political

activity. They wrote to the DOE through their solicitors requesting

an explanation as to why they had been refused clearance to be employed

on this contract, but the DOE, following re-examination by the DFP

Security Branch of the information originally supplied by the police,

refused to provide an explanation.

43. The applicants sought the assistance of the Fair Employment

Commission for Northern Ireland and in August 1990 they made a

complaint to the Fair Employment Tribunal ("the Tribunal") alleging

that the contractor and the DOE had discriminated against them contrary

to the 1976 Act. The applicants had in the past been stopped and

mistaken by members of the security forces for different persons of the

same name, and they suspected that this was a case of mistaken

identity.

44. The contractor resisted the complaint on the grounds that he had

been willing to offer employment to the applicants but that the DOE had

not been prepared to give them security clearance. By Notice of

Appearance of 3 December 1990, the DOE resisted the complaint on the

grounds that it had not done anything which would constitute an act of

unlawful discrimination under the Act and, in the alternative, that

"any act of the respondent in relation to the applicant was an act done

for the purpose of safeguarding national security, and thus any such

act is not an act to which the [1976 Act] or the Fair Employment

(Northern Ireland) Act 1989 apply".

45. In relation to the first ground relied upon by the DOE, the DOE

applied for an interlocutory hearing on the questions whether it should

be dismissed from the proceedings, whether the applicants sought

employment from it within the meaning of the Act and whether in the

circumstances it could have discriminated against the applicants

contrary to Section 23 of the Act. On the morning of the interlocutory

hearing, 26 September 1991, the DOE withdrew its application. On

22 October 1991 the Tribunal ordered the DOE to provide discovery of

all relevant documents relating to the matter. It also ordered the DOE

to provide further particulars of its case, inter alia requiring the

DOE to specify the national security grounds relied upon in relation

to the applicants.

46. On 6 February 1992, the Secretary of State for Northern Ireland

issued a certificate pursuant to Section 42 (2) of the 1976 Act to the

effect that the decision to refuse the applicants' admission to the

site of the contract was done for the purpose of safeguarding national

security. Counsel advised the applicants that the effect of issuing

the certificate was to bar the Tribunal from determining the complaint

in the applicants' favour. In view of the fact that an award of costs

could have been made against the applicants if they had unreasonably

proceeded to a hearing in the face of the certificate, they withdrew

their application, which was accordingly dismissed by an order of the

Tribunal dated 27 March 1992.

B. Relevant domestic law and background

47. The European Court of Human Rights has referred to the

difficulties experienced by the Catholic community in Northern Ireland

since the partition of the island of Ireland (Eur. Court HR, Ireland

v. the United Kingdom judgment of 18 January 1978, Series A no. 25, in

particular p. 12, para. 19, with further reference to the Cameron

Commission).

48. The Fair Employment (Northern Ireland) Act 1976 ("the 1976 Act")

is, according to its preamble, "An Act to establish an agency with the

duties of promoting equality of opportunity in employments and

occupations in Northern Ireland between people of different religious

beliefs and of working for the elimination of discrimination which is

unlawful by virtue of the Act ...".

49. By Section 23 of the 1976 Act, it is unlawful for a person who

has power to confer on another a qualification, which is needed for his

engagement in employment or occupation, to discriminate against him by

refusing or deliberately omitting to confer that qualification. The

agency referred to in the preamble to the 1976 Act was the Fair

Employment Agency ("FEA").

50. The FEA, known since 1989 as the Fair Employment Commission, is

a statutory body established under the 1976 Act. It has the duty to

promote equality of opportunity in Northern Ireland and the elimination

of religious and political discrimination. Until 1989, if the FEA,

following an investigation, reached the conclusion that there had been

unlawful discrimination, it had power to attempt a settlement of the

matters in dispute or if necessary to commence proceedings in the

County Court against the relevant party in order to recover damages or

secure injunctive relief on behalf of the victim.

51. Following amendments made by the Fair Employment (Northern

Ireland) Act 1989 ("the 1989 Act"), applicable to Application

No. 21322/93, the remedy available to a person who has been a victim

of discrimination contrary to the 1976 Act is to make a complaint to

the Fair Employment Tribunal, which is empowered to make various orders

and recommendations, including an order for financial compensation "of

any amount corresponding to any damages [which] could have been ordered

... if the complaint had been a claim in tort", up to a maximum of

£30,000. The amended legislation enables an intending complainant to

request a party who has allegedly discriminated to respond to a

questionnaire as to the reasons for that party's conduct. The

questionnaire and any reply are admissible in proceedings before the

Tribunal, which may draw adverse inferences from a party's failure to

reply.

52. Section 42 of the 1976 Act provides as follows:

"(1) This Act shall not apply to an act done for the purpose of

safeguarding national security or of protecting public safety or

public order.

(2) A certificate signed by or on behalf of the Secretary of

State and certifying that an act specified in the certificate was

done for a purpose mentioned in subsection (1) shall be

conclusive evidence that it was done for that purpose."

53. Discrimination on the grounds of sex is prohibited in Northern

Ireland by the Sex Discrimination Act 1975, which contains provisions

analogous to Section 42 of the 1976 Act, supplemented by the Sex

Discrimination (Northern Ireland) Order 1976, Article 53 (1).

54. In Johnston v. Chief Constable of the Royal Ulster Constabulary,

Case 222/84, [1986] ECR 1663, a preliminary reference to the Court of

Justice of the European Communities in a sex discrimination case, the

Court of Justice had regard to Article 6 of the Convention and held the

certification provisions to infringe Community law insofar as they

permitted a certificate issued by the Secretary of State to be treated

as conclusive evidence and hence prevent an industrial tribunal from

considering the merits of the complainant's case.

55. Domestic law was consequently amended by the Sex Discrimination

(Amendment) Order 1988 (SI 1988 No. 249) so as to disapply the

certification provisions in relation to complaints of sex

discrimination in employment-related matters. In the course of the

Parliamentary debate which preceded enactment of the amending

legislation, the Minister of State for Northern Ireland distinguished

the factors considered relevant to the issue of Section 42 certificates

from those taken into account in the issue of similar certificates

under sex discrimination legislation:

"[In sex discrimination cases] a person's gender cannot be taken

into account when a Minister certifies that something is

necessary on the grounds of national security... However, ...it

would not be appropriate or necessary to follow a similar

approach in relation to religion and political opinion...

First, unlike gender, issues of religion and political opinion

can have a particularly intimate bearing on matters of national

security in Northern Ireland. Accordingly, there are issues that

it might be appropriate and necessary to take into account when

certain matters of national security arise. This is both

unfortunate and regrettable, but it is the hard reality in

Northern Ireland...

Secondly, [European Community law] does not cover the issues of

religion and political opinion. The Government took steps to

amend the sex discrimination legislation when it became clear

that it was in conflict with our European obligations. There is

no such conflict in the case of Section 42, so it is a perfectly

permissible and appropriate provision."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

56. The Commission has declared admissible the applicants' expanded

complaints concerning the operation of certificates limiting the

courts' ability to consider the applicants' actions brought under the

Fair Employment (Northern Ireland) Acts 1976 and 1989, the impact of

the certificates on them, and alleged discrimination in connection with

these complaints.

B. Points at issue

57. The issues to be determined by the Commission are:

- whether there has been a violation of Article 6 (Art. 6) of the

Convention;

- whether there has been a violation of Article 8 (Art. 8) of the

Convention;

- whether there has been a violation of Article 13 (Art. 13) of the

Convention, taken together with Article 8 (Art. 8) of the

Convention, and

- whether there has been a violation of Article 14 (Art. 14) of the

Convention, taken together with Article 6 (Art. 6) of the

Convention.

C. As regards Article 6 (Art. 6) of the Convention

58. Article 6 (Art. 6) of the Convention provides, so far as

relevant, as follows.

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ..."

Applicability of Article 6 para. 1 (Art. 6-1) of the Convention

59. The applicants contend that the proceedings before the Fair

Employment Commission and Tribunal were proceedings by which their

civil rights and obligations were determined, such that Article 6

para. 1 (Art. 6-1) of the Convention applies to those proceedings.

They claim that one civil right at issue is their right to obtain and

enjoy employment opportunities, and employment-related business

opportunities under public procurement contracts, and to obtain the

necessary qualifications for them (including security clearance), free

of religious discrimination. A further civil right which the

applicants see as at issue is the right to a good reputation, which is

accepted as "civil" within the meaning of Article 6 (Art. 6).

60. The applicants point out that the right to equal treatment is

recognised under domestic law, namely the Fair Employment (Northern

Ireland) Employment Acts 1976 and 1989. Further, the proceedings are

designed as civil proceedings before, initially, the County Court and,

latterly, before the Fair Employment Tribunal. Finally, they note that

the remedies for the victim of unlawful discrimination are the usual

civil remedies for torts and other civil wrongs.

61. The applicants do not accept that Section 42 has the effect of

excluding any right where the act complained of is done for the purpose

of national security or protecting public safety: they see Section 42

as a form of procedural limitation on access to the courts which

removes the jurisdiction of the tribunal to determine the applicants'

claims, and which confers substantive immunity from liability on the

respondents by the exercise of the Secretary of State's discretion.

62. The Government do not accept that any civil rights and

obligations were involved in the proceedings before the Fair Employment

Agency and Tribunal. They state that claims of discrimination on the

ground of religious belief or political opinion are matters to be

considered under Article 14 (Art. 14) of the Convention by reference

to the rights otherwise protected by the Convention. They point out

that the applicants had no right to carry out building operations, and

no right to enter into specific contracts. They further point out that

the aim of the 1976 and 1989 Acts was to provide a machinery whereby

those who claim to be victims of unlawful discrimination within the

framework of the statute can present a complaint to a tribunal and

obtain a legal remedy if they prove their case. They contend that

Article 6 (Art. 6) protects rights established between individuals, and

not matters superimposed by legislation on ordinary legal

relationships.

63. The Government do not agree with the applicants that the effect

of the 1976 and 1989 legislation is to create a "statutory tort", as

it does not provide that unlawful discrimination is a tort, but rather

sets up a claim in tort as the vehicle by which an award of damages or

an injunction could be secured. Indeed, the 1989 legislation provides

for compensation of an amount corresponding to the damages which would

have been awarded "if the complaint had been a claim in tort".

64. By reference to Powell and Rayner (Eur. Court HR, Powell and

Rayner v. the United Kingdom judgment of 21 February 1990, Series A

no. 172, p. 16, para. 36), the Government also claim that where

national security is at issue, the 1976 and 1989 legislation does not

apply at all, so that there are no civil rights at issue to be

determined.

65. The Commission would note at the outset that the proceedings in

the present case concerned the applicants' allegations that they were

refused public works contracts on grounds which were unlawful. The

proceedings did not concern the applicants' right to a good reputation,

either expressly or implicitly. There is therefore no question of

Article 6 (Art. 6) applying on the ground that the applicants were

somehow trying to vindicate their good names.

66. The Commission considers that the private commercial activity

pursued by the applicants has the object of earning profits and is

based on a contractual relationship between the applicants and their

respective customers (see, for example, Eur. Court HR, Tre Traktörer

AB v. Sweden judgment of 7 July 1989, Series A no. 159, p. 19,

para. 43). It is therefore "civil" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention.

67. As to the existence of a "right" which was at issue, the

Commission recalls that the 1976 and 1989 legislation creates the right

not to be subjected to unlawful discrimination on grounds of religious

belief or political opinion. Whilst such a right may not of itself be

a "civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention, it is nevertheless a right, and is of a similar nature

to the constitutional rights at issue in the case of Süßmann

(Eur. Court HR, Süßmann v. Germany judgment of 16 September 1996, to

be published in Reports 1996, paras. 37 - 45).

68. Moreover, the applicants were pursuing a remedy which, if

successful, would have given rise to an award of damages. Whilst it

is true that the domestic legislation refers to an award to be assessed

as if the claim were in tort, the Commission considers that the

applicants must be taken to have been pursuing proceedings which had

a sufficient pecuniary interest for them to be considered as "civil"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention

(see, for example, Eur. Court H.R., Éditions Périscope v. France

judgment of 26 March 1992, Series A no. 234-B, pp. 64 - 66,

paras. 35 -40).

69. It follows that the proceedings before the Fair Employment Agency

and Tribunal were capable of being decisive for a dispute over civil

rights.

70. The Government nevertheless submit that Article 6 (Art. 6) was

not applicable in the present case as the applicants had no rights

whatever under the 1976 and 1989 legislation once national security

considerations had been invoked. The applicants disagree.

71. The Commission recalls that in the case of the Fayeds (Eur. Court

HR, Fayed v. the United Kingdom judgment of 21 September 1994, Series A

no. 294-A) the European Court of Human Rights discussed the difference

between procedural limitations on access to court where a substantive

right is found to exist, and the position where substantive law

excludes a person or a category of persons from a right. It found, at

p. 49, para. 65:

"Whether a person has an actionable domestic claim may depend not

only on the substantive content, properly speaking, of the

relevant civil right as defined under national law but also on

the existence of procedural bars preventing or limiting the

possibilities of bringing potential claims to court. In the

latter kind of case Article 6 para. 1 (Art. 6-1) may have a

degree of applicability. Certainly the Convention enforcement

bodies may not create by way of interpretation of Article 6

para. 1 (Art. 6-1) a substantive civil right which has no legal

basis in the State concerned. However, it would not be

consistent with the rule of law in a democratic society or with

the basic principle underlying Article 6 para. 1 (Art. 6-1) -

namely that civil claims must be capable of being submitted to

a judge for adjudication - if, for example, a State could,

without restraint or control by the Convention enforcement

bodies, remove from the jurisdiction of the courts a whole range

of civil claims or confer immunities from civil liability on

large groups or categories of persons ..."

72. The Commission considers that, although Section 42 of the 1976

Act is phrased in terms of substantive law - that is, that the Act does

not apply where an act is done for the purpose of safeguarding national

security or of protecting public safety of public order - its effect

is to set up a form of immunity in respect of certain types of acts.

That immunity has to be "pleaded" by way of a Section 42 certificate,

and it is not possible for a litigant to know in advance whether a

Section 42 certificate will be made. The case is different from the

case of Powell and Rayner (Eur. Court HR, Powell and Rayner judgment

of 21 February 1990, Series A no. 172, p. 16, para. 36) where the

Court, in the context of Article 13 (Art. 13) of the Convention, had

occasion to consider the applicability of Article 6 (Art. 6) of the

Convention to proceedings for nuisance in respect of aircraft noise.

In Powell and Rayner, the applicants' very complaint was that they

could not take an action in nuisance because of the substantive law.

The Court also noted that if a question of the application of Section

76 (1) of the Civil Aviation Act arose, it would be for the courts to

decide. In the present case, the applicants could and did bring an

action under the domestic law, and their complaint is that access to

court was blocked in the course of the proceedings.

73. In the light of the above considerations, the Commission is of

the opinion that the proceedings before the Fair Employment Agency and

Tribunal attracted the guarantees of Article 6 para. 1 (Art. 6-1) of

the Convention.

Compliance with Article 6 para. 1 (Art. 6-1) - Relevant principles

74. In its above-mentioned Fayed judgment, the European Court of

Human Rights recalled the relevant principles to be applied in cases

of limitations on access to court at p. 49, para. 65:

"(a) The right of access to the courts secured by Article 6

para. 1 (Art. 6-1) is not absolute but may be subject to

limitations; these are permitted by implication since the right

of access 'by its very nature calls for regulation by the State,

regulation which may vary in time and in place according to the

needs and resources of the community and of individuals'.

(b) In laying down such regulations, the Contracting States

enjoy a certain margin of appreciation, but the final decision

as to observance of the Convention's requirements rests with the

Court. It must be satisfied that the limitations applied do not

restrict or reduce the access left to the individual in such a

way or to such an extent that the very essence of the right is

impaired.

(c) Furthermore, a limitation will not be compatible with

Article 6 para. 1 (Art. 6-1) if it does not pursue a legitimate

aim and if there is not a reasonable relationship of

proportionality between the means employed and the aim sought to

be achieved."

75. These principles were repeated by the Court in its judgment in

the Bellet case (Eur. Court HR, Bellet v. France judgment of

4 December 1995, Series A no. 333, p. 41, para. 31).

Legitimacy of the aims pursued by the contested limitation

76. The aim of the limitation on access to court in the present cases

was the furtherance of national security considerations. It has not

been suggested that security considerations do not constitute a

legitimate aim in limiting access to court.

Proportionality of the means employed

77. The applicants submit that Section 42 certificates are issued,

and were issued in their cases, in a disproportionate way. They

submit:

- that Section 42 is loosely applied, without those who are subject

to a Section 42 certificate having any means of knowing or

discovering the basis upon which the certificate has been issued;

- that the Section 42 certificates had the inevitable effect of

preventing the applicants from having effective access to any

court or tribunal to determine the issues under the 1976 and 1989

legislation;

- that the Section 42 certificates seriously injured the

applicants' civil right to a good reputation in circumstances in

which they cannot vindicate their reputation before the courts,

whether in proceedings under the 1976 and 1989 legislation or in

proceedings for defamation;

- that the issuing of Section 42 certificates is capable of abuse,

for example because of mistaken identity, or the false evidence

of third parties who may be "grudge informers" or competitors of

the applicants - none of which may be apparent to the Secretary

of State or the person who issues the certificates on his behalf;

- that there are no "adequate and effective guarantees" against

such abuses;

- that the Government had no difficulty in permitting the

industrial tribunals in Northern Ireland to conduct trials on

matters relating to conclusive national security certificates in

the Johnston case (Case 222/84, [1986] ECR 1663), and hearing one

witness's evidence in private, and that a similar regime could

be instituted in the context of the Fair Employment Tribunal;

- that there was no single forum which was capable of balancing the

security considerations (if there were any) which led to the

issue of the certificates, against the applicants' legitimate

interest in having their allegations of unlawful discrimination

determined.

78. The Government contend that the system of Section 42 certificates

must be looked at in the context of the particularly difficult

situation in Northern Ireland, and maintain that overall, the correct

balance is struck in Northern Ireland between the general and the

private interest. They underline that there can in fact be judicial

scrutiny of the national security considerations, as exemplified by the

proceedings brought in Application No. 20390/92. They submit:

- that a system of security vetting is essential in Northern

Ireland, and that the applicants were all well aware of the

necessity for, and the existence of, the vetting system before

they applied for their respective contracts;

- that it is in the public interest that the information received

in the course of such security vetting should not be disclosed

to those with negative security vetting, but that there is

nevertheless a degree of scrutiny of that information by:

the statutory and internal regulatory mechanisms governing

the police (the Royal Ulster Constabulary - RUC) in

Northern Ireland, mechanisms which include the operations

of the Special Branch, and which comprise, inter alia, the

RUC (Discipline and Disciplinary Appeal) Regulations 1988,

Guidelines on the work of the Special Branch, instructions

issued by the Chief Constable, the annual reports on the

RUC prepared by Her Majesty's Inspectorate of Constabulary,

the Commission for Police Complaints for Northern Ireland,

the work of the Police Authority for Northern Ireland and

the code of practice issued by the Chief Constable to

ensure compliance with the Data Protection Act 1994 in

connection with personal data held by the police;

the mechanisms regulating the Security Service, as already

considered by the Commission in the cases of Hewitt and

Harman v. the United Kingdom (No. 12175/86, Comm.

Rep. 9.5.89, D.R. 67, p. 88, for the period before the

entry into force of the Security Service Act 1989) and

Esbester v. the United Kingdom (No. 18601/91, Dec. 2.4.93,

for the position subsequent to the entry into force of the

Security Service Act 1989; see also Christie v. the United

Kingdom, No. 21482/93, Dec. 27.6.94, D.R. 78-A, p. 119);

the ombudsman, who is able to scrutinise decisions of

employing authorities, and who in such circumstances may

have confidential access to a security file, the decisions

of the ombudsman being subject to judicial review;

- that it is possible to conclude from the decisions of

Mr. Justice Nicholson (in the discovery proceedings in

Application No. 20390/92) and of Mr. Justice McCollum (in the

application for judicial review of the Section 42 certificate)

that the decisions taken by NIE which adversely affected the

applicants in that application were based not on unlawful

discrimination but on security grounds;

- that in the course of the discovery and judicial review

proceedings, all save 19 of the NIE documents were produced to

the applicants in Application No. 20390/92, and all of the 19

were produced to Mr. Justice Nicholson for inspection. Further,

all the documents in the possession of the Secretary of State

were produced to the applicants, even though some of the

documents were partly sealed up or covered up on public interest

grounds;

- that the absence of an express balancing exercise by the courts

in weighing the security considerations against the potential

damage to the applicants does not affect the submission that the

means chosen to pursue the legitimate aim in the applications was

proportionate: they point out that the issue before the Fair

Employment authorities was whether the applicants had been

subjected to unlawful discrimination, and claim that in the High

Court discovery proceedings and in the substantive judicial

review application in Application No. 20390/92, the domestic

courts did, indirectly, reach the conclusion that there was no

unlawful discrimination because of the existence of security

information;

- that it is contrary to the adversarial nature of the domestic

system to permit the disclosure of information to one party to

proceedings or disclosure to the court without reference to one

or other party to the proceedings.

79. The starting point for the Commission's determination of whether

the means employed in limiting the applicants' access to court bore a

reasonable relationship of proportionality to the aim pursued is the

wording of Section 42 of the 1976 Act. That provision reads as

follows:

"(1) This Act shall not apply to an act done for the purpose of

safeguarding national security or of protecting public safety or

public order.

(2) A certificate signed by or on behalf of the Secretary of

State and certifying that an act specified in the certificate was

done for a purpose mentioned in subsection (1) shall be

conclusive evidence that it was done for that purpose."

80. The aim of Section 42 is plain. It is intended that the

Secretary of State should be able, without review by the courts, to

prevent a relevant action from proceeding on the ground that national

security, public safety or public order is at issue. Indeed, it is

common ground that the effect of the grant of a certificate under

Section 42 (2) is to preclude a domestic court or tribunal from

directly making a decision as to whether the act complained of was done

for improper and unlawful discriminatory reasons, or for purposes of

safeguarding national security, public safety or public order. The

1976 Act makes no provision for any other form of review.

81. It is on the basis of this intention to exclude the courts'

review that the Government claim that adequate scrutiny of security

matters is available from the various institutions which review the

actions of the administrative authorities: for example, the mechanisms

for review of the RUC and the Special Branch, the Security Service

Commissioner and the ombudsman. The Commission also notes in this

connection that the Government did not submit, before admissibility of

the present applications, that judicial review was a remedy which was

required to be exhausted in connection with Article 6 (Art. 6) in

Application No. 21322/93.

82. The Commission does not accept that the guarantees of Article 6

(Art. 6) can be provided by recourse to non-judicial remedies: the aim

of Article 6 (Art. 6) is to provide specific judicial guarantees, and

to accept non-judicial remedies as in some way compensatory for an

absence of judicial guarantees would be to deny the essence of Article

6 (Art. 6).

83. The Commission must therefore consider whether, in the light of

the circumstances of the present cases, the limitations on access to

court brought about by the issue of the Section 42 certificates in the

present cases were proportionate to the legitimate aim being pursued.

84. The Commission first notes that the only form of judicial

mitigation of the absolute nature of the limitation on access to court

in the present cases is an application for leave to move for judicial

review of the Secretary of State's Section 42 certificate.

85. The European Court of Human Rights has recently held, in the

context of the procedural guarantees required by Article 5 para. 4

(Art. 5-4) of the Convention, that "since the Secretaries of State

asserted that national security was involved, the domestic courts were

not in a position effectively to control whether the decisions to keep

Mr. Chahal in detention were justified, because the full material was

not made available to them". In the context of Article 13 (Art. 13)

of the Convention taken together with Article 3 (Art. 3) of the

Convention, the Court considered that "the courts could [not] review

the decision of the Home Secretary to deport Mr. Chahal with reference

solely to the question of risk, leaving aside national security

considerations" (Eur. Court HR, Chahal judgment of 15 November 1996,

to be published in Reports 1996, paras. 121 and 153).

86. The findings of the Court in that case cannot be directly

transposed to the present case, as different Articles of the Convention

are involved, and as it has not been argued in the present case that

the Fair Employment authorities should have been able to consider

questions of unlawful discrimination without any reference to national

security considerations.

87. The Commission considers, however, that the Court's judgment in

the Chahal case confirms the view that the review accorded to national

security considerations when raised by the executive is very limited.

88. The Commission notes that throughout the discovery and the

judicial review proceedings in Application No. 20390/92, the courts

emphasised that they could not decide the facts, and that they could

not substitute their opinion for that of the Secretary of State: both

Mr. Justice Nicholson and Mr. Justice McCollum emphasised that once

they had accepted that national security reasons were present -

national security reasons in connection with the public interest

immunity certificate in the case of Mr. Justice Nicholson, and national

security reasons in connection with the Section 42 certificate itself

in the case of Mr. Justice McCollum - the extent of any risk, or

threat, to national security was purely a matter for the Secretary of

State.

89. As an example of the very real limitations on the matters the

courts could consider, the Commission observes that one of the central

issues raised by the case was whether security information had in fact

become available to NIE at the relevant time which would or could have

justified its decision to withdraw the contract. As Mr. Justice

McCollum noted, he had not been able to examine in detail the

information available to NIE but had been bound to accept the judgment

of the Secretary of State that the information was such as to justify

the decision. The Commission takes account of the fact that

Mr. Justice McCollum found that the view of the Secretary of State was

confirmed by those parts of the documents that the court had been

permitted to see. The Commission also takes account of the fact that

the court found that the Department had itself acted with the utmost

propriety in pursuing its own investigations into the central issue of

security and that the application to the Secretary of State was only

processed further when the Department was satisfied that there was a

genuine security consideration involved in the case. Nevertheless, the

nature and extent of the security information available to NIE at the

time when the decision was taken to withdraw the contract from the

Tinnelly applicants was never subjected to independent judicial

scrutiny.

90. In consequence of the issue of the certificate, the domestic

court was not able to examine or determine whether, even assuming that

security information had become available to NIE at the relevant time,

the contract was in fact withdrawn from the applicants for the purpose

of safeguarding national security or of protecting public safety or

public order or whether, as the applicants contend, the withdrawal was

based on impermissible discriminatory grounds. This issue was of

central importance in the case of the Tinnelly applicants since, as

Mr. Justice McCollum noted, there were disturbing features in the case

which gave rise to suspicion as to the real motives behind the

withdrawal of the contract: in particular, not only did NIE initially

make no mention of security considerations as being the reason for

withdrawal of the contract, but during the course of the hearing of the

privilege claim Mr. Justice Nicholson was assured by NIE that the

applicants were still acceptable contractors.

91. The Commission notes that an official of the Department took

certain steps to investigate the true grounds on which NIE had

withdrawn the contract in order to ascertain the genuineness of NIE's

application for the issue of a certificate. Nevertheless, as

Mr. Justice McCollum noted, the Department official, without any

machinery to assist him in resolving the dispute and acting simply as

a reviewing officer of NIE's application, could not have been expected

to undertake an investigation similar to that which the Agency might

have undertaken as he had no machinery to interrogate NIE or compel the

production of documents.

92. As Mr. Justice McCollum further stated, not only was the

procedure used by the Department "necessarily quite unsuitable for

determining the real motives which lay behind the decision taken", but

the process of judicial review was itself "ill-suited to the resolution

of disputed issues of fact, and particularly so when the primary issue

is not the determination of what occurred, but the motives of those

engaged in the relevant acts".

93. It is true that Mr. Justice McCollum and, to a greater extent,

Mr. Justice Nicholson both had before them certain documents on the

basis of which they were able to satisfy themselves of the existence

of national security reasons for the making of the respective

certificates. That material was, however, not all the material on the

basis of which the Secretary of State took his decisions: in

particular, Mr. Justice McCollum noted that he had not seen the RUC

response to individual requests for clearance, and that there were

still aspects of the case which he did not understand. He nevertheless

concluded that once he had accepted that it was appropriate for NIE to

seek a Section 42 certificate, and that the procedures had been

followed, it was not open to the court to interfere with the Secretary

of State's decision. Mr. Justice Nicholson, too, did not have before

him all the material on the basis of which the various certificates

were made: because he did not have before him a challenge to the

certificate of 13 September 1988, he did not see the information which

the Secretary of State had declined to disclose pursuant to the order

of discovery of 10 May 1988.

94. Moreover, in addition to the limited extent of the review which

the judge who decided the case - Mr. Justice McCollum - was able to

undertake of the national security issues, the Commission notes the

procedural barriers raised by the executive before that narrow review

could take place: initially, NIE claimed that Section 23 did not apply

to corporate bodies, and that question had to be put to the court for

determination, then the Section 42 certificate was issued, and in the

course of discovery proceedings the Secretary of State declined to

provide full discovery of documents in his possession on grounds of

public interest: this refusal was supported by the public interest

immunity certificate of 13 September 1988. Thereafter, in the course

of discovery proceedings to obtain documents held by NIE, a further

public interest immunity certificate was issued by the Secretary of

State (on 13 December 1988), which the FEA challenged before

Mr. Justice Nicholson on 16 March 1989. Mr. Justice Nicholson

inspected the documents and ordered limited disclosure on

19 April 1989, and it was only after adjudication on this immunity

claim that the judicial review action could be heard. Once the

judicial review application had been rejected, it was impossible to

have a determination of the questions of discrimination which had been

the original reason for the application to the FEA.

95. The Commission is of the opinion that it is very difficult to

reconcile this cumbersome procedure with the notion of "effective"

access to court, especially when the end result is the limited review

which Mr. Justice McCollum was able to give to just one of the issues

in the case. The Commission is particularly struck by the fact that

no single judicial body of appropriate hierarchical status was

automatically entitled in law to sight of all relevant documentation

in Application No. 20390/92, and that even with sight of such

documentation, the existence of risk to national security, public

safety or public order is within the exclusive competence of the

Secretary of State to determine.

96. In assessing the proportionality of the limitations with the aim

pursued, the Commission must also consider whether any alternative

could have been found which would have provided more effective

safeguards than this very limited judicial supervision.

97. In this connection the Commission notes that the Court in the

above-mentioned Chahal case referred (at para. 144) to the procedure

under the Canadian Immigration Act 1976. Under that procedure, a

Federal Court judge holds an in camera hearing of all the evidence "at

which the applicant is provided with a statement summarising, as far

as possible, the case against him or her and has the right to be

represented and to call evidence. The confidentiality of security

material is maintained by requiring such evidence to be examined in the

absence of both the applicant and his or her representative. However,

in these circumstances, their place is taken by a security-cleared

counsel instructed by the court, who cross-examines the witnesses and

generally assists the court to test the strength of the State's case.

A summary of the evidence obtained by this procedure, with necessary

deletions, is given to the applicant".

98. The Commission further notes the applicants' uncontested

submissions that, since the entry into force of the Sex Discrimination

(Amendment) Order 1988, the removal of the certification provisions in

employment-related matters has led to the Industrial Tribunal being

able itself to determine whether a particular act was taken on grounds

of national security or not.

99. The parties do not agree what difference the removal of Section

42 (2) would make in the present cases. The Government say that the

difference would not be very great as the Fair Employment Tribunal

would hear oral evidence from the prospective employer and the Tribunal

would receive such documents as would be relevant to the issue of the

decision of the prospective employer, subject to the withholding of

documents in the public interest. The public interest in the

confidentiality of security information would still require security

information not to be disclosed to the Tribunal, and the judicial

scrutiny of the security information which Mr. Justice Nicholson

undertook in Application No. 20390/92 would be undertaken by the

Tribunal. In the face of a finding that there were national security

reasons for withholding the contract, the Tribunal would be bound to

find that the Fair Employment Acts did not apply, pursuant to Section

42 (1) of the 1976 Act.

100. The applicants claim that the outcome of the domestic proceedings

might well have been different if Section 42 (2) had not applied. The

crucial difference they see as lying in the conclusive nature of a

certificate under Section 42 (2): had there been no certification

procedure in Application No. 20390/92, the FEA would have been able to

undertake its inquiry as to the facts of the case, would have sought

relevant documentation and interviewed witnesses, and the respondent

would have had to show why its decision fell within Section 42 (1).

In Application No. 21322/93, they consider that the outcome and process

would have been different if Section 42 (2) had not applied: the

respondent would have had to provide discovery of documents and further

and better particulars of its contention that the act was done for

national security reasons. Oral evidence would have been given in

support.

101. The Commission accepts that the proceedings would have developed

differently in each case if Section 42 certificates had not been at

issue: the respective Fair Employment authorities would indeed have had

a more active role to play in the establishment of the facts, and

questions of national security, whilst still relevant, would have been

amongst the matters for consideration, rather than a complete and

conclusive block on the proceedings. Even though it would still have

been open to the Secretary of State to claim public interest immunity

in respect of documents which he wished to protect from disclosure on

grounds of national security, the applicants would at least have had

a determination by the trial judge of the issues in the case, and that

judge might have had access to the security information under ordinary

discovery procedures. However, the Commission does not consider it

appropriate to quantify the difference.

102. The Commission considers that the limited extent and dissipated

nature of the review of national security considerations which is

undertaken by the courts when a challenge is made to a Section 42

certificate, together with the absence of any reasons militating

against a more comprehensive review - an absence all the more striking

given the existence of a broader and unified procedure in the context

of sex discrimination - lead to the conclusion that the use of

conclusive certificates under Section 42 (2) of the 1976 Act to

preclude an independent agency or tribunal from embarking on an inquiry

into the true ground for the refusal of a contract represents a

disproportionate response to the aim of protecting national security

and amounted in the circumstances of the present case to an unjustified

limitation on the applicants' effective access to court.

CONCLUSION

103. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 (Art. 6) of the Convention.

D. As regards Article 8 (Art. 8) of the Convention

104. Article 8 (Art. 8) of the Convention provides as follows:

"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."

105. The applicants accept that a number of the points raised by this

provision are in substance similar to those under Article 6 (Art. 6),

but consider that there are nevertheless severable issues. They recall

that the right to a good reputation is protected by Article 8 (Art. 8)

against arbitrary and unnecessary interference, and submit that the

Section 42 certificates interfered with that right. They submit that

the criteria empowering the issue of Section 42 certificates are too

vague to be in conformity with Article 8 para. 2 (Art. 8-2), and they

consider that there are no adequate and effective safeguards against

abuse. They claim that the circumstances in which the power has been

exercised in the cases lack proportionality and do not meet the

pressing social need required by Article 8 para. 2 (Art. 8-2).

106. The Government submit that the applicant company cannot be a

victim of a violation of Article 8 (Art. 8) of the Convention because

it has no private or family life. They consider that the mere carrying

out of a security check cannot be an interference with the right to

respect for private life, and that even if it is possible for the issue

of a Section 42 certificate to interfere with private life, a

certificate is issued strictly for the purposes of the proceedings in

which it was issued: it would have no impact on a defamation action.

The Government accept that defamation proceedings would be met by a

defence of qualified privilege if the decisions were made in good

faith. As to questions of possible abuse of Section 42 certificates,

the Government point to the package of measures of scrutiny of security

decisions (see para. 78 above), which provide for review of Section 42

certificates.

107. In the light of its reasoning and conclusion under Article 6

(Art. 6) of the Commission, the Commission considers that it is not

necessary separately to consider any questions which may arise under

Article 8 (Art. 8) of the Convention.

CONCLUSION

108. The Commission concludes, unanimously, that in the present case

it is not necessary to determine whether there has been a violation of

Article 8 (Art. 8) of the Convention.

E. As regards Article 13 of the Convention, taken together with

Article 8 (Art. 13+8) of the Convention

109. Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

110. The applicants claim, in essence, that their inability to

challenge the issue of their respective Section 42 certificates

amounted to an absence of adequate and effective safeguards for their

right to honour and a good reputation against abuse of the system of

issuing national security certificates.

111. The Government consider that the Article 13 (Art. 13) claim is

unsubstantiated on the same grounds as the Article 6 and 8 (Art. 6, 8)

claims - that is, that a degree of judicial scrutiny of the Section 42

certificates was possible and was carried out in Application

No. 20390/92, and that the aggregate of other remedies in any event

complied with the requirements of Article 13 (Art. 13).

112. The Commission notes the link between the complaints under

Article 13 (Art. 13) and the complaints under Articles 6 and 8 (Art. 6,

8) of the Convention, and considers, bearing in mind its reasoning and

conclusions under Articles 6 and 8 (Art. 6, 8) of the Convention, that

it is not necessary separately to consider any questions which may

arise under Article 13 in connection with Article 8 (Art. 13+8) of the

Convention.

CONCLUSION

113. The Commission concludes, unanimously, that in the present case

it is not necessary to determine whether there has been a violation of

Article 13 of the Convention taken together with Article 8 (Art. 13+8)

of the Convention.

F. As regards Article 14 of the Convention, taken together with

Article 6 (Art. 14+6) of the Convention

114. Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

115. The applicants claim that the treatment of the victims of

religious discrimination in Northern Ireland is discriminatory when

compared with that of victims of sex discrimination. They underline

that whilst in cases of religious discrimination Section 42

certificates are issued, with the attendant limitation on access to

court, in cases of sex discrimination no such conclusive certificate

can be issued. They claim that the only reason not to amend the

religious discrimination position is one of administrative and

political convenience.

116. The Government consider that sex discrimination cases and the

present case are fundamentally different. They point out that the Fair

Employment Acts are concerned with matters which are inevitably very

closely linked to matters of national security: the violent conflict

which is not based on religious belief but which involves the divergent

political aspirations between members of two communities in Northern

Ireland largely defined by religious affiliation. They underline that

community divisions have caused the violent conflict and the need for

the Government to safeguard national security. Sex discrimination, on

the other hand, has as its prime consideration the different treatment

of men and women. The Government recall that in the case of Johnston

v. Chief Constable of the RUC, the security concerns did not relate to

Mrs. Johnston herself, but rather to general matters of policy.

Finally, the Government note that the amendments to the sex

discrimination regime brought about by the Johnston case derived from

European Community obligations, and so cannot in any event have any

effect on the present applications.

117. The Commission refers to the substance of the applicants'

contentions in its consideration of the issues under Article 6 (Art. 6)

and finds it not to be necessary to reach a separate conclusion in

regard to Article 14 (Art. 14).

CONCLUSION

118. The Commission concludes, unanimously, that in the present case

it is not necessary to determine whether there has been a violation of

Article 14 of the Convention taken together with Article 6 (Art. 14+6)

of the Convention.

G. Recapitulation

119. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 (Art. 6) of the Convention

(para. 103).

120. The Commission concludes, unanimously, that in the present case

it is not necessary to determine whether there has been a violation of

Article 8 (Art. 8) of the Convention (para. 108).

121. The Commission concludes, unanimously, that in the present case

it is not necessary to determine whether there has been a violation of

Article 13 of the Convention taken together with Article 8 (Art. 13+8)

of the Convention (para. 113).

122. The Commission concludes, unanimously, that in the present case

it is not necessary to determine whether there has been a violation of

Article 14 of the Convention taken together with Article 6 (Art. 14+6)

of the Convention (para. 118).

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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TINNELLY & SONS LTD AND OTHERS and McELDUFF AND OTHERS v. THE UNITED KINGDOM

TINNELLY & SONS LTD AND OTHERS and McELDUFF AND OTHERS v. THE UNITED KINGDOM