Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20390/92

by John TINNELLY & SONS LTD and

Patrick and Gerard TINNELLY

and

Application No. 21322/92

by Kevin, Michael, Paddy and Barry McELDUFF

both

against the United Kingdom

The European Commission of Human Rights sitting in private on

20 May 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

M.A. NOWICKI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 27 May 1992 and

26 August 1992 by John TINNELLY & SONS LTD and Patrick and Gerard

TINNELLY and by Kevin, Michael, Paddy and Barry McELDUFF respectively

against the United Kingdom and registered on 29 July 1992 and

3 February 1993 under file No. 20390/92 and file No. 21322/92

respectively;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

2 March 1994 and the observations in reply submitted by the

applicants on 7 July 1994;

- the further observations submitted by the respondent Government

on 13 April 1995 and the observations in reply submitted by the

applicants on 17 May 1995;

- the Commission's decision of 27 November 1995 to hold a hearing

on the admissibility and merits of the applications;

- the parties' submissions at the hearing on 20 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant in Application No. 20390/92 is a limited

company carrying on business as a demolition contractor in Northern

Ireland. The second and third applicants are, respectively, the

managing director and company secretary of the first applicant.

The applicants in Application No. 21322/92 are self-employed

joiners from Omagh, County Tyrone, Northern Ireland.

The applicants in Application No. 20390/92 are represented by

Ms. F. Cassidy, solicitor, and the applicants in Application No.

21322/92 are represented by Ms D. Hawthorne, of the Fair Employment

Commission. Observations have been submitted by Lord Lester of Herne

Hill, QC, Mr P. Goulding, Mr. B. Macdonald and Mr. J. O'Hara, of

counsel.

The facts of the present case, as submitted by the parties, may

be summarised as follows.

(a) The particular circumstances of the case

Application No. 20390/92

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 lowest and, following an NIE

engineer's recommendation that 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 lowest

tenderer, Mc W. NIE declined to inform the first applicant of the

reasons for this decision.

Subsequently, the first applicant submitted the lowest tender for

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

However, the sub-contract was withheld from the first applicant after

NIE informed Mc W. that the first applicant would not receive security

clearance to enter the site.

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 and practice).

NIE sought to prevent this investigation by seeking a court order

declaring 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.

However, 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".

No other avenue of complaint in respect of the alleged unlawful

discrimination was available to the first applicant. However, the FEA

itself 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 discovery of a number of documents. The Secretary

of State declined to produce certain documents and was willing to

produce others only on the basis that parts of them were removed or

sealed up.

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

interest immunity ("PII") certificate under Section 52 of the 1976 Act

in relation to several such documents, to the effect that discovery of

the missing documents or parts of documents should not be given for

national security reasons similar to those which were said to justify

the issue of the Section 42 certificate. In the PII certificate, the

Secretary of State inter alia stated:

"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.

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..."

On 16 March 1989, Mr. Justice Nicholson considered an

interlocutory application by the FEA challenging the Secretary of

State's decision to withhold documents. The judge 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; those documents, in

other words, cast doubt on the contention that the decision to issue

the Section 42 certificate, and hence the claim to PII, were genuinely

made on national security grounds. He ordered that some 19 of the

missing documents should be produced for inspection by the court.

On 19 April 1989, having read the documents (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."

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...

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...

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 risk was involved if the contract

was granted to Tinnelly...

However, 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...

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 goes on to say `having seen this report

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...

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."

Senior Counsel advised the FEA that an appeal against the

decision of 3 December 1991 would not succeed.

Application No. 21322/93

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 Hospital

Road, 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.

The applicants supplied their names, addresses and dates of birth

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

DOE. Approximately 6 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).

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 a

member 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.

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 Fair Employment (Northern Ireland) Act 1976 ("the 1976 Act": see

below, relevant domestic law and practice). They also served a

Questionnaire in accordance with Section 28 of the 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.

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. The DOE stated by

letter dated 3 December 1990 that it did not propose to respond to the

Questionnaire. By Notice of Appearance of the same date, 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".

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 Sections 23 and 57 of the Act. On the morning of the

interlocutory hearing, on 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.

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.

Although the certificate related specifically to the refusal of

security clearance for work on the particular site in question, the

implication is that the applicants are regarded by the Government as

a security risk and that they would therefore be refused clearance for

any other publicly funded work. In view of the fact that such work is

the single most important category of construction work in Northern

Ireland, the applicants claim, as a result of these matters, to have

been put at a serious disadvantage in the conduct of their business.

(b) Relevant domestic law and practice

Under Sections 17 and 18 of the 1976 Act, it is unlawful for an

employer, or a person engaging contract work, to discriminate against

a person on the grounds of religious belief or political opinion in

cases like the present. Section 23 of the 1976 Act also prohibits a

party, including a public authority, from discriminating against a

person on grounds of religious belief or political opinion by refusing

or omitting to confer a "qualification" required for employment or

engagement. Other provisions in the 1976 Act relate to the liability

of principals (Section 35) and of those who aid, incite, direct,

procure, or induce others to commit unlawful acts of discrimination

(Section 34).

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. As constituted at the time

of the facts of Application No. 20390/92, 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.

Investigation proceedings were conducted in private before a

complaints sub-committee of the FEA. Any proceedings before the County

Court, including an appeal by either party from the conclusions reached

by the FEA, would be heard in public, subject to the judge's

discretion, under the County Court Rules (Northern Ireland) 1981, to

sit in chambers, for example to prevent confidential information or the

evidence of a vulnerable witness from becoming known to the public.

Following amendments made by the Fair Employment (Northern

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

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

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

complaint to the Tribunal, which is empowered to make various orders

and recommendations, including an order for financial compensation 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.

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."

Section 52 provides that any restriction on the disclosure of

information obtained by or furnished to persons in the service of the

Crown shall not apply to proceedings under the Act, save that a

minister of the Crown may "certify that in his opinion the disclosure

of that document or information ... would be prejudicial to the safety

of the United Kingdom or any part of it or otherwise contrary to the

public interest, and where such a certificate is given", the

restriction on disclosure applies again.

By virtue of Section 19 of the Northern Ireland Constitution Act

1973 ("the 1973 Act"), persons in Northern Ireland have the right not

to be discriminated against by public authorities, including Ministers

of the Crown. Breach of this right is actionable, so that the victim

can apply to the civil courts for damages and an injunction against the

person responsible. However, Schedule 6 of the 1976 Act amended

section 19 of the 1973 Act so that proceedings against a public body

in respect of discrimination in employment may be brought only under

the 1976 Act and are thus subject to Section 42.

Discrimination on the grounds of sex and race are prohibited,

respectively, by the Sex Discrimination Act 1975 and the Race Relations

Act 1976. Both contain provisions analogous to Section 42 of the 1976

Act, supplemented in the case of sex discrimination by the Sex

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

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.

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."

The Minister continued:

"... I reiterate that we have made it clear that we are looking

at possible ways of introducing an independent element into the

Section 42 procedure..."

COMPLAINTS

1. The applicants claim that they have been denied a fair and public

hearing by an independent and impartial tribunal established by law,

in violation of Article 6 para. 1 of the Convention.

The applicants submit that they have a civil right under the 1976

Act not to be discriminated against on grounds of religious belief or

political opinion in employment and employment-related matters in

Northern Ireland. They claim that by issuing a certificate under

Section 42 of the 1976 Act, the Government have denied them access to

an independent and impartial tribunal. Notwithstanding the attempt in

Application No. 20390/92 to challenge the certificate in domestic

proceedings, none of the applicants has any way of assessing the

accuracy, completeness or reliability of the information on which the

Government based its decision to issue the certificate. Thus they have

been denied a fair and public hearing into the issue whether their

civil rights have been infringed.

The applicants further argue in their Observations in Reply that

the issue of a certificate injured their reputations and at the same

time deprived them of a forum in which to vindicate those reputations.

2. The applicants invoke the right to respect for their private and

family life, home and correspondence under Article 8 of the Convention.

They also invoke Article 13 of the Convention. Although the Section

42 certificates related specifically to the complaints regarding the

contracts which had been refused, the applicants claim to have been

"officially tainted" by the public authorities as a security risk, not

least because the underlying complaints involved refusal of security

clearance.

The applicants claim to have no effective remedy at their

disposal for resolving these matters.

3. The applicants complain of discrimination on grounds of religious

or political opinion or association with a national minority, contrary

to Article 14 of the Convention, in the enjoyment of their rights under

Articles 6 and 13 of the Convention. They elaborate in their

Observations in Reply that as victims of discrimination prohibited by

national law, they are treated less favourably than victims of sex

discrimination in Northern Ireland.

PROCEEDINGS BEFORE THE COMMISSION

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

registered on 29 July 1992.

Application No. 21322/92 was introduced on 26 August 1992 and

registered on 3 February 1993.

On 1 September 1993 and 31 August 1993 respectively the

Commission (First Chamber) decided to communicate the applications to

the respondent Government and to invite the parties to submit written

observations on admissibility and merits.

The Government submitted their observations in both applications

on 2 March 1994, after 3 extensions of the time-limit. The applicants

submitted joint observations in reply on 7 July 1994, after an

extension of the time-limit.

On 21 February 1995 the Commission decided to transfer further

consideration of the case 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.

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. 21322/92)

THE LAW

The applicants allege violations of Articles 6, 8, 13 and 14

(Art. 6, 8, 13, 14) of the Convention by reason of the issue of

certificates under Section 42 of the Fair Employment (Northern Ireland)

Act 1976. 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 ... by an

independent and impartial tribunal established by law."

The Government submit that the procedural guarantees of Article

6 (Art. 6) do not attach to the proceedings brought by the applicants,

and that in any event the courts are able, in an application for

judicial review of a decision to issue a Section 42 Certificate, to

look at sufficient aspects of the case to comply with the requirements

of Article 6 (Art. 6). They consider that the complaints under

Articles 8 and 13 (Art. 8, 13) are inadmissible for analogous reasons,

and consider that the difference in treatment between sex

discrimination cases and religious discrimination cases is justified

because the security element in religious discrimination cases is

fundamental to the issues, whereas it was not in the case of Johnston

v. Chief Constable of the RUC.

The applicants disagree with the Government. They see Article 6

(Art. 6) as applying to the proceedings on several grounds, and

consider that the limitation on access to court was not proportionate

to the legitimate aim of the protection of national security. Under

Article 8 (Art. 8) they expressly limit their complaint to the

allegation of an interference with their right to honour and a good

reputation, and to the absence of adequate and effective safeguards for

that right. In connection with Article 14 (Art. 14) of the Convention,

the applicants can see no difference in principle between their cases

and the position under the Sex Discrimination Order, and consider

that if the rules can be changed for the latter, there is no valid

reason for not changing the rules for the former. The applicants also

refer to the ILO (Discrimination and Occupation) Convention 1958.

In the light of the parties' observations, the Commission finds

that the applications raise serious questions of fact and law which are

of such complexity that their determination should depend on an

examination of the merits. The case cannot, therefore, be regarded as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the

merits.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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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