AS TO THE ADMISSIBILITY OF
Application No. 24265/94
by Liam DEVENNEY
against the United Kingdom
The European Commission of Human Rights sitting in private on
24 February 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 application introduced on 12 April 1994 by
Mr. Liam Devenney against the United Kingdom and registered on
3 June 1994 under file No. 24265/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 15 May 1995 to communicate the
application;
- the Commission's decision of 1 July 1995, in the light of the
Government's request of 26 June 1995, to adjourn further
consideration of the case pending the cases of Tinnelly and
McElduff (Nos. 20390/92 and 21322/93);
- the Commission's decision of 7 September 1996 to ask the
Government whether, in the light of the Commission's
admissibility decision of 20 May 1996 in the cases of Tinnelly
and McElduff, they wished to make observations on admissibility
and merits, and the Government's reply of 6 December 1996 that
they did not wish to make observations of admissibility;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen born in 1958. He is
represented before the Commission by Messrs. P.J. McGrory & Co,
solicitors, of Belfast. The facts of the case, as submitted by the
applicant's representatives, may be summarised as follows.
The particular circumstances of the case
On 18 August 1992 the applicant began work in the Culloden Hotel,
Belfast, as a silver service waiter. The hotel is owned by a private
company. Initially the applicant had been doing very well and was
optimistic about promotion. On Saturday 31 October 1992 the restaurant
manager informed the applicant that he was being dismissed forthwith.
The applicant was given no reason whatsoever for his peremptory
dismissal. Various attempts to get an explanation for the dismissal
were unsuccessful. Ultimately the general manager told the applicant
on 1 November 1992 that he was dismissed because he did not meet the
grade and there was no other reason. Of all the full-time and
permanent staff in the restaurant the applicant thinks that he was the
only Catholic.
The applicant made a complaint to the Fair Employment Tribunal
that he had been unlawfully discriminated against on the grounds of
religious belief or political opinion. The applicant and thirteen of
his fifteen siblings are not involved in any politically related
activity.
On 29 March 1993 the solicitors acting on behalf of the
applicant's employers wrote to the Fair Employment Tribunal:
"We return herewith Notice of Appearance in relation to the
application presented by Mr Liam Devenney. On our
instructions, the acts of which complaint is made, were
done for the purpose of protecting public safety, and in
the circumstances by virtue of Section 42 of the Fair
Employment Act 1976, the Fair Employment (Northern Ireland)
Acts do not apply so that the tribunal does not have
jurisdiction to entertain the complaint."
The Fair Employment Tribunal then of its own motion fixed a
preliminary hearing for determination of the following issue:
"Whether the tribunal has jurisdiction to consider the
applicant's complaint in view of the provisions of Section
42 of the Fair Employment (Northern Ireland) Act 1976."
On 3 December 1993 the Fair Employment Commission, acting on
behalf of the applicant, wrote to the solicitors acting on behalf of
the applicant's employers requesting to know, inter alia, whether the
Secretary of State or any other Agency had been approached with a view
to obtaining a Section 42 (2) certificate. By reply of 6 December 1993
the employers' solicitors stated:
"We today received your letter dated 3 December 1993 in
relation to the above. You will be pleased to hear that
during the writer's holiday last week a Section 42
certificate was received from the Crown Solicitor's office
(a certified copy of which is enclosed herewith) so that it
now seems unnecessary to take any further action, and that
you may close your file in this matter."
The applicant states that he does not know the basis upon which
the certificate was issued. He has never been shown, and is not
entitled to demand, sight of the information, if any, which was placed
before the Secretary of State which led to the certificate being
issued. The applicant does not know whether this information is
correct or incorrect, whether it is complete or incomplete, and whether
it is reliable or not. Nor does he know whether the information
provided could reasonably support the view expressed in the
certificate.
On 5 January 1995 the Fair Employment Tribunal, determining a
preliminary question, found that the Fair Employment Act did not apply
to the termination of the applicant's contract, nor to the decision
summarily to terminate the contract, but that it did apply to the
extent that the respondent gave a false reason for the termination, and
insofar as that reason could constitute unlawful discrimination within
the meaning of the Act.
Relevant domestic law
By virtue of Section 17 of the Fair Employment (Northern Ireland)
Act 1976 ("the 1976 Act") it is unlawful for an employer to
discriminate against a person on grounds of religious belief or
political opinion in relation to employment in Northern Ireland, inter
alia, by dismissing him or subjecting him to any other detriment. By
virtue of Section 24 of the 1976 Act as amended a complaint of unlawful
discrimination may be presented to the Fair Employment Tribunal which
is established by Statute to investigate complaints of unlawful
discrimination on grounds of religious belief or political opinion.
Section 42 of the 1976 Act provides as follows:
"(1) The Fair Employment (Northern Ireland) Acts shall not
apply to an act done for the purpose of safeguarding
national security or 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 the purpose mentioned in sub-
section (1) shall be conclusive evidence that it was done
for that purpose.
(3) A document purporting to be a document such as is
mentioned in sub-section (2) shall be received in evidence
and, unless the contrary is proved, shall be deemed to be
such a certificate."
COMPLAINTS
The applicant alleges a violation of Articles 6, 13 and 14 of the
Convention.
Under Article 6 he complains that the issue of the Section 42
certificate deprived him of the tribunal to which he was entitled. He
points out that he does not know, and under domestic law is not
entitled to know, what information caused the Secretary of State to
issue the Section 42 certificate, or whether that information is
accurate or not. He also points out that it is impossible to tell
whether the information before the Secretary of State reasonably leads
to the conclusions reached.
He also submits that he has no effective remedy in respect of the
alleged violation, and that he has been discriminated against in the
enjoyment of his Convention rights.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 April 1994 and registered
on 3 June 1994.
On 15 May 1995 the Commission decided to communicate the
application.
On 1 July 1995, pursuant to a proposal from the respondent
Government, the Commission adjourned the application pending the
proceedings in Applications Nos. 20390/92 and 21322/93.
On 7 September 1996, in the light of the Commission's decision
of 20 May 1996 to declare admissible Applications Nos. 20390/92 and
21322/93, the Commission decided to ask the Government whether they
wished to make observations on admissibility. The Government informed
the Commission on 6 December 1996 that they did not wish to make any
such observations.
THE LAW
The applicant claims that the issue of a Section 42 certificate
in the present case deprived him of access to court in a way which
violated Article 6, 13 and 14 (Art. 6, 13, 14) of the Convention.
The Government have stated that they do not wish to present
observations on the admissibility of the case.
The Commission has had regard to the case as it stands, and to
the statement by the respondent Government that they do not wish to
make observations on its admissibility. The Commission finds that the
case raises serious and complex issues of fact and law under the
Convention, the determination of which should depend on an examination
of the merits of the application as a whole. The application is
therefore not manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. The application must therefore
be declared admissible, no ground for declaring it inadmissible having
been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy