THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29545/95
by Francis William DEVLIN
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 11 April 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
MrsF. Tulkens,
SirNicolas Bratza,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 30 November 1995 and registered on 14 December 1995,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is an Irish citizen, born in 1961 and living in Cookstown, Northern Ireland. He is represented before the Court by Mr E. O’Neill, a solicitor of the Fair Employment Commission, Belfast.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In June 1991, the applicant applied for a position as an administrative assistant with the Northern Ireland Civil Service, the lowest grade in the non-industrial civil service. He passed a written test but was not invited for interview at that stage. In 1992, the applicant was invited for interview, and was informed on 15 September 1992 that he was being recommended for appointment “subject to the satisfactory outcome of various pre-appointment enquiries”. He was informed on 21 October 1992 that he had been unsuccessful. No reasons were given.
The applicant believed that the decision not to appoint him must have been taken on grounds of his religious beliefs – he is a Catholic and a member of an association known as the Irish National Foresters – and not for any legitimate security ground: a number of his relatives are involved in public service in various capacities, and neither he nor any member of his family had ever been involved in any form of criminal activity. He had some unpleasant encounters with the police, but there was no question of proceedings against him. On one occasion, the applicant lodged a complaint about his treatment by the police, which was resolved when the applicant was informed that the officers involved would be “spoken to”. According to the applicant, a further incident with the police occurred about a week after he was informed that his job application had been unsuccessful: a police officer at a vehicle checkpoint in Cookstown referred to the unsuccessful job application.
The applicant made an application, through the Fair Employment Commission, to the Fair Employment Tribunal, alleging discrimination contrary to the Fair Employment (Northern Ireland) Act 1976 (“the 1976 Act”). The Northern Ireland Civil Service affirmed that the refusal had been made on security grounds, and claimed that the 1976 Act did not therefore apply.
On 21 September 1993, the Secretary of State for Northern Ireland issued a certificate under section 42 (2) of the 1976 Act, certifying that the refusal of employment to the applicant was an act “done for the purpose of safeguarding national security and of protecting public safety”.
The applicant attempted to challenge the Secretary of State's decision to issue the section 42 certificate by way of an application for judicial review. Leave to apply for judicial review was granted on 4 January 1994.
In the affidavits sworn on behalf of the Secretary of State, it was stated that, in accordance with the usual procedure, the security questionnaire completed by the applicant had been forwarded to the Royal Ulster Constabulary (“the RUC”), which had provided security information relating to the applicant. This information was such that the assessing officer in the Department’s security branch had recommended that the applicant was unsuitable for employment in the Northern Ireland Civil Service.
After an unsuccessful application for discovery, the application for judicial review was dismissed by Mr Justice Kerr on 6 September 1995. After referring, inter alia, to the judgment of Mr. Justice McCollum of 3 December 1991 in the case of Tinnelly & Sons Limited and Others and McElduff and Others (judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1633), he considered that:
“the effect of section 42 (1) as enacted is to remove entirely from the sphere of Fair Employment legislation acts done for the purpose of safeguarding national security and protecting public order or safety. ... [There] may be occasions when the Secretary of State will choose not to invoke his powers under section 42 (2) and the Tribunal may investigate whether the act complained of was done for all or any of the purposes specified under Section 42 (1). Where a certificate has been validly issued under Section 42 (2), however, I do not believe that the Tribunal retains any role in the hearing or adjudication of the complaint.”
B. Relevant domestic law and practice
By virtue of 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 by the Fair Employment (Northern Ireland) Act 1989), 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 (as amended) 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.”
The Northern Ireland Constitution Act 1973 (as amended by the 1976 Act) provides as follows in section 19:
“(1) Subject to sub-section (4) below it shall be unlawful for a Minister of the Crown … and any authority or body listed … in … Schedule 1 to the Parliamentary Commissioner Act (Northern Ireland) 1969 … to discriminate, or aid, induce or incite another to discriminate, in the discharge of functions relating to Northern Ireland against any person or class of persons on the grounds of religious belief or political opinion. …
(4) This section does not apply to any act or omission which is unlawful by virtue of the Fair Employment (Northern Ireland) Act 1976 or would be unlawful but for some exception made by virtue of Part V of that Act.”
Schedule 1 to the Parliamentary Commissioner Act (Northern Ireland) 1969 lists the departments and authorities subject to investigation by the Parliamentary Commissioner. The list includes the Northern Ireland Civil Service Commission and all Government Departments, including the Department of Finance and Personnel. However, section 42 of the 1976 Act falls within Part V of that Act. Accordingly, where a section 42 certificate has been issued (claiming an act was done for the purpose of safeguarding national security or protecting public safety or public order), section 19(1) of the Northern Ireland Constitution Act 1973 (as amended) has no effect.
COMPLAINTS
The applicant complains under Articles 6, 8, 9, 10, 13 and 14 of the Convention concerning the circumstances in which his application for a post in the Northern Ireland Civil Service was rejected and his complaints of discrimination on grounds of religion blocked by a section 42 certificate.
In particular, in connection with Article 6 of the Convention, the applicant claims that he was deprived of the right to have his claim under the Fair Employment Act 1976 (and a parallel claim under the Northern Ireland Constitution Act 1973) determined by a court.
THE LAW
The applicant complains that he was prevented from obtaining a fair and public hearing before an independent and impartial tribunal in the determination of his claims that he had been discriminated against by the decision of the Northern Ireland Civil Service to refuse him an appointment, invoking Articles 6, 8, 9, 10, 13 and 14 of the Convention. In particular under Article 6 § 1 he claims that he was denied of his right of access to court, due to the issue of Section 42 certificate under the 1976 Act.
Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal…”
Exhaustion of domestic remedies
The Government contend that the applicant failed to exhaust his domestic remedies, as required by Article 35 § 1 of the Convention, because he did not submit a complaint to the Parliamentary Commissioner, who has power under the Parliamentary Commissioner Act (Northern Ireland) 1969 (now replaced by the Ombudsman (Northern Ireland) Order 1996) to investigate the actions of the Northern Ireland Civil Service Commission and any Government Department, including the Department of Finance and Personnel.
The applicant submits that a complaint to the Parliamentary Commissioner was not an effective remedy due to the Parliamentary Commissioner’s limited competence, the discretionary nature of his functions and his inability to issue binding decisions.
The Court recalls that the requirement under the Convention is to exhaust “effective remedies”, that is those remedies capable of providing redress for the complaint (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1998-II, §§ 65-66). Proceedings before the Parliamentary Commissioner were not judicial proceedings and did not form part of the normal judicial process. Whilst the Parliamentary Commissioner had the same powers as a High Court judge in respect of the examination of witnesses and production of documents, he had no power to render a binding decision granting redress and could, at most, submit a report to each House of Parliament if he considered there had been injustice to an individual which had not been remedied. In particular, he had no power to revoke or otherwise affect the implementation of a section 42 certificate. Accordingly, the Court concludes that there has been no failure on the part of the applicant to exhaust his domestic remedies and his complaints cannot be rejected under Article 35 § 1 of the Convention.
The substance of the application
The Government submit that the applicant’s complaints fall outside the scope of Article 6 § 1 of the Convention as they arise out of his unsuccessful application for a post in the civil service and therefore do not concern the determination of a “civil” right. The Government quote the Court’s jurisprudence in this area which recognised that the special status accorded in Contracting States to the public servants and in particular their right to maintain the procedures necessary to ensure the integrity of those recruited into the civil service (see, in particular, the Glasenapp v. Germany judgment of 28 August 1986, Series A no. 104; the Lombardo v. Italy judgment of 26 November 1992, Series A no. 249-B; the Massa v. Italy judgment of 24 August 1993, Series A no. 265-B; the Vogt v. Germany judgment of 26 September 1995, Series A no. 323; the Neigel v. France judgment of 17 March 1997, Reports 1997-II; the Couez v. France judgment of 24 August 1998, Reports 1998-V; the Benkessiouer v. France judgment of 24 August 1998, Reports 1998-V, and the Commission’s decision in Quinn v. the United Kingdom, no. 33694/96, dec. 23.10.97, unpublished). The Government deny that the judgment of the Court in the Tinnelly case (Tinnelly & Sons Limited and Others and McElduff and Others v. the United Kingdom judgment of 10 July 1998, Reports 1998-IV) is relevant to the present case which concerned, in their view, a dispute about recruitment to the civil service which fell outside the scope of the Convention.
As to whether the applicant was denied access to court, the Government contend that a certificate issued under section 42 of the 1976 Act negatived the existence of any civil right in cases of national security, public safety or public order. Even assuming therefore that Article 6 was applicable, the Government submit that the Secretary of State’s certificate under section 42 pursued a legitimate aim by proportionate means. Had the applicant been appointed to the post he would have had free access to buildings of the government department and to papers of a sensitive character. In the area of national security, they argue that a wide margin of appreciation should apply.
The Government further deny that the applicant’s complaints disclose any violation of the other provisions invoked by him.
The applicant submits that the present case concerns the right not to be discriminated against on grounds of religious belief or political opinion in the job market, which right is as such a “civil” right falling within the ambit of Article 6 § 1 of the Convention. He was not claiming a right of access to the civil service but a right of equal treatment. Nor did he dispute the need for security vetting. His objection was to the restrictions imposed on his access to court to challenge a decision which was discriminatory. He argues that the Court should not apply Article 6 in a way which discloses inequality of treatment between civil servants and others.
The applicant relies in particular on the aforementioned Tinnelly judgment in which the Court found that there had been a violation of Article 6 due to the effect of a section 42 certificate in blocking proceedings alleging discrimination in the Fair Employment Tribunal. His case, like Tinnelly, concerned the right not to be unlawfully discriminated against in the job market. He argues that section 42 of the 1976 Act does not operate to define the scope of the substantive right (i.e. not to be discriminated against on grounds of political opinion or religious belief) in limine, but provides the employer with a defence to a complaint of unlawful discrimination. The section 42 certificate, by reason of its conclusive nature, destroyed the very substance of the right of access to court. Further, the applicant contends that section 42, even taking account of the aim of protecting national security, represents a disproportionate interference with his right of access to a court, again referring to the reasoning of the Court in Tinnelly.
The applicant finally submits that the above matters also disclose violations of Articles 8, 9, 10, 13 and 14 of the Convention.
Having examined the applicant’s complaints under the Convention, the Court finds that they raise serious questions of fact and law, including the question of the applicability of Article 6 § 1 to the proceedings, which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy