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)
Full & Egal Universal Law Academy