CEDH · CASELAW;REPORTS;ENG — 8 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    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