PROCEDURE

The case originated in an application (no. 29545/95) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Francis William Devlin (“the applicant”), on 30 November 1995.

The applicant was represented before the Court by Mr E. O’Neill, solicitor to the Equality Commission, Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley.

The applicant complained of 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 certificate issued under section 42 of the Fair Employment (Northern Ireland) Act 1976. He invokes principally Article 6 of the Convention, as well as Articles 8, 9, 10, 13 and 14 of the Convention.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

By a decision of 11 April 2001, the Chamber declared the application admissible.

The applicant and the Government each filed observations. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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 in the High Court. 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 in the High Court on 6 September 1995. After referring, inter alia, to the judgment of Mr Justice McCollum of 3 December 1991 in the case of Tinnelly and 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.”