Tinnelly & Sons and others and McElduff and others v. The United Kingdom

---

Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom
Court	European Court of Human Rights
Full case name	CASE OF TINNELLY & SONS LTD AND OTHERS AND McELDUFF AND OTHERS v. THE UNITED KINGDOM
Started	July 9, 1997 (1997-07-09)
Decided	July 10, 1998 (1998-07-10)
ECLI	ECLI:CE:ECHR:1998:0710JUD002039092

Tinnelly & Sons LTD and others and McElduff and others v. The United Kingdom (ECLI:CE:ECHR:1998:0710JUD002039092) was a case in the European Court of Human Rights ruling that Ministerial certificates issued under section 42 of the Fair Employment (Northern Ireland) Act 1976, which could be used to conclusively certify an act as not unlawful under the same Act, were in violation of Article 6 § 1 of the European Convention on Human Rights (the right to a fair trial).

Relevant Law

Fair Employment (Northern Ireland) Act 1976

Section 17

The Fair Employment (Northern Ireland) Act 1976 (the 1976 Act) section 17 make it unlawful for an employer to discriminate against a person, in relation to employment in Northern Island, by refusing to offer that person employment for which they have applied.

It shall be unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland.— '

1. where that person is seeking employment—
   1. in the arrangements the employer makes for the purpose of determining who should be offered employment, or
   2. by refusing or deliberately omitting to offer that person employment for which he applies, or
   3. in the terms on which he offers him employment ; or
2. where that person is employed by him—
   1. in the terms of employment which he affords him, or
   2. in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them, or
   3. by dismissing him, or
   4. by subjecting him to any other detriment.

— Fair Employment (Northern Ireland) Act 1976 (As Enacted) Section 17

Section 42

Section 42 of the 1976 Act prevents any act done for the purpose of safeguarding national security, or protecting public safety or order, being unlawful under the Act. It prescribes that a certificate, signed by the Secretary of State, certifying that an act was done for one of the mentioned purposes, shall be taken as conclusive evidence of that fact.

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.
3. A document purporting to be a certificate such as is mentioned in subsection (2) shall be received in evidence and, unless the contrary is proved, shall be deemed to be such a certificate.

— Fair Employment (Northern Ireland) Act 1976 (As Enacted) Section 42

European Convention on Human Rights

Article 6

Article 6 of the European Convention on Human Rights provides that, in the determination of a persons civil rights, they are entitled to a fair and public hearing by an independent and impartial tribunal.

Article 8

Article 8 of the European Convention on Human Rights provides the right to a private and family life, subject to lawful restrictions as necessary for purposes such as national security or public safety.

Article 13

Article 13 of the European Convention on Human Rights provides the right for an effective remedy for violations of convention rights. If somebody is unable to seek an effective remedy for a breach of one of the other convention rights, this would be a breach of the convention rights in itself.

Article 14

Article 14 of the European Convention on Human Rights provides the right to enjoy the convention rights without discrimination. If someone's convention rights are breached due to discrimination, that would then constitute another breach under Article 14.

Background

Tinnelly & Sons

Tinnelly & Sons LTD was a demolition contracting firm in Northern Ireland, who's bid for the demolition of the Ballylumford "A" Power Station was accepted by the Northern Ireland Electricity Services (NIE), but then later denied. Believing the denial was the result of unlawful discrimination on religious and political grounds, they complained to the Fair Employment Agency (FEA), who agreed to investigate. During the investigation, acting on a request by NIE, the Secretary of State for Northern Ireland issued a certificate under section 42 of the 1976 Act.

In response, the FEA started a judicial review to declare the certificate null and void on the basis that that it was improperly issued for the collateral purpose of preventing the FEA investigating the claim of discrimination. This judicial review was dismissed - while the judge acknowledged that NIE had repeatedly given untrue reasons for their decisions, he found that the decision was ultimately based on security. Furthermore, while NIE's actions were not proper, they do not make the application for the Ministerial certificate fraudulent, or make the certificate itself invalid. Although the judge was unable to determine himself whether the circumstances were actually necessary on security grounds, this did not matter, as the law binds the judge to accept the certificate regardless.

The McElduffs

The McElduffs (Kevin McElduff, Michael McElduff, Paddy McElduff, and Barry McElduff) were self-employed joiners in Northern Island. To receive a contract, through another contractor, for work on the Department of the Environment's (DOE) premises they were required to receive security clearance from the DOE. After submitting their details, they were notified they had been denied clearance. Since the McElduffs had previously been questioned after being mistaken for other people of the same name, they believed the clearance was mistakenly denied, but the DOE refused to provide any information as to why the clearence had been denied.

The McElduffs bought a tribunal against both the contractor and the DOE for discriminating, however on February 6, 1992 (1992-02-06) the Secretary of State for Northern Ireland issued a Ministerial certificate under section 42 of the 1976 Act, forcing the McElduffs to withdraw their case.

The Case

The applicants bought the case to the ECHR on the grounds that the denial of security clearance breached their Article 8 right. They had no available remedy to these breaches (Article 13), due to being denied their Article 6 right to a fair trial by the section 42 Ministerial certificates. They alleged their Article 6 rights were breached on the grounds of discrimination, further breaching their Article 14 right.

The court was asked to find whether there had been a breach of their Article 6 right, either by itself or together with their Article 8 and 14 rights. They requested that, should no Article 6 breach be found, the court decide whether their Article 13 right was breached alongside their Article 8 right.

The Government argued that their protections under the 1976 Act where not "civil rights", and therefore there was no right to a fair trial under Article 6. Furthermore, they did not have any rights under the 1976 Act due to section 42 application.

The court decided that the protections under the 1976 Act were a civil right, within the meaning of Article 6. The applicants were therefore seeking remedy in the court for breach of their civil rights due to discrimination, and Article 6 is applicable.

The court found that in other cases it had been possible to safeguard national security concerns while still affording procedural justice to an individual. In this case, the judges deciding the cases raised noted they themselves had doubts about certain aspects of the case that they were unable to see under national security grounds, which did not create public confidence in the course of justice. Therefore the section 42 certificates were a disproportionate restriction on the applicants right to a fair trial, in breach of their Article 6 § 1 right.

As the courts had found a breach of the applicants Article 6 right, it was not necessary for the court to determine whether the applicants Article 8, 13, or 14 rights had been breached.

Consequences

The Fair Employment (Northern Ireland) Act 1976 (the 1976 Act) was repealed by The Fair Employment and Treatment (Northern Ireland) Order 1998 (the 1998 Act), which replaced the 1976 Act. The 1998 Act now only allows Ministerial certificates to cover acts done not just for the purpose of protecting national security, but where that purpose justifies the act. Additionally, appeals can be made against Ministerial certificates issued under the 1998 Act, in which a tribunal can quash a certificate if the act covered by the certificate was not done for the specified purpose or if the act was not justified by that purpose.

The Race Relations (Amendment) Act 2000 repealed and replaced the Race Relations Act 1976, and removed the power of Ministers to issue conclusive national security certificates relating to racial discrimination. Additionally, where such certificates are issued, the act must be justified by the purpose.

Section 42 and section 69(2)(b) of the 1976 Act together provide that an act of race discrimination is not unlawful if done for the purposes of safeguarding national security, and that a Ministerial certificate is conclusive evidence that an act was done for that purpose. The power to issue such conclusive certificates has been found by the European Court of Human Rights, in the case of Tinnelly and McElduff 249 EHRR 1999, to be incompatible with article 6(1) of the European Convention on Human Rights.

Section 7 of the 2000 Act removes the power of the Minister to issue a conclusive certificate in relation to non-employment cases. (The Employment Rights Act 1999 removed the power in relation to employment cases.) It also changes the national security defence so that it is not sufficient that a discriminatory act was done for the purpose of safeguarding national security, it must also be justified by that purpose.

Section 7(1) amends the national security defence under section 42 of the 1976 Act. The effect is that it will no longer be a complete defence to show that an act was done for the purposes of national security. It will, in addition, now need to be shown that the act was justified for that purpose. This provision is in the same terms as sections 90 and 98 of the Northern Ireland Act 1998 (c. 47) which applies to the national security defence in relation to claims of discrimination under that Act.

— Race Relations (Amendment) Act 2000 Explanatory Notes

The Employment Relations Act 1999 amended the Trade Union and Labour Relations (Consolidation) Act 1992 and the Employment Rights Act 1996, and removed the power of Ministers to issue conclusive national security certificates in employment cases.

Crown servants (including staff of the security and intelligence agencies) may be excluded by Ministers of the Crown from certain rights conferred by employment legislation on grounds of national security. Section 41 gives effect to Schedule 8, which will remove some of these powers, allowing - in particular - staff of the security and intelligence agencies to present complaints about breaches of employment legislation to employment tribunals in as similar a way as possible to other employees.

Paragraph 1 amends section 193 of the 1996 Act removing the power of Ministers to exclude certain persons in Crown employment from many of the rights under that Act (with the exception of those rights created by the Public Interest Disclosure Act 1998).

Paragraph 2 repeals section 4(7) of 1996 Act which provides that a Minister of the Crown may direct that the proceedings of an employment tribunal must be heard and determined by the Employment Tribunal President alone.

Paragraph 3 substitutes a new section 10 into the Employment Tribunals Act 1996. The new section retains the national security defence to unfair dismissal complaints and complaints under section 146 of the 1992 Act. However, it removes the power of Ministers to conclusively certify that an act was done on grounds of national security. It also puts in place new safeguards to protect the interests of national security. Employment tribunal procedure regulations may enable Ministers of the Crown to direct, in the interests of national security, that Crown employment proceedings are heard by specially constituted tribunals. Ministers may direct that special procedures (as provided in the regulations) should apply, for example, excluding an applicant or his representative from all or part of proceedings, concealing the identity of a witness, or keeping secret all or parts of the reasons for a decision. Employment tribunals will also generally be able to order that these arrangements apply in cases involving national security where a direction has not been made by a Minister. The procedure regulations may make provision, where an applicant and his representative are excluded, for appointing a special advocate to represent the applicant’s interests and for the applicant or his representative to make a statement of his case before they are excluded.

New section 10A re-enacts the present section 10(2) and (3) of the Employment Tribunals Act 1996, which allow the tribunal to sit in private in certain circumstances.

Where a tribunal has been directed to conceal the identity of a witness or to keep secret all or part of the reasons for its decisions, new section 10B makes it an offence to publish anything likely to lead to the identification of the witness or the secret part of the reasons for its decision and sets out the penalty for such an offence.

Paragraph 4 provides that section 28(5) of the Employment Tribunals Act 1996 (which provides that a Minister of the Crown may direct that proceedings be heard and determined by the Employment Appeal Tribunal President alone) shall cease to have effect. Paragraph 5 provides (in a way similar to the provision made for employment tribunals), that a Minister of the Crown may direct that appeals in national security cases be heard by a specially constituted Appeal Tribunal and that special procedures are to be used, and for the appointment of a special advocate to represent the interests of an excluded person.

Paragraphs 6 and 7 remove the power of Ministers to issue certificates which are conclusive as to the fact that an act was done on grounds of national security for the purposes of the Race Relations Act 1976 and the Disability Discrimination Act 1995 respectively.

— Employment Relations Act 1999 Explanatory Notes

Related Cases

• Devlin v UK, which differed in that Devlin had been denied a job in the Northern Ireland Civil Service, rather than a public works contract.

External Links

• ECHR Judgement
• ECHR Legal Summary

References

This article "Tinnelly & Sons and others and McElduff and others v. The United Kingdom" is from Wikipedia. The list of its authors can be seen in its historical and/or the page Edithistory:Tinnelly & Sons and others and McElduff and others v. The United Kingdom. Articles copied from Draft Namespace on Wikipedia could be seen on the Draft Namespace of Wikipedia and not main one.

---