Strasbourg compensates two Northern firms for lack of fair hearing

A Northern Ireland firm of demolition contractors and a Catholic family of self-employed joiners yesterday won compensation in the European Court of Human Rights in Strasbourg.

The case involved a dispute over the alleged discriminatory refusal of contracts to them by the Northern Ireland authorities.

However, although it found that the plaintiffs' rights to a fair hearing in a court or tribunal were infringed in the two related cases, the court passed no judgment on the actual issue of discrimination.

But legal sources say they may now be able to pursue a case on the substantive issue in the Northern Ireland courts.

John Tinnelly and Sons Ltd, a firm of demolition contractors based in Newry and Drogheda, who had been awarded and then denied a contract in 1985 to demolish part of Ballylumford power station, won £15,000 sterling in damages as well as their costs.

The McElduffs - Mssrs Kevin, Michael, Paddy, and Barry - selfemployed joiners of Omagh, Co Tyrone, had their 1990 tender for contracting work in the Department of the Environment's premises accepted initially and then turned down.

This was also supposedly on security grounds. They were awarded £10,000 sterling.

In an important ruling, which is likely to lead to reform of discretionary loopholes in the North's equal opportunities legislation, the ECHR ruled that the right of the authorities to circumvent equality provisions on "security" grounds should be subject to a court or a tribunal.

The Northern Ireland Office (NIO) has already pledged in the Belfast Agreement to review the provisions.

The decision was welcomed by Sir Robert Cooper, head of the Fair Employment Commission, (FEC), which had backed the cases.

He said the FEC had always maintained that Section 42 of the Employment Equality Act did not give people sufficient remedies.

Under the section, certificates can be issued by the Secretary of State declaring the provisions of the Act suspended for unspecified security reasons.

The FEC, then the Fair Employment Agency, had unsuccessfully sought a judicial review of the issuing of the certificate in the Tinnelly case. The McElduffs had been advised that the certificate prevented the FEC from acting on their complaint.

A Northern Ireland Office statement yesterday said the implications of the judgment were being studied but regretted that the UK had been found to be in breach of the European Convention on Human Rights.

"Section 42 certificates have been issued purely to protect sensitive, intelligence-based information on the grounds of national security, public safety, or public order," the statement claimed.

A spokesman said about 40 certificates had been issued since the legislation came into force in 1976.

Tinnellys has maintained that its contract, worth up to £2 million, had been cancelled because of sectarian pressure from trade unions, and that it had supplied the NIO with a list of both Protestant and Catholic workers, none of whom had previously or since been in trouble with the security authorities.

Initially, the Northern Ireland Electricity Services (NIE) had insisted that the contract had been given to a firm which, although more expensive, had greater experience of the sort of work required.

When the FEA decided to investigate the case a certificate under Section 42 was issued. The Northern Ireland High Court subsequently found that although the NIE had acted wrongly towards the FEA in disguising the reasons for its decision, the certificate had not been issued improperly.

A preliminary hearing was told that the McElduff case appeared to have involved mistaken identity by the security authorities.

Both groups of plaintiffs claimed that the certificate procedure denied them their right of access to a court, and had violated their rights to privacy and a good name.

As part of the filtering process of the ECHR, the Commission on Human Rights had earlier found that the complainants' rights had been violated on the first ground and therefore it did not have to consider the other grounds. The court yesterday agreed.

The European Court of Human Rights, based in Strasbourg and attached to the Council of Europe, is responsible for upholding the European Convention on Human Rights in the 40 member-states of the Council.

The court sat as a nine-member chamber which included the British judge, Sir John Freeland.