ABSTRACT

Section 52 of the SDA 1975 and s 42 of the RRA 1976 provide that nothing in the respective Acts ‘shall render unlawful an act done for the purpose of safeguarding national security’. Section 52(2) of the SDA 1975, now repealed, provided that a ministerial signature was to be conclusive proof that an act was done for that purpose. The ECJ in Johnston held that the conclusive nature of such a certificate was contrary to Art 6 of the Equal Treatment Directive, which gives a right to ‘all persons who consider themselves wronged by failure to apply ... the principle of equal treatment ... to pursue their claims by judicial process’. In other words, domestic law may not prevent an individual having access to the courts, even on the purported ground of national security, as there is no national security exception within the terms of the Equal Treatment Directive.125 The Fair Employment (Northern Ireland) Act 1989 had a similar defence, which has been similarly repealed following the ECtHR decision in Tinnelly v UK.126 The blocking, on national security grounds, of a complaint that Catholics were refused public works contracts because of their religious beliefs or political opinions, was in breach of the Convention because it deprived the applicants of their right to ‘a fair and public hearing ... by an independent and impartial tribunal’ under Art 6 of the Convention. Section 42 of the RRA 1976 was amended accordingly with the rider, ‘... if the doing of the act was justified by that purpose’.127 The Sexual Orientation, and Religion or Belief, Regulations 2003128 each contain this modified formula.