Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. Let me set the scene for this case, which has come before the Court by way of a request for a preliminary ruling. We are in Northern Ireland. Public order and personal safety are threatened by disturbances of exceptional gravity. That situation has been recognized by the European Court of Human Rights, which, in a judgment of 18 January 1978, found that it had started in 1970 and described it as the longest, most violent terrorist campaign ever known in the two parts of Ireland. No-one claims that it is over.

2. That directive was implemented in Northern Ireland by the Sex Discrimination (Northern Ireland) Order 1976 (Statutory Instruments 1976 No 1042 (NI 15)). I shall not reproduce the résumé of that Order contained in the Report for the Hearing but merely remind the Court that:

The right to obtain a judicial determination

3. Although the principle of legality is the cornerstone of the rule of law, it does not exclude consideration of the demands of public order. Indeed, they must be accommodated in order to ensure the survival of the State, whilst at the same time arbitrary action must be prevented. Review by the courts is a fundamental safeguard against such action: the right to challenge a measure before the courts is inherent in the rule of law.

4. The Treaty, like the case-law of the Court of Justice, therefore lays down the fundamental rule — a corollary of the principle of legality — that, whilst the demands of public order may be allowed to modify the scope of judicial review, they cannot override the actual right to obtain a judicial determination.

The scope of judicial review

5. If the demands of public order may not justify the abandonment of judicial review, can they, subject to such review, justify measures of the kind taken by the Chief Constable — relating to the carrying of firearms, training in their handling and use and, ultimately, access to employment — the discriminatory character of which is not disputed? That is the outstanding issue before the Industrial Tribunal.

6. The Industrial Tribunal is asking the Court whether, having regard to the special circumstances prevailing in Northern Ireland, measures allowing only men to be

7. A distinction must be made here between discriminatory measures adopted before the enactment of the directive and those adopted after its enactment.

8. The last measure, consisting in the exclusion of women from access to the employment in question, was taken by the Chief Constable after the directive had been enacted. As such, it cannot be covered by Article 3 (2) (c) but only by the other two provisions referred to by the Industrial Tribunal.

9. It remains to examine whether Article 2 (2) may provide a justification which í have not been able to find in Article 2 (3).

10. In view of the generality of the sixth question I think that one last point must be made as regards the direct effect of the provisions of the directive other than those -contained in Article 6, on which I have already given my opinion. This point only arises if the national court should decide that the circumstances relied upon cannot justify the contested measures under Articles 2 (2) or 3 (2) (c). In such a case, the principle laid down in Article 2 (1) of the directive will recover all its force. The sixth question could prompt an examination of the question whether Article 2 (1) has direct effect. However, I do not consider such an examination necessary, since it is not disputed that the principle contained in that provision has been accurately transposed into the national legislation.

1 Translated from lhe French.