62.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.
63.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.
64.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.
65.Section 7(2) repeals the power of a Minister to issue a national security certificate.
Commentary Section 7: National Security