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||Neutral Citation Number:  EWCA Civ 999
||Case No: C1/2006/2585
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE STANLEY BURNTON
CO/1557/2006; CO/1559/2006; CO/1932/2006
||Royal Courts of Justice
Strand, London, WC2A 2LL
||24 October 2007
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE DYSON
LORD JUSTICE JACOB
|| THE QUEEN ON THE APPLICATION OF JUNE WRIGHT
- and –
||(1) THE SECRETARY OF STATE FOR HEALTH
(2) THE SECRETARY OF STATE FOR EDUCATION AND SKILLS
Philip Sales QC and Nathalie Lieven QC (instructed by Office of the Solicitor) for the Defendants/Appellants
Martin Spencer QC and Jamie Carpenter (instructed by Helen Caulfield, Legal Department, Royal College of Nursing) for the Claimants/Respondents
Hearing dates : 19th and 20th July 2007
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice May:
- On the 16th November 2006, Stanley Burnton J granted the claimants a declaration under section 4(2) of the Human Rights Act 1998 that section 82(4)(b) of the Care Standards Act 2000 was incompatible with the rights afforded by articles 6 and 8 of the European Convention on Human Rights. The Secretary of State appeals against this decision with permission of the judge who wrote, as I agree, that the issue is one of important principle. There was another issue of statutory construction which the judge decided in favour of the Secretary of State. The claimants appeal against this decision, again with the judge's permission. The judge's judgement is at  ECHC 2886 (Admin) where extended detail, which I shall not need to repeat, may be found.
The Care Standards Act 2000
- Part VII of the 2000 Act introduced for the protection of vulnerable adults the essentials of a listing system which already existed for children under the Protection of Children Act 1999. Part VII of the 2000 Act also made amendments of the 1999 Act.
- The list for the Protection of Vulnerable Adults is referred to as "the POVA list". The list provided for by the Protection of Children Act is referred to as "the POCA list". The central structure of the system under each of the statutory schemes is that care workers or individuals who are included in the lists are prevented from working as carers of vulnerable adults or in a child care position respectively. There is an obvious and unchallenged public interest in having an appropriate system for protecting vulnerable adults and children from the risk of harm from unsuitable carers. It is also necessary that any scheme takes a proportionate account of the rights of those who have worked and wish to continue to work as carers.
- There is extended citation from or summary of sections 80 to 89 of the 2000 Act in paragraphs 6 to 13 of the judge's judgment. In shorter summary, the scheme is as follows.
- The Secretary of State has to keep a list of individuals who are considered unsuitable to work with vulnerable adults. "Vulnerable adult" and "Care worker" are defined in section 80(6) and (2) respectively. Parts of these subsections are not in force so that the definitions are currently limited to those who are provided with personal care in a care home, or in their own home under arrangements with a domiciliary care agency, or under an agreement providing support, care or accommodation; and those whose employment brings them into regular contact with such vulnerable adults. Those parts not in force would extend the definitions to include care in an independent hospital, clinic or medical agency or the National Health Service. This is relevant because it is agreed that the question of Human Rights compatibility arises in relation to the statutory provisions in force; and the restrictions on employment deriving from a person's inclusion in the list are less extensive than they would be if sections 80(2) and (6) were fully in force – see section 89(1),(2) and (5) and the definition of "care position" in section 80(3). In short, an individual who is included in the list is not currently prevented by statute from being employed in a care position by, for example, the National Health Service or an independent hospital.
- By section 82(1) persons who provide care for vulnerable adults have a duty to refer a care worker to the Secretary of State if any of the conditions in sections 82(2) or (3) are fulfilled. These subsections provide as follows:
"(2) The conditions referred to in subsection (1)(a) are-
(a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;
(b) that the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant;
(c) that the provider has, on such grounds, transferred the worker to a position which is not a care position;
(d) that the provider has, on such grounds, suspended the worker or provisionally transferred him to a position which is not a care position but has not yet decided whether to dismiss him or to confirm the transfer.
(3) The condition referred to in subsection (1)(b) is that-
(a) in circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired or the provider has transferred him to a position which is not a care position;
(b) information not available to the provider at the time of the dismissal, resignation, retirement or transfer has since become available; and
(c) the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned or retired, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a)."
- Thus a reference to the Secretary of State under section 82(2) has to be made by the employer of a care worker whose employment has terminated or altered on grounds of misconduct which harmed or placed at risk of harm a vulnerable adult. I shall refer to this as "section 82(2)(a) misconduct". This is not, as Mr Spencer QC for the respondent claimants was inclined to suggest, trivial. If a person caring for vulnerable adults has perpetrated such misconduct, appropriate steps should obviously be taken to protect other vulnerable adults from similar misconduct. Of course allegations of misconduct may be made which are unfounded; and there may be questions in individual cases whether alleged conduct characterised as misconduct was serious enough to have harmed a vulnerable adult or placed him or her at risk of harm. But the care worker's employment is terminated or altered on such grounds before they are referred to the Secretary of State. The reference and subsequent listing, if it occurs, does not itself have this effect if the employment was current immediately before the reference to the Secretary of State was made. The effect of a reference and listing under this subsection in these circumstances is to restrict the individual's ability to obtain future employment. It is also, I think, generally relevant to the application of article 6 of the Convention in particular that the care worker has or had rights against their employer under employment legislation or their employment contract. The court is, of course, concerned in addressing article 6 in the present case with civil rights and obligations which the 2000 Act may determine, to which a care worker's rights against their employer may not be directly relevant. But what is a fair hearing within a reasonable time by an independent and impartial tribunal established by law may be tempered by the context in which the determination of civil rights and obligations comes to be made.
- A reference under section 82(3) is different. The subsection essentially applies to past employment which came to an end for reasons or on grounds which did not relate to section 82(2)(a) misconduct. But the employer subsequently receives information from which he forms the opinion that, if the information had been available at the time, he would have dismissed or considered dismissing the care worker on grounds of section 82(2)(a) misconduct. Here the necessity for a scheme to protect vulnerable adults remains evident, but the need for proportionate safeguards for the care workers against references which turn out to be unfounded may be rather greater. The employer did not dismiss the care worker for section 82(2)(a) misconduct. The care worker retains no relevant employment rights. As will appear, if the care worker is included provisionally on the list, they will lose their present employment if it is in a care position but the misconduct will not have related to their present employment. The information subsequently becoming available from the former employer may be unreliable, as for instance from an elderly or infirm adult of deteriorating mind, or it may even be malicious. The former employer has not relevantly decided to dismiss the care worker or alter their employment. He only has to form an opinion about what he might have done.
- I pause to note that, during the hearing of this appeal, I at one time thought that a possible view might be that provisional listing following a reference under section 82(2) might be Human Rights Act compatible, but that provisional listing under section 82(3) might not be compatible. I note also that I found persuasive the submission of Mr Sales QC, for the Secretary of State, that a declaration of incompatibility should identify the incompatibility in sufficient detail to enable the Secretary of State to see what amending legislation would be necessary to achieve compatibility. The declaration made by the judge in the present case did not do so.
- Section 82(4) requires the Secretary of State first to make a judgment from the information submitted with the reference whether it may be appropriate for the worker to be included on the POVA list. If the judgment is that it may be appropriate, the Secretary of State has to include the worker provisionally on the list pending a determination of the reference in accordance with section 82(5) to (7). The effect of inclusion on the list is that an employer who provides care for vulnerable adults who discovers that an individual employed by him in a care position is included in the list has to cease to employ him in a care position (section 89(2)). A person who provides care for vulnerable adults who proposes to offer an individual employment in a care position has to find out whether the individual is included in the POVA list and shall not offer him such employment if he is (section 89(1)). These provisions apply to individuals who are included in the list provisionally as well as if their inclusion in the list is confirmed. An individual who is included in the list otherwise than provisionally is guilty of an offence if he knowingly works in a care position or applies for, offers to do, accepts or does any such work (section 89(5)). It is anomalous, I think, that section 89(5) does not apply to those who know that they are provisionally included in the list, but nothing turns on the anomaly in this case.
- Inclusion in the list under section 82(4)(b) is the crux of the claimants' case that the legislation is, as the judge found, Human Rights Act incompatible. Provisional inclusion on the list has immediate consequences under section 89 of requiring an existing employer to cease to employ the worker in a care position and of restricting the employment which the care worker may lawfully obtain. It is thus, say the claimants, a determination of their civil rights and obligations within article 6 of the Convention. But they have no right to be heard at this stage before that determination takes effect, and they are not in practice given any such right. This is in stark contrast with the rights of other health professionals in broadly similar circumstances for whom the relevant legislation is summarised in the appendix of the judge's judgment.
- The evidence in the present case is that the Secretary of State habitually takes several months between receiving a reference under section 82(1) and making the decision required by section 82(4). When the legislation first came into operation, there were numerous references which must have accounted for some of the time. The Secretary of State also took steps to obtain further information where this was thought to be needed. A literal reading of section 82(4) could suggest that gathering further information at this stage might be statutorily unnecessary – "… from the information submitted with the reference …" – but it is not suggested that doing this is beyond the Secretary of State's competence. Indeed the evidence shows that a substantial number of cases referred to the Secretary of State under section 82(1) do not result in provisional listing. What is said is that the time in fact taken shows that an urgency to protect vulnerable adults is not in practice apparent and cannot properly be advanced as a reason for not giving the care worker an opportunity to be heard.
- The procedure, if it results in provisional inclusion in the POVA list, has some similarity with an application without notice to a judge for an interim prohibitory injunction. Dissimilarities include that the person who decides is in a sense an interested party, not an impartial tribunal established by law; that the provisional listing does not simply preserve the existing position, as when frozen money remains where it is, but becomes available again if the injunction is lifted; and that there is no undertaking as to damages.
- Mr Sales accepts that a decision by the Secretary of State to include a care worker provisionally on the POVA list would not be procedurally compliant with article 6 of the Convention, if that decision is to be taken alone and if it is a decision of which, taken alone, article 6 compliance is required. He does not, however, accept either of the premises. He further and importantly says that, although the decision alone would not comply procedurally, section 81(3), which he says the judge overlooked, enables a care worker included provisionally on the list to apply to the Secretary of State for his name to be removed from the list. The subsection enables the Secretary of State to do this "at any time" if he is satisfied that the individual should not have been included in the list. An article 6 entitlement to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law is satisfied, says Mr Sales, by the availability of judicial review of a decision by the Secretary of State under section 81(3) not to remove the individual from the list.
- Mr Sales would also submit that judicial review is available of a decision under section 82(4)(b) to include the worker in the POVA list in the first place. Mr Spencer says that this is illusory. The listing under section 82(4)(b) is provisional pending the determination of the reference in accordance with section 82(5) to (7). The procedure under those subsections is a full and proper administrative consideration under which the Secretary of State invites observations from the worker on the information submitted with the reference, and from the provider of the information submitted. The Secretary of State considers this material and any other material which he considers relevant. The Secretary of State then has to confirm the worker's inclusion in the list, if she is of the opinion that the provider reasonably considered the worker to have been guilty of section 82(2)(a) misconduct, and that the worker is unsuitable to work with vulnerable adults. Otherwise the Secretary of State has to remove the worker from the list. This is a proper administrative procedure where both sides are heard. The determinative opinion is that of the Secretary of State that the worker is unsuitable to work with vulnerable adults – this in contrast with section 82(4), where there is provisional listing if it appears that it may be appropriate for the worker to be included in the list. Mr Spencer is correct that at the provisional stage the threshold is not as high as at the later stage. He submits that for this reason, and since provisional listing is followed by and does not comprise full consideration in which both parties are heard, judicial review of a decision under section 82(4)(b) may be discarded as impractical. Further, a claim for judicial review of a decision under section 82(4)(b) by a worker who had not adopted the alternative remedy of applying to the Secretary of State under section 81(3) to remove him from the list would be likely to fail for that reason.
- A claim for judicial review of a decision by the Secretary of State under section 81(3) not to remove an individual from the list could, however, provide an article 6 compliant remedy, but would only be likely to succeed, I think, in cases where the initial reference to the Secretary of State, or possibly the decision under section 82(4)(b), were obviously and demonstrably mistaken. Obviously mistaken identity would be a possible example and there could be others. A claim for judicial review of a section 81(3) refusal would not be likely to succeed in practice, if the claim depended on anything like a contested determination of the full merits of the reference. In such proceedings, the court would be likely to hold that the proper way for the Secretary of State to determine an arguable case was by the procedure in section 82(5) to (7) designed for that very purpose.
- So the crux of the claimants' case is that section 82(4)(b) is not Human Rights compliant because the procedure does not give a care worker against whom there is an arguable case of section 82(2)(a) misconduct a right to make representations before they are included provisionally in the POVA list; and that provisional inclusion in the list terminates their existing employment without recourse if it is employment in a care position, and in any event prevents them from obtaining other employment in a care position. Although other employment may be open to such care workers, many of them may only in truth be suited to the very work from which they are excluded.
- The crux of the Secretary of State's case is that the opportunity to bring judicial review proceedings of a section 81(3) refusal is sufficient to make the legislative procedure as a whole article 6 compliant; that the nature of the social problem which the legislation addresses requires a fair and proportionate balance between the rights and needs of vulnerable adults and the rights of care workers; that a fair final decision cannot be made immediately and without proper investigation; that it is a fair and proportionate legislative decision that vulnerable adults should not be exposed to the risk of harm by care workers against whom there is an arguable case of section 82(2)(a) misconduct while the matter is properly investigated and determined; and that the procedural unfairness complained of is on analysis a matter of legislative substance and therefore not amenable to an article 6 challenge.
- An individual who is included in the list may appeal to the Tribunal established under section 9 of the 1999 Act against a decision to include him in the list or, with leave of the Tribunal, against any decision of the Secretary of State not to remove his name from the list under section 81(3). The Tribunal can hear evidence and operates under procedural rules such that its procedure is article 6 compliant. The Tribunal has to direct the removal of the appellant from the list, if it is not satisfied either that the appellant was guilty of section 82(2)(a) misconduct or that he is unsuitable to work with vulnerable adults – section 86(3), the first of these being more positively expressed than the otherwise comparable provision in section 82(7)(a). These provisions for appeal do not, however, apply to an individual who is included in the list provisionally. The effect of section 86(2) is that an individual who is included in the list provisionally has no right of appeal to the Tribunal until he has been provisionally included for more than 9 months. After the 9 months, he may, with the leave of the Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of the Secretary of State, unless his alleged misconduct is the subject of civil or criminal proceedings. In that event, an application for leave may not be made before the end of 6 months following the determination of the proceedings. Leaving civil or criminal proceedings aside, an individual provisionally included in the list has to wait for up to 9 months for the Secretary of State to make (or fail to make) a determination under section 82(5) to (7) before being able to apply to the Tribunal. This is subject to the possibility of an application under section 81(3) and judicial review of that decision or, the conceivable, but scarcely viable, possibility of applying within the 9 months for judicial review of the Secretary of State's failure to make a decision under section 82(6). The evidence is that in practice the Secretary of State takes most of the 9 month period in most cases.
- The claimants, who have the support of the Royal College of Nursing, come before the court as representative of themselves and others who claim that provisional inclusion on the POVA list under section 82(4)(b) of the 2000 Act is disproportionately unfair so as to infringe their rights under articles 6 and 8 of the European Convention on Human Rights. The case is mounted as a general challenge to the structure of this part of the statute inviting a declaration of incompatibility, rather than a claim that the rights of an individual claimant are infringed.
- The judge briefly described the cases of each claimant in paragraph 2 of his judgment as follows:
"Each of the Claimants was placed on the POVA list provisionally. Mrs Wright was included in the list on the basis of alleged misconduct that pre-dated the coming into force of the statutory provisions. She has appealed against her inclusion in the list to the Care Standards Tribunal, which has stayed her appeal pending the outcome of these proceedings. Mr Jummun was placed on the list provisionally but the Secretary of State decided not to confirm his listing. Mary Quinn and Barbara Gambier were placed on the list provisionally; following representations on their behalf, the Secretary of State decided not to confirm their listing."
- The judge summarised the times taken by the Secretary of State to deal with the claimants' references in paragraph 21 of his judgment as follows:
"In the case of June Wright, the event which fulfilled the qualifying event (i.e., the event alleged to have fulfilled a condition specified in section 82(2) or (3)) occurred at the latest in May 2003. The referral was made on 10 October 2004. She was provisionally listed on 4 February 2005, and her listing confirmed on 22 November 2005, over 9 months later. In the case of Khemraj Jummun, the qualifying event was on 2 February 2003; the referral was on 11 May 2005, over 2 years later; he was provisionally listed on 23 November 2005, over 6 months after referral; and his name was removed from the list on 18 August 2006. In the case of Mary Quinn, the qualifying event was on 25 June 2005; the referral was made on about 30 June 2005; she was provisionally listed on 13 December 2005 (i.e. nearly 6 months after the referral); and on 4 August 2006 she was informed that her name had not been confirmed on the list. The date of Barbara Gambier's qualifying event is not known. She was referred on about 30 June 2005; she was provisionally listed on 30 November 2005, and the Secretary of State informed her too on 4 August 2006 that her name had not been confirmed on the list."
These times and other matters are to be seen in the context of the volume of actual and potential references, which the judge described as follows in paragraph 19 of his judgment:
"There are about 900,000 care workers within the scope of section 80(2) in so far as it is in force. Referrals are running at the rate of about 200 a month. Between the commencement of this Part of the Act in July 2004 and 30 September 2006, 5,224 referrals were made to the Secretary of State. 1,552 persons were provisionally listed in the POVA list; 623 of those persons were removed from the list by the Secretary of State; the listings of 498 persons were confirmed. As at 30 September 2006 the decision of the Secretary of State in the remaining 431 cases was pending. There are about 500 persons whose listing has been confirmed; there are about 2,000 provisional listings. There have been 5 hearings of the Tribunal under Part VII. There are 32 cases pending before the Tribunal. All of these are appeals against confirmed listings; none is an application in respect of a provisional listing."
- The claimants also relied on the facts of the case of Penelope Smith as illustrating what the practical effects of the system established by the 2000 Act could be. The judge described her case as follows in paragraph 18 of his judgment:
"[Penelope Smith] qualified as a psychiatric nurse in 1987. Since 1995 she has specialised in the care of the elderly. In January 2001 she was appointed head of a unit in a care home. In 2001 a project for which she was responsible won the Queen's Nursing Institute and Alzheimer Society's award for "excellence and innovation in dementia care". In October 2004, the home where she worked was sold to Barchester Healthcare Homes Ltd. On 23 May 2005, she was suspended from her job. She had never previously been the subject of disciplinary proceedings or of a grievance. Unknown to her, her employer referred her to the Secretary of State for possible inclusion in the POVA list. The first she knew of this was when she received a letter dated 23 February 2006, informing her that she had been provisionally included in the POVA list and the POCA list. In June 2006 she commenced judicial review proceedings to challenge her listing. In the same month an employment tribunal found that she had been unfairly dismissed, and in July 2006 she was removed from the lists. However, she had been on the list for some 5 months, during which she was unable to work as a nurse in the area in which she had specialised; she was unable to maintain her mortgage payments and lost her home."
The Retrospectivity Issue
- I take this issue first, because I agree with the judge that it has a general relevance to the other and, as I see it, main issue in this appeal. It is a straight and fairly short issue of statutory construction which the judge decided in favour of the appellant for the reasons he gave in paragraphs 22 to 34 of his judgment. By Respondents Notice, the respondents appeal against this decision with the judge's permission. Essentially, the respondents restate in this court the submissions which they made to the judge. The judge found it a most difficult question. However, I am clear that his conclusion was correct for the reasons which he gave. It is not, I think, necessary to rehearse again other than in summary all the material covered by the judge and the reasons he gave.
- The question of construction is whether section 82(10) of the 2000 Act precludes a person who provides care for vulnerable adults from referring a care worker to the Secretary of State under section 82(10) if the dismissal or other alteration of the care worker's employment on the grounds of section 82(2)(a) misconduct took place, or the relevant employer's opinion was formed, before the commencement of section 82. If it does, the Secretary of State could not include that care worker on the POVA list for that reason. The Secretary of State's duty under section 82(4) to include care workers on the list has to derive from the information submitted with a reference under subsection (1). If there can be no reference for dismissal etc. before the commencement of the section, there can be no inclusion in the list.
- Section 81(2) provides that an individual shall not be included in the POVA list except in accordance with Part VII of the Act. The respondents' submission is simply that section 82(1) imposes a duty to refer ("… shall refer …" and see the heading "duty to refer"). It does not also provide a power to refer, short of a duty. Section 82(10) precludes a duty to refer ("Nothing in this section shall require a person who provides care for vulnerable adults to refer …") where the dismissal etc. occurred before the commencement of the section. Section 82(10) therefore restricts a section 82(1) reference to exclude cases where the dismissal etc. occurred before the commencement of the section. The judge considered that on a literal reading of section 82(1), (4) and (10), the respondents' construction would be correct. But he was not persuaded to adopt the literal reading.
- In my view, the judge was correct to reject the literal reading. Section 82(1) should be construed as embracing a power as well as a duty, and section 82(10) as restricting the duty, but not the power. The literal construction verges on the absurd. The plain purpose of this part of the statute would be irrationally truncated if the protection of vulnerable adults by means of the POVA list did not extend to dismissals etc. on the grounds of section 82(2)(a) misconduct before the commencement of the section. Vulnerable adults are just as vulnerable to care workers who may have perpetrated section 82(2)(a) misconduct just before the commencement of the section as to those who may have perpetrated it after its commencement. The respondents' objection that this could take matters unfairly back into the distant past is in part met by the statutory test in section 82(7)(b) in particular and the antecedent requirement in section 82(4) for the Secretary of State to form a judgment that it may be appropriate for the worker to be included in the POVA list. These requirements may not be fulfilled for long past misconduct where, for instance, the worker's conduct towards vulnerable adults may have been entirely satisfactory for a long intervening period.
- I agree with the judge that section 82(10) is placed in the section and expressed in terms that are appropriate to exclude part only of the pre-commencement subject matter. I am not persuaded that the respondents' case receives much support from a presumption that statutes will not have adverse retrospective effect. The respondents accept that section 82(2) and, I think, section 82(3) are not expressed to have temporal limitation. This is a clear indication that dismissal etc. for pre-commencement misconduct may be referred. The natural place for the limitation for which the respondents contend would be in those subsections. Mr Sales is also correct that the material which the Secretary of State may consider is not limited in time.
- I see the force of Mr Sales' submission that this is not in any event legislating to alter adversely matters in the past, but legislating to provide for the future consequences of past events. I note, but do not see great force in, the respondents' submission that care workers who were unfairly dismissed in the past may have refrained from taking proceedings in an Employment Tribunal when they may not have so refrained if they had known that their inclusion on a future POVA list and its consequences would result. Those who may have been dismissed etc. for section 82(2)(a) misconduct would have that blot on their employment record anyway, and those who were unfairly dismissed because they did not perpetrate such misconduct would be likely to wish to establish the unfairness at the time.
- The judge in paragraph 26 of his judgment referred to the decision of this court in Antonelli v. Secretary of State for Trade and Industry  QB 948 and quoted at some length from Beldam LJ's judgment at pages 958-9. This passage provides general support for the Secretary of State's description of the statutory purpose of the 2000 Act in the present case in the context of a submission about retrospectivity. The relevant issue in Antonelli was whether the expression "has been convicted" in section 3(1)(a)(i) of the Estate Agents Act 1979 should be construed as embracing conviction before the inception of the Act. The court, which reviewed authorities about retrospectivity, upheld a decision that it should be so construed. The statutory provisions to be construed did not closely resemble those in the present case, but the decision is generally helpful in the context of statutory purpose.
- The Secretary of State's submission that the relevant parts of the 2000 Act have such close statutory affinity with the Protection of Children Act 1999 that section 82(10) of the 2000 Act should be construed to have the same ambit as the materially identical section 2(10) of the 1999 Act seems to me to be most persuasive. It is true that section 2(1) of the 1999 Act gives a power to "any other organisation", but a child care organisation is, on the literal wording of the subsection only under a duty to refer, and section 2(10), read literally, precludes that duty for dismissals etc. before the commencement of the section. But section 2(1) of the 1999 Act plainly embraces a power within the duty placed on child care organisations, as Mr Spencer for practical purposes accepted. His written submission that the power is to be found in an implicit extension of the words "any other organisation" to include a child care organisation – so that the power would derive from words which are not in section 82(1) of the 2000 Act – ignores the word "other" and is, in my view, untenable.
- Mr Spencer refers to the Consultancy Service Index, which had preceded the inception of the 1999 Act and for which there was no preceding equivalent list or index for the 2000 Act, as a reason why the equivalent provisions of the two statutes should be construed differently. Those included in the Consultancy Service Index were carried forward to be considered for inclusion in the POCA list by section 3 of the 1999 Act. This submission is an extension of Mr Spencer's submission that the 2000 Act should not be given retrospective effect unless it clearly does so. I do not find this persuasive because there seems to me to be little logical connection between precluding a pre-commencement duty to refer, but retaining the power, in the 1999 Act and the pre-existence of the Consultancy Service Index. There may have been a pre-commencement reference for the purposes of the Consultancy Service Index, but that seems to me to be at most neutral on the question whether, after the inception of the 1999 Act, a child care organisation should or should not have a power to refer for pre-commencement misconduct.
- There is some force in Mr Sales' additional references to sections 85, 92, 93 and 96 of the 2000 Act as supporting the judge's construction.
- The judge was puzzled by section 84(3) of the 2000 Act, which Mr Spencer relies on as supporting the respondents' construction of section 82(1) and (10). Section 84 gives the registration authority a discretionary power to refer a care worker to the Secretary of State, if the authority in the exercise of its inspecting functions obtains evidence that a worker has been guilty of section 82(2)(a) misconduct but the worker has not been referred under sections 82 or 83 in respect of the misconduct. Section 84(3) confines the relevant misconduct to misconduct which occurred after the commencement of the section. I do not see that this has much bearing on the construction of sections 82(1) and (10). Section 84 confines a discretionary power, not a duty. Mr Spencer submits that this shows that the draftsman referred to a power when that was intended. The power is obviously supplementary to the powers and duties in sections 82 and 83, and it would be understandable if Parliament thought that the registration authority, which assumed responsibility for regulation and inspection from numerous health and local authorities in April 2002, should concentrate on misconduct after the commencement of the section, so as not to enlarge unduly the ambit of its inspections or investigations. By contrast, a person who provides care for vulnerable adults would more readily know if a past or present worker had been guilty of section 82(2)(a) misconduct.
- Although there are oddities in these parts of Part VII of the 2000 Act, and although I agree with the judge that the drafting transposition of section 2(10) of the 1999 Act to become section 82(10) of the 2000 Act was not done with a keen eye to the precise terms of section 82(1), I do not in the end consider that the two subsections are truly ambiguous, other than to an ardent literalist. Recourse to presumptions, Hansard or ministerial guidance is not therefore, in my view, helpful or necessary.
- I would dismiss the appeal on the Respondents' Notice, noting that the judge's correct construction to some general extent bolsters the respondents' case on the Human Rights issue.
The Human Rights Issue
- As I have said, the crux of the claimants' Human Rights case is that provisional inclusion in the POVA list under section 82(4)(b) of the 2000 Act is procedurally unfair because the care worker has no right under the statute, or opportunity in practice, to be heard before the provisional listing occurs; and because provisional listing results under section 89 in loss of existing employment if it is in a care position and an embargo on obtaining any other employment in a care position as defined. Provisional listing accordingly embraces a determination of the care worker's civil rights and obligations to which article 6 of the Convention is applicable. Article 6 is infringed because the worker does not get any hearing, let alone a fair and public one within a reasonable time. Possibilities of judicial review are not sufficient to achieve compliance with article 6. Article 8 is applicable because loss of employment and reputation consequent on provisional listing so interferes with the worker's private and personal life as to come within article 8(1). This interference is not necessary and proportionate within article 8(2) for the same reasons that the procedure is unnecessary, unfair and disproportionate for the purposes of article 6. There was also a case made under article 1 of protocol 1, which the judge did not decide for the reasons given in paragraphs 68 and 69 of his judgment. This case was not pursued before this court.
The judge's judgment
- The judge upheld the claimants' submissions on each of articles 6 and 8. The respondents submit that he was right to do so for the reasons he gave.
- As to article 6, the judge accepted that provisional listing is temporary and that interim or provisional measures which preserve the status quo do not generally attract the requirements of article 6, because they do not involve a determination of civil rights and obligations. But provisional listing in this statute has a clear and decisive impact on the contract of employment of the care worker in a care position and on the worker's ability to obtain employment in a care position. Article 6 therefore applies. The judge considered the cases before him to be analogous with Zlinsat v Bulgaria (application no. 57785/00, 15 June 2006). He did not consider that the procedure in the 2000 Act or the possibility of judicial review made the procedure compliant with article 6. He said at paragraph 46 of his judgment:
"The care worker who is listed provisionally is unable to make any application to set aside the termination of his employment. So far as the tribunal is concerned, he must wait for 9 months before he can even apply for leave to make an application. Even if an application for judicial review were otherwise a sufficient remedy, all the Administrative Court could do is to quash the decision made provisionally to list the care worker. It would then be for the former employer to decide whether to re-engage the care worker. I see no means of compelling the employer to do so, and Miss Lieven did not suggest that there are. The care worker's employment may be terminated, on the ground of his suspected (but at this stage unproven) misconduct without any opportunity of his being heard. In my judgment, this result brings these cases within the principle enunciated in Zlinsat, and necessarily involves an infringement of the care worker's rights under article 6."
- The judge did not consider that judicial review was an adequate remedy satisfying article 6. The requirement for provisional listing in section 82(4) that "it may be appropriate for the worker to be included in the list" was scarcely amenable to judicial review other than on grounds of blatant mistake. "What the listed person cannot do is obtain a speedy determination of the underlying facts: did he commit the misconduct alleged?"
- The judge did not consider that the fairness of the statutory provision could render the scheme compatible, but he dealt with fairness, justification and proportionality at this stage. He concluded that the scheme for provisional listing was unfair and a disproportionate means of addressing the problem. First, he saw no reason for cases which were not urgent to be decided without the care worker being heard, even though in many cases the worker may be unable to demonstrate that provisional listing is inappropriate. Second, there was, he said, no good reason for not adopting a procedure on the lines of that adopted by Parliament for all other health care professionals, the legislation for which he summarised in his appendix. He considered for instance that a modified version of the scheme for nurses could have been adopted. He accepted however that the need for a procedure for provisional action taking effect before the facts had been fully investigated was obvious and that in some cases action would be required as a matter or urgency. He had seen no assessment whether a provisional suspension scheme, such as those in the appendix, would be adequate. Third, the Act precludes access to the Tribunal for an inflexible 9 months, irrespective of the circumstances of the case. This could not, for every care worker, constitute a fair and public hearing within a reasonable time.
- The judge considered that article 8 of the Human Rights Convention applied because provisional listing directly affected the individuals' ability to earn a living and to provide for themselves and their families; because it affected their standing in their profession and therefore their personal and professional relationships; and because it affected their relationships with vulnerable adults for whom they had cared, and to whom they might return if the provisional listing was not confirmed. He declined to adopt a narrow approach to article 8 and found support for his conclusion in Turek v Slovenia (application No. 57986/00) following Sidabras and Džiantas v Lithunania (applications Nos. 55480/00 and 59330/00) and Rainys and Gasparavicius v Lithuania (applications Nos. 70665/01 and 74345/01). Having concluded that article 8 applied, the judge held shortly that the measures were not justified under article 8(2) for the same reasons as he had concluded under article 6 that the procedure was unfair and disproportionate.
- A human rights challenge such as this tends to over-emphasise the rights of the claimants and to under-emphasise the often balancing rights of other parties, in this case vulnerable adults. It is accepted that vulnerable adults need and are entitled to proper protection from care workers who have been guilty of section 82(2)(a) misconduct. Such proper protection in accordance with law will be necessary in a democratic society for the protection of health or morals or for the protection of the rights and freedom of others and, perhaps, for the prevention of crime under article 8. It is also accepted that what is fair and proportionate procedurally under article 6 may have an eye to a precautionary approach. Specifically, Parliament has provided that, if it appears after preliminary consideration that it may be appropriate for the worker to be included in the POVA list, he should be so included provisionally as a precaution pending determination of the reference. This does not of course mean that everyone referred is provisionally included, and in fact many are not. It does not seem to me that the adoption by Parliament of a precautionary approach of this kind is either objectionable or beyond a proper parliamentary margin of discretion. A rather stronger objection may be, not to a precautionary approach which protects vulnerable adults, but to some of the details of the specific section 89 consequences, which may require termination of the care worker's present employment, rather than, as the judge thought preferable, its suspension. The judge was concerned that the rationale for this had not been explored. But my impression is that it would be much more difficult to impose by statute a suspension of employment on a private care provider than on (say) nurses or doctors employed in the National Health Service.
- This is a case mainly about procedure. Discussion of it sits more comfortably in article 6 and, although article 8 may arguably apply, incompatibility with article 8 will scarcely be established, if the case under article 6 fails. If article 6 does not apply because there is no determination of civil rights and obligations or because in article 6 terms the procedure is fair and proportionate, this goes most of the way to showing article 8 will not be infringed because the measure will be justified under article 8(2). This is the obverse of the judge's conclusion that article 8 was infringed.
- The ambit of the court's consideration is quite narrow. It is confined to the provisional listing stage, and to the question whether there should be an opportunity to be heard before the individual referred is included provisionally on the POVA list. The claimants do not say that, if the Secretary of State reaches the opinion set out in section 82(7) after full consideration under section 82(5) and (6), the consequences under section 89, subject to an appeal to the Tribunal, would offend their rights under the Convention. Their case is limited to provisional listing without the right to be heard.
- A full investigation with each party being properly heard and appropriate information gathered will inevitably take some time. In this context, the 9 months in section 86(2) does not seem to me to be unduly long, nor is it intrinsically inappropriate to postpone appeals to the Tribunal until the Secretary of State has made a full decision. The section 82(4) stage does not envisage full consideration, but, as the parties agree (see paragraph 15 of the judgment), a judgment that there is a real prospect that, after the steps required by section 82(5) have been taken, the Secretary of State will confirm the worker's name on the list. There has to be a properly arguable case for inclusion in the list. In this context, there is a tension between paragraph 48 of the judge's judgment, where he emphasised in the context of possible judicial review that "what the listed person cannot do is to obtain a speedy judicial determination of the underlying facts; did he commit the misconduct alleged?", and paragraph 55, where he said that "the need for a procedure for provisional action, taking effect before the facts have been fully investigated and determined, is obvious".
- I do not think on consideration that delay, whether between the reference and the provisional listing or if most of the 9 month period passes before the Secretary of State makes the decision under section 82(6), can contribute to a decision that the structure of the statute is incompatible with the Convention, regrettable though delay may be in an individual case. Mr Spencer on reflection agreed with this, although he did rely on the fact of delay between reference and provisional listing as indicating that extreme urgency to protect vulnerable adults was not in practice regarded as paramount. Delay before provisional listing does not derive from the structure of the statue. The 9 month period occurs after the events which are relied on as constituting infringement of the claimants' rights. The Secretary of State does not rely on the eventual possibility of an appeal to the Tribunal as constituting a fair and public hearing within a reasonable time by an independent and impartial tribunal for the purposes of the antecedent decision to include the worker on the provisional list, if that decision comprises a determination of civil rights and obligations within article 6.
Grounds of Appeal
- The Secretary of State's Grounds of Appeal against the judge's decision are that the judge was wrong not to hold that:
(1) article 6 is not applicable because a decision to include a care worker provisionally in the POVA list is an interim decision only, which does not amount to a determination of his civil rights and obligations.
(2) if article 6 is applicable, judicial review is a sufficient remedy to make the procedure compliant.
(3) the limitations on judicial review in practice derive from the substantive legal test in section 82(4), rather than from any procedural provision, and so do not fall within the scope of article 6 which is concerned with procedural matters.
(4) in making any decision under section 82(4) the Secretary of State is obliged to carry out any factual investigation required by articles 6 and 8, and the Administrative Court would then have equivalent powers and obligations to carry out such examination of the facts as would be necessary to ensure compliance with Convention rights.
(5) article 8 is not applicable because a decision to include a care worker provisionally on the POVA list does not interfere with the worker's private life in the manner and to the extent required by article 8.
(6) alternatively, if article 8 is applicable, the legislative provisions are capable of being operated in a particular case compatibly with Convention rights under article 8 so that no declaration of incompatibility should be granted.
- I am not impressed with ground 4, nor ground 6 in the terms in which it is here put, any more than was Jonathan Parker LJ impressed with broadly equivalent submissions in International Transport Roth v Secretary of State for Home Department  QB 728 at paragraphs 156 and 157. It seems to me to stretch the language of section 82(4) beyond breaking point, and so as to rewrite it, to say that the Secretary of State, and more particularly the Administrative Court, can and should operate the procedure in an individual case at the provisional stage so as to conduct a full investigatory hearing, if compliance with the Convention requires it. This is not what the Secretary of State on the evidence in fact does, and it is not what the language of section 82(4) taken with that of sections 82(5) to (7) requires. There is however a substantial case that, if article 6(1) is not infringed, interference with article 8(1) right is justifiable under article 8(2), and parts of Mr Sales' submissions under ground 6 have relevance to the Secretary of State's case in relation to article 8.
- That said, I agree with Dyson LJ for the reasons he gives in paragraphs 110 to 117 of his judgment, which I have seen in draft, that if, as he considers, the provisions for provisional listing are an unfair and disproportionate means of addressing the problem of provisional action, section 82(4)(b) should be interpreted by virtue of section 3(1) of the Human Rights Act 1998 as requiring the Secretary of State to give workers the right to make representations before she makes a decision under subsection (b) unless she reasonably considers that the resultant delay would place a vulnerable adult at risk of harm. Such an interpretation would accord broadly with the way in which the Secretary of State has in practice operated section 82(4)(b) in the sense that she has not in many cases taken the provisional decision without seeking information additional to that given in the reference.
- Mr Sales submits that the ECtHR has consistently held that article 6 does not apply to interim orders or other provisional measures adopted before the proceedings on the merits, because they do not as a general rule involve the determination of civil rights and obligations. He refers to X v UK (1981) 24 DR 57 at 61; Jaffredou v France (39843/98); Apis v Slovakia (2000) 29 EHRR CD 105; Carreira v Portugal ECtHR 6 June 2000; Lamprecht v Austria ECtHR 25 March 2004; and Dogmoch v Germany (26315/03). There is little difficulty with this submission, if the interim or provisional decision indeed does not determine anything irreversibly, but merely holds the ring pending a final determination of the merits. Typically this would apply to an interim injunction preventing a party from dissipating assets, especially when it is supported, as in this jurisdiction it usually would be, by an undertaking as to damages. The Court in Dogmoch, reiterating the general position with interim orders or provisional measures, nevertheless noted that the court had exceptionally accepted the possibility of article 6 applying to an interim decision, and cited Markass Car Hire v Cyprus (2000) EHRR 387. This was an admissibility decision, where the applicant complained about the length of the proceedings to set aside an ex parte interim order. There had been conspicuous delay. The decision was that the combined effect of the order and its duration caused irreversible prejudice to the applicant's interests and drained to a substantial extent the final outcome of the proceedings of its significance. Article 6 applied because the interim decision in effect partially determined the right of the parties. The overlay of conspicuous delay in progressing the application to set aside the interim order was the main determining factor.
- Mr Sales submits that the decision to include a care worker provisionally in the POVA list should properly be considered as an interim decision which does not prejudice the final decision. That so far as it goes is correct. He submits that there will be few cases where, by virtue of section 89, there will be irreversible prejudice and that the four claimants have not individually shown such prejudice. Penelope Smith is not a claimant. The claimants are not, he says, entitled to a declaration of incompatibility because it is not open to a claimant, in whose case article 6 does not apply, to say that there may be an extreme case (not his own) in which article 6 might apply, and to ask for a declaration of incompatibility for the other hypothetical case. Mr Sales relies on Lancashire County Council v Taylor  1 WLR 2668 at paragraphs 38-44. The essence of this part of the court's decision was that a Human Rights Act claimant must be a victim within section 7 of the 1998 Act; that members of the public should not use the Act or the Convention to attempt to have changed legislation which they consider to be incompatible, but which they are not adversely affected by; and that in any event the court's power to make a declaration of incompatibility is discretionary. I am not sympathetic with the further reaches of this submission in the present case. The claimants are, to the extent that they are, representative. Mr Spencer tells us that no objection was taken before the judge to the case of Penelope Smith being regarded as illustrative of cases which the claimants represent. The facts of her case at least show that the structure of provisional listing might in an individual case result in irreversible prejudice, although I am not convinced that her case actually does show this. The claimants may show that article 6 is capable of applying in some real, not hypothetical, cases. I am more sympathetic to a submission that, if in those cases article 6 would be infringed (which remains for consideration), that should nevertheless not result as a matter of discretion in a blanket declaration of incompatibility.
- In Zlinsat v Bulgaria, which the judge found helpful, the performance of a contract for the privatisation of a hotel was suspended on the order of the Sophia Public Prosecutor's Office. The court held that the civil limb of article 6 applied, because the suspension of the performance of the contract and the eviction of the applicant company from the hotel had a clear and decisive effect on its ability to use and operate it, which was undoubtedly the exercise of a civil right. Mr Sales submits that this decision was akin to a final order. Provisional listing under the 2000 Act is, he says, more akin to a true interim decision.
- In my view, the judge was right to conclude that, at least in some cases, article 6 may be capable of applying to the scheme for provisional listing under section 82(4) of the 2000 Act. As part of the process of determining whether the care worker should be included in the POVA list, provisional listing is an interim measure which does not finally or irreversibly determine the question whether the worker should be included in the list. But provisional listing may have other consequences in some cases. Care workers who are, when they are provisionally included in the list, employed in a care position will lose that employment. That would be a determination of civil rights and obligations. Mr Sales accepted in his reply that article 6 applied in the case of Mary Quinn.
- As I understand the facts, Penelope Smith does not come within this category. She had been suspended from her job 8 months before she was told that she was provisionally included in the POVA list and she was engaged in proceedings in the Employment Tribunal. Workers who are not employed in a care position when they are included in the list provisionally do not lose their existing employment. They are not wholly prevented from seeking employment, although the employment they may undertake is restricted. In some extreme cases, that may make them unemployable, but I do not understand any of the claimants to be or represent such a person. Further, any difficulty in obtaining employment may derive from the fact that they have an employment history of alleged section 82(2)(a) misconduct, not from their provisional inclusion in the list. I am not clear exactly where Penelope Smith would stand in this part of the decision. Between February and July 2006, she was legally disentitled from obtaining employment in a care position because she was provisionally on the POVA list. But it is not clear whether that was the true cause of her unemployment during that period. However that may be, it seems to me on a rather fine balance that the restrictions in section 89 of the 2000 Act from obtaining employment in a care position during provisional listing could in some cases be a determination of civil rights and obligations.
Grounds 2 and 3
- Mr Sales submits that it is well established that decisions which determine civil rights and obligations may be taken initially by the executive, provided that they are subject to review by an independent and impartial tribunal which exercises full jurisdiction; and that decisions by administrative authorities whether a person is a fit and proper person to pursue a particular activity come within the scope of this principle. The principle, he says, applies in the present case, so that judicial review constitutes sufficient compliance with article 6, if that article applies. The practical scope of judicial review may be limited, but that derives from the nature of the decision and its statutory substance.
- Bryan v United Kingdom (1995) 21 EHRR 342 was a planning case in which an inspector's decision about an enforcement notice had been reviewed by the High Court. The applicant complained that the review was insufficient to comply with article 6(1). The ECtHR held that the impugned planning decision involved a determination of the applicant's civil rights within article 6(1); that the proceedings before the inspector ensured the applicant a fair hearing; but that the inspector was not an independent and impartial tribunal. However, there is no violation of article 6(1) if proceedings before an adjudicatory body are subject to control by a judicial body that has full jurisdiction. The appeal to the High Court did not embrace all aspects of the inspector's decision. There was no rehearing and the court could not substitute its own decision on the merits. But the full range of grounds upon which judicial review might be granted was available. It was also necessary to have regard to such matters as the subject matter of the decision appealed against, the manner in which it was arrived at and the content of the dispute including the desired and actual grounds of appeal. In the circumstances, the scope of review by the High Court was sufficient to comply with article 6(1).
- Bryan was extensively considered and applied in R.(Alconbury) v Secretary of State for Environment, Transport and the Regions  2 AC 295, where the House of Lords held that judicial review of planning decisions by the Secretary of State in a called in application or a recovered appeal was sufficient to ensure compatibility with article 6(1) even though there was no review of the merits. Lord Slynn of Hadley said at paragraph 45 that judgments of the ECtHR show that the question whether there is sufficient jurisdictional [s.c. judicial] control by a judicial body which has full jurisdiction is not a mechanical one. It all depends on the circumstances. Lord Hoffmann said at paragraph 87 that European authority shows that "full jurisdiction" does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires - see also Lord Clyde at paragraph 154.
- In Runa Begum v Tower Hamlets London Borough Council  2AC 430, the House of Lords held that the county court's appellate jurisdiction under section 204 of the Housing Act 1996, exercising the normal judicial review jurisdiction of the High Court, was sufficient to satisfy the requirements of article 6(1) in respect of an administrative internal review by an officer of the council under section 202 of the 1996 Act. The court applied Bryan and Kingsley v United Kingdom (2002) 35 EHRR 177, a case which reaffirmed Bryan (see paragraph 32 of the judgment quoting from the decision of the Chamber of the ECtHR), although the actual decision was that article 6(1) was infringed for other reasons. In paragraph 11 of Runa Begum, Lord Bingham of Cornhill referred to a number of Strasbourg cases in relation to the requirements of article 6(1) as showing a degree of flexibility in the court's search for just and workmanlike solutions. In paragraph 43, Lord Hoffmann said that utilitarian considerations have their place when it comes to setting up, for example, schemes of regulation and social welfare; and that in determining the appropriate scope of judicial review of administrative action, regard must be had to democratic accountability, efficient administration and the sovereignty of Parliament. Lord Hoffmann said at paragraph 53 with reference to "the great principle which Bryan decided" (see paragraph 51) that in cases such as that before the House a limited right of review on questions of fact was sufficient. He noted at paragraph 56 that Bryan and Kingsley described cases in which a limited review of the facts was sufficient as "specialised areas of the law" and "classic exercise of administrative discretion". The notion of a specialised area of law should not be taken too literally. He considered that what the Court had in mind was those areas of law such as regulatory and welfare schemes in which decision making is customarily entrusted to administrators; and, as in Kingsley, cases in which the ultimate decision was whether Mr Kingsley was a fit and proper person for a gaming licence. He referred, in paragraph 57, to the need for adequate judicial review, for which purpose Bryan and Kingsley make clear that limitations on practical grounds on the right to a review of findings of fact will be acceptable. Lord Millett expressed the opinion, at paragraph 105, that the subject matter of the decision and the content of the dispute demanded that the decision be made by an administrative officer with experience of local housing conditions, subject to a proper degree of judicial control; and that a right of appeal to the court on law only was sufficient for this purpose.
- Essentially the same principles have been applied by the European Commission of Human Rights in cases where the issue was whether the applicant was a fit and proper person to practice as a doctor (Stefan v United Kingdom (1997) 25 EHRR CD 134) or as a chief executive of an insurance company (X v United Kingdom (1998) 25 EHRR CD 88).
- Mr Sales points out that the judge in the present case did not refer to the possibility of judicial review of a decision of the Secretary of State on an application under section 81(3), nor to Runa Begum. By contrast, in R (Malik) v Waltham Forest Primary Care Trust  EWHC 487 (Admin), Collins J held that, if article 6 had applied to the suspension of a doctor, the principle in Runa Begum was applicable so as to render the doctor's suspension compatible with article 6. The interim suspension was akin to an administrative act designed to hold matters pending final determination, and judicial review may suffice to make the procedure compliant with article 6. This is particularly so where there is no requirement to find facts, but only to be satisfied that there is credible material which justifies the interim suspension. The reviewing court would interfere if the Primary Care Trust could not properly have decided as it did.
- The circumstances in Malik are reasonably close to those in the present case. Although, as Stanley Burnton J said, it would not be possible at the provisional listing stage for the care worker to obtain a speedy judicial determination of the underlying facts, the statutory scheme does not envisage or require such a determination at that stage. Mr Sales submits that, once it is appreciated that the substantive statutory test at this stage is precautionary and akin to that of reasonable arguability, the practical limits to the role of a reviewing or appellate court are not to the point. The court still has full power and jurisdiction to see that the appropriate statutory substantive test has actually been applied.
- Mr Spencer relied on the admissibility decision of the ECHR in Tsfayo v United Kingdom (application no. 60860/00) as indicating that the Bryan composite approach was inappropriate in the present cases. The applicant's claim for back-payment of housing benefit was rejected because the Council's Housing Benefit Review Board found that she had failed to show good cause why she had not claimed benefit earlier. She was refused leave to apply for judicial review in part because the court considered that the HBRB's decision was neither unreasonable nor irrational. The ECHR did not review the merits of the finding. The court held that her rights under article 6(1) were infringed because the HBRB was not independent and the High Court had no power to investigate the facts. The Bryan line of cases was distinguished on the basis that the issue was one of fact requiring no specialised professional knowledge or experience nor the exercise of administrative discretion pursuant to wide policy aims. Mr Spencer submits that the present case is closer to Tsfayo than those relied on by the Secretary of State. I do not think so. The submission assumes that the decision at the stage of provisional listing is one of fact required to be taken upon full contested evidence. But it is not. It goes no further than a judgment whether there is a reasonably arguable case.
- Mr Spencer points to the fact that three of the claimants and Penelope Smith were not confirmed on the list. Judicial review, he says, is not adequate because, even if the claim for judicial review succeeds, provisional listing can have an immediate effect. There will still have been a period during which the care worker was banned from working in a care position. He says that there is inherent unfairness because the threshold for provisional listing is low. If the threshold is reached, provisional listing is obligatory. It is mandatory for a care provider to refer all cases which fall within the wide statutory definition. The system catches all cases, not just the serious ones. The decision is taken without the worker having an opportunity to be heard.
- Mr Spencer submitted in writing that, if the three claimants whose listing was not confirmed and Penelope Smith had been able to make representations at an article 6 compliant hearing, it must be supposed that they would all have shown that there was insufficient evidence to justify provisional listing. But that presupposes a full hearing to determine the merits, which a precautionary provisional scheme cannot accommodate and which the statutory provisional test would not address. Mr Spencer accepts that precautionary steps must be taken at least for serious cases and that a system of POVA listing has a legitimate purpose and might be proportionate. This scheme was not proportionate because it did not distinguish between the serious and the trivial. He was inclined to suggest that serious cases would take care of themselves, for example by means of the criminal law.
- Mr Sales responded to these submissions by saying that the scheme comprises a reasonable precautionary approach. Section 82(2)(a) misconduct is by definition serious, and no such conduct will be trivial. Although all relevant cases need to be referred, the test in section 82(4) provides a filter both in law and in the way in which it is in fact operated, so that only the reasonably arguable serious case results in provisional listing.
- In my judgment, Mr Sales' submissions, with reference to the authorities to which I have referred, are persuasive, although they do not alone entirely dispose of the claimants' article 6 case. In so far as article 6(1) may apply in a particular case, the statutory test in section 82(4) does not require a final determination of facts. Judicial review of a section 82(4) decision or of an adverse decision under section 81(3) is available. The court upon such a claim for judicial review would have "full jurisdiction" in the sense discussed in the authorities and it would be no objection to this that the court could not review the facts on their merits. The court would be fully able to decide whether the statutory test had been properly applied. To this extent, the statutory scheme does not infringe article 6 because the care worker is entitled to a sufficient public hearing by an independent and impartial tribunal.
- It remains to consider whether the scheme is fair even though the care worker is not entitled to be heard or make representations to the Secretary of State at this provisional stage. Mr Sales submits that article 6(1) is concerned with procedural fairness, not fairness of substantive law; and that article 6(1) does not guarantee any content to legal rights and imposes no obligation on the state to confer any particular civil right. He refers to Home Secretary v MB  3 WLR 839 at paragraph 36 and Matthews v Ministry of Defence  1 AC 1163 at paragraph 3, which justify these propositions. Accordingly in considering procedural fairness under article 6(1), the court must take the relevant statutory substance as it is. The relevant statutory substance is that the Secretary of State has to apply the test in section 82(4) of whether it may be appropriate for the worker to be included in the list, that is whether there is a reasonably arguable case to that effect. This being the nature of the decision, the question then is whether the decision can fairly be taken without the care worker being heard at this stage. The context is that derived from section 82(2) or (3), that the worker has been dismissed etc. on the grounds of section 82(2)(a) misconduct, or that a former employer has formed the opinion on subsequently acquired information that, had he known, he would have dismissed the worker on such grounds. In these circumstances, I am not persuaded that the procedure is unfair because, at this provisional stage, the care worker has no right to be heard. The care worker has access to the court if the provisional decision is unsustainable in judicial review terms. That access is broadly equivalent to the ability of the recipient of an ex parte injunction to apply to the court for the injunction to be discharged. The fact that it may be supposed that such applications may succeed only rarely derives from the nature of the statutory test, not from the fact that the worker did not at that stage have a right to be heard. I again note that Penelope Smith appears to have succeeded in having her name removed from the POVA list after she had succeeded in the Employment Tribunal, not because she would before that have been able to demonstrate, if she had had the opportunity, that she should not have been on the list in the first place.
- Compliance with or infringement of article 6 in particular seems to me to require a composite judgment. Dissecting it into parts may be helpful for analytic presentation, but the eventual judgment is an amalgam of the parts and their relevant considerations. A precautionary approach is obviously necessary in the present case and in the round justified. The test for provisional listing enacted by Parliament, more substantive than procedural, is an appropriate precautionary test for the provisional stage. It is open to the provisionally listed care worker to challenge the provisional listing by judicial review, or to apply to the Secretary of State under section 81(3) to remove their name from the list and to apply for judicial review of an adverse decision, if they have a knock out reason for saying that the provisional listing should not have been made. The fact that the procedure as a whole does not entitle the worker to make submissions at the provisional listing stage may be seen as fair. A provisionally listed worker who can quickly establish mistaken identity or who can show that their dismissal was judged to be unfair by an Employment Tribunal (as with Penelope Smith) does have an independent judicial remedy. Those who may not have this remedy are those against whom there is a reasonably arguable case that they have perpetrated section 82(2)(a) misconduct and for whom there is a real prospect that the Secretary of State will after due process confirm their inclusion on the list. The adverse consequences of this result from the proper need to adopt a precautionary provisional approach and from the statutory test which Parliament within its proper margin of discretion has decided should result in provisional precautionary safeguards for vulnerable adults.
- For these composite reasons, I conclude that the claimants do not establish that the structure of section 82(4) is incompatible with article 6(1) of the Convention. I would therefore not make a general declaration of incompatibility with article 6(1) and I think the judge was wrong to do so. I take into account in reaching this conclusion that there are other broadly comparable statutory schemes, referred to in the judge's appendix, which have a different structure. But, as Mr Sales submits, the existence of different schemes does not by itself make this scheme incompatible; and the scheme for care workers is very similar to the scheme for the protection of children.
Grounds 5 and 6
- Mr Sales submits that article 8(1) is not applicable; or that, if it is, it is not infringed. I have already indicated that I do not see how the claimants can readily succeed to resist justification under article 8(2), if they fail under article 6(1). Their case is that any interference with their private lives is unnecessary and disproportionate in a democratic society because the procedure which denies them a right to be heard at the provisional listing stage is unfair. As Mr Spencer wrote with reference to article 8, the issue at stake is whether provisional listing in the manner provided for in the 2000 Act is necessary in a democratic society, there being no dispute but that it pursues a legitimate aim and is in accordance with the law. Central to that issue is whether the measure is proportionate to the aim it seeks to pursue, and in particular whether the decision making process is fair. If the respondents' rights under article 6 are infringed, it is almost inevitable, he says, that their rights under article 8 have also been breached. The judge upheld the respondent's resistance to article 8(2) justification because he had found in their favour under article 6(1) – see paragraph 66 of the judgment.
- In my view, a scheme for the protection of vulnerable adults from the risk of care workers who have been guilty of section 82(2)(a) misconduct is plainly necessary in a democratic society in article 8(2) terms. Mr Spencer does not submit otherwise. There are no features of the 2000 Act scheme which are put forward as being unfair or disproportionate other than the procedural matters which I have discussed, and the consequences of provisional listing for which section 89 provides. If I am correct that the scheme for provisional listing is procedurally fair so as to comply with article 6(1), the structure of the legislation as a whole is that a necessary and proportionate scheme for provisional listing embracing a fair procedure which complies with article 6(1) results in vulnerable adults being protected by the mechanism in section 89 from care workers against whom there is a reasonably arguable case of section 82(2)(a) misconduct. The only point then available to the claimants would be that obligatory termination of their employment in a care position (if they are so employed at the time of listing) would be unnecessary and disproportionate, when suspension would be less draconian. I have already indicated scepticism whether legislation could require a private care organisation to suspend a care worker. However that may be, it seems to me to be well within the margin of parliamentary discretion to put in place the section 89 provisions rather than something slightly less intrusive. As I said in relation to article 6, in many cases adverse employment consequences will already have occurred, if the care worker is dismissed etc. on the grounds of section 82(2)(a) misconduct. These consequences may well not result, if they do result, from the provisional listing.
- If therefore article 8(1) were to apply to the facts of any individual case, there would be justification under article 8(2) and a declaration of incompatibility should not be made under that article. It is not therefore in my view necessary to determine whether article 8 applies – or, to put it shortly, whether this is a case more akin to Sidabras v Lithuania or to Turek v Slovakia.
- For these reasons, I would allow the appeal and quash the judge's order.
Lord Justice Dyson:
- As interpreted and applied by the Secretary of State, section 82(4)(b) of the Care Standards Act 2000 ("the CSA") requires him to include a care worker in the POVA list (if it appears from the information submitted with a reference under subsection (1) that it may be appropriate to do so) without first giving the worker an opportunity to make representations. Before the judge, it was not disputed that this is the correct interpretation, but he held that the denial of the opportunity to make representations renders the statute incompatible with article 6 of the European Convention of Human Rights ("ECHR").
- In disagreement with May LJ, I consider that article 6 is engaged in all cases when a worker is included provisionally in the POVA list; and the denial of the right to make representations is a breach of the worker's article 6 rights, which is not made good by the fact that there is an opportunity (i) to seek to persuade the Secretary of State to remove the worker from the list under section 81(3); (ii) to seek judicial review of a decision to include the worker in the list or a refusal to remove the worker from the list; and (iii) to appeal to the Tribunal under section 86.
- I agree with May LJ (although for different reasons) that the judge was wrong to grant a declaration of incompatibility under section 4 of the Human Rights Act 1998 ("the HRA"). I consider that the CSA can and should be read and given effect in a way which is compatible with article 6 so as to require the Secretary of State to give the care worker an opportunity to make representations before he or she is included in the POVA list, unless to give such an opportunity would expose vulnerable adults to the risk of harm.
Is article 6 engaged?
- This issue turns on whether the provisional inclusion of a worker in the POVA list is a determination of civil rights within the meaning of article 6(1) of the ECHR. Mr Philip Sales QC concedes that the inclusion of Mary Quinn was such a determination because, by virtue of section 89(2) of the CSA, the effect of the provisional inclusion in the list in her case was that she lost her employment. None of the other three claimants was in employment at the time of being provisionally included in the list. By virtue of section 89(1)(b), the effect of inclusion in their case was that they could not be offered employment in a care position mentioned in sections 80(2)(a) or (c) while they remained on the list. Mr Sales accepts that the termination of employment is a determination of civil rights, but submits that a decision whose effect is that an unemployed person may not be offered a particular type of employment is not.
- At first sight, this seems an unpromising distinction. From the point of view of the worker, the critical consequence of being included in the list is that he or she is not allowed to work as a care worker in a particular care position. The decision to include a worker in the list determines his or her ability to work as a carer whilst included in the list.
- The response of Mr Sales is that the case law of the ECtHR shows that article 6 does not apply to proceedings relating to interim orders or other provisional measures adopted prior to proceedings on the merits, since the very provisional or temporary nature of such measures as a general rule cannot be regarded as involving the determination of civil rights and obligations within the meaning of article 6. Thus, submits Mr Sales, the determination of Ms Quinn's employment is a determination of her civil rights, because the determination is once and for all: it is not an interim or provisional measure. On the other hand, a decision whose effect is to deny the care worker the opportunity of working in a care position whilst included in the list is an interim measure pending a final determination under section 82(5) to (7).
- The general rule that a provisional decision does not involve a determination of civil rights is not in doubt. It has been asserted in a number of cases, such as X v UK (1981) 24 DR 57,61; Jaffredou v France (39843/98); Apis v Slovakia (2000) 29 EHRR CD105; Carreira v Portugal (decision 6 June 2000). But if an interim decision has or is capable of having a seriously detrimental effect on the party affected by it, then it may involve a determination of civil rights. Whether it has this effect is a question of degree. Thus, in Markass Car Hire v Cyprus (2002) EHRR 387, the ECtHR said that the interim decision "partly coincided with the main action and, unless reversed by the appeal court within a short time-limit, was to affect, as it did for a substantial period, the legal rights of the parties". The court could not overlook the "drastic character of the interim decision". The combined effect of the measure and its duration caused "irreversible prejudice" to the applicant's interests and drained to a substantial extent the final outcome of the proceedings of its significance.
- In Zlinsat v Bulgaria (application 57785/00, 15 September 2006), the ECtHR held that a decision by the Sofia City Prosecutor's Office to suspend the performance of a privatisation contract and the eviction of the applicant company from a hotel "had a clear and decisive impact on its capability to use and operate it". For that reason, the decision was a determination of civil rights so as to engage article 6.
- There is no doubt that a final decision to suspend a person from a position is a determination of civil rights. In Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, the ECtHR held (para 49) that the suspension for 3 months of a medical practitioner did involve a determination of civil rights. It constituted a "direct and material interference with the right to continue to exercise the medical profession." The fact that the interference was temporary did not prevent it from impairing that right.
- In R(Malik) v Waltham Forest PCT  EWHC 487(Admin), there was a challenge by a general medical practitioner to the lawfulness of his suspension from practice for 6 months. He claimed that the suspension had been effected in breach of article 6. Collins J decided that article 6 was not engaged. He distinguished Le Compte v Belgium on the grounds that the suspension in that case was a final order. More fundamentally, he held that a crucially important point was that the claimant in the case before him was suspended on full pay. It was for that reason that the general rule that interim measures do not engage article 6 should prevail (para 32).
- As I have said, the existence of the rule that interim decisions generally do not engage article 6 is not in doubt. The paradigm case is an order which preserves the status quo pending the final determination of a dispute between litigants. But from the point of view of the doctor who is suspended from practice, it makes no practical difference whether he or she is suspended for 3 months pending a final decision or is simply suspended from practice for 3 months. Either way, the doctor cannot practice for 3 months. It would be strange if article 6 were to be engaged in the one case and not in the other. The fact that it was held in Le Compte v Belgium that a 3 months' suspension does engage article 6 suggests that a 3 months' suspension pending a final determination would also engage article 6.
- In my view, the judge was right to conclude that a decision to include a worker in the POVA list engages article 6 in all cases. The consequences of being provisionally included in the POVA list can be seriously detrimental for the care worker. Whilst on the list, he or she may not be offered employment in a relevant care position and if employed in such a position, his or her employment is not even suspended, still less suspended on pay: it is terminated immediately. There is no requirement that, if at the stage of final determination, the care worker is removed from the list, he or she must be offered the previous employment. In my judgment, the provisional inclusion of a care worker in the list can have a clear and decisive effect on the worker. To use the language of Markass, the decision to include in the list is potentially one of a drastic character which may cause irreversible prejudice to the worker.
- In determining the effect of the provisional inclusion of a care worker in the list, it is necessary to have in mind that the CSA does not impose any time limit within which the Secretary of State must make the final determination under section 82(4)(a) and the worker may not appeal against his or her provisional inclusion in the list for 9 months (section 86(2)), although I accept that the possibility of an application to remove under section 81(3) and judicial review should not be overlooked. The appeal process may take some time. It follows that there is inherent in the statutory scheme the real possibility that a care worker may be provisionally included in the list for more than 9 months and unable to take on work in a care position during that period. It is true that they may be able to take on other work during the period, although it is likely that their prospects of obtaining employment whilst they are included in the POVA list will be reduced by the very fact of their inclusion in the list.
- I accept that the degree of prejudice caused to the care worker will depend on the facts of the individual case. Relevant factors will include whether the worker has been able to obtain suitable alternative employment in the meantime and the time taken to obtain a final decision from the Secretary of State or the Tribunal. But in my judgment, the inclusion of a worker in the POVA list has the potential to cause serious prejudice to a worker in all cases. The amount of prejudice caused in any individual case may not become clear for some time and until after (possibly time-consuming) investigations have been conducted. In my judgment, the question whether article 6 is engaged should not be decided by examining on a case by case basis the actual effect of provisional listing on an individual worker. The better approach is to recognise that provisional listing has the obvious potential to cause serious prejudice to workers in all cases and to hold that article 6 is engaged in all cases.
Breach of article 6(1)
- The next question is whether a failure by the Secretary of State to give the worker the right to make representations before he or she is included in the POVA list amounts to a breach of article 6(1). The critical issue here is whether the requirement that there be a "fair and public hearing" is infringed. It is axiomatic that the right to a fair hearing usually requires that a person affected by the decision to be made should be given a reasonable opportunity to deal with the case that is put against him or her. I do not understand this to be controversial.
- Mr Sales relies on the well-established principle that decisions which determine civil rights and obligations may be taken at first instance by the executive, provided that the decisions are subject to a fair and public review by an independent and impartial tribunal which exercises "full jurisdiction": Bryan v United Kingdom (1995) 21 EHRR 342, R(Alconbury) v Secretary of State for the Environment, Transport and the Regions  2 AC 295, and Runa Begum v Tower Hamlets LBC  UKHL 5,  2 AC 430.
- He relies in particular on the line of cases in which decisions by administrative authorities on the question whether a person is a fit and proper person to pursue a particular activity or calling have been held by the Strasbourg organs to fall within the scope of the principle in Bryan v UK. In Stefan v United Kingdom (1997) 25 EHRR CD 134, the ECommHR held that the availability of an appeal to the Privy Council on the grounds of an error of law provided sufficient compliance with article 6(1) in a case concerned with findings by the Health Committee of the General Medical Council ("GMC") that the fitness of the applicant to practise as a doctor was seriously impaired. The GMC was not itself an independent and impartial tribunal. The nature of the applicant's challenge to the findings of the decision-making body was no impediment to the application of the Bryan composite approach.
- In X v United Kingdom (1998) 25 EHRR CD 88, the ECommHR held that the availability of judicial review provided sufficient compliance with article 6(1) in a case concerning an order imposed by the Secretary of State preventing a chief executive of an insurance company taking up his post, on grounds that he was not a fit and proper person, after a hearing by civil servants on the Secretary of State's behalf, which addressed accusations made by the Secretary of State against the individual and went into issues of contested fact. The Commission concluded (as in Stefan) that the complaint of breach of article 6(1) was manifestly unfounded even though the decision made by the civil servants related primarily to issues of disputed fact rather than policy considerations. They did, however, describe the subject-matter of the decision appealed against as a "classic exercise of administrative discretion".
- The decision on which Mr Sales places particular reliance is Kingsley v United Kingdom (2002) 35 EHRR 10. The Gaming Board proposed to cancel the applicant's "certificates of approval" to run a casino on the grounds that he was not a "fit and proper person" to hold one. The applicant complained that he had been deprived of a hearing before the Board, and that the review by the High Court could not remedy the matter because of the restricted nature of judicial review. An important feature of the case was that one member of the Gaming Board had already, in advance of hearing the applicant's case, publicly expressed the view that the applicant was not a fit and proper person and it transpired that privately all members of the Board had committed themselves to this view before the hearing. The applicant's certificates of approval were revoked. He sought judicial review. The application was dismissed because the doctrine of necessity applied so as to tie the hands of the reviewing courts. The ECtHR held that there had been a violation of article 6(1) because the courts were unable to remedy the decision although the applicant had established a real risk of bias on the part of the Board. But in the context of a case turning on disputes of fact, the court confirmed the applicability of the Bryan composite approach. Once again the subject-matter of the decision appealed from was described as a "classic exercise of administrative discretion". But for the problem created by the doctrine of necessity, there would have been no breach of article 6(1). In particular, the fact that the court on an application for judicial review cannot substitute its own findings of fact for those of the body whose decision it is reviewing does not matter even in cases which turn on disputes of fact. In that case, the question whether or not the applicant was a fit and proper person turned entirely on the truth of allegations by the Board that he had been involved in various undesirable practices.
- The scope of the Bryan principle was considered in detail by the House of Lords in Runa Begum. The applicant rejected housing accommodation as being unsuitable because the area was characterised by drug problems and racism, she had been attacked by two youths shortly after viewing the property and her estranged husband frequently visited the building. An internal review was conducted by a local housing officer, who concluded that the accommodation was suitable. She was satisfied that there were no serious drug or racial problems in the area and was not persuaded that the applicant had been the victim of the alleged robbery or that her relationship with her husband made it intolerable that she should risk meeting him in the vicinity of the property. The applicant appealed to the county court on a point of law. It was argued that an appeal on a point of law did not give the court "full jurisdiction" and that for that reason there was a breach of article 6. Lord Hoffmann gave the leading opinion. At para 42, he said:
"42. A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions (such as licensing or granting planning permission) or administering schemes of social welfare such as Part VII. The rule of law rightly requires that certain decisions, of which the paradigm examples are finding of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government. This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators. Nor is the possibility of an appeal sufficient to compensate for lack of independence and impartiality on the part of the primary decision maker: see De Cubber v Belgium (1984) 7 EHRR 236.
43. But utilitarian considerations have their place when it comes to setting up, for example, schemes of regulation or social welfare."
- At para 52, Lord Hoffmann said that in that case the subject-matter of the decision was the suitability of accommodation for occupation by the applicant: "the kind of decision which the Strasbourg court has on several occasions called a "classic exercise of an administrative discretion"".
- Mr Sales submits that these observations have real application in the present case. The decision whether or not it "appears from the information submitted to him…that it may be appropriate for the worker to be included in the list" is a classic exercise of administrative discretion of the kind customarily entrusted to those who are charged with performing regulatory functions. He submits that any provisional findings of fact (for example, about misconduct) are merely what Lord Bingham of Cornhill described in Runa Begum (para 9(2)) as "staging posts on the way to the much broader judgments which the authority has to make". The fact that in judicial review proceedings the court does not have power to substitute its own findings of fact in such cases does not mean that it does not have "full jurisdiction".
- Mr Sales submits that the decision made by the Secretary of State provisionally to include a care worker in the list is analogous to the decisions made in cases such as Stefan, X and Kingsley. He also submits that Collins J was right to say (obiter) in Malik that examined as a whole, the procedure in that case was compliant with article 6(1). Collins J relied on Runa Begum, to hold that the availability of judicial review sufficed to make the procedure compliant, particularly in a case where there is no requirement to find facts, but only to be satisfied that there is credible material which will justify an interim suspension. The decision of the Secretary of State that it may be appropriate for the care worker to be included in the list is a classic exercise of administrative discretion.
- Stanley Burnton J dealt with the inadequacy of judicial review as a remedy satisfying the requirements of article 6 at paras 46-48. He said that the only ground for judicial review was likely to be that the Secretary of State could not properly come to the conclusion that "it may be appropriate for the care worker" to be listed and the burden on the listed person is substantial. What the listed person could not do was obtain a speedy judicial determination of the underlying facts: did he commit the misconduct alleged?
- In my view, the authorities relied on by Mr Sales show that the judge was wrong to regard this as a sufficient reason for holding that the court does not have "full jurisdiction". In Runa Begum, the court did not have the power to decide whether the facts relied on by the applicant were true, but that did not mean that the county court, whose power was limited to considering points of law, did not have full jurisdiction. Similarly, in Stefan, X and Kingsley.
- Nor do I consider that the judge was justified in reaching his conclusion on the grounds that the threshold for provisional inclusion in the list is low and the burden on the listed person correspondingly high. As Mr Sales points out, it was impermissible for the judge to found his conclusion of breach of article 6 on this feature of the statute, because it is a product of the substantive legal test in section 82(4), rather than any procedural default which would properly engage article 6. Article 6 is concerned with procedural fairness, not the fairness of the substantive law: see, for example, Matthews v Ministry of Defence  UKHL 4,  1 AC 1163 para 3 and Secretary of State for the Home Department v MB  EWCA Civ 1140,  3 WLR 839 paras 66 and 67. The second of these cases is instructive. Section 2 of the Prevention of Terrorism Act 2005 provides that it is a precondition to the making of a control order that the Secretary of State has reasonable grounds for suspecting that the controlled person is or has been involved in terrorism-related activity. The judge treated this "standard of proof" as an aspect of the court's procedure that fell to be examined when considering whether it satisfied article 6. This court held that the judge confused substance, which is relevant to the substantive articles of the Convention, and procedure, which is relevant to article 6.
- But the fact that, as interpreted and applied by the Secretary of State, the CSA does not provide that the care worker should be given an opportunity to make representations before a decision is made to provisionally include him or her in the POVA list is an aspect of procedure and not a matter of substance. The question that arises is whether this apparent breach of article 6(1) at the first stage of the process is made good by the process when viewed as a whole. Mr Sales points to the following features of the process which, he submits, make good the absence of an opportunity for the care worker to make representations before the decision to include him or her in the list is made. First, there is the opportunity to apply to the Secretary of State at any time to remove the worker from the list under section 81(3). Secondly, there is the right to seek judicial review at any time of the original decision to include the worker in the list and a refusal to remove the worker from the list. Thirdly, there is the right of appeal which can be exercised after 9 months.
- It is clear from the Strasbourg jurisprudence that, in deciding whether a breach of article 6 at the first stage of the process can be cured by a later stage of the process, it is necessary to have regard to the nature of the first stage breach. A good illustration of this is to be found in Tsfayo v United Kingdom (application no 60860/00), decision 14 November 2006). The applicant for housing and council tax benefit failed to submit her benefit renewal form in time. Her claim was rejected by the Council because she had failed to show "good cause" why she had not claimed benefits earlier. Her appeal to the Review Board was dismissed. She sought judicial review inter alia on the grounds that the Board was not an independent and impartial tribunal within the meaning of article 6(1).
- The ECtHR reviewed the authorities. The court gave two reasons for deciding that there had been a violation of article 6(1) despite the availability of judicial review. First, the decision-making process was significantly different from that considered in cases such as X, Stefan, Kingsley, Bryan and Runa Begum. In those cases, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In the instant case, the Board was deciding a simple question of fact, namely whether there was "good cause" for the applicant's delay in making a claim. Unlike in the other cases, the factual finding could not be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.
- The second reason was that the Board was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute, since it included five councillors from the local authority which would be required to pay the benefit if it was awarded. The safeguards built into the Board's procedure were "not adequate to overcome this fundamental lack of objective impartiality" (para 46). The court contrasted the case with that of the Department's decision-making process in Alconbury which "offered a number of safeguards, such as an inspector's inquiry with the opportunity for interested parties to be heard and these safeguards, together with the availability of judicial review……..was sufficient to comply with the requirement for "an independent and impartial tribunal" in Article 6(1)" (para 27).
- The second reason is important because it shows that, in deciding whether the court has full jurisdiction on a judicial review, it is relevant to have regard to the nature of the breach in the first stage of the process. The more serious the failure to accord a hearing by an independent and impartial tribunal, the more likely it is that a breach in the first stage of the process cannot be cured at the second stage. Thus, in Runa Begum Lord Bingham said at para 9 that, although the reviewer was not independent of his or her employing authority, the statutory scheme provided safeguards that the review would be fairly conducted. These included that the reviewer had to be senior to the original decision-maker and must not have been involved in the making of the original decision. In Alconbury, it was accepted that the planning inspector was not independent of the Secretary of State. But it was considered by the House of Lords to be relevant that the inspector was an experienced professional whose report provided "an important filter before the Secretary of State takes his decision" (Lord Slynn para 46). Lord Hoffmann said (para 110) that "in deciding the questions of primary fact or fact and degree which arose in enforcement notice appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact". Thus, where the lack of impartiality at the first stage was of a somewhat formal and technical nature, the breach of article 6 was taken to be cured by the availability of judicial review. But if the lack of impartiality at the first stage had real practical content, then it infected the whole process and could not be cured by judicial review.
- In my view, there are two reasons why the failure to afford the worker the opportunity to make representations before being included in the POVA list is a breach of article 6 which cannot be cured by any of the three means suggested by Mr Sales. First, the denial of the right to make representations is not a mere formal or technical breach. It is a denial of one of the fundamental elements of the right to a fair determination of a person's civil rights, namely the right to be heard. And the denial is total. The worker is not given an opportunity even to make the briefest of comments. Judicial review does not afford full jurisdiction, since it cannot make good the consequences of the denial of the opportunity to make representations at the earlier stage.
- Secondly, none of the three means suggested by Mr Sales can make good the serious detriment suffered by the care worker as a result of being included in the POVA list. Section 81(3) does afford the worker a remedy of sorts. In some cases, he or she will be able to make a successful application under section 81(3) within a short time of being included in the list. But even in such cases, there is the potential for serious and irreversible prejudice to the worker by being included in the list in the first place. The former employer may offer to restore the care worker to his or her employment, but that is unlikely where the employer dismissed, suspended or provisionally transferred the worker on the grounds of misconduct. As for judicial review, proceedings are likely to take some time, and even if successful are unlikely to result in the restoration of the worker to his or her former employment. The same applies in relation to an appeal to the tribunal which cannot be determined until the worker has been in the list for 9 months. It is the (often irreversible) detrimental effect of the inclusion in the list that makes the breach of article 6 at the first stage of the process incurable by any of the means suggested by Mr Sales.
Right to make representations in all cases?
- The essential defect in the first stage of the process lies in the fact that, as interpreted by the Secretary of State, the CSA does not allow the care worker in any circumstances to make representations before being provisionally included in the list. Although for the reasons given earlier, I consider that article 6 is engaged in all cases, it does not follow that a worker should be given the right to make representations in all cases. The Parliamentary intention of protecting vulnerable adults from the risk of harm from care workers must be respected. The right to a fair determination of a worker's civil rights does not require that the worker be accorded the right to make representations in all cases. Fairness requires a proportionate approach. A balance must be struck between the need to protect vulnerable adults from the risk of physical and psychological harm and the article 6 rights of care workers. There will be cases where the allegations of misconduct are so serious that, if they are true, the care worker is potentially a serious danger to vulnerable adults. In such circumstances, the paramount need to protect vulnerable adults from real danger may require the care worker to be included in the list provisionally without being given an opportunity to meet the case against him or her before that step is taken. It will be a matter for the judgment of the Secretary of State to decide whether it is necessary to include a worker in the POVA list without giving him or her an opportunity to make representations. In making this judgment, the Secretary of State must take into account all the circumstances of the case, but in particular the gravity of the allegations. We were told that in many cases the care worker is not included in the list until the lapse of a considerable time after the date of the reference under section 82(1). This provides some support for the view that unsurprisingly a significant number of references do not raise issues which call for urgent and immediate decision. No reason has been advanced on behalf of the Secretary of State to justify the blanket denial to workers of an opportunity to make representations in all cases.
- I agree with the judge who at para 52 said that the provisions of the CSA as to provisional listing are unfair and a disproportionate means of addressing the problem of provisional action. I should add that I do not accept that the fact that provisional listing is a "precautionary approach" which entails a low standard of proof ( viz: "it may be appropriate for the worker to be included in the list") is a sufficient reason for denying the worker the right to make representations. It may be more difficult for the worker to persuade the Secretary of State not to include him or her in the list in the first place than to persuade him not to confirm the inclusion at the later stage. But the difficulty of the task cannot be a reason for denying the worker the opportunity of attempting to achieve it.
Should a declaration of incompatibility be granted?
- If the CSA is construed in accordance with orthodox domestic law principles, there is a powerful case for holding that section 82(4)(b) does not permit the Secretary of State to afford workers the opportunity to make representations before they are included in the POVA list. The words in section 82(4) "from the information submitted with a reference under subsection (1)" suggest that there is no room at the provisional listing stage for the Secretary of State to have regard to any information other than that submitted with a reference. Moreover, the express obligation imposed on the Secretary of State by section 82(5)(a) to invite observations from the worker in connection with the final determination under section 82(4)(a) gives rise to the inference that Parliament did not intend that observations should be invited at the provisional listing stage.
- For the reasons that I have given, I consider that, if construed so as to deny to workers the right to be heard in all cases, section 82(4)(b) of the CSA is incompatible with article 6(1). But section 3(1) of the HRA requires the court, so far as it is possible to do so, to read and give effect to legislation in a way which is compatible with the ECHR rights. This is "a powerful tool whose use is obligatory. It is not an optional canon of construction. Nor is its use dependent on the existence of ambiguity": per Lord Nicholls of Birkenhead in Re S (Care Order: Implementation of Care Plan)  UKHL 10,  2 AC 291, para 37.
- Orthodox domestic canons of statutory construction must give way to the strong obligation imposed by section 3(1) of the HRA. The role of the court is not (as in traditional statutory interpretation) to find the true meaning of the provision, but to find (if possible) the meaning which best accords with Convention rights: see para 2.3.2 of Lester and Pannick's Human Rights Law and Practice (second edition). This can be done by reading in necessary safeguards to protect such rights.
- In my view, section 82(4)(b) can be read and given effect so as to be compatible with article 6. First, the statute does not expressly accord or deny to a worker an opportunity to make representations at the provisional listing stage: it is silent on the subject. Secondly, to accord an opportunity to make representations in the qualified way that I have suggested respects the intention of Parliament that vulnerable adults should be protected from harm at the hands of dangerous care workers. Thirdly, the use of section 3 for this purpose does not produce a result which departs substantially from a fundamental feature of the CSA, such that it could fairly be characterised as amendment rather than interpretation. It does not go against the grain of the statute.
- I would, therefore, interpret section 82(4)(b) as requiring the Secretary of State to give workers the right to make representations before he makes a decision under paragraph (b) unless he reasonably considers that the resultant delay would place a vulnerable adult at risk of harm.
- In view of the conclusions that I have reached in relation to article 6, I do not find it necessary to deal with the article 8 issues.
The retrospectivity issue
- I agree with May LJ that the judge reached the right conclusion on this issue.
- For the reasons that I have given, I would allow the appeal to the extent of quashing the declaration of incompatibility. I would grant a declaration as to the true interpretation of section 82(4)(b) of the CSA which reflects the terms of this judgment. I would invite counsel to attempt to agree the wording of the declaration.
Lord Justice Jacob:
- I was going to write my own judgment, but the more I read Dyson LJ's judgment in draft, the more I found that I completely agreed with it. I see no point in saying the same thing in words which probably would have less clarity.
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