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England and Wales High Court (Administrative Court) Decisions

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Cite as: [2000] EWHC Admin 392

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Case No CO/4550/99

B e f o r e


1st Respondent

2nd Respondent

ex parte

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

Philip Sales & Mr. Sheldon (28/07/00), for the Respondents, instructed by
The Secretary of State
Richard Drabble QC and Andrew Sharland for the Applicant, instructed by Reynolds Porter Chamberlain, Solicitors

As Approved by the Court
Crown Copyright ©

1. These proceedings are a challenge to the Consultancy Service Index maintained and operated by the Secretary of State for the Department of Health. They could also be described as a challenge to the decision of the Court of Appeal in R v Secretary of State for Health, ex parte `C' 2000 1 FLR 627.
2. In ex parte `C', the Court of Appeal held
(1) that notwithstanding the absence of a statutory basis for the Index, the Crown in its capacity of a private citizen was free to maintain a service such as that provided by the Index, and maintaining the Index was not of itself unlawful;
(2) notwithstanding that inclusion in the Index had significant impact upon an individual's chances of obtaining employment, it did not interfere with his right to apply for or accept such employment. Inclusion on the list was not determinative of his civil rights and obligations so as to bring Article 6(1) of the European Convention of Human Rights into play. The operation of the Index in its present form was lawful and reasonable as the law currently stood. The Court expressed no view as to whether it might be incompatible with a Convention right when the Human Rights Act 1998 is implemented on 2 October 2000.
Mr Richard Drabble, QC, for the applicant, in carefully drawn and subtle submissions, contended that the inclusion of the applicant on the Index is unlawful and/or ultra vires and/or the Index itself is unlawful and/or ultra vires, because (i) the Secretary of State has no power to act contrary to fundamental human rights unless he has express statutory authority and/or (ii) the inclusion of the applicant on the Index violates the applicant's right to respect for life protected, inter alia, by Article 8, ECHR. A third ground of irrationality, raised by the Form 86A and the Skeleton Argument, was not proceeded with before the court.
3. Mr Drabble emphasised that the two basic grounds were to be regarded as cumulative. The steps in the argument helpfully identified in the course of argument in reply, can be summarised as follows:
(1) Maintenance of the Index involves an exercise of discretion (see ex parte `C'), namely a general discretion of the Crown to do that which is not prohibited.
(2) The principle of legality, recognised in R v Home Secretary ex parte Simms 1999 3 WLR 328, applies outside the exercise of a statutory discretion or power and just as it can have the effect of "reading down" a statutory power so as to render the power constitutionally valid, so it should be read as a limitation upon the exercise of a non-statutory power. As a result he submitted it was a principle of substantive law and not merely a rule of construction. Mr Drabble drew attention to the fact that ex parte Simms was not referred to in the judgment of the Court of Appeal in ex parte C, nor apparently considered. That said, at page 632 B-C Hale LJ stated:
"Neither the Crown nor a private individual may exercise their freedoms in such a way as to interfere in the rights of others without lawful authority."
(3) The principle of legality means that a power should not be construed as justifying a breach of fundamental human rights, whether a statutory power or a power existing at common law. That case law has moved to a point where Article 8 of the ECHR should be considered as in play for the purpose of determining the extent of the reach of the principle of legality. He relied upon the consideration given to Article 10 of the Convention in ex parte Simms.
(4) He submitted that it follows that although ex parte `C' establishes a lawful basis for a discretion to act as a private individual is entitled to act, the exercise of that discretion in accordance with a regime is unlawful if the regime is inconsistent with Article 8.
4. By way of general submission Mr Drabble contended that the applicant was simply asking the court to set limits on the exercise of the power identified to exist by the Court of Appeal in ex parte `C', and to conclude that the limit of the discretion was to be drawn by reference to the principle of legality and Article 8 of the Convention. He submitted that the proper approach which the court should acknowledge and adopt, was that the discretion could not be regarded as a basis for the exercise of power in a regime unless it was informed by the Convention and carried the hallmarks of what Strasbourg jurisprudence required for the lawful operation of a regime. He submitted that R v The Chief Constable of North Wales Police and others, ex parte Thorpe 1998 3 WLR 57 supported his submission that the right of the executive to use information in domestic law was informed by Convention law and thus the common law and Convention rights were effectively the same.
5. He relied upon the decision of Dyson J in R v A Local Authority in the Midlands and A Local authority in the Midlands ex parte `L M' 2000 UKHRR 143. In that case the court had to consider whether a local authority could lawfully divulge allegations, made in the past, that the applicant sexually abused his daughter and another child, the fear of the applicant being that the respondents would disclose those allegations to a county council, thus causing him serious financial and personal harm. Dyson J referred to the judgment of the Court of Appeal, Lord Woolf, MR, in ex parte Thorpe 1999 QB 428B:
"Each case must be judged on its own facts. However, in doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure."
Dyson J went on to observe:
"That conclusion was reached without regard to Article 8 of the Convention."
6. At 428G and 581F respectively, Lord Woolf went on to consider the influence of Article 8. He stated that although the Convention is not yet part of our domestic law, all parties were agreed that the action of the police had to be judged "against the background of the requirements of Article 8". Later in his judgment, Dyson J concluded:
"In my view, the guiding principles for the exercise of the power to disclose in the present case are those enunciated in ex parte Thorpe. Each of the respondent authorities had to consider the case on its own facts. A blanket approach was impermissible. Having regard to the sensitivity of the issues raised by the allegations of sexual impropriety made against LM, disclosure should only be made if there is a "pressing need". Disclosure should be the exception, not the rule. That is because the consequences of disclosure of such information for the subject of the allegations can be very damaging indeed."
The learned Judge then considered the various factors in that case, and having recited them, concluded:
" ... that neither the police nor the Social Services Department has placed material before me which comes anywhere near demonstrating a pressing need for disclosure."
7. Mr Drabble drew attention to the fact that Dyson J accepted that disclosure of allegations of child sex abuse is, on the face of it, a substantial interference with a person's right to a private life. Dyson J relied upon the dicta of Buxton J in the Divisional Court in ex parte Thorpe as follows:
"I do, however, consider that a wish that certain facts in one's past, however notorious at the time, should remain in that past, is an aspect of the subject's private life sufficient at least potentially to raise questions under Article 8 of the Convention; though, for reasons that Lord Bingham, CJ, has given, I am clear that in the event no breach of Article 8 has even arguably occurred."
Lord Woolf stated in the Court of Appeal, p 429B:
"We endorse the views expressed by Buxton J in the Divisional Court."
Thus Mr Drabble submitted that if he was right in this cumulative approach to the present state of the law, then he was entitled to subject the operation of the Index to the tests of foreseeability and accessibility established by the Strasbourg jurisprudence in connection with Article 8(2) of the Convention.
8. Mr Sales, for the Secretary of State, submitted that:
(1) it was not open to the applicant to argue that no basis existed in domestic law for the Secretary of State to maintain the Index. The issue had been decided by ex parte `C' and Mr Drabble's reliance upon ex parte Simms as a means of bypassing the Court of Appeal's decision in ex parte `C' was misconceived. The House of Lords in ex parte Simms had been concerned with the application of a principle of statutory construction, namely the principle of legality, which was to the effect that where a statute contravened some fundamental right, express language may be required, since Parliament must be taken not to have intended to interfere with the fundamental right when it passed the legislation. He submitted that such a principle of statutory construction has no relevance when the power under scrutiny does not derive from statute at all. Further, he submitted that there was no basis for contending that the Court of Appeal in ex parte `C' did not have in mind ex parte Thorpe. Lord Woolf presided over the court in ex parte Thorpe, as he did in ex parte `C', but more than that, Mr Sales relied upon an extensive passage between 631B to 632H, including in particular the citation I have already set out, namely that "Neither the Crown nor a private individual may exercise their freedoms in such a way as to interfere in the rights of others without lawful authority". He therefore submitted that if the court were to give effect to Mr Drabble's argument it would be doing so where it is clear the Court of Appeal must have had the principle relied upon in mind and where no ground existed to justify a departure from that judgment.
(2) He submitted that the attempt by a cumulative argument to draw in Article 8 of the Convention as a ground for departing from the decision in ex parte `C' would be impermissible having regard to (i) the case was an appeal from a decision in which the judge had considered the Convention, namely Article 6(1), (ii) Hale LJ's response to the submission that, before the implementation of the Human Rights Act 1998, the principles underlying the Convention should guide the court's interpretation of the common law:
"The implementation of the Human Rights Act 1998 on 2 October 2000 will, of course, create new rights. Under 6.1, it will become unlawful for a public authority to act in a way which is incompatible with a Convention right. For example, if the Convention right to respect for one's private life under Article 8.1 is in play, any interference by a public authority would require justification under Article 8.2. This requires a three stage process, demonstrating that such intervention is `in accordance with law', for one of the defined legitimate aims, and `necessary in a democratic society' in the sense of being proportionate to that aim. In the telephone tapping case of Malone cited earlier, the Article 8 right to respect for correspondence was in play, and the European Court of Human Rights held that the common law power was not `in accordance with law' in Convention terms, because it was not sufficiently precise or predictable: see Malone v UK 1984 7 ECHR 14.
It is not for me to speculate on the Department's motives for sponsoring the 1999 Act, (a reference to the Protection of Children Act 1999) still less to express a view upon whether the present operation of the Index would be incompatible with the Convention right after 2 October 2000. It is enough to accept that there are circumstances in which the operation of lists could be unlawful and unreasonable, even under the present law. But I share the view of Richards J that it does not become so by falling foul of Article 6.1. Quite apart from the issue of whether there is indeed a civil right involved, inclusion on the list is note determinative of the appellant's civil rights and obligations: see Fayed v UK 1994 l8 EHRR 393, at paragraphs 56 and 61 to 62, applying the tests adopted in ....."
(3) Further, Mr Sales submitted, there is nothing in ex parte `C', nor in any other of the cases, which demonstrated the courts have gone beyond informing principles of existing law, already in play in a matter before the court, by the principles surrounding the Convention and its jurisprudence, and that the submissions made in this case had to be seen, for them to succeed, in the light of the decision in ex parte `C' and ex parte Thorpe and ex parte Simms, as an invitation to the court to incorporate Strasbourg jurisprudence where there was no corresponding point of domestic law in play.
9. Before expressing my views on the proper resolution of these arguments I should lay out the limited scope of the facts, which are relevant to the second stage of the argument advanced by Mr Drabble, on the assumption that he is correct on the first.
The facts
10. In the light of Mr Drabble's abandonment of the irrationality argument I can limit the factual survey. The basis for the Index is Circular No. LAC (93) 17. Annex C to the Circular is headed "D H Consultancy Service".
"1. The Department of Health operates a consultancy service, which applies to England and Wales, on an advisory basis whereby local authorities, private and voluntary organisations, can check the suitability of those they propose to employ in a child care post. The service: (a) notes convictions against those who (at the time of the conviction) are or were in child care work; it also notes the names of persons formerly in such work who have been dismissed or who have resigned in certain circumstances; (b) at the request of employers, provides a check against these records in respect of individuals seeking work in a child care post; (c) alerts employers if the check is positive.
2. The object is to make sure that, as far as possible, unsuitable people are not appointed to positions involving contact with children or responsibility for them. The type of jobs covered are those where the person would have substantial unsupervised access to children, particularly in a residential setting.
The Purpose of the Consultancy Service
3. Since l986 local authorities have had access to police records to check on the possible criminal background of staff and volunteers they propose to engage to work with children. The Consultancy Service provides an important supplement to these checks. It provides access to information held by previous employers about staff who have ceased to be employed in circumstances which indicate they would be unsuitable to work with children in the future."
11. Reference is then made to the necessity for employers to ensure that details of all such staff are drawn to the attention of the Service in order to make the service effective. It refers to the legal duty imposed on local authorities under the Children Homes Regulations 1992 to notify the Secretary of State in certain cases, and then in paragraph 6 states:
"6. The circumstances in which it would be appropriate to make such notification must, ultimately, be a matter for the judgment of employing organisations. The Secretary of State would, however, expect notifications to be made:
* where a member of staff had been prosecuted for any offence against, or involving a child;
* where a member of staff had ceased to be employed (either through resignation or dismissal) in circumstances where the welfare of a child had been put at risk through physical, sexual or emotional abuse (whether or not, after investigation by the police, the CPS had prosecuted;
* where a member of staff had been formally disciplined for placing the welfare of a child at risk, had not been dismissed, but had been moved to another post not involving children; or
* in any other circumstance in which a child had suffered, or was likely to suffer, harm `as defined in Section [?] 1.9 of the Children Act 1989 arising from the action of a member of staff or volunteer engaged to work with children.
As a general test, any case where the relevant organisation would refuse to re-engage the individual to work with children should be referred to the Service for consideration.
7. Notifications to the Consultancy Service should be made in the form of a letter detailing the circumstances leading to the staff member's prosecution, or internal formal disciplinary hearing, dismissal or resignation and giving the person's full name (including any previous names) and full date of birth. The letter should also confirm that the employer is content for reference to be made to the information provided in any correspondence the Department may have with the person concerned, and that the employer is prepared to include information about the circumstances in which the person left their employment in any references provided to other prospective employers.
8. ............
9. On receipt of such information, each case is considered by administrative and professional staff within the Department. The organisation referring the case will be advised of the decision reached. Where it is decided to include the person's name on the Consultancy Service Index, a letter is sent to the person concerned setting out the reasons for such inclusion and the use which may be made of the information. It is made clear that the person concerned has a right both to challenge the accuracy of the information provided by the referring agency, and to make representations why their name should not be included on the Index. Where there is disagreement about the accuracy of the information provided, the person will be invited to pursue this direct with the referring agency in the first instance."
12. Mr Sales submitted that:
(1) the Index is not a database containing private information and in the operation of the database no private information was disseminated. He submitted that it was properly to be regarded as a referral system. It was the former employers who maintained the records and the information;
(2) inclusion of the name of an individual on the Index contained no statement at all about his private life;
(3) the Index operates as a "signpost" that references, dealing with a person's private life, may be available;
(4) it was the underlying reference and not the Index which interfered with any right to employment.
13. Mr Drabble submitted that:
(1) it did not matter whether it was called "signposting" or not, because the court should conclude that there were two stages at which there was a potentiality for a person's employment rights to be affected. He relied upon a passage in a report of Sir William Utting for the Department of Health in the Welsh Office called "People Like Us. A Report of the Review of the Safeguards for Children Living Away from Home". In part 4, chapter l4, paragraph l4.2.9, he observed:
"It is also thought that discovering that the person is on the Index is enough to make the enquirer decided not to offer the job."
Mr Drabble also relied upon the conclusion reached by Richards J in ex parte `C', where having recited the Department's submissions as to the referral character of the Index and the fact that it is the reference, good or bad, which acts to prevent the person concerned obtaining further employment, he added (1076B):
"Moreover, in practice, regrettable though it may be, by no means all prospective employers take up references.
Although that is technically the correct analysis, the practical consequence of inclusion on the Index is likely to be that the person concerned will be unable to obtain further work in the field."
He also relied upon a passage in the judgment of the Court of Appeal, p634 F-H,
"Inclusion in the Index does have a significant impact upon this appellant's chances of obtaining employment, but it does not interfere with his right to apply for or accept such employment. Indeed, the Index should only be consulted at the stage when the decision has been reached to offer employment. Inclusion does encourage a prospective employer to become fully informed as to previous relevant events in the applicant's life, but no one can suggest that those events are not relevant, indeed highly relevant, in this situation. It does not disclose what those relevant events were, unless there is a conviction. It leaves the decision as to whether to pursue the matter and what to make of those events to the prospective employer.
"It is difficult indeed to see how acting as a conduit in this way represents and unlawful and unreasonable exercise of the discretion to balance the competing interests here. Mr Levy rightly argues that mere inclusion in the list carries with it a stigma of some sort, although nothing like the stigma which would be involved were the details of the referral to be disclosed to enquirers."
(2) that having regard to the avowed purpose of the Index, it must be obvious that to be informed a prospective employee's name is on the Index, is to be informed, albeit without any detail, of the existence of material rendering him unsuitable for employment. This, he submits, amounts if not to the divulging of private information to the divulging of a conclusion which could only have been reached upon the basis of the existence of information which is private.
14. What basis in domestic law exists for the Secretary of State to maintain the Index?
It is to be noted that in the course of his argument in reply, Mr Drabble departed from the ground which had been carefully formulated in the Form 86A and Skeleton Argument. He was right to do so, for the contention that no basis existed in law to maintain the Index was plainly not sustainable in the light of ex parte C. He was forced to argue that where the right was to be exercised by the Secretary of State, the extent of the right had to be considered. Further, whereas originally it had been contended on the applicant's behalf that ex parte Simms was to be taken as establishing that a power to act contrary to fundamental human rights had to have express statutory authority, once Mr Drabble accepted that ex parte C established a right at common law, his way forward inevitably required him to pray in aid the principle of legality as a restraint upon the assertion of the existence of a common law power extending so as to permit the infringement of fundamental human rights.
15. Ex parte C
The Court of Appeal posed two questions: "Is the Index lawful?" Is the operation of the Index unlawful?" The approach taken is important to a proper understanding of the decision. It is derived from the search made for the legal basis for the Index. The power was not found to be derived in statute, the prerogative or as incidental or consequential to any power held by the Secretary of State. The court approved of the statement in Halsbury's Laws of England, vol 8(2) at note 6 to paragraph 101:
"At common law the Crown, as a corporation possessing legal personality, has the capacities of a natural person and thus the same liberties as the individual."
It can be said that the distinction between the Crown (through a Department of State) exercising the same capacities as are held by a private person and a Secretary of State exercising powers not expressly conferred but ancillary to an express power is a fine one, particularly where, in answering the second question posed, Hale LJ observed (632H-633E):
"That of course does not mean that the Department is free to operate the list in whatever way it likes. Its status as a public authority brings consequences which would not apply to a private citizen. A private citizen would find it difficult to maintain such a list. He would not have access to the necessary information and he would not have the power, as the Department has, to give guidance both to former and prospective employers which will make its operation so much more effective ...... The operation of a list such as this involves a delicate balance between the two competing interests identified earlier. The Department cannot have an unfettered discretion to operate it in whatever way it chooses. An obvious example would be to make the list public to all and sundry."
Mr Sales was keen to hold to the distinction drawn by the Court of Appeal between the power to maintain the Index being derived from the common law right of any person so to do, and the restraints upon its operation, which the status of the Secretary of State imposed upon the manner of its operation. As long as it could be held, it served the more effectively to deny Mr Drabble the peg upon which he desired to hang his ECHR principles. I would not regard the reservation expressed by Hale LJ about the restraints which may exist upon the Secretary of State's power to operate the Index as affecting the substance of the legal principle. As between private citizens the right to use information and to disseminate it can vary according to the circumstances in which it is acquired by an individual, or the "interest" which the individual may be held, in law, to have in disseminating it. In my judgment the distinction drawn by the Court of Appeal should be maintained.
16. Having identified the source of the power to maintain the Index, the Court of Appeal proceeded to examine whether there was any legal impediment to recognition being accorded to the right because its recognition would interfere with the rights of others. The arguments deployed by Mr Levy QC, for the appellant, were founded in freedoms said to be recognised at common law:
(1) the right to freedom from interference with property;
Entick v Carrington (1795) 2 W.Is K.B 275
(2) the right to work in one's chosen profession;
Nagle v Fielden 1966 2 QB 633
Significantly the court observed that in Malone v Metropolitan Police Commissioner [1979] l Ch 344, no private right, whether of property, privacy or confidentiality was found to have been infringed. Mr Drabble cannot assert a common law right to private life, just as Mr Levy was unable to identify a relevant countervailing common law right. In my judgment had the argument he advanced to this court been advanced to the Court of Appeal it would inevitably have been rejected. He would have been forced to invite the court to substitute for the absence of a right to private life at common law, the existence of a right under Article 8 of ECHR. In my judgment that is what he has invited me to do. Having regard to the approach taken to Article 8 and ECHR at page 333H-634D, plainly that argument would have been rejected by the Court of Appeal and it has to be rejected by me.
17. Further reason why this court should not accede to his submission can be derived from R v Chief Constable of the North Wales Police and another, ex parte Thorpe and another, 1999 QB 396.
(1) The conclusion reached in ex parte Thorpe in connection with the publication by the police of convictions for sexual offences accords with the conclusion reached by the court in ex parte C, 429 A-C:.
The fact that the convictions of the applicants had been in the public domain did not mean that the police as a public authority were free to publish information about their previous offending absent any public interest in this being done .... Both under the Convention and as a matter of English administrative law, the police are entitled to use information when they reasonably conclude this is what is required (after taking into account the interest of the applicants), in order to protect the public and in particular children.
This is not a situation where the disclosure could amount to an infringement of any right of the applicants in private law."
(2) The power of the police to disclose the information was derived from their functions and duties as a police authority. It was not considered to be the same power as a private citizen would have in respect of the same information. It was therefore an instance where, if Mr Drabble's submission was correct, a surer basis for applying the Convention existed, but the court deliberately treated the ECHR as a source of "influence" (p.428) and not as a source of law.
18. Ex parte Simms
In my judgment Mr Drabble's submissions encounter difficulties similar to those set out above.
(1) Lord Steyn at p.336 C states: "The starting point is the right of freedom of expression." He was identifying a right at common law, whereas Mr Drabble is unable to identify a common law right to private life, and thus has to "starting point".
(2) It was the existence of the fundamental right which operated, according to constitutional principle, upon the breadth of language of paragraphs 37 and 37A of the Prison Service Standing Order, so as to restrict their application. In my judgment Mr Sales is correct to characterise the principle of legality as a rule of construction. It has an exact parallel in the presumption of constitutionality recognised by the Privy Council in the interpretation of provisions passed by a Parliament subject to the terms of a written Constitution and in that context has been so described. (See Attorney General of the Gambia v Jobe 1984 AC 689, 702 B-C, Attorney General v Antigua Times Ltd 1976 AC 16. In Jobe at 702C, Lord Diplock stated:
"This presumption is but a particular application of the canon of construction embodied in the legal maxim magis est ut nos valest quem pereat, which is an aid to the resolution of any ambiguities or obscurities in the actual words used in any document that is manifestly intended by its markers to create legal rights or obligations."
In my judgment both Lord Steyn (p.340 G-H) and Lord Hoffman (p.341 G-H) applied the principle of legality as a rule of construction.

19. I am unable to see how reliance upon the principle of legality assists Mr Drabble where the search for the power at common law has proceeded on the basis that "neither the Crown nor a private individual may exercise their freedoms in such a way as to interfere in the rights of others without lawful authority", and no relevant private fundamental right has been identified. In truth, I ultimately understood his emphasis on the cumulative effect of his arguments to be that it was essential for his submission that ex parte Simms be regarded as authority for the court to define the limitation upon the right at common law by reference to Article 8 of ECHR. But the House of Lords did not "read down" paragraphs 37 and 37A by reference to Article 10 of the Convention but by reference to the right of freedom of expression. I decline to read down the right, existing at common law, for the Secretary of State to maintain the list, by reference to Article 8 of the Convention.
20. In my judgment no case to which I have been referred supports the submission that Convention rights have been given substantive effect as opposed to operating so as to inform the operation of existing domestic law. The concept of "pressing social need" and the balancing of public and private interest in the exercise of power in connection with information about previous sexual offending, or allegations of sexual offending, are part of domestic law, informed and illuminated by Article 8 of the ECHR. To succeed in establishing that there is no lawful basis in domestic law for the maintenance of the Index, Mr Drabble must persuade the court to treat Article 8 as part of our domestic law and as the basis in law for the maintenance of the Index. Since he has abandoned his irrationality argument there is nothing to be gained by consideration as to whether the operation of the Index has to be informed by Article 8. In any event, the consequences have already been established by ex parte Thorpe.
21. In R v A Local Authority in the Midlands and another, 200 UKHR 143, Dyson J founded his decision upon ex parte Thorpe (1 3B-D). He responded to argument on Article 8 of the Convention advanced in support of the irrationality argument and concluded there was an overlap. For this reason Mr Drabble can derive no support for the substance of his submission in that case.
22. Conclusion
The lawful basis for the maintenance of the Index derives from the capacities enjoyed by the Secretary of State, as an emanation of Crown, which possessing legal personality, has the capacities of a natural person. The maintenance of the Index does not involve any infringement of any right of the Applicant under domestic law. Article 8 of the ECHR does not have direct effect in domestic law, and no reliance can be placed upon Article 8(2) so as to subject the fulfilment of legality according to domestic law to the additional requirement of meeting the principles of being "in accordance with law" and what is "necessary in a democratic society".
24. Other Issues
Having reached the above conclusion which, from the nature of the issue did not require me to be informed by the ECHR, I am particularly mindful of the approach taken by Hale LJ in ex parte C, 634 B:
"It is not for me ..... to express a view whether the present operation of the Index would be incompatible with a Convention right after 2 October",
but like Richards J, I have heard full argument on the potential impact of the Convention, and out of deference to the argument and the imminence of October 2, I shall express my views, without being in a position to decide the points. Article 8 of the Convention provides;
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
25. Does the maintenance of the Index engage Article 8?
The only information which is stored on the Index is the name of the individual and particulars of his employer(s), but on the material before me (Sir William Uttings' Report) and in accordance with what I would infer was likely to happen with some frequency, I accept that inclusion on the Index may be enough to deter a potential employer. Therefore I regard inclusion on the Index as an implied statement about an individual having the potential to affect his opportunities for employment. That said, it does not follow that Article 8 is engaged. Mr Drabble relied, in particular, upon Niemietz v Germany (1993) l6 EHRR 97 at p.111, where the court stated:
" ..... it would be too restrictive to limit the notion of private life to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings."
There appears, furthermore, to be no reason of principle why this understanding of the notion of "private life" should be taken to exclude activities of a professional nature or business nature since it is, after all in the course of working lives that the majority of people have a significant, if not the greatest opportunity of developing relationships with the outside world."

Also Amann v Switzerland (Transcript l6 February 2000). In that case a businessman living in Switzerland who imported depilatory appliances received a telephone call from a woman from the former Soviet Embassy in Berne to order a device. The telephone call was intercepted in the course of routine surveillance by the Public Prosecutor's Office and an investigation was carried out into the applicant. An index card was drawn up carrying the following report:
"from the Zurich Intelligence Service: A. identified as a contact with the Russian embassy according to ..... A. does business of various kinds with the company Air-Spray-System. Appendices: extract from the Commercial Registry and leaflet ...."
The court concluded, without having to elaborate on the reasoning, that interference had occurred. One can readily understand why, for there had been an interception of a private telephone call and information had been recorded.
26. Leander v Sweden 9 EHRR 433 was also relied upon. The facts are closer to the instant case but there are significant distinctions. The case concerned a secret police register upon which the applicant had been registered by reason of his personal and political background which led to his dismissal from a post where he had access to a Naval Base and secret installations. His unsuitability for employment thus arose not from anything done in the course of his employment either at the Naval Base or when employed by any one else, but from activities forming part of his personal and private life.
27. In my view there is little in these cases to support the conclusion that an implied statement in connection with the suitability of a person to be employed, derived from his history and conduct in the course of his employment, interferes with his private life. It is information in connection with his public life, in this instance as a teacher. It does not fall within the bracket for inclusion envisaged in Niemietz in connection with the forming of relationships in the course of business or professional life. It goes to the manner in which he has conducted his professional life and the implied statement is in connection with his public life.
28. Ultimately each case depends upon its own facts, but I extract the following from the cases:
(1) The "notion of private life" is broad enough to include, to a certain degree, activities which can be seen to be an aspect of the development and fulfilment of an individual's personality, for example, in establishing relationships, even though the activities have occurred in a professional or business context.
(2) The effect, where appropriate, of including activities occurring in a business and professional context within Article 8 is limited and selective. It recognises the conduct as being within private life. It does not extend the notion of private to an individual's business or professional life.
(3) Activities occurring within an individual's business and professional life will be encompassed within Article 8 where the dividing line between them and private life is not clearly distinguishable, for example, where it can be seen that it has occurred at a place where access to the public is excluded and some domestic authority is exercised.
29. The division between the sphere of activity in question and the applicant's private life could not be clearer. The alleged conduct occurred in the course of his employment. Had the allegations related to conduct which had occurred within his home, but had reached the knowledge of his employer, different considerations might arise, but they would not affect the character of the Index, for it makes only an implied statement about suitability for employment. Material gathered by an employer of a schoolteacher in connection with the teacher's conduct, as a teacher, is material recording the public performance of the teacher, recorded pursuant to an obligation of the employer acting in the public interest. The existence of the material gives rise to inclusion on the Index and the implied statement but no element of the notion of private life is involved.
30. In my judgment the reasoning in ex parte Thorpe and the approval given by the Court of Appeal to Buxton J's approach does not point in the opposite direction. The police possessed information about convictions which had been in the public domain and the point at issue was whether the police were to be regarded as subject to some restraint in passing on the information some years after the convictions. The critical point which led to Buxton J to conclude that Article 8 potentially was engaged, was the conjunction between the communication of the information by the police of the convictions and the presence of the individuals on the site. This meant that the individuals were at risk of forever being hounded and unable to leave the past in the past. No such factor arises here, because it is not the Secretary of State who activates the communication of the fact that a person is on the Index but the person on the Index who applies for employment. If a person chooses to assert a right to be employed as a teacher or social worker, he puts himself forward into public life and by that choice information is released about his public life.
31. The interference is not "in accordance with law"
Mr Drabble submitted that the expression "in accordance with the law" requires that the interference has some basis in domestic law. Relying upon Lennder v Sweden (1987) 9 EHRR 433 and Silver v United Kingdom 1983 5 EHRR 47, he submitted that the law must be accessible and foreseeable. Mr Sales did not dispute the effect of the jurisprudence, but submitted that the common law provided a sufficient basis (see Sunday Times v UK 1979 2 EHRR 245) that the official guidance or policy may constitute law for this purpose, and the law was accessible and foreseeable.
32. As the submissions developed the main ground for argument turned upon the extent to which the guidance, LAC (13) 17 disclosed the standard of proof which the Department will apply when deciding whether to include a name on the Index. Mr Drabble submitted that the applicant, being ignorant of the test which had been applied to place him on the list, was prejudiced in making representations to have his name removed. He had been, in that regard, unable to regulate his conduct so as to protect his Convention right. Further, a prospective employer being ignorant of the test would not be able to assess the significance to be attached to a name being on the register.
33. It is apparent from the evidence submitted on behalf of the Secretary of State that a reviewing approach is adopted to the information received from an employer. If the material is sufficient to lead a reasonable person to conclude that, on the balance of probabilities, the allegations are made out, he will proceed to include a name on the Index.
34. I was referred to a number of cases:
Goodwin v UK 1996 22 EHRR 123
Spacek v Czechoslovak Republic
Autrionic v Switzerland 1990 12 EHRR 485
Kopp v Switzerland 1999 27 EHRR 91
As appears from the cases the object of the foreseeability and accessibility tests is twofold:
(1) to enable an individual to regulate his conduct so as to act in conformity with the law because he is able to force the circumstances in which interference with his right will occur; and
(2) as appropriate in a democratic society to facilitate the appropriate level of democratic scrutiny to the interference.
There is no support for the contention that it is for the benefit of third parties as opposed to the victim.
The cases demonstrate that the degree of precision which is required will vary according to the circumstances. The potential threat to democracy posed by secret surveillance is regarded as so serious that the interference must be based upon a law that is particularly precise. The jurisprudence is pragmatic. Two aspects of the circumstances surrounding the maintenance of the Index are particularly significant.
(i) The conduct in question is regulated by the criminal law and is well settled.
(ii) The index protects and promotes the welfare of children and is precautionary, and thus less specific. This approach is wholly justified.
The guidance interpreted in this context is adequate to inform and give warning of what is expected. An individual knows precisely what circumstances may give rise to suspicion and cause him to be placed on the Index and he is able to challenge the decision to include him. I am not persuaded that the absence from the guidance of the precise terms of the test adopted is of any materiality in these circumstnaces. In any event, the test is now evident from the case law (ex parte C).
35. Necessary in a democratic society
The rights of children, the rights of employers and the public interest are to be balanced with the Article 8 right. (See Costello Roberts v UK 1995 19 EHRR 112; A v UK 1999 27 EHRR 6ll.) Assuming as I do that the consequence of being included on the Index is to interfere with employment, I see no ground for concluding the Index is, as it stands, disproportionate to the objective to be obtained. The Convention requires a balance to be struck. The authorities are to be accorded a discretionary area of judgment. (R v DPP ex p Keblene 1999 3 WLR 972, 993F-994E.)
Mr Drabble submitted that the necessary balance required the individual to have (i) a right to be heard before being entered on the Index; and (ii) a right of appeal.
A right to be heard before inclusion would undermine the effective precautionary principle of the protective measure. No case suggests that a right of appeal would be appropriate to achieve the required proportionality.
This application for judicial review is dismissed.

Friday, 28th July 2000

MR JUSTICE NEWMAN: For the reasons which are given in the draft judgment which has been made available, and which is now to be handed down, this application for judicial review is dismissed.

MR SHELDON: My Lord, I appear on behalf of the Secretary of State in this matter. Mr Sales could not attend today and gives his apologies. I ask for our costs in this case. It is not a legally aided matter and we resisted this from the outset.


MR SHARLAND: My Lord, we would resist the application for costs. We submit there should be no order for costs. This matter raises a matter of great public importance. My client was seeking to assert his human rights and, therefore, although we accept it is union backed, it is not (inaudible) funded and we submit there should be no order for costs.

MR JUSTICE NEWMAN: Thank you. No, I see no reason to depart from the general principle that this case is one where the costs of the respondent, the Secretary of State for the Department of Health, should be paid by the unsuccessful party, namely the applicant.

Any other matters?

MR SHARLAND: Yes, my Lord, there are two other matters. Firstly, permission to appeal. We would seek permission. This case raises a number of issues of considerable importance. Some of the legal issues are quite novel and, we would submit, quite difficult. Therefore, we would seek permission to go to the Court of Appeal on these issues.

The second is the anonymity order under section 11 of the Contempt of Court Act 1981. We are not completely clear whether we actually need a further order from you. Latham J's order on the permission hearing, when he granted an order pursuant to section 11, was not limited in time but just to be careful and to protect our client, we would seek an order pursuant to section 11 of the Contempt of Court Act that the applicant continue to be referred to as SW.

MR JUSTICE NEWMAN: Thank you very much. Mr Sheldon, take anonymity first.

MR SHELDON: My Lord, in terms of anonymity, we have no objections to the request for a continuation of the order. If the matter is to go further then clearly anonymity should be maintained at least until then.

MR JUSTICE NEWMAN: It is not one of those cases where usually one is concerned to know the attitude of the press, or any representative of the press, which frequently arises in rather more conventional criminal cases. For that reason, it seems to me that this does fall into a category of case where there is no purpose to be served in the public interest in lifting the rule providing for anonymity. All I would indicate is, of course, if anybody representing the media or the press wants to make a representation for the lifting of the ban, that is a matter which can always be considered by the court.

MR SHELDON: My Lord, I think that is a very sensible approach.

We do oppose the application for permission. The decision is well set out in your judgment. I think it is quite clear what the outcome should be, and that position has been maintained by the Secretary of State all the way along.

MR JUSTICE NEWMAN: The only matter which passed through my mind which I had not thought through to a considered conclusion is that, if it was to go on appeal, it would obviously be after 2nd October. In that event, would the Court of Appeal not be required to consider it in the light of what would then be the law?

MR SHELDON: My Lord, that probably is right in that the name on the Index will continue to be there and, therefore, a challenge can be made to that --

MR JUSTICE NEWMAN: It does seems to me that since I have drawn a strict line between what can be properly ascertained as domestic law presently prevailing prior to 2nd October, the potentiality is that if permission to appeal is not granted, this applicant will be entitled -- after 2nd October -- to bring a new claim.

If that is the position, I wonder whether there is any sense in incurring the cost of another fresh application being considered at first instance, as opposed to letting this matter go to the Court of Appeal. My hesitation about that is that, as I say, I have not concluded whether we can be sure that the Court of Appeal would treat the law which prevailed in relation to this application as being the law prevailing after 2nd October, as opposed to the law prevailing at the time the application for judicial review was made.

MR SHELDON: I see the difficulty. It may be that the most sensible solution will be to leave the question of permission to the Court of Appeal itself and if they feel on a renewed application that it would be sensible for it to be (inaudible) then they will make that decision themselves.

MR JUSTICE NEWMAN: The contrary is also true, namely that even if it was a case in which I felt that the points were of sufficient importance to merit the grant of leave, if the Court of Appeal was to take the limited approach that I have taken it would not really serve much purpose either, because the law would have changed after 2nd October. So it is a slight conundrum really. Maybe the answer is simply that I can make such observations as I have just made and suggest that matters simply be looked at by the Court of Appeal and they can come to their own conclusions, because it really depends on how they will approach it.

MR SHELDON: I think that is right. That is the position we would adopt as well.

MR JUSTICE NEWMAN: Obviously there are important points there.

Mr Sharland, that seems to me to be the right thing to do, namely not to make a decision but basically to refer it to the Court of Appeal -- unless you can shed light on the question I have raised?

MR SHARLAND: We would submit that even if they are applying the law as it presently stands, there are still good reasons for you granting permission to appeal. Some of the matters raised today are points of general importance both before and after the coming into force of the Human Rights Act, namely the applicability of Article 8 to the Index and the meaning of "in accordance with law".

These matters, we say, will continue to be of importance after 2nd October, and this is a matter which we would seek to be heard by Court of Appeal. Obviously your judgment to a great extent turns on the Court of Appeal judgment in ex parte C, so they have already considered this matter but they did not consider it with Article 8 in play. We say it is an extremely serious matter: our client is unable to get a job in his chosen field of employment and therefore we would seek permission to appeal. Unless I can assist you any further?

MR JUSTICE NEWMAN: No, you have been very helpful. Thank you very much.

Because of the imminence of the Human Rights Act coming into force on 2nd October of this year, the application for permission to appeal raises a special aspect which I do not feel able to resolve today.

The judgment that has been handed down turns peculiarly upon the state of domestic law, without Article 8 of the European Convention on Human Rights being part of domestic law. In any appeal to the Court of Appeal, Article 8 will be part of domestic law.

It seems to me more satisfactory for both sides, in a case which I accept not only has importance for this applicant but also is of general public importance, that the approach which the Court of Appeal will be likely to take to any appeal should be decided by them. In the circumstances, I intend to refer the matter to the Court of Appeal. I shall indicate my reasons in the usual way, which are at least in part reflected in what I have just said, and it seems to me that the matter should be considered by application to the Court of Appeal.

Thank you very much.

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