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Case No: QBENF 1999/0500/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE RICHARDS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 21 February 2000
B e f o r e :
THE MASTER OF THE ROLLS
LADY JUSTICE HALE
and
LORD MUSTILL
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REGINA
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Appellant
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V -
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SECRETARY
OF STATE FOR HEALTH EX PARTE `C'
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Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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MR ALLAN LEVY QC and MR JOHN CROSFILL (instructed by Godfrey Davis Watt,
Ramsgate, CT11 9AG for the Appellant)
MR NEIL GARNHAM (instructed by The Office of the Solicitor, Department
of Health, London WC2A 2LS for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
LADY JUSTICE HALE:
1. This appeal concerns the lawfulness of the Consultancy Service Index
maintained by the Department of Health. This is a list of people about whom
there are doubts as to their suitability to work with children. There is at
present no statutory basis for such a list, although one will be supplied by
the Protection of Children Act 1999 when brought into force. Underlying this
issue is the balance to be struck between two important interests. One is the
interest of any individual in safeguarding his reputation and livelihood
against the serious interference which inclusion on anything like an official
'blacklist' may entail. The other is the interest of children living away from
home, and the interest of the community which seeks to safeguard its vulnerable
members, in effective protection from abuse and neglect and other risks to
which they are subject, especially in residential settings, a need which has
been emphasized in several recent reports.
The Consultancy Service Index
2. Such a list was informally maintained by the Home Office Children's
Department Inspectorate from the 1930s until the Department of Health took over
policy responsibility for children's services in 1971. It has since developed
to its present form. The current guidance is contained in Annex C to the
Department's Circular LAC 93(17). This states that 'The object is to make sure
that, so far as possible, unsuitable people are not appointed to positions
involving contact with children or responsibility for them.'
3. The list is compiled from (a) information supplied by employers when staff
are dismissed or resign or are moved to a non child care post in circumstances
where the welfare of children has been or may have been put at risk; (b)
convictions or cautions notified by police when at the time the individual was
working in the child care field; and (c) List 99 maintained by the Department
for Education under s 218 of the Education Reform Act 1988. When a referral
under (a) is received from an employer the Department includes the name on the
list immediately but invites his representations. 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 list. Any representations are sent to the
employer for comment. The Department then considers these and decides whether
the employer's concern was reasonable. It must also be satisfied that the
employer is prepared to provide such information to any prospective employer
seeking a reference.
4. The list is not published. The Department expects all employers in the child
care field to undertake full and proper pre-employment checks, including
consulting the Index, but these checks should only be made once a decision to
offer employment has been made. If no trace of the person is found the inquiry
will be returned stamped 'no observations'. If a positive identification is
made, a letter will be sent suggesting that a reference be sought from a named
local authority or voluntary/private organisation. Unlike the person named in
the list, a prospective employer is not told anything about the reasons for the
referral, except for any criminal conviction.
5. This procedure enables prospective employers to be put in touch with
previous employers who have had concerns. It does not operate as a legal bar to
future employment. The decision rests with the prospective employer. But it
would be unrealistic to ignore the powerful effect which inclusion on such a
list will have upon a person's prospects of employment in the child care field:
see Woolf MR in S v Newham London Borough Council [1998] 1 FLR 1061, at
1070H - 1071B. In that case it was decided that referring agencies did not
enjoy absolute immunity for their referrals.
The present case
6. The appellant was employed from 1981 as an unqualified social worker in a
local authority community home. In autumn 1982, S became resident in that home.
For a few months in 1983 she was fostered with the appellant and his family. In
1986, when she was a patient in a psychiatric hospital, she told a social
worker that she had been sexually abused by the appellant, but for some unknown
reason the matter went no further. In 1994, S made similar statements to a
counsellor, not expecting them to be disclosed to anyone else. The counsellor
disclosed this to the local authority. An investigation was carried out under
the authority's disciplinary procedure. One officer interviewed S, while
another studied her file and found the 1986 disclosure. The appellant was not
formally interviewed about the allegations but was seen informally and strongly
denied them. During the investigation other allegations were made of violence
towards two female partners and physical abuse of two children.
7. A disciplinary hearing took place on 11 and 12 May 1995 before the Area
Director of Social Services. She concluded, as to the allegations of sexual
abuse, '. . . on the balance of probability, you were responsible for serious
sexual assaults on a client of this department. This is gross misconduct and
warrants summary dismissal.' She then considered the other allegations, which
had led to a child protection case conference; she also referred to events,
which had taken place before his employment, resulting in a three year
supervision order on a child in his family; to the fact that he had two
criminal convictions, one for assault; and to his non disclosure or denial of
these matters upon inquiry. She concluded that 'I do not believe there is any
way the department could continue to have trust and confidence in you as an
employee working with vulnerable people in these circumstances and that these
concerns alone would warrant your dismissal.'
8. An internal appeal was dismissed on 14 July 1995. The appellant applied to
an industrial tribunal, claiming unfair dismissal. His application was
dismissed by a decision notified on 17 April 1997. The tribunal concluded both
that the employer had acted reasonably in the investigation carried out and
that the dismissal came within the reasonable range of responses of a
reasonable employer in the circumstances. Indeed 'we have to say that, bearing
in mind the nature of C's employment, we do not see what else they could have
done.' An appeal to the Employment Appeal Tribunal was dismissed on 3 July 1996
on the ground that it raised no sustainable point of law.
9. On 18 February 1997 the Department informed the appellant that his name had
been included on the Index: they had been notified that he had been dismissed
because of
'1. proven allegations of sexual assault by you on a child in care in a
residential unit;
2. proven allegation of sexual assault on the same child when fostered by you;
3. proven allegations of physical assault on children in your private
relationships leading to child protection investigations.'
10. In accordance with their practice they invited his comments.
Representations were made on his behalf. These pointed out that the allegations
made by S had never been tested and that the allegations of abuse of the other
children had been tested in contact proceedings and the appellant's evidence
preferred. The Department forwarded these representations to the local
authority and also asked for the papers relating to the disciplinary
investigation and hearing. On 5 March 1998 the appellant was informed that all
relevant documentation had been very carefully considered and the decision
taken to retain his name on the Index.
11. The appellant applied for judicial review to quash this decision. Three
arguments were advanced on his behalf: (1) the Index could not be lawfully
operated without Parliamentary authority; (2) the Department's decision was
irrational and unfair; (3) the appellant had been denied a fair hearing in the
determination of his civil rights and obligations, contrary to Article 6(1) of
the European Convention on Human Rights.
12. In a reserved judgment handed down on 21 December 1998, Richards J rejected
all three arguments and dismissed the application. He also refused permission
to appeal. The appellant applied to this court raising all three arguments.
Stuart Smith LJ granted permission on the first and third, because he
considered that they raise important points which merit the consideration of
the full court. He refused permission on the second because he considered that
the judge was clearly right to conclude that the decision could not be
challenged on the grounds of irrationality or unfairness.
Is the Index lawful?
13. Mr Levy QC argues that the Crown has no power to maintain the Index without
statutory authority. He relies upon the following statement from Halsbury's
Laws of England (4th edition reissue), volume 8(2), para 101:
'According to this traditional view of the doctrine of parliamentary
sovereignty, the liberties of the subject are merely implications drawn from
two principles, namely: (1) that individuals may say or do what they please,
provided they do not transgress the substantive law, or infringe the legal
rights of others; and (2) that public authorities (including the Crown) may do
nothing but what they are authorised to do by some rule of the common law
(including the royal prerogative) or statute, and in particular they may not
interfere with the liberties of individuals without statutory authority.'
14. This passage finds a recent echo in the words of Laws J (as he then was) in
R v Somerset CC ex parte Fewings [1995] 1 All ER 513, at 524:
'For private persons, the rule is that you may do anything you choose which
the law does not prohibit. It means that the freedoms of the private citizen
are not conditional upon some distinct and affirmative justification for which
he must burrow in the law books. Such a notion would be anathema to our English
legal traditions. But for public bodies the rule is the opposite, and so of
another character altogether. It is that any action taken must be justified by
positive law. A public body has no heritage of legal rights which it enjoys for
its own sake; at every turn, all of its dealings constitute the fulfillment of
duties which it owes to others; indeed it exists for no other purpose.'
15. This distinction was repeated by Sir Thomas Bingham MR in the same case in
the Court of Appeal at [1995] 3 All ER 20, 25. But that case concerned a local
authority, which is itself a creature of statute.
16. The Crown is not a creature of statute and in one respect at least is
clearly different from a local authority. The Crown has prerogative powers. But
what does this mean? Professor Sir William Wade, in Administrative Law (7th
edition 1994 by Wade and Forsyth), at pp 248 - 249, draws a clear distinction
between prerogative and other powers:
'"Prerogative" power is, properly speaking, legal power which appertains to
the Crown but not to its subjects. Blackstone explained the correct use of the
term. . . . Although the courts may use the term "prerogative" in this sense,
they have fallen into the habit of describing as "prerogative" every power of
the Crown which is not statutory, without distinguishing between powers which
are unique to the Crown, such as the prerogative power of pardon, from powers
which the Crown shares equally with its subjects because of its legal
personality, such as the power to make contracts, employ servants and convey
land.'
17. There is no suggestion of a specific prerogative power in this case but
Halsbury's Laws, volume 8(2), at note 6 to para 101 confirm that '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 was on this
ground that Richards J declined to hold that the Index was unlawful.
18. Could then a private individual maintain a list such as this? There are, of
course, examples of such lists in other contexts, such as credit rating.
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. The
case of Entick v Carrington (1795) 19 St Tr 1029 is perhaps the best
known example of that principle. It concerned a clear interference with
property:
'. . . our law holds the property of every man so sacred, that no man can set
his foot upon his neighbour's close without his leave; if he does so he is
trespasser, though he does no damage at all; if he will tread upon his
neighbour's ground he must justify it by law . . . we can safely say there is
no law in this country to justify the defendants in what they have done; if
there was it would destroy all the comforts of society; for papers are often
the dearest property a man can have.'
19. This may be compared with the case of Malone v Metropolitan Police
Commissioner [1979] 1 Ch 344, in which the court was unable to detect a
private right, whether of property, privacy or confidentiality, with which the
tapping of his telephone interfered.
20. Mr Levy suggests that the Index is an interference with the right to work
in one's chosen profession. He cites, as the 'high point' in the recognition of
such a right the case of Nagle v Fielden [1966] 2 QB 633: the Court of
Appeal held that it was arguable that the jockey club's policy of refusing a
trainer's license to a woman was contrary to public policy. Lord Denning MR
made some observations about the remedies which might be available to those
denied entry to a 'closed shop' operated by a trade or profession. Mr Levy has
drawn our attention to numerous statutory provisions dealing with such
situations.
21. There is a clear distinction between being denied or deprived of a
qualification or license which is essential for the lawful conduct of the
occupation in question and what occurred in this case. The appellant is an
unqualified social worker. He was not being deprived of any qualification.
No-one has a right to be provided with a job. Employers are free to pick and
choose whomever they wish to employ. They may do so for good or bad reasons,
subject only to the laws prohibiting discrimination on grounds of race, sex or
disability. What anyone has is the right to apply for a job. He may also have
certain other rights connected with that right, for example in relation to the
giving of references. Subject to complying with those rights, it seems to me
that private citizens are free to maintain services such as this. I conclude,
therefore, that maintaining the list is not, in itself, unlawful.
Is the operation of the Index unlawful?
22. 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 appellant may not have a right to be
provided with a job, nor is the Department expressly prohibiting his
employment. Nevertheless he is placed in a position where he will find it
extremely difficult to get a job in child care: indeed it is the declared
object of the Index to secure that he does not do so. The impact of a list such
as this maintained by a Government Department or public authority is that much
more powerful because they are generally so much more powerful.
23. These considerations call to mind some further words of Professor Wade,
cited by Laws J in Fewings Case:
'The powers of public authorities are . . . essentially different from those
of private persons. A man making his will may, subject to any rights of his
dependants, dispose of his property just as he may wish . . . This is
unfettered discretion. But a public authority may do none of those things
unless it acts reasonably and in good faith and on lawful and relevant grounds
of public interest . . . The whole conception of an unfettered discretion is
inappropriate to a public authority, which possesses powers solely in order
that it may use them for the public good.'
24. 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. This leads to Mr
Levy's second line of attack.
25. Mr Levy argues that the way in which the list is operated is in all the
circumstances unlawful and unreasonable, particularly bearing in mind Article 6
of the European Convention on Human Rights:
'In the determination of his civil rights and obligations . . . everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.'
26. He points out that the Protection of Children Act 1999 will give a person
included in the 'list of individuals who are considered unsuitable to work with
children', which the Department will then have not only the power but the duty
to maintain, a right of appeal to a tribunal.
This could indicate that the Department sponsoring this legislation considered
that such a right was required under Article 6. Even before the implementation
of the Human Rights Act 1998, the principles underlying the Convention should
guide our interpretation of the common law.
27. The implementation of the Human Rights Act 1998 on 2 October 2000 will, of
course, create new rights. Under section 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 the 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(1) 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 the law' in Convention terms,
because it was not sufficiently precise or predictable: see Malone v United
Kingdom (1984) 7 EHRR 14.
28. It is not for me to speculate on the Department's motives for sponsoring
the 1999 Act, still less to express a view upon whether the present operation
of the Index would be incompatible with a Convention right after 2 October
2000. It is enough to accept that there are circumstances in which the
operation of the list 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 not determinative of the
appellant's civil rights and obligations: see Fayed v United Kingdom
(1994) 18 EHRR 393, at paras 56, 61 - 62, applying the test adopted in Le
Compte van Leuven and De Meyere v Belgium (1981) 4 EHRR 1:
'In order for an individual to be entitled to a hearing before a tribunal,
there must exist a "dispute" ("contestation") over one of his or her
civil rights or obligations. It follows, so the Court's case law has explained,
that the result of the proceedings in question must be directly decisive for
such a right or obligation, mere tenuous connections or remote consequences not
being sufficient to bring Article 6(1) into play.'
29. The DTI Inspectors' report in that case 'would not be dispositive of
anything. They did not make a legal determination as to criminal or civil
liability concerning the Fayed brothers, and in particular concerning the
latter's civil right to honour and reputation' (para 61).
30. 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 the 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.
31. It is difficult indeed to see how acting as a conduit in this way
represents an 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, albeit nothing like the stigma
which would be involved were the details of the referral to be disclosed to
inquirers. It is known that the Department seeks representations from the
person included and from the previous employer and exercises at least some
judgment as to whether or not to include the name. This brings with it a duty
to act fairly in the circumstances. But the object is to protect the person
concerned from being included without reason: it would be wrong to conclude
that the operation of the list in unlawful merely because it provides an extra
protection in this way.
32. For all those reasons I conclude that the operation of the list in its
present form is not unlawful and unreasonable as the law currently stands. I
express no view upon whether that may change after 2 October 2000 but in any
event the Department has a solution readily to hand.
LORD MUSTILL :
I agree.
LORD WOOLF MR:
I also agree.
Order: Appeal dismissed; Legal Aid Taxation of appellant's costs; Leave to
appeal to the House of Lords refused. Order does not form part of the approved
judgment.
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