Written evidence
Letter to the Committee from Derek Walton, Legal
Counsellor, Foreign and Commonwealth Office, dated 24 July 2009
I write to inform you that since I last wrote on
29 January, the following judgments against the United Kingdom
have been given by the European Court of Human Rights:
- Booth v United Kingdom (Application No. 27961/02
Judgment of 3 February 2009). Lead Department: Department of Work
and Pensions.
- Turner v United Kingdom (Application No. 42709/02
Judgment of 3 February 2009). Lead Department: Department of Work
and Pensions.
- Mitchard v United Kingdom (Application No. 42711/02
Judgment of 3 February 2009). Lead Department: Department of Work
and Pensions.
- Robert Murray v United Kingdom (Application No.
28045/02 Judgment of 3 February 2009). Lead Department: Department
of Work and Pensions.
- Twomey v United Kingdom (Application No. 28095/02
Judgment of 3 February 2009). Lead Department: Department of Work
and Pensions.
- A & Others v United Kingdom (Application
No. 3455/05 Judgments of the Grand Chamber of 19 February 2009).
Lead Department: Home Office.
- Blackgrove v United Kingdom (Application No.
2895/07 Judgment of 28 April 2009). Lead Department: Department
of Work and Pensions.
- Szuluk v United Kingdom (Application No. 3693/05
Judgment of 2 June 2009). Lead Department: Ministry of Justice.
Letter to the Committee from Derek Walton, Legal
Counsellor, Foreign and Commonwealth Office, dated 1 March 2010
I write to inform you that since I last wrote on
24 July 2009, the following judgments against the United Kingdom
have been given by the European Court of Human Rights:
- Richard Anderson v United Kingdom (Application
No. 19859/04 Judgment of 9 February 2010). Lead Department: Scottish
Executive.
- Financial Times Ltd & Others v United Kingdom
(Application No. 821/03 Judgment of 15 December 2009). Lead Department:
Ministry of Justice.
- Omojudi v United Kingdom (Application No. 1820/08
Judgment 24 November 2009). Lead Department: Home Office.
- A.W. Khan v United Kingdom (Application No. 47486/06
Judgment 12 January 2010). Lead Department: Home Office.
- Crompton v United Kingdom (Application No. 42509/05
Judgment 27 October 2009). Lead Department: Ministry of Defence.
- Gillan & Quinton v United Kingdom (Application
No. 4158/05 Judgment 12 January 2010). Lead Department: Home Office.
I apologise for the delay since my last letter.
Letter to the Chair of the Committee from Richard
Thomas CBE, Chairman, Administrative Justice & Tribunals Council
Judgment of the Court of Appeal in Governors
of X School v R (on the application of G) & Ors [2010] EWCA
Civ 1
The Administrative Justice and Tribunals Council
(AJTC) was established by the Tribunals Courts and Enforcement
Act 2007 as the successor body to the Council on Tribunals, with
a remit to keep under review the administrative justice system
and the constitution and working of tribunals and statutory inquiries
within its oversight.
During 2006, the JCHR gave detailed consideration
to the provisions of the Safeguarding Vulnerable Groups Bill.
At that time, the Council on Tribunals raised concerns with the
then Department for Education and Skills about the provisions
in the Bill affecting the right of appeal of people barred from
working with children or vulnerable adults by the Independent
Barring Board (now called the Independent Safeguarding Authority
(ISA)). In particular, the Council questioned whether limiting
the right of appeal to a mistake of law or fact would comply with
the European Convention on Human Rights. We were concerned that
the lack of any right to challenge the merits of the ISA's decision,
or of the exercise of discretion by the ISA, appears to be contrary
to ECHR Articles 6 and 8. Subsequent changes following implementation
of the Tribunals, Courts and Enforcement Act 2007 further limit
the right of appeal from a decision of the ISA to the Upper Tribunal,
effectively leap-frogging the First-tier Tribunal (Care Standards),
which dealt with appeals against barring decisions under the earlier
schemes.
The AJTC was therefore interested in your correspondence
early last year with Vernon Coaker MP, Minister of State at the
Home Office, inquiring whether, in the light of the House of Lords'
judgment in R (Wright) v Secretary of State for Health
[2009] 1 AC 739, the Government remain satisfied that the Safeguarding
Vulnerable Groups Act (SVGA) 2006 is compatible with human rights.
Mr Coaker's response was limited to the specific issues raised
in that case concerning the previous practice of provisional listing
without the right to make representations. Since the ISA now invites
representations from people it is minded to place on a barred
list before making a final decision, the Government considers
that the SVGA scheme is compatible with human rights, and in particular
with Articles 6 and 8 of the ECHR.
Our attention has recently been drawn to the above
recent judgment of the Court of Appeal. The question in this case
was whether a teaching assistant accused of inappropriate conduct
should be allowed to have legal representation at an internal
disciplinary hearing. The following extracts from the judgment
of Laws LJ raise significant human rights issues:
"48. Accordingly it is clear in my judgment
that the outcome of the disciplinary proceedings, if (after the
extant appeal) it remains unfavourable to the claimant, will have
a substantial effect on the outcome of the barred list procedures
which will then be applied to him. His right to practise his profession,
which will be directly at stake in the barred list procedure,
may (in the language of the Ocalan case) be irretrievably
prejudiced by the disciplinary proceedings. I conclude that the
answer to the first question which I posed is in the affirmative:
the disciplinary proceedings are a determinant of the claimant's
right to practise his profession. Article 6 is accordingly engaged
on the footing that that is the civil right in issue.
49. This result cannot, I think, be dislodged by
the existence of the Upper Tribunal's appellate jurisdiction.
Though it may entertain appeals on law or fact from the ISA, for
the purposes of its jurisdiction "the decision whether or
not it is appropriate for an individual to be included in a barred
list is not a question of law or fact" (s.4(3) of the 2006
Act). The issue most likely to be critical in a case like the
present, namely whether on the proved or admitted facts the quality
of the individual's act should be judged severe enough to put
him on the barred list, appears to lie beyond the Upper Tribunal's
jurisdiction. "
I would therefore be grateful if your Committee would
consider the implications of this judgment and again seek the
Government's views on whether, in the light of its findings, section
4 of the SVGA 2006 is in fact compliant with Articles 6 and 8
of the ECHR.
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