(back to preceding text)

25.  Nevertheless, Dyson LJ considered that there were two reasons why the failure to afford the care worker an opportunity to make representations before provisional listing could not be cured by the possibility of being taken off the list under section 81(3), or by judicial review, or by the later access to the tribunal. The first was that denial of the right to make representations was “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” (para 106). He reached this conclusion having reviewed the cases holding that the composite approach could be applied to deciding whether a person is fitted to pursue a particular profession or activity (see Stefan v United Kingdom (1997) 25 EHRR CD 130, X v United Kingdom (1998) 25 EHRR CD 88, Kingsley v United Kingdom (2002) 35 EHRR 177). In all of these cases the procedures followed by the initial decision-making body were such as to give the person concerned a proper opportunity of meeting the allegations made against him. Secondly, the detrimental effect of provisional listing was often irreversible and incurable (para 107). Hence he concluded that there should be a right to make representations before provisional listing, unless it was outweighed by the immediate need to protect vulnerable adults from harm. He explained (in para 108) that he had in mind “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” although the words read into section 82(4) did not put it as strongly as this.

26.  My Lords, the scheme appears premised on the assumption that permanently to ban a person from a wide variety of care positions does require a full merits hearing before an independent and impartial tribunal. That premise is, in my view, correct. The issue is what should be done on the way to that decision. How is a proper balance to be struck between the need to protect the vulnerable adults, who may be at risk from a care worker who has been referred to the Secretary of State, and the need to protect the care worker from suffering irreversible damage to her civil rights, as a result of allegations which later turn out to be unfounded, even frivolous or malicious, or at the very least blown up out of all proportion? We have seen one very clear example of that in the course of this case.

27.  No-one can be in any doubt of the need for some scheme such as this to protect children and vulnerable adults from being harmed by the people who regularly come into contact with them in the course of work. The most practicable way of providing such a scheme may well be to have a list of banned individuals which is maintained administratively and where the initial decisions are made by officials. Stanley Burnton J was told that there are about 900,000 care workers within the scope of the scheme. Referrals run at the rate of 200 a month. There were then about 2000 provisional listings and about 500 confirmed listings but only 37 cases had gone to the tribunal. If the process is working as it should, many people will accept that they should indeed be on the list.

28.  However, in my view, Dyson LJ was entirely correct in his conclusion that the scheme as enacted in the Care Standards Act 2000 does not comply with article 6(1), for the reasons he gave. The process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment.

29.  Unfortunately, however, I cannot agree that the solution devised by the Court of Appeal is sufficient to solve the problem. This is principally because of what has come to be called the “Wright exception". The care worker suffers possibly irreparable damage without being heard whatever the nature of the allegations made against her. The care worker may have a good answer to the allegations no matter how serious they are. There may well be cases where the need to protect the vulnerable is so urgent that an “ex parte” procedure can be justified. But one would then expect there to be a swift method of hearing both sides of the story and doing so before irreparable damage was done. That is not provided for in the “Wright exception". Nor is there any method provided of assessing the true urgency of the case. As it happens, no great urgency was felt in the four cases before us, where there was a gap of four to six months between the referral and the provisional listing. A greater sense of urgency may have been felt since the “Wright exception” criteria were devised. But this is not apparent from the details supplied to us about the 21 (out of 278) referrals to which the “Wright exception” has been applied since 2 October 2008. Most involved delays between three and six months between referral and provisional listing and even longer since the misconduct complained of. The “Wright exception” criteria relate solely to the nature of the allegation made and to the possible harm which might be suffered; they do not relate to the circumstances of the particular care worker and whether in fact she presents any current risk of harm. There is the further difficulty that, if she is currently employed in a care position, the risk may be greater but so too will be the effect upon her civil rights. The problem, it seems to me, stems from the draconian effect of provisional listing, coupled with the inevitable delay before a full merits hearing can be obtained. That cannot be cured by offering some of the care workers an opportunity to make representations in advance, while denying that opportunity to other workers who may have been just as unfairly treated by their former employers. Before turning to the consequence of this conclusion, it is necessary to say a few words about the article 8 challenge.

30.  Article 8 protects a person’s “right to respect for his private and family life, his home and his correspondence". It is, as Stanley Burnton J remarked, “the least defined and most unruly” of the Convention rights (para 60). But, as Lord Rodger of Earlsferry pointed out in R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2008] 1 AC 719, at para 92, “the European Human Rights Commission long ago rejected any Anglo-Saxon notion that the right to respect for private life was to be equated with the right to privacy". As long ago as X v Iceland (1976) 5 DR 86, it was held to “comprise also, to a certain degree, the right to establish and develop relationships with other human beings". In Niemietz v Germany (1992) 16 EHRR 97, at para 29, the court held

“it would be too restrictive to limit the notion 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.”

31.  Niemietz itself involved the extension of private life to the business of a lawyer whose office had been searched. Since then it has been applied to a number of so-called “lustration” cases from the former Warsaw pact countries which have now joined the Council of Europe. Many enacted laws to cleanse their public life of former officials in the discredited communist regimes, particularly those who had been employed by the security services. In several cases the European Court has held that they went too far. In Sidabras v Lithuania (2004) 42 EHRR 104, former KGB officers were banned, not only from public sector employment, but also from many private sector posts. This “affected [their] ability to develop relationships with the outside world to a very significant degree, and has created serious difficulties for them as regards the possibility to earn their living, with obvious repercussions on their enjoyment of their private life” (para 48). There was also a considerable stigma attached to being former KGB officers, which was “an impediment to the establishment of contacts with the outside world” (para 49). This therefore fell within the ambit of article 8 for the purpose of the prohibition of discrimination in the enjoyment of Convention rights in article 14.

32.  An actual breach of article 8 was found in Turek v Slovakia (Application No 57986/00) (unreported) 14 February 2006. The consequences of being listed as an “agent” of the state security agency were much less far-reaching than in Sidabras but were nevertheless an interference with the applicant’s right to respect for his private life. The procedural aspect of article 8 (which dates back at least to the case of W v United Kingdom) therefore required that “the decision-making process involved in measures of interference must be fair and such as to ensure due respect [for] the interests safeguarded by article 8” (para 111). The applicant was unable to disprove the allegation that he was an agent because he had not been allowed access to the guidelines governing inclusion on the list.

33.  Hence Mr Martin Spencer QC, on behalf of the applicants, argues that POVA listing is an interference with the right to respect for private life. It prohibits the listed persons from a wide range of employments, it carries a considerable stigma affecting their standing with colleagues and the community, and it interferes directly with their personal relationships, not only with their colleagues, but also with the vulnerable people for whom they work and with whom they often develop close relationships which are also important for the welfare of the vulnerable people themselves. Miss Nathalie Lieven QC, for the Secretary of State, accepts that article 8 might be engaged, for example, if a person were prevented from continuing as a foster parent. But in general she argues that there are so many other positions available to listed people that article 8 is not engaged.

34.  Stanley Burnton J accepted Mr Spencer’s argument. In general, the Convention did not confer any right to engage in a chosen profession, so that dismissal, suspension or disqualification from particular employments would not normally engage article 8. But listing on suspicion of such serious misconduct as to indicate that the worker posed a risk to vulnerable people was calculated to interfere with her relationships with colleagues, with the vulnerable people with whom she worked, and with others (para 65). For the same reasons as those given under article 6, the procedures were unfair and did not ensure due respect for the care workers’ article 8 rights.

35.  The Court of Appeal found it unnecessary to consider article 8. But Mr Spencer revives the argument before this House, not only to bolster his procedural case under article 6, but also to attack the low threshold for provisional listing laid down in section 82(4): “that it may be appropriate for the worker to be included in the list". The evidence of the officials is that, when considering provisional listing, they do address their minds to whether it may turn out that the two criteria for full listing are met - that is, that the employer reasonably believed the worker to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, and that the worker is unsuitable to work with vulnerable adults. Nevertheless, it is a low threshold to be applied without having heard both sides of the story. The main thrust of Mr Spencer’s argument is to bridge the gap between substance and procedure. If, which he does not accept, the low threshold for interim measures is a matter of substance, then it can be attacked as a disproportionate interference with article 8 rights. If it is a matter of procedure, it contributes to the overall unfairness of the scheme.

36.  For my part, I am inclined to take the same view of whether article 8 is engaged as to whether article 6 is engaged. There will be some people for whom the impact upon personal relationships is so great as to constitute an interference with the right to respect for private life and others for whom it may not. The scope of the ban is very wide, bearing in mind that the worker is placed on both the POVA and the POCA lists. The ban is also likely to have an effect in practice going beyond its effect in law. Even though the lists are not made public, the fact is likely to get about and the stigma will be considerable. The scheme must therefore be devised in such a way as to prevent possible breaches of the article 8 rights.

37.  Mr Spencer does not, of course, argue that such interference will never be justifiable under article 8(2). The point is that the procedures must be fair in the light of the importance of the interests at stake. I would agree that the low threshold for provisional listing adds to the risk of arbitrary and unjustified interferences and thus contributes to the overall unfairness of the scheme.

38.  My lords, I have concluded above that the procedure for provisional listing does not meet the requirements of article 6(1) and that the solution favoured by the Court of Appeal does not cure the problem. No other solution could properly be adopted by way of the interpretative obligation in section 3(1) of the Human Rights Act 1998. I would therefore return to the solution adopted by Stanley Burnton J and make a declaration that section 82(4)(b) of the Care Standards Act 2000 is incompatible with the Convention rights.

39.  However, I would not make any attempt to suggest ways in which the scheme could be made compatible. There are two reasons for this. First, the incompatibility arises from the interaction between the three elements of the scheme - the procedure, the criterion and the consequences. It is not for us to attempt to rewrite the legislation. There is, as I have already said, a delicate balance to be struck between protecting the rights of the care workers and protecting the welfare, as well as the rights, of the vulnerable people with whom they work. It is right that that balance be struck in the first instance by the legislature. Secondly, both the Care Standards Act 2000 and the Protection of Children Act 1999 will in due course be replaced by a completely different scheme laid down by and under the Safeguarding Vulnerable Groups Act 2006. While we have been informed of its existence, we have not heard argument upon whether or not that scheme is compatible with the Convention rights as the question does not arise on these appeals. Nothing which I have said in this opinion is intended to cast any light upon that question.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

40.  I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with her and would make the declaration of incompatibility which she proposes.