Wright & Ors, R (on the application of) v Secretary of State for Health & Anor [2006] EWHC 2886 (Admin)

Case No CO/1557/2006Case No CO/1559/2006Case No CO/1932/2006Case No CO/1819/2006[2006] EWHC 2886 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 16 th November 2006
Before
MR JUSTICE STANLEY BURNTON
Between
JUNE WRIGHTClaimantsKHEMRAJ JUMMUNClaimantMARY QUINNClaimantBARBARA GAMBIERClaimantTHE SECRETARY OF STATE FOR HEALTHDefendantsTHE SECRETARY OF STATE FOR EDUCATION AND SKILLSDefendant
The Queen on the application of:
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Martin Spencer QC and Jamie Carpenter (instructed by Helen Caulfield, Legal Department, Royal College of Nursing) for ClaimantsNathalie Lieven QC (instructed by the Office of the Solicitor) for Defendants
JudgmentStanley Burnton J :Introduction
[1]These conjoined applications for judicial review, made with the support of the Royal College of Nursing, raise a number of important issues in relation to Part VII of the Care Standards Act 2000 (“the CSA”). Part VII created a scheme for the creation and maintenance of a statutory list of persons who are unsuitable to work with vulnerable adults. The list is known as the Protection of Vulnerable Adults List (“the POVA list”). Inclusion on the POVA list effectively precludes a person from working as a care worker with vulnerable adults.[2]Each of the Claimants was placed on the POVA list provisionally. Mrs Wright was included in the list on the basis of alleged misconduct that pre-dated the coming into force of the statutory provisions. She has appealed against her inclusion in the list to the Care Standards Tribunal, which has stayed her appeal pending the outcome of these proceedings. Mr Jummun was placed on the list provisionally but the Secretary of State decided not to confirm his listing. Mary Quinn and Barbara Gambier were placed on the list provisionally; following representations on their behalf, the Secretary of State decided not to confirm their listing.[3]These are representative applications, in the sense that there are other cases brought by other members of the RCN that await the decisions in the present cases.

The issues before the Court

[4]The issues I have to consider are:(a) Whether the Secretary of State may include a person in the POVA List under section 82 of the Act, following a reference from his employer, where the alleged misconduct of that person preceded the coming into force of that section.(b) Whether the provisions of Part VII are compatible with the rights of care workers under Articles 6 and 8 of the European Convention on Human Rights and under Article 1 of the First Protocol of the Convention.[5]There was originally a further issue, namely whether Mr Jummun, the Second Claimant, was a care worker within the meaning of the Act. Having considered Ms Lieven’s submissions and reconsidered the evidence on this issue, Mr Spencer realistically and commendably conceded that Mr Jummun is indeed such a care worker, and I do not consider the issue further.

The statutory provisions

[6]Two of the basic definitions in the Act are those of a care home and a care worker. A care home is defined in section 3:(1) For the purposes of this Act, an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons.(2) They are (a) persons who are or have been ill; (b) persons who have or have had a mental disorder; (c) persons who are disabled or infirm; (d) persons who are or have been dependent on alcohol or drugs.(3) But an establishment is not a care home if it is (a) a hospital; (b) an independent clinic; or (c) a children’s home, or if it is of a description excepted by regulations. (a) persons who are or have been ill; (b) persons who have or have had a mental disorder; (c) persons who are disabled or infirm; (d) persons who are or have been dependent on alcohol or drugs.

(b) an independent clinic; or (c) a children’s home,

[7]“Care worker” is defined by section 80(1): (1) Subsections (2) to (7) apply for the purposes of this Part. (2) Care worker means (a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home; (b) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom prescribed services are provided by an independent hospital, an independent clinic, an independent medical agency or a National Health Service body; (c) an individual who is or has been employed in a position which is concerned with the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance. Paragraph (b) of section 80(2) is not in force. (a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home; (b) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom prescribed services are provided by an independent hospital, an independent clinic, an independent medical agency or a National Health Service body; (c) an individual who is or has been employed in a position which is concerned with the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.[8]“Vulnerable adult” is defined in section 80(6): (6) Vulnerable adult means (a) an adult to whom accommodation and nursing or personal care are provided in a care home; (b) an adult to whom personal care is provided in their own home under arrangements made by a domiciliary care agency; or (c) an adult to whom prescribed services are provided by an independent hospital, independent clinic, independent medical agency or National Health Service body. Again, paragraph (c) is not yet in force. (a) an adult to whom accommodation and nursing or personal care are provided in a care home; (b) an adult to whom personal care is provided in their own home under arrangements made by a domiciliary care agency; or (c) an adult to whom prescribed services are provided by an independent hospital, independent clinic, independent medical agency or National Health Service body.[9]Sections 81 and 82 are, so far as relevant, as follows: 81(1) The Secretary of State shall keep a list of individuals who are considered unsuitable to work with vulnerable adults.(2) An individual shall not be included in the list except in accordance with this Part.(3) The Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it. 82(1) A person who provides care for vulnerable adults (the provider) shall refer a care worker to the Secretary of State if there is fulfilled - (a) any of the conditions mentioned in subsection (2); or (b) the condition mentioned in subsection (3). (2) The conditions referred to in subsection (1)(a) are (a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; (b) that the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; (c) that the provider has, on such grounds, transferred the worker to a position which is not a care position; (d) that the provider has, on such grounds, suspended the worker or provisionally transferred him to a position which is not a care position but has not yet decided whether to dismiss him or to confirm the transfer. (3) The condition referred to in subsection (1)(b) is that- (a) in circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired or the provider has transferred him to a position which is not a care position; (b) information not available to the provider at the time of the dismissal, resignation, retirement or transfer has since become available; and (c) the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned or retired, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a).(4) If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 81, the Secretary of State shall (a) determine the reference in accordance with subsections (5) to (7); and (b) pending that determination, provisionally include the worker in the list.(5) The Secretary of State shall- (a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and (b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a).(6) Where (a) the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant; and (b) in the case of a reference under subsection (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned, the Secretary of State shall confirm the worker’s inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list.(7) This subsection applies if the Secretary of State is of the opinion- (a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and (b) that the worker is unsuitable to work with vulnerable adults.(8) The reference in subsection (6)(b) to the provider dismissing the worker on such grounds as are mentioned in subsection (2)(d) includes- (a) a reference to his resigning, retiring or being made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and (b) a reference to the provider transferring him, on such grounds, to a position which is not a care position.(9) This section does not apply where- (a) the provider carries on a domiciliary care agency, or an independent medical agency, which is or includes an employment agency or an employment business; and (b) the worker in question is a supply worker in relation to him.(10) Nothing in this section shall require a person who provides care for vulnerable adults to refer a worker to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section.” (a) any of the conditions mentioned in subsection (2); or (b) the condition mentioned in subsection (3). (a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; (b) that the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; (c) that the provider has, on such grounds, transferred the worker to a position which is not a care position; (d) that the provider has, on such grounds, suspended the worker or provisionally transferred him to a position which is not a care position but has not yet decided whether to dismiss him or to confirm the transfer. (a) in circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired or the provider has transferred him to a position which is not a care position; (b) information not available to the provider at the time of the dismissal, resignation, retirement or transfer has since become available; and (c) the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned or retired, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a). (4) If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 81, the Secretary of State shall (a) determine the reference in accordance with subsections (5) to (7); and (b) pending that determination, provisionally include the worker in the list. (a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and (b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a). (a) the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant; and (b) in the case of a reference under subsection (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned, the Secretary of State shall confirm the worker’s inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list. (7) This subsection applies if the Secretary of State is of the opinion- (a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and (b) that the worker is unsuitable to work with vulnerable adults. (8) The reference in subsection (6)(b) to the provider dismissing the worker on such grounds as are mentioned in subsection (2)(d) includes- (a) a reference to his resigning, retiring or being made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and (b) a reference to the provider transferring him, on such grounds, to a position which is not a care position. (a) the provider carries on a domiciliary care agency, or an independent medical agency, which is or includes an employment agency or an employment business; and (b) the worker in question is a supply worker in relation to him. (10) Nothing in this section shall require a person who provides care for vulnerable adults to refer a worker to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section.”[10]Section 83 imposes on employment agencies and employment businesses a duty to refer workers to the Secretary of State in similar circumstances as those applicable to providers. In addition, by section 84(1) the registration authority, which is now the Commission for Social Care Inspection, responsible for inspecting and licensing care homes (among other establishments) and employment agencies and others may refer a care worker to the Secretary of State if-(a) on the basis of evidence obtained by it in the exercise of its functions under Part II of this Act, the authority considers that the worker has been guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and(b) the worker has not been referred to the Secretary of State under section 82 or 83 in respect of the misconduct. However, section 84(3) provides: (3) The reference in subsection (1) to misconduct is to misconduct which occurred after the commencement of this section.[11]Section 85 authorises the inclusion in the POVA list of persons found guilty of relevant misconduct in certain inquiries.[12]The consequences of inclusion in the POVA list are significant. Section 89 provides, so far as is relevant:(1) Where a person who provides care to vulnerable adults proposes to offer an individual employment in a care position that person- (a) shall ascertain whether the individual is included in the list kept under section 81; and (b) if he is included in that list, shall not offer him employment in such a position.(2) Where a person who provides care to vulnerable adults discovers that an individual employed by him in a care position is included in that list, he shall cease to employ him in a care position. For the purposes of this subsection an individual is not employed in a care position if he has been suspended or provisionally transferred to a position which is not a care position. (4) … (5) An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under section 81 shall be guilty of an offence if he knowingly applies for, offers to do, accepts or does any work in a care position. … (a) shall ascertain whether the individual is included in the list kept under section 81; and (b) if he is included in that list, shall not offer him employment in such a position.[13]Section 86 provides for appeals to the Care Standards Tribunal. It is common ground that the Tribunal is an independent and impartial tribunal satisfying the requirements of Article 6 of the European Convention on Human Rights. So far as relevant, section 86 is as follows: 86.(1) An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under section 81 may appeal to the Tribunal against(a) the decision to include him in the list; or(b) with the leave of the Tribunal, any decision of the Secretary of State not to remove him from the list under section 81(3). (2) Subject to subsection (5), an individual who has been provisionally included for a period of more than nine months in the list kept by the Secretary of State under section 81 may, with the leave of the Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Secretary of State. (3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely (a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and (b) that the individual is unsuitable to work with vulnerable adults, the Tribunal shall allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list. (a) the decision to include him in the list; or (b) with the leave of the Tribunal, any decision of the Secretary of State not to remove him from the list under section 81(3). (a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and (b) that the individual is unsuitable to work with vulnerable adults,[14]Most of Part VII of the Act came into force on 26 July 2004. The Act also made amendments to the Protection of Children Act 1999 (“the PCA”), authorising the Secretary of State to place anyone listed on the POVA list on the similar list (“the POCA list”) maintained under the earlier Act in relation to persons working with children, and vice versa. The working of the POVA list.[15]This case is concerned with references to the Secretary of State made by a provider of care for vulnerable adults, i.e., references under section 82. If, for example, the provider has dismissed a care worker on the grounds of misconduct which harmed a vulnerable adult (section 82(2)(a)), he must refer the care worker to the Secretary of State. At that stage normally the only information available to the Secretary of State is that provided by the employer/provider. If that information leads her to consider that it may be appropriate to include the care worker in the POVA list, she must do so at that stage. At that stage, the Secretary of State forms no concluded view as to whether the care worker in question should be included in the list: his inclusion is in a sense provisional, pending the determination required by subsection (7). It is my view, and indeed it is common ground, that the words in subsection (4) “it may be appropriate” require only that it must appear to the Secretary of State that there is a real prospect that after the steps required by subsection (5) have been taken, she will confirm the inclusion of the worker’s name in the list. But although the inclusion of a worker in the list is provisional, the effect is immediate. The consequences set out in section 89 apply, so that if, for example, a worker who has been dismissed has found employment in another care home, on being listed his employer must, unless he chooses to transfer the worker to a non-care position or to suspend him, terminate his employment. Section 89 does not impose an obligation on the worker to inform his employer or potential employer of his inclusion in the list, but honesty and good faith would require him to do so. The advice rightly given by the RCN to its members is that provisional listing means the nurse must inform his employer and stop work where he is employed in the care home sector. In any event it cannot be right to address the issues raised by the Claimants on the basis that their provisional listing would or could be concealed.[16]A care worker who is aggrieved by his provisional listing has three available remedies. The first is to seek to convince the Secretary of State that his listing is unjustified, by providing the observations invited under section 82(5). The second is by way of application to the Tribunal under section 86(2). Such an application requires the leave of the Tribunal; more importantly, it can only be made after the worker has been provisionally on the list for 9 months. The third is not provided in the Act: it is to seek judicial review of the Secretary of State’s section 82(4) decision, on the basis that she either misapplied the law or that her decision is irrational or disproportionate.[17]It is not suggested, and cannot be suggested, that the creation and maintenance of a list of persons who have been shown to present a risk to vulnerable adults is not beneficial. It meets a real and pressing social need. Nor is it suggested that the machinery created by the Act is penal. It is regulatory in nature. But the present statutory scheme may work hardship on care workers who are subjected to it.[18]Mr Spencer QC put forward the facts of the case of Penelope Smith as illustrating what the practical effects of the system established by the Act can be. She qualified as a psychiatric nurse in 1987. Since 1995 she has specialised in the care of the elderly. In January 2001 she was appointed head of a unit in a care home. In 2001 a project for which she was responsible won the Queen’s Nursing Institute and Alzheimer Society’s award for “excellence and innovation in dementia care”. In October 2004, the home where she worked was sold to Barchester Healthcare Homes Ltd. On 23 May 2005, she was suspended from her job. She had never previously been the subject of disciplinary proceedings or of a grievance. Unknown to her, her employer referred her to the Secretary of State for possible inclusion in the POVA list. The first she knew of this was when she received a letter dated 23 February 2006, informing her that she had been provisionally included in the POVA list and the POCA list. In June 2006 she commenced judicial review proceedings to challenge her listing. In the same month an employment tribunal found that she had been unfairly dismissed, and in July 2006 she was removed from the lists. However, she had been on the list for some 5 months, during which she was unable to work as a nurse in the area in which she had specialised; she was unable to maintain her mortgage payments and lost her home.[19]It is relevant to consider the volume of actual and potential references and listings under Part VII. There are about 900,000 care workers within the scope of section 80(2) in so far as it is in force. Referrals are running at the rate of about 200 a month. Between the commencement of this Part of the Act in July 2004 and 30 September 2006, 5,224 referrals were made to the Secretary of State. 1,552 persons were provisionally listed in the POVA list; 623 of those persons were removed from the list by the Secretary of State; the listings of 498 persons were confirmed. As at 30 September 2006 the decision of the Secretary of State in the remaining 431 cases was pending. There are about 500 persons whose listing has been confirmed; there are about 2,000 provisional listings. There have been 5 hearings of the Tribunal under Part VII. There are 32 cases pending before the Tribunal. All of these are appeals against confirmed listings; none is an application in respect of a provisional listing.[20]In his foreword to the Practice Guide published by the Social Care Institute for Excellence entitled “Making Referrals to the Protection of Vulnerable Adults (POVA) List”, Ivan Lewis, the Parliamentary Under Secretary of State for Care Services said: Our analysis shows that around one third of POVA referrals do not result in people being placed on the list. This is because either the evidence to place a person on the list is not being provided, or that the criteria for provisional listing has (sic) not been met. The Minister commended the guidance, which had been produced at the request of the Department of Health. Section 4 (d) of the guidance includes the following passage: In the first year of the POVA scheme’s operation, employers have been able to refer individuals who are suspended pending further investigation into their alleged misconduct. This has been to ensure that potential abusers do not move around the care sector while suspended, pending an investigation. Experience shows, that at this stage, there is often very little information with which to evidence the referral, and the POVA team can usually only make a provisional listing and then wait until the disciplinary investigation is concluded. In a large proportion of suspended cases, the allegations are subsequently unproven. …

In a large proportion of suspended cases, the allegations are subsequently unproven. …

[21]The following are the times taken by the Secretary of State to deal with the Claimants’ references. In the case of June Wright, the event which fulfilled the qualifying event (i.e., the event alleged to have fulfilled a condition specified in section 82(2) or (3)) occurred at the latest in May 2003. The referral was made on 10 October 2004. She was provisionally listed on 4 February 2005, and her listing confirmed on 22 November 2005, over 9 months later. In the case of Khemraj Jummun, the qualifying event was on 2 February 2003; the referral was on 11 May 2005, over 2 years later; he was provisionally listed on 23 November 2005, over 6 months after referral; and his name was removed from the list on 18 August 2006. In the case of Mary Quinn, the qualifying event was on 25 June 2005; the referral was made on about 30 June 2005; she was provisionally listed on 13 December 2005 (i.e. nearly 6 months after the referral); and on 4 August 2006 she was informed that her name had not been confirmed on the list. The date of Barbara Gambier’s qualifying event is not known. She was referred on about 30 June 2005; she was provisionally listed on 30 November 2005, and the Secretary of State informed her too on 4 August 2006 that her name had not been confirmed on the list.

(a) The submissions of the parties

[22]I have found this a most difficult question. Mr Spencer’s submission is quite simple. Section 82(1) creates a duty to make a reference if any of the conditions mentioned in subsection (2) or (3) is fulfilled. Subsection (1) does not create a power to refer separate from the duty. Subsection (10) negates any such duty in relation to qualifying events that precede the commencement of section 82. It follows that there is neither a power nor a duty to make a reference in relation to pre-commencement qualifying events. It equally follows that such a reference is not “a reference under subsection (1)” for the purposes of subsection (4); and therefore the listing of a person who has been the subject of such a purported reference is prohibited by section 81(2).[23]It is important to note that Mr Spencer does not suggest that a retrospective statutory scheme such as the POVA list is necessarily objectionable. He does not suggest that if pre-commencement qualifying acts could lead to a reference under section 82 there would be retrospective criminalisation, contrary to Article 7.1 of the Convention. He accepts that the conditions mentioned in subsections (2) and (3), ordinarily construed, are apt to include pre-commencement events. For example, in subsection (2), the first condition is that the provider has dismissed the worker on the grounds there specified. That condition would be satisfied on the first day after the commencement of the section by a dismissal on the day before its commencement. But Mr Spencer relied upon the possibilities of hardship and unfairness if a reference is made based on events or alleged events that occurred or are alleged to have occurred long before July 2004:
“A situation can readily be envisaged where a care worker was unfairly dismissed ten years ago by a malicious employer with whom she had fallen out, but, having quickly found alternative employment in another care home, decided not to claim unfair dismissal at what would be an unpleasant hearing before an employment tribunal. That care worker could then have had ten years of subsequent blemish-free employment, but, if the Defendant’s interpretation of section 82 is correct, the former employer could nevertheless refer that person for inclusion on the PoVA List. Assuming that the referral qualifies (but for the point about retrospectivity), the care worker would automatically be provisionally placed on the PoVA list (without being given a chance to be heard) and would lose her job. She has, in effect, been retrospectively penalised for her decision not to seek an unfair dismissal ruling. Had the care worker known that referral to PoVA would have been a consequence of her dismissal, she would have had an incentive to claim unfair dismissal which was otherwise lacking.”
Indeed, in the case of Mrs Wright, the dismissal occurred on 24 November 2003, and was alleged to be justified by events between 1999 and May 2003.[24]For these reasons, Mr Spencer submitted that clear words would have been used by Parliament if it had intended section 82 to be retrospective. It did not use clear words; to the contrary, the combination of subsections (1) and (10) showed that it was not intended to apply to pre-commencement events.[25]Mr Spencer submitted that the exclusion of prior events from references under section 82 was supported by section 84(3), which excludes pre-commencement misconduct as a basis of a reference by the registration authority; and he submitted that there could be no sensible reason why Parliament should have intended section 82 to be retrospective but section 84 not.[26]Ms Lieven submitted (and it cannot be disputed) that this Part of the Act was passed for the protection of a vulnerable section of the public. She submitted it would be unreasonable, if not absurd, to think that Parliament would have wanted to exclude the power of the Secretary of State to include a person on the POVA list in relation to those who had been guilty of misconduct before the commencement of the Act. She referred me to the judgment of the Court of Appeal in Antonelli v Secretary of State for Trade and Industry [1998] QB 948, which concerned the analogous provisions of the Estates Agents Act 1979. The Court held that since the object of the Act was the protection of the public, Parliament could not have intended the power conferred by that Act to make a disqualification order in respect of estate agency work to be restricted to persons who had committed criminal offences committed after the commencement of the Act. Having reviewed the authorities, Beldam LJ, with whom the other members of the Court agreed, said, at 958-9: … I start with the declared purpose of the Act of 1979 and the policy behind its enactment that it is intended to make provision “with respect to the carrying on of and the persons who carry on” estate agent’s activities. The provisions giving the Director (of Fair Trading) power to disqualify are intended for the protection of the public and it would be quixotic to suppose that Parliament intended that the public should be protected from the activities of a practitioner convicted a week after the Act came into force but not from those of the practitioner convicted a week before. Should Parliament be supposed to have regarded the imposition of a disqualification which precluded a person convicted of a serious mortgage fraud only a month or two before the passing of the Act from continuing to act as an estate agent as “unfair?” In my view, Parliament might well have considered it unfair to allow such a person to continue in practice to the possible detriment of the public whilst prohibiting a person convicted of a similar offence a month or two after the Act of 1979 came into force. I turn to the hardship of the result if the power given to the Director is exercisable in respect of past convictions. I accept that an order of disqualification from carrying on the practice of estate agency is severe and could be a catastrophic hardship. But the conviction of an offence involving fraud or other dishonesty or violence is only a precondition upon which the Director’s powers are exercisable. If satisfied that the person concerned has been convicted, the Director still has to consider whether he is unfit to carry on estate agency work generally or of a particular description and has a wide discretion in determining whether that is so or not. Thus the past conviction is not by itself determinative of the imposition of an order of disqualification. Thus it seems to me that Parliament clearly intended to give the Director power to make an order of disqualification in respect of past convictions whilst trusting in his discretion whether he did so or not. I do not regard it as inconceivable that Parliament regarded conviction in the past as so contradictive of the protection of the public in the future that the Director ought not to have the power to make an order where such conviction is proved. …[27]Ms Lieven submitted that, if the interpretation of section 82 was unclear, it was permissible, under the guidance given in Pepper v Hart [1993] AC 593 and R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 2 AC 349 to refer to Hansard. However, she wished to refer not to the debates on the Bill that became the Care Standards Act, but to the debate on the bill that became the PCA on which the CSA is closely modelled, and which contains in section 2 almost identical wording to that found in section 82 of the CSA. During the course of the debate in the House of Commons, the promoter of the Child Protection Bill, Debra Shipley MP introduced an amendment to what became section 2 as follows: (9) Nothing in this section shall require a child care organisation to refer an individual to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section. She then went on to say: The amendment addresses and clarifies transitional issues that arise from moving from the old administrative system to the new statutory one. It provides that child care organisations will not be under a duty to refer cases where dismissal, resignation or retirement took place prior to the commencement of the operation of clause 2. It provides also that the obligation will not arise in relation to referrals made under subsection 2(2)(a) where the opinion that triggers a referral was formed before the commencement of the operation of clause 2. The amendment also makes it clear that there will be no obligation on any organisation to trawl through its old cases relating to events that occurred before clause 2 was brought into effect. This will still enable an organization to refer names where it thinks that there is a case for doing so. As I have explained, such cases will not be automatically entered into the procedure for considering listing by the Secretary of State unless and until he is satisfied that the person concerned is eligible under clause 2(3) criteria to have his name included in the list, particularly in the light of, for example, the age of the allegations, the distance of the alleged events, the reliability of the evidence and such other factors as are relevant in the circumstances of the particular case.[28]Ms Lieven submitted that this made it clear what was intended in the PCA, and by using the same wording in the CSA Parliament demonstrated that it intended it to have the same effect. Moreover, given the material identity of the relevant wording of section 2 of the PCA and section 82 of the CSA, if the Court held that section 82 was not retrospective, the same must apply to the section 2. That would conflict with the clear intention of the promoter of the PCA and of Parliament. As for section 84(3)of the CSA, she submitted that there are material differences between the knowledge and means of knowledge of employers whose references are the subject of section 82 and the registration authority whose references are the subject of section 84.[29]Mr Spencer contested all these submissions. He pointed out that the context of the enactment of the PCA differed materially from that of the CSA. Before the enactment of the PCA the Secretary of State maintained a non-statutory list, the Consultancy Service Index (the lawfulness of which was considered in R v Worcester CC ex p S W [2000] EWHC Admin 392 [2000] HRLR 702) of persons whose employment with children the Secretary of State considered would put those children at risk: hence the reference by Ms Shipley to “transitional issues”. Before the CSA there was no statutory or non-statutory equivalent of the POVA list. Thus persons who were unfairly dismissed from employment with children before the passing of the PCA had good reason to challenge their dismissal, to avoid their being listed on the Consultancy Service Index. That did not apply to those who worked not with children but with vulnerable adults. If they had found employment elsewhere they might not have bothered to challenge their dismissal. Following the coming into force of the CSA, they might find that their original employer referred them to the Secretary of State under section 82. Thus their failure to challenge their dismissal would have led to their inclusion in the POVA list. There is therefore good reason to distinguish between the effect of section 2 of the PCA and section 82 of the CSA.

Issue (1): Retrospectivity: discussion

[30]As I have already indicated, I find this issue difficult. Moreover, in my judgment there is a connection between the interpretation of section 82 and the issues I have to consider under the Convention. If the CSA operates unfairly, the Court will seek to interpret it restrictively, on the basis that Parliament must be deemed to have wanted any unfairness to be minimised. I have fully in mind the principles of interpretation of statutes concerning retrospectivity so helpfully set out by Beldam LJ in Antonelli. The CSA, as I have said, is clearly intended as a measure to protect a vulnerable section of the public, and I should be reluctant to conclude that even obviously dangerous misconduct before the commencement of Part VII could not lead to inclusion in the POVA list.[31]The difficulty of interpretation arises out of what to my mind is the obviously defective drafting of section 82(10). It is, perhaps, the result of the pressure of work on Parliamentary draftsmen. It is difficult to believe that the draftsman sat back and read subsections (1) and (10) together. Wording such as that found in section 82(10) is appropriate where a statute creates both a power and a duty, and it is intended to restrict the duty to only part of the area covered by the power. But read literally section 82(1) creates only a duty, and section 82(10) negates the duty in relation to pre-commencement events. However, the words “nothing shall require” seem to me to indicate that Parliament regarded subsection (1) as creating both a power and a duty, and intended to restrict the duty while leaving the power intact.[32]I do not think it appropriate or necessary to refer to the debate on the Child Protection Bill. Section 2(1) of the PCA is as follows: A child care organisation shall, and any other organisation may, refer to the Secretary of State an individual who is or has been employed in a child care position if there is fulfilled-(a) any of the conditions mentioned in subsection (2) below; or(b) the condition mentioned in subsection (3) below. Subsection (10) is as follows: Nothing in this section shall require a child care organisation to refer an individual to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section. It can be seen that subsection (10) is restricted to child care organisations; it does not apply to any other organisation. It would be quite absurd for a child care organisation to have no power to refer an individual to the Secretary of State for pre-Act conduct but for any other organisation to be able to do so. To put it the other way round, it would be absurd if the Secretary of State could not act on such a reference if made by a child care organisation but could act if any other organisation made exactly the same reference. Parliament could not have so intended. And so I have no doubt that in enacting subsection 2(10) Parliament intended only to relieve a child care organisation of the duty that would otherwise have been imposed by subsection (1) in relation to pre-Act events. A reference by a child care organisation based on pre-Act events is nonetheless a reference under subsection (1) for the purposes of subsection (4) on which the Secretary of State may act.[33]I have fully in mind the potential for unfairness in retrospection, particularly in view of what I see as the lack of fairness in the machinery created by the Act. However, the wholesale copying of the wording of section 2 of the PCA in section 82 of the CSA leads me to conclude that Parliament intended the provisions of the latter to have the same effect as the materially identical provisions of the former. I admit to being puzzled by the express provision in section 84(3). I do not think that Ms Lieven has satisfactorily explained why the power of the registration authority to refer a person to the Secretary of State should be limited in this way, whereas the power of a care provider under section 82 to make a reference should not be: if, in the course of an inspection of a care home or an interview of an employee or employer, the authority is informed of pre-Act misconduct, why should it not be able (but not obliged) to refer the person concerned to the Secretary of State? But the wording of section 84(3) differs from that of section 82(10), and I think a different consequence must have been intended. If Parliament had intended to exclude pre-Act events from section 82, it could and I think would have used similar words to those of section 84.[34]I conclude, therefore, that a reference by a provider based on a pre-Act event is a reference under section 82(1), and that following such a reference the Secretary of State may include a person on the POVA list if it appears to her that it may be appropriate for him to be so included. I am somewhat comforted by the fact that if my judgment on compatibility is accepted, Parliament will have the opportunity to introduce a fairer procedure for provisional listing.

Issue 2: Article 6

[35]Article 6.1 of the Convention is as follows: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The parties’ submissions

[36]Mr Spencer submitted:(a) The right of a health professional to practice in his chosen field is a “civil right”.(b) The fact that a person who is provisionally listed is not barred from employment in other fields is of no relevance. They are barred from employment with vulnerable adults and hence their civil rights are restricted:(c) In the case of a registered nurse who has worked for many years in the care sector, this is a restriction which is tantamount to preventing her from working at all in her chosen profession and field for which she has trained and qualified, and in which she has relevant experience. Vulnerable adults are divided under the terms of the Act into three categories: adults in a residential care home; adults to whom care is provided in their own home; and adults in an NHS or private hospital or clinic (s. 80(6)). The provisions relating to NHS and private hospitals have not yet been brought into force, but the intention of Parliament in passing the legislation was plainly that the Act would eventually apply in that setting, at which point the effect of provisional listing will be an outright ban on adult nursing. In the meantime, provisional listing will be an effective ban on employment in the NHS and private hospitals because the CRB will show the listing and because any job application form will routinely ask for current restrictions on nursing practice.(d) Provisional listing has the effect of not merely preventing a person from obtaining further employment with vulnerable adults, but requiring her to give up any such employment which she may be in at the time of listing (section 89(2)). Thus its effects are more widespread than simply withdrawing a licence to practice.(e) Article 6 is engaged even if the effect of the decision may only be a temporary interference.(f) The only judicial remedy available to an aggrieved person during the first 9 months of his or her listing in the POVA is judicial review. Judicial review is not an adequate remedy: the need to obtain permission to apply for judicial review, and the pressure of work on the Administrative Court, means that it is unlikely or impractical for him or her to obtain a practical remedy in that period, and meanwhile he or she would have lost his or her job.[37]Ms Lieven submitted that the placing of a person on the POVA list does not prevent their employment generally, and does not prevent them working as a nurse, other than with vulnerable adults, and it does not prevent them working in the NHS. In any event, a listing under section 82 (4)(b) is provisional, and does not involve any finding of misconduct; and provisional measures do not engage Article 6.[38]Ms Lieven further submitted that if Article 6 was engaged, it was complied with by reason of the availability of independent judicial decision. A person placed on the POVA list provisionally had a right of application to the tribunal (with its leave) after 9 months. The period of 9 months is justified as the time required properly to investigate a reference. The Court should defer to the assessment made by Parliament as to the need for such a delay before a listed person could apply to the tribunal. In any event, during that 9 month period a listed person may apply to the Administrative Court for judicial review of the decision made by the Secretary of State under section 82(4).

Discussion

[39]The fact that suspension is temporary does not prevent Article 6 from being engaged: Le Compte, Van Leuven & De Meyere v Belgium (1981) 4 EHRR 1 (suspension from practice for three months in one case and 15 days in the other two). Indeed, so far as the temporary effect of provisional listing is concerned, the present cases are clearer than cases such as König v Germany (1978) 2 EHRR 170, Le Compte itself,and Gautrin v France (1998) 28 EHRR 196, because the effect of listing is not merely to suspend a person’s right to work with vulnerable adults: if they are employed in a care position at the date of the decision, unless the employer chooses to suspend them or to move them to a non-care position (assuming the care worker is willing to work in such a position), the contract of employment comes to an end. There could be no clearer demonstration of the fact that civil rights and obligations are engaged. I refer also to the summary of Lord Clyde in Alconbury v Environment Secretary [2001] UKHL 23, [2003] 2 AC 295 at 348, at [150]: It is thus clear that article 6(1) is engaged where the decision which is to be given is of an administrative character, that is to say one given in an exercise of a discretionary power, as well as a dispute in a court of law regarding the private rights of the citizen, provided that it directly affects civil rights and obligations and is of a genuine and serious nature. It could not be seriously suggested that the rights and obligations concerned in the present cases are not of a genuine and serious nature. See too the judgment of the Grand Chamber of the European Court of Human Rights in Pellegrin v France (App. No. 28541/95).[40]The next question is whether listing under section 82(4)(b) involves a determination of the civil rights and obligations of a care worker. Generally, interim or provisional measures, such as orders for the preservation of the status quo or of a defendant’s assets do not attract the requirements of Article 6, because they do not involve a determination of civil rights or obligations: see Dogmoch v Germany (Application no. 26315/03). The jurisprudence of the European Court of Human Rights is not entirely consistent in this regard. In Markass v Car Hire Ltd v. Cyprus (Application no. 51591/99), the domestic court had made an ex parte order for the delivery of motor cars used by the applicant in his business. The applicant had applied to set aside that order, and complained about the excessive duration of the proceedings on his application. The European Court of Human Rights did not suggest that the making of the ex parte order infringed the applicant’s rights under Article 6. However, it held that in the circumstances of that case the domestic court was under a duty to determine the applicant’s application “in a summary and expeditious manner”, and it had failed to do so.[41]A more helpful authority, for present purposes, is the judgment of the Court in Zlinsat v Bulgaria (application no. 57785/00, 15 June 2006). In that case, the Sofia Public Prosecutor’s Office had ordered the suspension of the performance of a privatisation contract relating to an hotel. The office had acted under its criminal jurisdiction and had also brought a civil action. There had been no finding of guilt: when it ordered the suspension, the Public Prosecutor’s Office had stated that “(the) facts could only be elucidated through a criminal investigation” (paragraph 7 of the judgment). The Court said: 71. .. the measures taken by the Sofia City Prosecutor’s Office did not involve a finding of guilt, but were rather designed, as is apparent from the wording of the provisions on which they were grounded and the reasons given, to prevent the future commission of offences and safeguard the public interest . Accordingly, the criminal limb of Article 6.1 was inapplicable. However, the Court held that the civil limb of Article 6 did apply, because “the ordered suspension of the performance of the privatisation contract and the eviction of the applicant company from the hotel had a clear and decisive impact on its capability to use and operate it, which was undoubtedly an exercise of a civil right”: paragraph 72 of the judgment.[42]In my judgment, the present cases are analogous to Zlinsat. The rights and obligations of a contract of employment are undoubtedly civil rights and obligations. If at the date of listing under section 82(4)(b) the care worker is employed in a care position, as mentioned above, his contract of employment is terminated, unless the employer chooses to suspend him or transfers him to a non-care position: c.f. Tarnesby v Kensington and Chelsea and Westminster Area Health Authority [1981] ICR 615. However, the employer is under no statutory obligation to suspend the care worker or to transfer him. Listing has a clear and decisive effect on the contract of employment. I reject Miss Lieven’s submission that the effect is indirect because it depends on the decision of the employer. If the employment is as a care worker (as it will normally be), the effect is direct, since in the absence of express contractual provision it is operative unless the employer chooses to suspend or transfer and the care worker agrees to it.[43]Parenthetically, as a matter of fact, an employer may be unwilling to suspend or to transfer, since the suspension may be prolonged and in the meantime he may need to recruit a replacement care worker; and if suspension is on full pay, it will be expensive to the employer. If suspension is not on full pay, the care worker may be unable to accept it for financial reasons. Transfer to a non-care position will depend on such a position being available and vacant, may involve a different rate of pay, and also requires the agreement of the care worker, who may not wish to work in the non-care position or be unable to accept the remuneration offered.[44]Does the procedure laid down in the CSA together with the availability of judicial review comply with the requirements of Article 6? In this connection it is not suggested by Ms Lieven that in performing her functions under section 82 the Secretary of State complies with the requirement of Article 6 as to an independent and impartial tribunal. It follows that the fact that a care worker who is provisionally listed may apply to the Secretary of State to be removed from the list does not satisfy the requirements of Article 6.[45]I have no doubt that there are cases in which urgent action is required to prevent an apprehended risk to vulnerable adults. But care workers are themselves vulnerable to unfounded allegations, as appears above. Moreover, they are not necessarily qualified nurses. Many are low-paid workers. The results of provisional listing may be drastic even for professional persons, as the case of Penelope Smith demonstrates. The procedures for listing care workers on the POVA list should respect their rights and needs as well as being sensitive to the risks to vulnerable adults.[46]The care worker who is listed provisionally is unable to make any application to set aside the termination of his employment. So far as the tribunal is concerned, he must wait for 9 months before he can even apply for leave to make an application. Even if an application for judicial review were otherwise a sufficient remedy, all the Administrative Court could do is to quash the decision made provisionally to list the care worker. It would then be for the former employer to decide whether to re-engage the care worker. I see no means of compelling the employer to do so, and Miss Lieven did not suggest that there are. The care worker’s employment may be terminated, on the ground of his suspected (but at this stage unproven) misconduct without any opportunity of his being heard. In my judgment, this result brings these cases within the principle enunciated in Zlinsat, and necessarily involves an infringement of the care worker’s rights under Article 6.[47]I do not think that judicial review is an adequate remedy satisfying the requirements of Article 6. There is an important difference between the issues that may be determined by the Administrative Court in judicial review proceedings and the issues that are determined by the tribunal under section 86(3). The difference arises from the difference between the basis of the decisions of the Secretary of State (which would be the subject of judicial review) and the jurisdiction of the tribunal.[48]Apart from a mistake of law, the only ground for judicial review is likely to be that the Secretary of State could not properly have come to the view that “it may be appropriate for the care worker” to be listed. The burden on the listed person is a substantial one. What the listed person cannot do is obtain a speedy judicial determination of the underlying facts: did he commit the misconduct alleged? The Secretary of State’s role is limited to determining in the first place whether “it may be appropriate for the care worker” to be listed (section 82(4)(b), and then whether “the provider reasonably considered the worker to be guilty of misconduct” and whether she is of the opinion that the worker is unsuitable to work with vulnerable adults (section 82(7)). The Secretary of State is not required to consider whether the care worker was in fact guilty of misconduct. That is the role of the tribunal. Under section 86(3), if the tribunal is not satisfied that the worker was guilty of misconduct, it must direct his removal from the list, irrespective of the reasonableness or otherwise of his employer’s opinion to the contrary.[49]Mr Spencer also submitted that judicial review could not be an adequate remedy because of the requirement of permission to apply for judicial review and because the pressure of business would prevent its hearing urgent applications without inappropriate delay. In my judgment, these considerations could not lead to a declaration of incompatibility. If judicial review were otherwise a suitable remedy, the Administrative Court would be bound to deal with such applications as a matter of urgency in order to avoid a breach of Article 6. (Indeed, the Court would seek to hear urgent applications speedily even if Article 6 were inapplicable.) If necessary, the resources of the Court would have to be supplemented. The compatibility of legislation cannot, I think, depend on the varying pressure of business of the Court. It is for the Government to ensure that the courts are adequately resourced so as to enable them to hear cases without delays that infringe the Convention rights of litigants.

Fairness and justification

[50]If I am correct in my conclusion that the civil limb of Article 6 is engaged and infringed, I do not think that the fairness of the statutory provisions can render the scheme compatible. It is nonetheless convenient to deal with the issues of fairness, justification and proportionality under this head, since they arise in relation to Article 8 in any event.[51]Ms Lieven pressed on me the need for speedy provisional action to prevent vulnerable persons being exposed to the risk of injury at the hands of care workers who may be unsuitable. She relied on the numbers of care workers as justifying a different procedure from that provided by Parliament in relation to doctors and other professionals. She submitted that I should defer to the judgment exercised by Parliament in choosing to legislate as it did. I was referred to the familiar but helpful exegesis of Laws LJ in International Transport Roth Gmbh v Secretary of State for the Home Department [2003] QB 726 at paragraphs 83-87. She also referred me to the consideration given by Parliament to the question of provisional listing, as shown by what was said by Lord Hunt of Kings Heath, the relevant Minister, at the Committee Stage in the House of Lords discussion of the Bill:
“The issues around provisional listing essentially boil down to this: every person referred to the list should have a right to have the allegations against him proved. If one accepts that point, one is inevitably faced with the question of what to do between the time when the Secretary of State is notified that the employer has already taken disciplinary action and the time it takes for the allegations to be proved at an independent tribunal. Either one takes the stand that no action should be taken to protect the vulnerable adults during that period, or one can ensure that precautionary action is taken pending proof. We have heard that many people in the field believe that it is high time that the Government ensured that effective precautionary action is taken. I agree. That is why provisional listing is a central part of the scheme. In addition, there is an extra safeguard for the worker in ensuring that he comes off the list even before the case goes to a tribunal, unless the Secretary of State believes that there is a reasonable basis for the allegations.”
[52]I have nonetheless concluded that the provisions of the Act as to provisional listing are unfair, and a disproportionate means of addressing the problem of provisional action.[53]In the first place, while there may be cases where there is real urgency, that is not necessarily or always so. The degree of urgency will vary according to the facts of the case. It is plain from the time taken by the Secretary of State to decide to list the Claimants provisionally that urgency was not seen as an imperative in their cases. I see no reason in such cases for decisions to be taken without giving the care worker an opportunity to be heard. Of course, in many, if not most, cases the care worker may be unable to demonstrate that provisional listing is inappropriate. But that is not a good reason to deny him the opportunity to do so.[54]Secondly (and this is associated with the first reason) no good reason has been shown for not adopting a procedure on the lines of those adopted by Parliament in relation to all other health care professionals. I summarise the relevant legislation in the appendix, which I have gratefully taken from the schedule provided by Mr Spencer and Mr Carpenter. True it is that there are far more care workers than doctors. But there are 600,000 nurses, i.e. two-thirds of the number of care workers, and in their case an order of a tribunal is required if they are to be suspended. Moreover, the nurses’ scheme could be modified, for example by imposing an imminent suspension (i.e. a prohibition on working with vulnerable adults, coming into effect a short time after notification of the decision) to be continued unless the care worker in question makes application to the tribunal within a specified period. The tribunal could be given power to make immediate suspension orders, on the lines of injunctions granted by the Court on applications made without notice, to be continued unless the care worker makes an application for it to be discharged. It is not to be assumed that every care worker subject to notification of provisional suspension would contest it before the tribunal. The figures I have set out in this judgment do not indicate any impracticability in a scheme providing the independent judicial scrutiny that is available to the other professionals referred to in the appendix. In this connection, the authority of Lord Hobhouse of Woodborough in Wilson v First Capital Trust (No. 2) [2003] UKHL 40, [2004] AC 816, at paragraph 144 supports the view that such statistics must be taken into account, notwithstanding the fact that they postdate Parliament’s consideration of the measure. In any event, however, there is no reason to think that Parliament would not have had available to it the information on which reasonably reliable estimates of the administrative and judicial work load that might result from a POVA list scheme.[55]I am far from sure that it is permissible for the Court to have regard to Hansard in deciding whether the provisions of the Act as to provisional listing are compatible. As I have stated, the need for a procedure for provisional action, taking effect before the facts have been fully investigated and determined, is obvious. In some cases, that action will be required as a matter of urgency. To that extent, the passage from Hansard cited by Ms Lieven takes me no further forward. I have not seen an assessment, in a White Paper or any other document, of consideration of the question whether a provisional suspension scheme such as those in the appendix would be adequate for care workers. I assume that such an obvious possibility was considered by Parliament, and I see from House of Commons Research Paper 00/52 on the Bill (which was included in the Claimants’ bundle of authorities but not referred to in the hearing) that the question of provisional listing was much debated in the House of Lords. It is therefore with considerable reluctance and with a degree of caution that I have addressed the question whether the Act is disproportionate in its effect on the rights of care workers.[56]Thirdly, the Act precludes access to the tribunal for 9 months, irrespective of the circumstances and the evidence available to the Secretary of State and the care worker and the urgency of the matter from the point of view of the care worker. While there may be cases where that is a reasonable period, it cannot be so in all cases. In many cases, a shorter period would be appropriate. The statutory provision is inflexible, and in many cases must be unnecessarily long. Because that is bound to be so in many cases, it cannot be said that the Act provides that “everyone (i.e. every care worker) is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. It seems to me to follow that the prohibition on applications to the Tribunal for the period of 9 months is an unjustified interference with the care worker’s right of access to the courts conferred by Article 6: see Golder v UK (1979-1980) 1 EHRR 524, and the discussion in Jacobs & White, The European Convention on Human Rights, fourth edition, at page 170.[57]For these reasons, I do not think that the provisions of the Act in relation to provisional listing are compatible with Article 6 or are fair. In my judgment, these provisions are disproportionate in their adverse effects on the rights of care workers.[58]I record that Mr Spencer also submitted that Article 6 precludes the decision to list a person provisionally being taken by the executive, and that it must be taken by the judicial branch of government.

Article 8

[59]In view of my conclusion on Article 6, I propose to take this issue quite shortly. Article 8, headed “Right to respect for private and family life”, is as follows: 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.[60]Article 8 is the least defined and most unruly of the rights enshrined in the Convention. Mr Spencer submitted that a decision provisionally to list a care worker engages his rights under Article 8 for three reasons:(a) it directly affects the individuals’ ability to earn a living and to provide for themselves and their families;(b) it affects their standing within their profession and therefore their personal and professional relationships with their colleagues; and(c) it affects their relationship with the vulnerable adults for whom they care and to whom they may return if the provisional listing is not confirmed.[61]These consequences are I think obvious. However, Mr Spencer referred to the Practical Guide to the POVA scheme published by the Department of Health itself. At paragraph 53 it states: … A precipitate suspension and subsequent referral to the list that later proves to be based on groundless allegations could cause significant upset and damage to the care worker and his working relationship with colleagues and vulnerable adults.[62]Ms Lieven submitted that Article 8 is not engaged. Listing affects a person’s ability to work in a relatively narrow field. She distinguished between an infringement of a person’s private life and an infringment of his business or professional activities: the former is, and the latter are not, within the ambit of Article 8. She relied on the decision of Newman J in R v Worcester County Council, ex parte SW [2000] EWHC Admin 392, [2000] HRLR 702, in which he held that a person’s Article 8 rights were not engaged by his inclusion in the non-statutory Consultancy Service Index that preceded the POCA list. Newman J’s judgment on this point was obiter, since the Human Rights Act 1998 was not in force. However, the judgments of the Divisional Court in the Countryside Alliance case [2005] EWHC 1677 (Admin) and of the Court of Appeal [2006] EWCA Civ 817 require a narrow approach to Article 8, and that of the Court of Appeal is binding on me.[63]Mr Spencer submitted that the judgments of the European Court of Human Rights in Sidabras and Džiautas v Lithuania (Application nos. 55480/00 and 59330/00, judgment 27 October 2004) and in Rainys and Gasparavičius v Lithuania (Application nos. 70665/01 and 74345/01, judgment 7 July 2005) showed that Newman J had adopted too narrow an approach to Article 8. Those cases concerned statutory provisions disqualifying former members of Communist intelligence services and persons associated with them from a wide range of employments. They demonstrate that restrictions on work may engage Article 8. Ms Lieven distinguished these cases on the basis of the width of the restrictions in question as compared with those imposed by the Act.[64]Sidabras and Rainys cases have more recently been followed by the Court in Turek v Slovakia (Application no. 57986/00), in which judgment was given on 14 February 2006. It too concerned a restriction on the employment of persons formerly associated with Communist intelligence agencies. The domestic legislation in question was narrower in scope than those considered in Sidabras and in Rainys: it related to “certain important posts and functions in State organs and institutions which were filled by election, designation or appointment” (paragraph 67 of the judgment). The Respondent Government submitted:
“The sole sphere in which the applicant’s security clearance had had an impact was his employment in the senior levels of public administration.”
Nonetheless, the Court held that Article 8 was engaged. What seems to have been decisive was the effect of the withdrawal of the applicant’s security clearance on his reputation: see paragraph 110 of the judgment.[65]In my judgment, termination of employment, or suspension from work, or disqualification from specified employments or areas of work, do not in general engage Article 8. The Convention does not confer any right to work in a chosen profession. However, the basis of provisional listing on the POVA list is suspicion of misconduct serious enough to indicate that a person constitutes a risk to vulnerable persons. That is calculated to interfere with his personal relationships with colleagues and the vulnerable persons with whom he has worked, and with others. The judgment of the European Court of Human Rights in Turek supports this conclusion; there is no authority of that Court or domestic authority binding on me that requires a different conclusion. In my judgment, therefore, Article 8 is engaged.[66]The next question is whether the provisions of the Act infringe Article 8 rights. In this connection, the European Court of Human Rights applies both a substantive and a procedural test. Procedures affecting Article 8 rights that are procedurally unfair will not be justified under Article 8.2. The approach of the Court is conveniently set out in Turek:111. The Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Buckley v. the United Kingdom, no. 20348/92, § 76, ECHR 1996-IV).112. The Court also reiterates that the difference between the purposes pursued by the safeguards afforded by Article 6 § 1 and Article 8 of the Convention, respectively, may justify an examination of the same set of facts under both Articles.[67]For the reasons I have set out in my consideration of Article 6, in my judgment the procedures laid down by the Act in relation to provisional listing are unfair. They do not ensure due respect for the interests of care workers that are safeguarded by Article 8. It follows that the Act is incompatible with the rights of the Claimants under Article 8.

A1P1

[68]I propose to deal with this question even more shortly. Mr Spencer submitted that the right to work in a profession is a “possession” for the purposes of A1P1. He relied on the judgment of Collins J in R (Malik) v Waltham Forest PCT [2006] EWHC 487 (Admin), in which he held that a doctor’s suspension from a medical performers’ list for a PCT, which prevented him from engaging in NHS practice, infringed his rights under A1P1. Ms Lieven pointed out that the decision of Collins J is under appeal, and in turn relied on the judgment of the Divisional Court in the Countryside Alliance case [2005] EWHC 1677 (Admin), in which it stated that legislation that prevented a self-employed person from working, i.e. which interfered with their livelihood, did not engage A1P1: if the legislation destroyed their marketable goodwill, the result would be otherwise. In Nicholds and ors v Security Industry Authority [2006] EWHC 1792 (Admin), Mr Kenneth Parker QC, sitting as a deputy High Court judge, refused to follow Malik on this point.[69]The judgments in the Countryside Alliance case, quite apart from European authority, place great difficulties in the way of the Claimants’ case as it was argued. In view of my conclusions under Articles 6 and 8 it is unnecessary for me to resolve the questions arising under A1P1, and I propose to leave them to a higher court if my judgment is appealed. Neither party addressed the question whether the contractual rights of care workers under their contracts of employment, and in particular their rights to notice to determine their employments, are possessions within the meaning of A1P1, and it would not be right for me to address this interesting question without giving them an opportunity to address it.

Conclusion

[70]For the above reasons, there will be a declaration of incompatibility, in terms to be considered with counsel.

Cited in 1 later judgment