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Cite as: [2000] EWCA Civ 49

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Case No: QBENF 1999/0500/C

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE RICHARDS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 21 February 2000

B e f o r e :
THE MASTER OF THE ROLLS
LADY JUSTICE HALE
and
LORD MUSTILL
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	REGINA	Appellant
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	SECRETARY OF STATE FOR HEALTH EX PARTE `C'	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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MR ALLAN LEVY QC and MR JOHN CROSFILL (instructed by Godfrey Davis Watt, Ramsgate, CT11 9AG for the Appellant)
MR NEIL GARNHAM (instructed by The Office of the Solicitor, Department of Health, London WC2A 2LS for the Respondent)

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Judgment
As Approved by the Court
Crown Copyright ©

LADY JUSTICE HALE:
1. This appeal concerns the lawfulness of the Consultancy Service Index maintained by the Department of Health. This is a list of people about whom there are doubts as to their suitability to work with children. There is at present no statutory basis for such a list, although one will be supplied by the Protection of Children Act 1999 when brought into force. Underlying this issue is the balance to be struck between two important interests. One is the interest of any individual in safeguarding his reputation and livelihood against the serious interference which inclusion on anything like an official 'blacklist' may entail. The other is the interest of children living away from home, and the interest of the community which seeks to safeguard its vulnerable members, in effective protection from abuse and neglect and other risks to which they are subject, especially in residential settings, a need which has been emphasized in several recent reports.
The Consultancy Service Index
2. Such a list was informally maintained by the Home Office Children's Department Inspectorate from the 1930s until the Department of Health took over policy responsibility for children's services in 1971. It has since developed to its present form. The current guidance is contained in Annex C to the Department's Circular LAC 93(17). This states that 'The object is to make sure that, so far as possible, unsuitable people are not appointed to positions involving contact with children or responsibility for them.'
3. The list is compiled from (a) information supplied by employers when staff are dismissed or resign or are moved to a non child care post in circumstances where the welfare of children has been or may have been put at risk; (b) convictions or cautions notified by police when at the time the individual was working in the child care field; and (c) List 99 maintained by the Department for Education under s 218 of the Education Reform Act 1988. When a referral under (a) is received from an employer the Department includes the name on the list immediately but invites his representations. It is made clear that the person concerned has a right both to challenge the accuracy of the information provided by the referring agency and to make representations why their name should not be included on the list. Any representations are sent to the employer for comment. The Department then considers these and decides whether the employer's concern was reasonable. It must also be satisfied that the employer is prepared to provide such information to any prospective employer seeking a reference.
4. The list is not published. The Department expects all employers in the child care field to undertake full and proper pre-employment checks, including consulting the Index, but these checks should only be made once a decision to offer employment has been made. If no trace of the person is found the inquiry will be returned stamped 'no observations'. If a positive identification is made, a letter will be sent suggesting that a reference be sought from a named local authority or voluntary/private organisation. Unlike the person named in the list, a prospective employer is not told anything about the reasons for the referral, except for any criminal conviction.
5. This procedure enables prospective employers to be put in touch with previous employers who have had concerns. It does not operate as a legal bar to future employment. The decision rests with the prospective employer. But it would be unrealistic to ignore the powerful effect which inclusion on such a list will have upon a person's prospects of employment in the child care field: see Woolf MR in S v Newham London Borough Council [1998] 1 FLR 1061, at 1070H - 1071B. In that case it was decided that referring agencies did not enjoy absolute immunity for their referrals.
The present case
6. The appellant was employed from 1981 as an unqualified social worker in a local authority community home. In autumn 1982, S became resident in that home. For a few months in 1983 she was fostered with the appellant and his family. In 1986, when she was a patient in a psychiatric hospital, she told a social worker that she had been sexually abused by the appellant, but for some unknown reason the matter went no further. In 1994, S made similar statements to a counsellor, not expecting them to be disclosed to anyone else. The counsellor disclosed this to the local authority. An investigation was carried out under the authority's disciplinary procedure. One officer interviewed S, while another studied her file and found the 1986 disclosure. The appellant was not formally interviewed about the allegations but was seen informally and strongly denied them. During the investigation other allegations were made of violence towards two female partners and physical abuse of two children.
7. A disciplinary hearing took place on 11 and 12 May 1995 before the Area Director of Social Services. She concluded, as to the allegations of sexual abuse, '. . . on the balance of probability, you were responsible for serious sexual assaults on a client of this department. This is gross misconduct and warrants summary dismissal.' She then considered the other allegations, which had led to a child protection case conference; she also referred to events, which had taken place before his employment, resulting in a three year supervision order on a child in his family; to the fact that he had two criminal convictions, one for assault; and to his non disclosure or denial of these matters upon inquiry. She concluded that 'I do not believe there is any way the department could continue to have trust and confidence in you as an employee working with vulnerable people in these circumstances and that these concerns alone would warrant your dismissal.'
8. An internal appeal was dismissed on 14 July 1995. The appellant applied to an industrial tribunal, claiming unfair dismissal. His application was dismissed by a decision notified on 17 April 1997. The tribunal concluded both that the employer had acted reasonably in the investigation carried out and that the dismissal came within the reasonable range of responses of a reasonable employer in the circumstances. Indeed 'we have to say that, bearing in mind the nature of C's employment, we do not see what else they could have done.' An appeal to the Employment Appeal Tribunal was dismissed on 3 July 1996 on the ground that it raised no sustainable point of law.
9. On 18 February 1997 the Department informed the appellant that his name had been included on the Index: they had been notified that he had been dismissed because of
'1. proven allegations of sexual assault by you on a child in care in a residential unit;
2. proven allegation of sexual assault on the same child when fostered by you;
3. proven allegations of physical assault on children in your private relationships leading to child protection investigations.'
10. In accordance with their practice they invited his comments. Representations were made on his behalf. These pointed out that the allegations made by S had never been tested and that the allegations of abuse of the other children had been tested in contact proceedings and the appellant's evidence preferred. The Department forwarded these representations to the local authority and also asked for the papers relating to the disciplinary investigation and hearing. On 5 March 1998 the appellant was informed that all relevant documentation had been very carefully considered and the decision taken to retain his name on the Index.
11. The appellant applied for judicial review to quash this decision. Three arguments were advanced on his behalf: (1) the Index could not be lawfully operated without Parliamentary authority; (2) the Department's decision was irrational and unfair; (3) the appellant had been denied a fair hearing in the determination of his civil rights and obligations, contrary to Article 6(1) of the European Convention on Human Rights.
12. In a reserved judgment handed down on 21 December 1998, Richards J rejected all three arguments and dismissed the application. He also refused permission to appeal. The appellant applied to this court raising all three arguments. Stuart Smith LJ granted permission on the first and third, because he considered that they raise important points which merit the consideration of the full court. He refused permission on the second because he considered that the judge was clearly right to conclude that the decision could not be challenged on the grounds of irrationality or unfairness.
Is the Index lawful?
13. Mr Levy QC argues that the Crown has no power to maintain the Index without statutory authority. He relies upon the following statement from Halsbury's Laws of England (4th edition reissue), volume 8(2), para 101:
'According to this traditional view of the doctrine of parliamentary sovereignty, the liberties of the subject are merely implications drawn from two principles, namely: (1) that individuals may say or do what they please, provided they do not transgress the substantive law, or infringe the legal rights of others; and (2) that public authorities (including the Crown) may do nothing but what they are authorised to do by some rule of the common law (including the royal prerogative) or statute, and in particular they may not interfere with the liberties of individuals without statutory authority.'
14. This passage finds a recent echo in the words of Laws J (as he then was) in R v Somerset CC ex parte Fewings [1995] 1 All ER 513, at 524:
'For private persons, the rule is that you may do anything you choose which the law does not prohibit. It means that the freedoms of the private citizen are not conditional upon some distinct and affirmative justification for which he must burrow in the law books. Such a notion would be anathema to our English legal traditions. But for public bodies the rule is the opposite, and so of another character altogether. It is that any action taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake; at every turn, all of its dealings constitute the fulfillment of duties which it owes to others; indeed it exists for no other purpose.'
15. This distinction was repeated by Sir Thomas Bingham MR in the same case in the Court of Appeal at [1995] 3 All ER 20, 25. But that case concerned a local authority, which is itself a creature of statute.
16. The Crown is not a creature of statute and in one respect at least is clearly different from a local authority. The Crown has prerogative powers. But what does this mean? Professor Sir William Wade, in Administrative Law (7th edition 1994 by Wade and Forsyth), at pp 248 - 249, draws a clear distinction between prerogative and other powers:
'"Prerogative" power is, properly speaking, legal power which appertains to the Crown but not to its subjects. Blackstone explained the correct use of the term. . . . Although the courts may use the term "prerogative" in this sense, they have fallen into the habit of describing as "prerogative" every power of the Crown which is not statutory, without distinguishing between powers which are unique to the Crown, such as the prerogative power of pardon, from powers which the Crown shares equally with its subjects because of its legal personality, such as the power to make contracts, employ servants and convey land.'
17. There is no suggestion of a specific prerogative power in this case but Halsbury's Laws, volume 8(2), at note 6 to para 101 confirm that 'At common law the Crown, as a corporation possessing legal personality, has the capacities of a natural person and thus the same liberties as the individual'. It was on this ground that Richards J declined to hold that the Index was unlawful.
18. Could then a private individual maintain a list such as this? There are, of course, examples of such lists in other contexts, such as credit rating. Neither the Crown nor a private individual may exercise their freedoms in such a way as to interfere in the rights of others without lawful authority. The case of Entick v Carrington (1795) 19 St Tr 1029 is perhaps the best known example of that principle. It concerned a clear interference with property:
'. . . our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does so he is trespasser, though he does no damage at all; if he will tread upon his neighbour's ground he must justify it by law . . . we can safely say there is no law in this country to justify the defendants in what they have done; if there was it would destroy all the comforts of society; for papers are often the dearest property a man can have.'
19. This may be compared with the case of Malone v Metropolitan Police Commissioner [1979] 1 Ch 344, in which the court was unable to detect a private right, whether of property, privacy or confidentiality, with which the tapping of his telephone interfered.

20. Mr Levy suggests that the Index is an interference with the right to work in one's chosen profession. He cites, as the 'high point' in the recognition of such a right the case of Nagle v Fielden [1966] 2 QB 633: the Court of Appeal held that it was arguable that the jockey club's policy of refusing a trainer's license to a woman was contrary to public policy. Lord Denning MR made some observations about the remedies which might be available to those denied entry to a 'closed shop' operated by a trade or profession. Mr Levy has drawn our attention to numerous statutory provisions dealing with such situations.
21. There is a clear distinction between being denied or deprived of a qualification or license which is essential for the lawful conduct of the occupation in question and what occurred in this case. The appellant is an unqualified social worker. He was not being deprived of any qualification. No-one has a right to be provided with a job. Employers are free to pick and choose whomever they wish to employ. They may do so for good or bad reasons, subject only to the laws prohibiting discrimination on grounds of race, sex or disability. What anyone has is the right to apply for a job. He may also have certain other rights connected with that right, for example in relation to the giving of references. Subject to complying with those rights, it seems to me that private citizens are free to maintain services such as this. I conclude, therefore, that maintaining the list is not, in itself, unlawful.
Is the operation of the Index unlawful?
22. That of course does not mean that the Department is free to operate the list in whatever way it likes. Its status as a public authority brings consequences which would not apply to a private citizen. A private citizen would find it difficult to maintain such a list. He would not have access to the necessary information and he would not have the power, as the Department has, to give guidance both to former and prospective employers which will make its operation so much more effective. The appellant may not have a right to be provided with a job, nor is the Department expressly prohibiting his employment. Nevertheless he is placed in a position where he will find it extremely difficult to get a job in child care: indeed it is the declared object of the Index to secure that he does not do so. The impact of a list such as this maintained by a Government Department or public authority is that much more powerful because they are generally so much more powerful.
23. These considerations call to mind some further words of Professor Wade, cited by Laws J in Fewings Case:
'The powers of public authorities are . . . essentially different from those of private persons. A man making his will may, subject to any rights of his dependants, dispose of his property just as he may wish . . . This is unfettered discretion. But a public authority may do none of those things unless it acts reasonably and in good faith and on lawful and relevant grounds of public interest . . . The whole conception of an unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.'
24. The operation of a list such as this involves a delicate balance between the two competing interests identified earlier. The Department cannot have an unfettered discretion to operate it in whatever way it chooses. An obvious example would be to make the list public to all and sundry. This leads to Mr Levy's second line of attack.
25. Mr Levy argues that the way in which the list is operated is in all the circumstances unlawful and unreasonable, particularly bearing in mind Article 6 of the European Convention on Human Rights:
'In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'
26. He points out that the Protection of Children Act 1999 will give a person included in the 'list of individuals who are considered unsuitable to work with children', which the Department will then have not only the power but the duty to maintain, a right of appeal to a tribunal.
This could indicate that the Department sponsoring this legislation considered that such a right was required under Article 6. Even before the implementation of the Human Rights Act 1998, the principles underlying the Convention should guide our interpretation of the common law.
27. The implementation of the Human Rights Act 1998 on 2 October 2000 will, of course, create new rights. Under section 6(1), it will become unlawful for a public authority to act in a way which is incompatible with a Convention right. For example, if the Convention right to respect for one's private life under Article 8(1) is in play, any interference by a public authority would require justification under Article 8(2). This requires a three stage process, demonstrating that such intervention is 'in accordance with the law', for one of the defined legitimate aims, and 'necessary in a democratic society' in the sense of being proportionate to that aim. In the telephone tapping case of Malone, cited earlier, the Article 8(1) right to respect for correspondence was in play, and the European Court of Human Rights held that the common law power was not 'in accordance with the law' in Convention terms, because it was not sufficiently precise or predictable: see Malone v United Kingdom (1984) 7 EHRR 14.
28. It is not for me to speculate on the Department's motives for sponsoring the 1999 Act, still less to express a view upon whether the present operation of the Index would be incompatible with a Convention right after 2 October 2000. It is enough to accept that there are circumstances in which the operation of the list could be unlawful and unreasonable even under the present law. But I share the view of Richards J that it does not become so by falling foul of Article 6(1). Quite apart from the issue of whether there is indeed a 'civil right' involved, inclusion on the list is not determinative of the appellant's civil rights and obligations: see Fayed v United Kingdom (1994) 18 EHRR 393, at paras 56, 61 - 62, applying the test adopted in Le Compte van Leuven and De Meyere v Belgium (1981) 4 EHRR 1:
'In order for an individual to be entitled to a hearing before a tribunal, there must exist a "dispute" ("contestation") over one of his or her civil rights or obligations. It follows, so the Court's case law has explained, that the result of the proceedings in question must be directly decisive for such a right or obligation, mere tenuous connections or remote consequences not being sufficient to bring Article 6(1) into play.'
29. The DTI Inspectors' report in that case 'would not be dispositive of anything. They did not make a legal determination as to criminal or civil liability concerning the Fayed brothers, and in particular concerning the latter's civil right to honour and reputation' (para 61).
30. Inclusion in the Index does have a significant impact upon this appellant's chances of obtaining employment, but it does not interfere with his right to apply for or accept such employment. Indeed, the Index should only be consulted at the stage when the decision has been reached to offer employment. Inclusion does encourage the prospective employer to become fully informed as to previous relevant events in the applicant's life, but no-one can suggest that those events are not relevant, indeed highly relevant, in this situation. It does not disclose what those relevant events were, unless there is a conviction. It leaves the decision as to whether to pursue the matter and what to make of those events to the prospective employer.
31. It is difficult indeed to see how acting as a conduit in this way represents an unlawful and unreasonable exercise of the discretion to balance the competing interests here. Mr Levy rightly argues that mere inclusion in the list carries with it a stigma of some sort, albeit nothing like the stigma which would be involved were the details of the referral to be disclosed to inquirers. It is known that the Department seeks representations from the person included and from the previous employer and exercises at least some judgment as to whether or not to include the name. This brings with it a duty to act fairly in the circumstances. But the object is to protect the person concerned from being included without reason: it would be wrong to conclude that the operation of the list in unlawful merely because it provides an extra protection in this way.
32. For all those reasons I conclude that the operation of the list in its present form is not unlawful and unreasonable as the law currently stands. I express no view upon whether that may change after 2 October 2000 but in any event the Department has a solution readily to hand.
LORD MUSTILL :
I agree.
LORD WOOLF MR:

I also agree.
Order: Appeal dismissed; Legal Aid Taxation of appellant's costs; Leave to appeal to the House of Lords refused. Order does not form part of the approved judgment.