England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9 May 2008

1. LORD JUSTICE DYSON: The background facts can be stated shortly. On 10 December 2006, the Secretary of State made an order under section 142 of the 2002 Act barring Mr N from employment to which section 142 applies on the grounds that he was unsuitable to work with children. The decision letter set out in some detail the facts on which the decision was based. This has been amplified to some extent in the witness statement of Andrea Kleefstra dated 2 July 2007. She is a senior casework officer in the Children's Safeguarding Operation Unit in the Department for Education and Skills.
2. The decision letter included the following:

"Officials in the Department for Education and Skills acting for the Secretary of State have considered the information in this matter. It has been further examined by Sir Roger Singleton, supported by his panel of experts, who is providing advice to the Secretary of State. Taking into account that information, the considerations of those officials and the advice of Sir Roger, the Secretary of State has decided that he should bar you, on the grounds of your unsuitability to work with children, from employment to which section 142 of the Education Act 2002 applies."

3. The letter then went on to refer to the matters in Mr N's background which had and those which had not been taken into account, testimonials provided in support and the opinion of Ms Selbright of Birmingham City Council. The letter then stated:

"Having assessed all the information available, it is considered that you may present a risk to the safety and welfare of children in your care in the future."

4. Mr N appealed to the Tribunal on 21 May 2007. The President of the Tribunal, HHJ David Pearl, gave directions which included the following:

"1. Both parties are required to disclose to and to serve on each other, any documents or other material that may assist the Tribunal in determining the case and which that party is able to send with a list of those documents that have been disclosed being sent to the Secretary to the Tribunal by 11 June 2007."

5. The Secretary of State did not disclose the advice given by Sir Roger Singleton. The hearing commenced on 5 September 2007. The Tribunal indicated that they were minded to order the disclosure of that advice, which was contained in a written memorandum. It was submitted to the Tribunal by Miss Olley that an order for disclosure should not be made. Her arguments then were essentially the same as those which she has addressed to me today. I shall come to them shortly.
6. The Tribunal decided to order disclosure of Sir Roger's advice. They said:

"The Tribunal concluded that the memo from Sir Roger Singleton to the Secretary of State should have been disclosed by the Respondent in compliance with the first of the directions given by His Honour Judge Pearl in his order dated 21 May 2007, as being a material document. However in order to clarify the matter the Tribunal would make a Direction under Regulation 12(1) of the Tribunal Regulations, requiring the Respondent to send to the Tribunal and the Appellant a copy of the advice given by Sir Roger Singleton to the Secretary of State as referred to in the Respondent's Decision Letter of 10 December 2006."

The legal framework

7. Section 142(1) of the 2002 Act provides that the Secretary of State may direct that a person may not carry out work to which section 142 applies if one of the grounds contained in section 142(4) is made out. The consequences for a person who is the subject of such a direction are serious. They include that the person's details are included in the list of persons subject to a section 142 direction, a list known historically as "List 99". Section 144(1) of the 2002 Act provides that a person in respect of whom a direction has been given under section 142 may appeal to the Tribunal against the decision to give the direction.
8. Section 9(2) of the 1999 Act provides that the Secretary of State may by regulations make provision about the proceedings of the Tribunal. Regulation 13(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, SI 2003/1184 ("the 2003 Regulations") provides that where on an appeal the Tribunal consider that the direction given under section 142 of the 2002 Act is not appropriate, it may order the Secretary of State to revoke or vary the direction.
9. The scope of the evidence permitted on an appeal is prescribed by Regulation 13(2) of the 2003 Regulations, which provides:

"(2) The Tribunal shall not, in exercising its powers under this regulation, consider -

(a) any information relevant to the decision to give a direction or not to revoke or vary a direction which the Secretary of State did not have at the time the decision was made; or

(b) any evidence of a material change of circumstances of the person concerned occurring since the decision to give a direction or not to revoke or vary a direction was given."

10. Finally, Regulation 12 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, SI 2002/816 ("the Tribunal Regulations") provides:

"(1) Subject to paragraphs (3) to (5), the President or the nominated chairman may give directions -

(a) requiring a party to send to the Secretary any document or other material which he considers may assist the Tribunal in determining the case and which that party is able to send, and the Secretary shall take such steps as the President or the nominated chairman may direct, to supply copies of any information or document obtained under this paragraph to the other party;

...

(5) Before making a direction under paragraph (1) or (2), the President or the nominated chairman shall take into account the need to protect any matter which relates to intimate personal or financial circumstances, is commercially sensitive, or was communicated or obtained in confidence."

The decision-making process

11. In her grounds of appeal, Miss Olley explains the decision-making process. It is unfortunate, in my judgment, that this has not been the subject of evidence, but given the provenance of the explanation in the detailed grounds of appeal, and there being no opposition to it, I am prepared to accept it.
12. Initially, a draft submission is prepared by department officials, which includes an assessment of the evidence and a recommendation whether or not to give a direction, and if so on what grounds. This submission is prepared after officials have gathered the evidence, including background material from former employers, checking police records, considering the person's representations and, in some cases, commissioning an external export report.
13. In January 2006, following high-profile media interest in the operation of List 99, the Secretary of State announced the establishment of a panel of independent experts, chaired by Sir Roger Singleton (the former Chief Executive of Barnado's), to oversee the List 99 process. The establishment of this panel to advise the Secretary of State is an interim step before the transfer of the Secretary of State's functions (in modified form) to the Independent Barring Board under the Safeguarding Vulnerable Groups Act 2006.
14. The draft submission prepared by the Secretary of State's officials and relevant papers are forwarded to Sir Roger, who considers the case and decides whether he wishes to have a further opinion from any of his panel members. The Panel member(s) provide their thoughts and conclusions to Sir Roger, who then forms his final view on an appropriate recommendation to the Secretary of State. Sir Roger's conclusions (but not the underlying comments of any panel member) are integrated into the submissions of the Secretary of State, along with the recommendation by his officials. Thus, Sir Roger's advice comes before the Secretary of State as part of the Department's submission, and not as a free-standing document.

Discussion

15. I would allow this appeal largely for the reasons submitted by Miss Olley. There is an important distinction between (i) the body of evidence gathered by officials in the course of a List 99 process; and (ii) any advice given or views expressed in response to that evidence in order to assist the Secretary of State in arriving at a decision on the basis of the evidence. The advice of Sir Roger and his panel members is not evidence; it is an appraisal of the evidence that has been gathered, made at the end of the evidence gathering process.
16. Sir Roger and his panel are deployed to assist the Secretary of State in his consideration of the evidence in individual cases, and to effect quality control of the administrative process from case to case with the benefit of their independent expertise. Their role is complementary to that performed by civil servants. It is different from that performed by independent experts, such as medical experts, who may be instructed by departmental officials to provide expert assessments on a case-by-case basis.
17. I accept the submission of Miss Olley that the public interest is best served by the maintenance of an environment in which ministers can receive free and frank advice from their advisers. Officials and advisers need to be able to put forward views which are frank and candid, and to express their views freely, and this process should be protected from inhibiting factors arising from the knowledge or fear of subsequent disclosure. This is particularly the case in List 99 cases, which often involve very difficult questions of judgment in relation to highly sensitive and contested allegations of a sexual nature. There is a risk that the prospect of disclosure would have an inhibiting effect on the free and frank exchange of views and advice in such cases, and therefore that it might undermine the compelling public interest objectives intended to be served by the List 99 process itself.
18. The fundamental question, it seems to me, is whether the process adopted by the Secretary of State is fair. If fairness required disclosure of Sir Roger's advice, then I would hold that it should be disclosed. A similar issue arose for determination in R v Secretary of State for Education ex parte S [1995] ELR 71, where it was held that an external expert seconded to the Department was to be treated in the same way as departmental officials, and that his advice need not be disclosed. Russell LJ said:

"The basic proposition of Mr Richards in this appeal was to the effect that the process of government necessarily involves civil servants engaging in a host of consultative exercises inter se, applying their individual expertise and experience to a given problem. The ultimate decision of the Minister in a case where there has been such consultation is a matter of judgment for the decision maker. How he reaches his decision is essentially a matter for him. It may involve extensive 'in-house' consultation, but, provided the process does not involve a new point with which the interested parties have had no opportunity of dealing, there is no duty to disclose material the product of the consultative process. The concept of fairness does not normally require disclosure. If it does then there should be disclosure. That will only arise in the most exceptional circumstances not applicable to the instant case."

19. Peter Gibson LJ was of the same view. He said:

"The practical reality in this case as in Bushell v Secretary of State for the Environment was that the Secretary of State would call on the considerable expertise within his Department to assist him in making up his mind. No doubt that is why Parliament gave the Secretary of State his appellate function so that all the departmental knowledge and experience would be available to the decision-maker. In my judgment the advice received from Mr Woodhouse was an integral part of the decision-making process. It is not necessary in the interests of fairness to require the disclosure of departmental advice unless the Secretary of State was minded to take into account a new point on which the parties have had no opportunity to make representations. It was of course incumbent on the Secretary of State in giving his decision to explain adequately how he came to his conclusion.

20. I would apply that reasoning to the present case. Fairness does not require Mr N to see Sir Roger's advice any more than it requires that he be shown the advice of the departmental officials. That advice contains no more than an appraisal of the evidence that had been gathered by the officials. The decision letter identified all the factors that were taken into account by the Secretary of State in reaching his decision.
21. I would therefore allow the appeal on the ground that fairness does not require the disclosure of Sir Roger's advice. Mr N did not need that advice in order to present his appeal in the most effective way. He was made aware of the evidence on which the decision was based. That was all that he needed in order to be able fairly to advance his appeal.
22. This leads me to Miss Olley's other main point. I have already referred to Regulation 13(2) of the 2003 Regulations. That regulation was the subject of decision by the Tribunal in the case of FH v Secretary of State for Education and Skills [2005] 0552.PT, where the Tribunal said at paragraph 55:

"Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State."

23. I accept that explanation by the Tribunal. It follows that the particular views of officials or List 99 panel members are not relevant to the Tribunal's task. Nor indeed are the views of the Secretary of State determinative of the question. The Tribunal must form its own view as to whether or not, on the evidence before it, which is the same evidence as that which was before the Secretary of State, there existed sufficient grounds for the direction to be given under section 142. The Tribunal thereby decides whether the Secretary of State's decision was reasonable. It is not necessary for that purpose that the Tribunal should see the confidential advice that was given to the Secretary of State. It follows that the Tribunal had to decide whether the Secretary of State had sufficient evidence on which to base a determination that the specified ground existed. That involved a consideration and appraisal by the Tribunal of the evidence, untrammeled by the advice of the Department's officials and/or independent expert. For this reason too I would allow the appeal.

Conclusion

24. It is unfortunate that I have not had the benefit of argument on behalf of Mr N. I have only heard argument on behalf of the Secretary of State. Nevertheless, I am satisfied, for the reasons that I have given, that this appeal must be allowed.
25. MISS OLLEY: My Lord, I am grateful. I have no consequential applications.
26. LORD JUSTICE DYSON: Thank you.