C, R (on Application of) v Secretary Of State For Health

A public authority may maintain an employment-screening list without specific statutory authority where the activity falls within the Crown’s ordinary legal capacity and does not itself deprive a person of a qualification or legal right to work. The authority must nevertheless exercise its discretion lawfully, reasonably, in good faith and on relevant public-interest grounds. It must balance the individual’s reputation and livelihood against the protection of vulnerable children and act fairly in deciding whether information justifies inclusion. Inclusion on such a list does not engage Article 6(1) merely because it adversely affects employment prospects, where it is not directly decisive of a civil right or obligation. The list’s operation was therefore lawful under the law then in force.

The appellant, an unqualified social worker, was dismissed by a local authority following findings concerning sexual and physical abuse. His name was subsequently included on the Department of Health’s Consultancy Service Index, a confidential list used when a prospective employer had decided to offer employment in child-care work.

He sought judicial review, arguing that the Index lacked statutory authority, was irrational and unfair, and contravened Article 6(1) of the European Convention on Human Rights. Richards J dismissed the application on 21 December 1998. Permission to appeal was granted on the statutory-authority and Article 6 issues. The central questions were whether maintaining or operating the Index was unlawful and whether inclusion directly determined the appellant’s civil rights or obligations.

1. Appeal dismissed. The Crown, as a legal person, has the capacities and liberties of a natural person. Maintaining the Index was not, in itself, unlawful. The Index did not deprive the appellant of a professional qualification or licence, and no person has a right to be provided with a job. Subject to legal duties such as those concerning references and discrimination, private persons may maintain comparable services.
2. The Department’s public-authority status imposed stricter controls on the exercise of its powers. It could not operate the Index with an unfettered discretion. It had to act reasonably, in good faith and on lawful and relevant public-interest grounds, while balancing the protection of vulnerable children against the individual’s reputation and livelihood.
3. The Index did not legally prohibit employment. It was consulted only after a prospective employer had decided to offer employment. It disclosed no details of the referral, save for any conviction, and left the prospective employer to decide whether to investigate further and what weight to give the information. The Department’s opportunity for representations imposed a duty to act fairly, but did not itself make the scheme unlawful.
4. Article 6(1) was not engaged. Applying the directly decisive test in Fayed v United Kingdom (1994) 18 EHRR 393 and Le Compte van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, inclusion affected employment prospects but did not determine the right to apply for or accept employment or any other civil right or obligation.
5. The court expressed no view on whether the position might change after the Human Rights Act 1998 came into force. In its then-existing form, however, the Index was neither unlawful nor unreasonable. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal from the decision of Richards J dismissing the judicial-review application. Appeal dismissed; leave to appeal to the House of Lords refused.
• Queen’s Bench Division: Richards J dismissed the application on 21 December 1998 and refused permission to appeal.