R (On the application of Wright and others) (Appellants) v Secretary of State for Health and another (Respondents)

A statutory scheme which provisionally excludes care workers from employment may determine their civil rights for article 6 purposes where its impact is clear, decisive and potentially irreversible. A worker must ordinarily have an opportunity to answer the allegations before listing. If urgent protection justifies an initial ex parte decision, a swift opportunity to hear both sides must follow before irreparable harm occurs.

Later judicial review, administrative removal or delayed access to a full-merits tribunal cannot cure that fundamental defect. A broad employment ban, associated stigma and interference with working relationships may also engage article 8. Where incompatibility arises from the interaction of the statutory procedure, threshold and consequences, the court cannot reconstruct the scheme through section 3(1) of the Human Rights Act 1998.

Four registered nurses challenged their provisional inclusion on lists of persons considered unsuitable to work with vulnerable adults and children. Under Part VII of the Care Standards Act 2000, provisional listing operated before the worker was invited to answer the referring employer's allegations. Listing could terminate existing care work and obstruct future employment for many months before access to a full-merits tribunal.

The Administrative Court declared section 82(4)(b) incompatible with articles 6 and 8 of the European Convention on Human Rights: [2006] EWHC 2886 (Admin), [2007] 1 All ER 825. The Court of Appeal reversed that decision in part. Its majority used section 3(1) of the Human Rights Act 1998 to require pre-listing representations, subject to an exception where delay would place a vulnerable adult at risk: [2007] EWCA Civ 999, [2008] QB 422.

The central issue was whether that interpretative solution adequately protected the workers' rights, or whether the statutory scheme required a declaration of incompatibility.

1. Appeal allowed unanimously. Baroness Hale delivered the leading speech. Lord Phillips, Lord Hoffmann, Lord Hope and Lord Brown agreed with her reasoning and with the proposed declaration that section 82(4)(b) of the Care Standards Act 2000 was incompatible with Convention rights.

2. Per Baroness Hale, the ability to remain in existing employment and to undertake a wide range of care-sector work was a civil right. Although interim measures generally do not determine civil rights, provisional listing had a clear and decisive impact. Its practical effect was commonly the permanent loss of the worker's current position and serious damage to future employment prospects.

   A generally applicable domestic scheme could not make article 6 engagement depend upon a retrospective examination of each worker's actual circumstances.

3. Administrative authorities may initially determine civil rights if the person subsequently has access to an independent tribunal possessing the degree of full jurisdiction appropriate to the subject matter and the quality of the initial procedure. The principle stated in Bryan v United Kingdom (1995) 21 EHRR 342 did not save this scheme. A fundamental denial of the right to be heard, combined with potentially irreversible consequences, was not cured by possible removal from the list, judicial review or delayed access to the Care Standards Tribunal.

4. The Court of Appeal's interpretative solution remained inadequate. Serious allegations might justify an urgent ex parte measure, but seriousness alone did not establish current urgency or risk. Such a measure would require a swift opportunity to hear both sides before irreparable harm occurred. The statutory scheme provided no such procedure, and the Court of Appeal's exception addressed only the allegations and possible harm rather than the worker's circumstances and actual current risk.

5. Baroness Hale treated article 8 engagement as dependent upon the practical impact in each case. The breadth of the employment ban, its likely effect beyond its strict legal scope, the associated stigma and the disruption of personal working relationships meant that the scheme had to prevent possible article 8 violations. The low threshold for provisional listing, applied before both sides were heard, increased the risk of arbitrary and unjustified interference.

6. The defect arose from the interaction of the procedure, the low criterion for provisional listing and its draconian consequences. No proper solution was available through section 3(1) of the Human Rights Act 1998 without rewriting the legislation and striking a balance reserved in the first instance to Parliament. The House expressed no view on the compatibility of the replacement scheme under the Safeguarding Vulnerable Groups Act 2006.

• House of Lords: The appeal was allowed unanimously. The House rejected the Court of Appeal's interpretative solution and made the declaration of incompatibility proposed in the leading speech: [2009] UKHL 3.
• Court of Appeal: By a majority, the court held that provisional listing engaged article 6 but that section 82(4) could be read under section 3(1) of the Human Rights Act 1998 to provide an opportunity for pre-listing representations, subject to a risk-of-harm exception. May LJ dissented, considering the scheme fair. The court did not determine the article 8 issue: [2007] EWCA Civ 999, [2008] QB 422.
• High Court (Administrative Court): Stanley Burnton J held that provisional listing without an opportunity to be heard breached article 6 and failed to respect article 8 rights. He declared section 82(4)(b) of the Care Standards Act 2000 incompatible with both articles: [2006] EWHC 2886 (Admin), [2007] 1 All ER 825.