Royal College of Nursing & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

A statutory barring scheme may engage Articles 6 and 8 of the Convention where listing substantially affects a person’s employment, reputation or private life. Automatic listing without a prior opportunity to make representations is unlawful where the resulting detriment may be serious or irreversible. Conviction or caution for a specified offence does not, by itself, justify treating automatic listing as a proportionate holding measure. Urgent cases may justify rapid action, but that does not validate an inflexible rule applying to every case. A statutory appeal limited to errors of law and material fact may nevertheless satisfy Article 6 when the scheme, considered as a whole, provides adequate procedural protection and permits oral consideration where fairness requires. A ten-year minimum barring period for adults aged 25 or over was upheld, narrowly, as proportionate on the evidence available.

The claimants challenged the lawfulness of the safeguarding scheme established under the Safeguarding Vulnerable Groups Act 2006. Three individual claimants had been automatically placed on the children’s and adults’ barred lists following cautions for specified offences; a fourth claimant was subject to a proposed discretionary barring decision. The claimants alleged breaches of Articles 6 and 8 arising from automatic listing, the absence of a guaranteed oral hearing, the restricted right of appeal and the ten-year minimum barring period.

The court considered the relevance of R (Wright) v Secretary of State for Health, the statutory appeal to the Upper Tribunal, and the proportionality of the minimum review period.

The claim succeeded on ground (a), but grounds (b), (c) and (d) failed.

1. Articles 6 and 8 engaged. Inclusion on a barred list determined a civil right connected with existing employment or access to a wide range of nursing work. The resulting employment consequences and stigma could also interfere with private life.
2. Automatic listing unlawful. The reasoning in R (Wright) v Secretary of State for Health was materially relevant although its decision was not binding on the compatibility of the different 2006 scheme. Automatic listing before representations was not a proportionate holding measure. Priority cases had still experienced delays of several months, and the system operated most harshly upon persons cautioned or convicted of comparatively minor offences. The denial of a prior opportunity to be heard was a breach of Article 6 and gave rise to potential breaches of Article 8.
3. Oral hearing and appeal. The Interested Party was not a court of first and only instance. Article 6 required a flexible assessment of the proceedings as a whole. The right to make representations, the possibility of an oral hearing where appropriate, and an Upper Tribunal appeal for errors of law or material fact provided sufficient protection. Section 4(3) did not prevent challenge to an unreasonable, irrational or disproportionate decision as an error of law.
4. Minimum barring period. The ten-year minimum period for persons aged 25 or over was upheld, just, as proportionate. The court identified the relevant questions as the extent of interference, the value of barring in pursuing legitimate aims, and the effect of earlier review on that value. The court nevertheless urged anxious reconsideration of the period in light of fuller evidence.
5. Relief. Section 3 of the Human Rights Act 1998 could not be used to rewrite paragraph 8 of Schedule 3. A declaration of incompatibility was therefore ordered in relation to ground (a). All other claims were dismissed.