²

FOURTH SECTION

DECISION

Applications nos . 19064/07 , 31588/09 and 38619/09 Mary BERRY and O thers against the United Kingdom , and two other applications

The European Court of Human Rights (Fourth Section) , sitting on 16 October 2012 as a Chamber composed of:

Lech Garlicki , President , Nicolas Bratza , Päivi Hirvelä , Ledi Bianku , Zdravka Kalaydjieva , Nebojša Vučinić , Vincent A. D e Gaetano , judges , and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above applications lodged on various dates (see Appendix 1) ,

Having regard to the partial decision of 24 May 2011 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants ,

Having deliberated , decides as follows:

THE FACTS

1. The applicants in the three cases are seventy-six individuals listed in Appendix 1. They are represented before the Court by Leigh Day & Co. , a firm of solicitors based in London .

2. The United Kingdom Government (“the Government”) are represented by their Agent , Ms J. Neenan , of the Foreign and Commonwealth Office.

A. The circumstances of the case

3. The facts of the case , as submitted by the parties , may be summarised as follows.

1. The background facts

4. Part VII of the Care Standards Act 2000 (see paragraphs 25-38 below) established the Protection of Vulnerable Adults (“POVA”) list. Inclusion on the POVA list effectively precluded a person from working as a care worker with vulnerable adults. The applicants ’ names were all first included on the POVA list provisionally by the Secretary of State on dates between 2004 and 2009 (see Appendix 1 for relevant dates). Following provisional listing , it was for the Secretary of State , upon receipt of observations , to decide whether to confirm their names on the list or to remove them. The period for which their names remained provisionally on the list varied from a few months to years (see Appendix 1 for relevant dates). The majority of the applicants subsequently had their names removed from the POVA list.

5. Three possibilities existed to challenge inclusion in the POVA list and to seek removal. First , an individual could make representations to the Secretary of State to seek his removal from the list. Second , after provisional listing for nine months , an individual could apply to the Care Standards Tribunal to have his inclusion in the list determined by the Tribunal instead of the Secretary of State , provided that he obtained the leave of the Tribunal to do so. Finally , an individual could seek judicial review of the Secretary of State ’ s decision provisionally to include his name in the POVA list or to refuse to remove his name from the list.

2. The Wright proceedings

6. Four of the original applicants in these three cases , whose complaints were struck out of the Court ’ s list by its partial decision in Allcock and Others v. the United Kingdom ( dec .) , nos. 19064/07 , 31588/09 and 38619/09 , 24 May 2011 , applied for judicial review of the Secretary of State ’ s decision provisionally to include their names in the POVA list , with the support of the Royal College of Nursing (“the Wright applicants”). They were representative applications , in the sense that there were other follow-up cases brought by other members of the Royal College of Nursing.

7 . The Wright applicants were: Ms Wright (provisionally listed on 4 February 2005 and confirmed on the list on 22 November 2005) , who lodged her judicial review claim on 21 February 2006; Mr Jummum (provisionally listed on 23 November 2005 and removed from the list on 18 August 2006) , who lodged his claim on 21 February 2006; Ms Quinn (provisionally listed on 13 December 2005 and removed from the list on 4 August 2006) , who lodged her claim on 3 March 2006; and Ms Gambier (provisionally listed on 30 November 2005 and removed from the list on 4 August 2006) , who lodged her claim on 28 February 2006.

8 . On 16 November 2006 Mr Justice Stanley Burnton in the High Court handed down his judgment in the judicial review proceedings. He found the provisions of Part VII to be incompatible with the rights of care workers under Articles 6 § 1 and 8 of the Convention. He accordingly made a declaration of incompatibility to the effect that section 82(4)(b) , which set out the power of the Secretary of State provisionally to include a person ’ s name in the POVA list (see paragraph 30 below) , was incompatible with the rights guaranteed by Articles 6 and 8 of the Convention.

9 . The Secretary of State appealed. On 24 October 2007 the Court of Appeal handed down its judgment. As to the applicability of Article 6 , Lord Justice Dyson , giving the opinion for the majority , noted:

“86. In my view , the judge was right to conclude that a decision to include a worker in the POVA list engages article 6 in all cases. The consequences of being provisionally included in the POVA list can be seriously detrimental for the care worker. Whilst on the list , he or she may not be offered employment in a relevant care position and if employed in such a position , his or her employment is not even suspended , still less suspended on pay: it is terminated immediately. There is no requirement that , if at the stage of final determination , the care worker is removed from the list , he or she must be offered the previous employment. In my judgment , the provisional inclusion of a care worker in the list can have a clear and decisive effect on the worker ... the decision to include in the list is potentially one of a drastic character which may cause irreversible prejudice to the worker.”

10 . On the question of the compliance of the legislation as applied by the Secretary of State with Article 6 § 1 , he found:

“101. But the fact that , as interpreted and applied by the Secretary of State , the CSA does not provide that the care worker should be given an opportunity to make representations before a decision is made to provisionally include him or her in the POVA list is an aspect of procedure and not a matter of substance. The question that arises is whether this apparent breach of article 6(1) at the first stage of the process is made good by the process when viewed as a whole. Mr Sales [for the Secretary of State] points to the following features of the process which , he submits , make good the absence of an opportunity for the care worker to make representations before the decision to include him or her in the list is made. First , there is the opportunity to apply to the Secretary of State at any time to remove the worker from the list under section 81(3). Secondly , there is the right to seek judicial review at any time of the original decision to include the worker in the list and a refusal to remove the worker from the list. Thirdly , there is the right of appeal which can be exercised after 9 months.

...

106. In my view , there are two reasons why the failure to afford the worker the opportunity to make representations before being included in the POVA list is a breach of article 6 which cannot be cured by any of the three means suggested by Mr Sales. First , the denial of the right to make representations is not a mere formal or technical breach. It is a denial of one of the fundamental elements of the right to a fair determination of a person ’ s civil rights , namely the right to be heard. And the denial is total. The worker is not given an opportunity even to make the briefest of comments. Judicial review does not afford full jurisdiction , since it cannot make good the consequences of the denial of the opportunity to make representations at the earlier stage.

107. Secondly , none of the three means suggested by Mr Sales can make good the serious detriment suffered by the care worker as a result of being included in the POVA list. Section 81(3) does afford the worker a remedy of sorts. In some cases , he or she will be able to make a successful application under section 81(3) within a short time of being included in the list. But even in such cases , there is the potential for serious and irreversible prejudice to the worker by being included in the list in the first place. The former employer may offer to restore the care worker to his or her employment , but that is unlikely where the employer dismissed , suspended or provisionally transferred the worker on the grounds of misconduct. As for judicial review , proceedings are likely to take some time , and even if successful are unlikely to result in the restoration of the worker to his or her former employment. The same applies in relation to an appeal to the tribunal which cannot be determined until the worker has been in the list for 9 months. It is the (often irreversible) detrimental effect of the inclusion in the list that makes the breach of article 6 at the first stage of the process incurable by any of the means suggested by Mr Sales.”

11 . However , he considered that the terms of the legislation could be read down pursuant to section 3(1) of the Human Rights Act 1998 (see paragraph 39 below) to allow an Article 6-compatible interpretation of the relevant procedures. He concluded that the legislative provisions regarding provisional listing should be interpreted as requiring the Secretary of State to give workers the right to make representations before he made a decision provisionally to include their names in the POVA list , unless he reasonably considered that the resultant delay would place a vulnerable adult at risk of harm. In light of his conclusions under Article 6 § 1 , Dyson LJ considered it unnecessary to deal with the Article 8 issue.

12 . The Wright applicants appealed. On 21 January 2009 the House of Lords unanimously found the Part VII provisions to be incompatible with the Convention and reinstated the declaration of incompatibility. Baroness Hale of Richmond , with whom their Lordships agreed , considered the operation of the scheme in some detail , noting the time taken between the provisional inclusion of a person ’ s name in the POVA list and the eventual confirmation or removal of the name by the Secretary of State.

13 . On the applicability of Article 6 § 1 , Baroness Hale considered that provisional listing on the POVA list would , in many cases , amount to a determination of a civil right , thus rendering the Article applicable , noting:

“22. ... The scheme allows for a temporary suspension or transfer to a non-care position. However , it is unlikely that an employer will take this option. They will have to employ another person to do the work which the listed person was employed to do. The reality is that that particular job will be lost to the listed person for good. Of course , some listed people will no longer be employed in care positions and so will not lose their existing jobs. Much was made on behalf of the Secretary of State of the wide range of jobs , even within the care sector , which remained open to a listed person , including any job in an independent or NHS hospital. But , once again , the reality is that a listed person is most unlikely to be able to obtain such a job or to keep it if she does not disclose that she has been listed. The main answer to this point , however , is that the scheme cannot assume that article 6(1) will never apply to provisional listing. There will undoubtedly be some cases , perhaps the majority , where it does apply ... [O] ur national law has to devise a scheme which will be generally applicable before the particular impact of the decision is known.”

14 . She continued:

“26. My Lords , the scheme appears premised on the assumption that permanently to ban a person from a wide variety of care positions does require a full merits hearing before an independent and impartial tribunal. That premise is , in my view , correct. The issue is what should be done on the way to that decision. How is a proper balance to be struck between the need to protect the vulnerable adults , who may be at risk from a care worker who has been referred to the Secretary of State , and the need to protect the care worker from suffering irreversible damage to her civil rights , as a result of allegations which later turn out to be unfounded , even frivolous or malicious , or at the very least blown up out of all proportion? ...

27. No-one can be in any doubt of the need for some scheme such as this to protect children and vulnerable adults from being harmed by the people who regularly come into contact with them in the course of work. The most practicable way of providing such a scheme may well be to have a list of banned individuals which is maintained administratively and where the initial decisions are made by officials ... However , in my view , Dyson LJ was entirely correct in his conclusion that the scheme as enacted in the Care Standards Act 2000 does not comply with article 6(1) , for the reasons he gave. The process does not begin fairly , by offering the care worker an opportunity to answer the allegations made against her , before imposing upon her possibly irreparable damage to her employment or prospects of employment.”

15 . However , she disagreed with Dyson LJ that the provisions could be read down so as to comply with the requirements of Article 6 § 1 , noting:

“29. ... The care worker suffers possibly irreparable damage without being heard whatever the nature of the allegations made against her. The care worker may have a good answer to the allegations no matter how serious they are. There may well be cases where the need to protect the vulnerable is so urgent that an ‘ ex parte ’ procedure can be justified. But one would then expect there to be a swift method of hearing both sides of the story and doing so before irreparable damage was done ... The problem , it seems to me , stems from the draconian effect of provisional listing , coupled with the inevitable delay before a full merits hearing can be obtained. That cannot be cured by offering some of the care workers an opportunity to make representations in advance , while denying that opportunity to other workers who may have been just as unfairly treated by their former employers ...”

16 . As to the Article 8 issue , Baroness Hale indicated:

“36. For my part , I am inclined to take the same view of whether article 8 is engaged as to whether article 6 is engaged. There will be some people for whom the impact upon personal relationships is so great as to constitute an interference with the right to respect for private life and others for whom it may not. The scope of the ban is very wide ... The ban is also likely to have an effect in practice going beyond its effect in law. Even though the lists are not made public , the fact is likely to get about and the stigma will be considerable. The scheme must therefore be devised in such a way as to prevent possible breaches of the article 8 rights.

37. Mr Spencer [for the claimants] does not , of course , argue that such interference will never be justifiable under article 8(2). The point is that the procedures must be fair in the light of the importance of the interests at stake. I would agree that the low threshold for provisional listing adds to the risk of arbitrary and unjustified interferences and thus contributes to the overall unfairness of the scheme.”

17 . She concluded that the procedure for provisional listing did not meet the requirements of Article 6 § 1 and that the solution favoured by the Court of Appeal did not cure the problem.

3. Correspondence between the applicants and the Government

18 . On 5 July 2007 the applicants ’ solicitors wrote to the Government referring to the judgment of Stanley Burnton J in the Wright proceedings. The solicitors indicated:

“We have , to date , been contacted by over 50 care workers and nurses whose lives have been adversely affected by inclusion on the POVA list ... ”

19 . The solicitors advised the Government that they would be willing to negotiate in respect of a compensation scheme to cover losses arising from unlawful inclusion on the POVA list.

20 . On 31 July 2007 the solicitors wrote again , informing the Government that they had been contacted by “a further 10 care workers and nurses”. They sought a response to their previous letter.

21 . On 2 August 2007 the Government replied. The letter explained:

“Despite the Declaration of Incompatibility ... the legislative provisions relating to the POVA scheme ... remain in force and the Secretary of State is bound , as a matter of law , to give effect to them until such time as they are repealed or amended.”

22 . The letter further indicated that the Government did not consider that questions of compensation arose.

23 . On 10 February 2009 the applicants ’ solicitors wrote to the Government following the decision of the House of Lords in the Wright proceedings. The solicitors referred to the Allock and Others case lodged with this Court (now Berry and Others ) which , they explained , was lodged on behalf of “some 60+ nurses and care workers seeking compensation from the Government from the very fact of their listing , and also the outcomes for them”. They proposed that the Government establish a compensation scheme and publish details of the scheme to allow all those who had been affected to come forward. They subsequently sent a number of other letters enclosing details of the Allcock and Addison and Others (now Amao and Others ) applicants.

24 . On 14 September 2009 the Government replied informing the applicants ’ solicitors that no general compensation scheme would be set up.

B. Relevant domestic law and practice

1. The Care Standards Act 2000

25 . As noted above , the POVA list was established by Part VII of the Care Standards Act 2000 (“CSA”). The relevant provisions in Part VII of the CSA were repealed on 12 October 2009 , subject to certain saving provisions , and replaced by a scheme established under the Safeguarding Vulnerable Groups Act 2006.

(a) Procedure for inclusion in the POVA list

26 . Section 81(1) of the CSA required the Secretary of State to keep a list of individuals who were considered unsuitable to work with vulnerable adults , known as the POVA list. Pursuant to section 81(2) , an individual was not to be included in the POVA list except in accordance with the relevant provisions of the CSA. Section 81(3) provided:

“The Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it.”

27 . Section 82 dealt with the referral of individuals to the Secretary of State for potential inclusion in the POVA list. It provided:

“A person who provides care for vulnerable adults (the provider) shall refer a care worker to the Secretary of State if there is fulfilled–

(a) any of the conditions mentioned in subsection (2); or

(b) the condition mentioned in subsection (3).”

28 . The section 82(2) conditions were:

“(a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;

(b) that the worker has resigned , retired or been made redundant in circumstances such that the provider would have dismissed him , or would have considered dismissing him , on such grounds if he had not resigned , retired or been made redundant;

(c) that the provider has , on such grounds , transferred the worker to a position which is not a care position;

(d) that the provider has , on such grounds , suspended the worker or provisionally transferred him to a position which is not a care position but has not yet decided whether to dismiss him or to confirm the transfer.”

29 . The section 82(3) condition was that:

“(a) in circumstances not falling within subsection (2) , the provider has dismissed the worker , he has resigned or retired or the provider has transferred him to a position which is not a care position;

(b) information not available to the provider at the time of the dismissal , resignation , retirement or transfer has since become available; and

(c) the provider has formed the opinion that , if that information had been available at that time and if (where applicable) the worker had not resigned or retired , the provider would have dismissed him , or would have considered dismissing him , on such grounds as are mentioned in subsection (2)(a).”

30 . Section 82(4) set out the scope of the Secretary of State ’ s powers upon receipt of a reference and provided:

“If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 81 , the Secretary of State shall

(a) determine the reference in accordance with subsections (5) to (7); and

(b) pending that determination , provisionally include the worker in the list.”

31 . Pursuant to section 82(5) , before determining the reference the Secretary of State was required to invite observations from the care worker and the provider on the information submitted with the reference.

32 . Section 82(6) provided:

“Where

(a) the Secretary of State has considered the information submitted with the reference , any observations submitted to him and any other information which he considers relevant; and

(b) in the case of a reference under subsection (2)(d) , the provider has dismissed the worker or , as the case may be , has confirmed his transfer on such grounds as are there mentioned ,

the Secretary of State shall confirm the worker ’ s inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list.”

33 . Section 82(7) applied if the Secretary of State was of the opinion that the provider reasonably considered the worker to be guilty of misconduct , whether or not in the course of his employment , which harmed or placed at risk of harm a vulnerable adult; and that the worker was unsuitable to work with vulnerable adults.

34 . Section 83 imposed on employment agencies and employment businesses a duty to refer workers to the Secretary of State in similar circumstances as those applicable at the time to providers.

(b) Consequences of provisional inclusion in the POVA list

35 . As to the consequences of inclusion in the POVA list , section 89(1) provided:

“Where a person who provides care to vulnerable adults proposes to offer an individual employment in a care position that person–

(a) shall ascertain whether the individual is included in the list kept under section 81; and

(b) if he is included in that list , shall not offer him employment in such a position.”

36 . Section 89(2) provided:

“Where a person who provides care to vulnerable adults discovers that an individual employed by him in a care position is included in that list , he shall cease to employ him in a care position.

For the purposes of this subsection an individual is not employed in a care position if he has been suspended or provisionally transferred to a position which is not a care position.”

(c) Challenges to provisional inclusion in the POVA list

37 . Section 86 set out the possibility of an appeal to the Care Standards Tribunal. Section 86(2) permitted an individual who had been provisionally included in the POVA list for a period of more than nine months to have the issue of his inclusion in the list determined by the Tribunal instead of the Secretary of State , provided that he obtained the leave of the Tribunal to do so.

38 . Pursuant to section 86(3) , if on an appeal or determination under section 86 the Tribunal was not satisfied that the individual was guilty of misconduct , whether or not in the course of his duties , which harmed or placed at risk of harm a vulnerable adult or that the individual was unsuitable to work with vulnerable adults , the Tribunal was required to allow the appeal or determine the issue in the individual ’ s favour and , in either case , to direct his removal from the POVA list. If the Tribunal was satisfied that both conditions were met , it was obliged to dismiss the appeal or direct the individual ’ s inclusion in the POVA list.

2. The Human Rights Act 1998

39 . Section 3 of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows:

“(1) So far as it is possible to do so , primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section–

(a) applies to primary legislation and subordinate legislation whenever enacted;

...”

40 . Section 4 of the Act provides:

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility.

...”

41 . Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:

“Subsection (1) does not apply to an act if–

(a) as the result of one or more provisions of primary legislation , the authority could not have acted differently; or

(b) in the case of one or more provisions of , or made under , primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights , the authority was acting so as to give effect to or enforce those provisions.”

42 . Section 7(1) provides that a person who claims that a public authority gas acted in a way made unlawful by section 6(1) may bring proceedings against the authority. Such proceedings must be brought before the end of one year beginning with the date on which the act complained of took place or such longer period as the court considers equitable in the circumstances , subject to any rule imposing a stricter time limit in relation to the procedure in question.

43 . Section 8(1) of the Act permits a court to make a damages award in relation to any act of a public authority which the court finds to be unlawful.

3. The Civil Procedure Rules on representative parties

44 . Section II of Part 19 of the Civil Procedure Rules (CPR) deals with cases involving representative parties with the same interest.

45 . Rule 19.6 provides that where more than one person has the same interest in a claim , it may be begun , or the court may order that it be continued , by one or more of the persons who have the same interest as representatives of any other persons who have that interest.

46 . Alternatively , pursuant to Rule 19.7 , a claim can be brought by a representative in certain cases where the claim relates , inter alia , to the meaning of a statute. In such a case the court may make an order appointing a person to represent any other persons in the claim where the persons to be represented cannot easily be ascertained; or , with certain conditions , are a class of persons who have the same interest in a claim. An application for such an order can be made by the intended representative or by any party to the claim and may be made at any time before or after the claim has started.

47 . In both cases , unless the court otherwise directs , any judgment given such a claim is binding on all persons represented in the claim.

4. The Civil Procedure Rules on judicial review applications

48 . Rule 54.5 CPR sets out specific time limits for filing a claim form in judicial review proceedings:

“ (1) The claim form must be filed–

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose.

(2) The time limit in this rule may not be extended by agreement between the parties.

(3) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.”

COMPLAINTS

49. The applicants complained under Articles 6 § 1 and 8 of the Convention about the procedure for the provisional listing of their names in the POVA list , which they contended did not give them adequate opportunity to challenge their inclusion.

50. They also complained under Article 13 that they were denied an effective remedy in respect of their complaints.

THE LAW

I. COMPLIANCE WITH ARTICLE 35 § 1 OF THE CONVENTION

51. Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted , according to the generally recognised rules of international law , and within a period of six months from the date on which the final decision was taken.”

A. The parties ’ submissions

1. The Government

52. While the Government did not accept that judicial review proceedings would not have been effective in the applicants ’ cases , in light of the Court ’ s previous case-law they did not argue that the claims of those applicants who had failed to institute domestic proceedings in the High Court should be declared inadmissible for non-exhaustion of domestic remedies. However , they considered that seventy-three of the applicants had failed to lodge their cases within the six-month period stipulated in Article 35 § 1.

53. They considered that the six months began to run either from the date on which the applicant in question was provisionally included in the list or , where he had brought judicial review proceedings to challenge the decision provisionally to include him , the date upon which those proceedings were concluded. They emphasised that the decision provisionally to list was the decision challenged in the Wright proceedings. In the Government ’ s view , only three of the applicants (listed in Appendix 4) had satisfied one of these two requirements.

54. As to the applicants ’ argument that they were entitled to await the outcome of the Wright proceedings before choosing to lodge their cases with this Court , the Government considered that the applicants ’ references to Wright as constituting a lead case were misleading. They emphasised that this was not a situation where a list of identified individuals ready to introduce their claims with this Court had stayed their hand , with the agreement of the Secretary of State , pending the outcome of the Wright proceedings. They argued that the litigation had come together in a piecemeal fashion over some years , referring in support to correspondence provided by the applicants ’ solicitors (see paragraphs 18 - 24 above).

55. The Government further contested any suggestion that the Wright proceedings were a representative action. They pointed to the provisions in Part 19 CPR which permitted an individual or small group of individuals to be identified and to act as a representative party for others with the same interest (see paragraphs 44-47 above). In such cases , the court would make an order to that effect. No such order was sought or granted in the present cases.

56. As to the allegation that the breach was a continuing one which did not cease until the applicants ’ names were removed from the list , the Government contended that the applicants were conflating the existence of a one-off decision provisionally to list their names with the effects of that decision. The Government were of the view that the breaches o f Articles 6 and 8 found by the House of Lords in Wright arose directly and only out of the individual decision provisionally to include a person ’ s name on the list. They added that if the Court were to accept that the breach was a continuing one , this would make it impossible to identify the date from which time would begin to run for the purposes of Article 35 § 1. The selection of any other date was , in their submission , unprincipled and risked being arbitrary.

57 . Finally , the Government confirmed that they were satisfied that all four claimants in the Wright proceedings had lodged their judicial review claims in time and that the question whether they had raised any objection in the proceedings as to compliance with the deadline for lodging a claim for judicial review did not therefore arise.

2. The applicants

58. The applicants lodged their cases with this Court on various dates in 2007 and in 2009 (see Appendix 1). In seeking to demonstrate that they had complied with the six-month time-limit stipulated in Article 35 § 1 , their primary submission was that the time-limit began to run in all of their cases on the date on which the House of Lords handed down its judgment in the Wright proceedings , granting a declaration of incompatibility as regards section 82(4)(b) of the POVA Act. The applicants maintained that the Wright claim was a representative action , and was understood as such by the domestic courts. They contended that it was neither necessary nor appropriate for them to seek a discretionary order under CPR 19.6 (see paragraph 45 above). They further pointed out that they had notified the Government of the claims under application no. 19064/07 before this court even before the Court of Appeal hearing in the Wright proceedings (see paragraphs 18 and 20 above).

59. In the alternative , the applicants contended that , as regards the applications lodged under application no. 19064/07 , the six months began to run on 2 August 2007 , the date on which the Secretary of State refused the applicants ’ request to introduce a compensation scheme , (see paragraph 22 above). As regards the applicants having lodged application under nos. 21588/09 and 38619/09 , the six months began to run on 14 September 2009 , the date of the Secretary of State ’ s rejection of a similar request made in those cases (see paragraph 24 above).

60. Finally , in the further alternative , the applicants argued that the six-month time-limit began to run on the date of removal from or confirmation on the POVA list of the name of each applicant , or the last day of the provisional listing (see Appendix 1 for details). They considered that this date was neither unprincipled nor arbitrary. They pointed out that the judicial review claim by Ms Wright in the Wright proceedings was lodged on 21 February 2006 , over a year after her provisional listing on 4 February 2005 but one day short of three months from the date on which her listing was confirmed by the Secretary of State , and thus just within time for the lodging of judicial review proceedings (see paragraphs 7 and 48 above). They noted that the Government had not disputed that the confirmation decision was the final decision in her case.

61. The applicants argued that if the six months were considered to run from the date of the provisional listing itself , this would not only be contrary to the arguments of the Government in the domestic proceedings but would also have absurd consequences. In the cases of some of the applicants , their decision to avail themselves of the procedure for making representations under the CSA (see paragraphs 31-32 above) , explained and recommended by the Secretary of State in his letter advising them of their provisional listing , would mean that the six months would already have expired even though they were still provisionally listed , were seeking to challenge the decision by making the requested representations to the Secretary of State and were still suffering the effects of the unlawful provisional listing.

B. The Court ’ s assessment

1. General principles

62. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system , thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule , normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged; there is no obligation to have recourse to remedies which are inadequate or ineffective (see , among many other authorities , Akdivar and Others v. Turkey , 16 September 1996 , §§ 65-67 , Reports of Judgments and Decisions 1996-IV; Demopoulos and Others v. Turkey ( dec .) [GC] , nos. 46113/99 , 3843/02 , 13751/02 , 13466/03 , 10200/04 , 14163/04 , 19993/04 and 21819/04 , ECHR 2010; and Tucka v. the United Kingdom (No. 1) ( dec ) , no. 34586/10 , § 12 , 18 January 2010).

63. The six-month rule stipulated in Article 35 § 1 is intended to promote legal certainty by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge (see Varnava and Others v. Turkey [GC] , nos. 16064/90 , 16065/90 , 16066/90 , 16068/90 , 16069/90 , 16070/90 , 16071/90 , 16072/90 and 16073/90 , § 156 , ECHR 2009) . It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally , it ensures that , insofar as possible , matters are examined while they are still fresh , before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible (see Baybora and Others v. Cyprus ( dec .) , no. 77116/01 , 22 October 2002; Denisov v. Russia ( dec .) , no. 33408/03 , 6 May 2004; Williams v. the United Kingdom ( dec .) no. 32567/06 , 17 February 2009; and Tucka , cited above , § 13 ).

64. In assessing whether an applicant has complied with Article 35 § 1 , it is important to recall that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Galstyan v. Armenia , no. 26986/03 , § 39 , 15 November 2007; and Williams , cited above). Thus where no effective remedy is available to an applicant , the time-limit expires six months after the date of the acts or measures about which he complains , or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom ( dec .) , no. 57420/00 , ECHR 2003-I; and Varnava and Others , cited above , § 157). The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule (see Prystavska v. Ukraine ( dec .) , no. 21287/02 , 17 December 2002; Sapeyan v. Armenia , no. 35738/03 , § 21 , 13 January 2009; and and Tucka , cited above , § 14 ).

65. Finally , as the Court indicated in Varnava and Others , cited above , § 159 , special considerations arise when assessing compliance with the six month time-limit in the context of an allegation of a continuing situation because , if there is a situation of ongoing breach , the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end. However , the Court reiterates that not all continuing situations are the same; the nature of the situation may be such that the passage of time affects what is at stake (see Varnava and Others , cited above , § 161). Thus in Varnava and Others , which concerned disappearances and complaints under Articles 2 and 3 of the Convention , the Court emphasised that w ith the lapse of time , memories of witnesses faded , witnesses might die or become untraceable , evidence deteriorated or ceased to exist , and the prospects that any effective investigation could be undertaken would increasingly diminish; and the Court ’ s own examination and judgment might be deprived of meaningfulness and effectiveness. Th e Court accordingly concluded that where disappearances were concerned , applicants could not wait indefinitely before coming to Strasbourg but had to make proof of a certain amount of diligence and initiative and introduce their complaints without undue delay.

2. Application of the general principles to the facts of the case

(a) Exhaustion of domestic remedies

66 . The Court notes that the Government do not argue that the applications should be declared inadmissible for failure to exhaust domestic remedies. In these circumstances the Court is satisfied that the applicants have complied with Article 35 § 1 in this regard.

(b) Six-month rule

67. The parties disputed whether the six-month time-limit had been complied with in respect of seventy-three of the applications. A number of different dates were proposed for the starting point of the six-month time period. The Court will examine each proposal in turn.

( i ) The date of judgment in the Wright proceedings

68. The applicants contended in the first instance that the six months began to run on 21 January 2009 , the date on which the House of Lords handed down its judgment in the Wright proceedings.

69. The Court notes that , as the Government pointed out , no order was sought under CPR 19 that the Wright proceedings be conducted as a representative action. Although the applicants dispute that such an order was necessary , they have failed to explain how , in the absence of such an order , the Wright proceedings could be considered a representative action in any formal sense of that term. They have further failed to explain why no attempt was made to secure such an order if their intention was that the Wright proceedings were to be viewed as a representative action on behalf of a number of individuals , both identified and unidentified , who had failed to lodge judicial review proceedings in their own names.

70. The applicants have also failed to demonstrate that they can reasonably claim that it was justified for them to await the outcome of the Wright proceedings , while doing nothing to assert their own rights and protect their legal positions. The Wright claimants obtained a declaration of incompatibility as sought , but such a declaration does not give rise to any right to damages in domestic law. Indeed , no matter what the outcome of the Wright proceedings , no enforceable right to compensation would arise in respect of the applicants in the absence of the lodging of a relevant claim by them , within the applicable procedural time-limits , in the appropriate courts. It is clear from the applicants ’ submissions to this Court that they are seeking , inter alia , damages for the pecuniary and non-pecuniary loss suffered by them as a consequence of their provisional listing.

71. Further the applicants have not suggested that they were unable themselves to lodge claims in the High Court and seek to have them stayed pending the outcome of the Wright proceedings. Nor have they demonstrated that they were unable to lodge applications with this Court within six months of the relevant decision in their individual cases , if they considered that judicial review proceedings would not be effective , within the meaning of Article 35 § 1.

72. The Court considers that it is not unreasonable to require applicants who wish to assert the rights guaranteed to them by the Convention to take steps themselves to protect these rights , at domestic level where such steps are available or , if not , by lodging an application with the Court within six months of the final domestic decision in their cases. It is not open to applicants to rely instead on the actions of others , who diligently pursue potential remedies available , without seeking formally to associate themselves with those actions in accordance with any procedural requirements stipulated in domestic law. To hold otherwise would frustrate the aims of legal certainty and finality which Article 35 § 1 seeks to attain.

73. In conclusion , the applicants cannot seek to rely on the judgment of the House of Lords in the Wright proceedings as constituting the final decision in their cases.

(ii) The date on which the request to establish a compensation scheme was refused

74. The applicants argued in the alternative that the final decision was the date on which the Government confirmed that they would not set up a compensation scheme.

75. The Court observes that the requests by the applicants ’ solicitors to establish such a scheme did not seek to assert any legal right to the establishment of the scheme. The decision to do so or not was wholly within the discretion of the Secretary of State. In the circumstances , the request that a compensation scheme be created cannot be considered as the pursuit of an effective remedy within the meaning of Article 35 § 1 and the dates on which the requests were refused cannot be considered as the dates of the final decisions in the applicants ’ cases.

(iii) The date of the beginning or the end of the provisional listing

76. The applicants contend that the six months began to run on the date on which their provisional listing ended , i.e. the date on which their names were removed from or confirmed on the POVA list. The Government , however , argued that the provisional listing was a one-off event which occurred on the date on which the applicants ’ names were first included in the list.

77. The Court notes that the act about which the applicants complain was their provisional listing in accordance with a procedure which they contend was unfair. Following their listing , they were invited by the Secretary of State to make representations on the merits of their listing. As a means of pursuing the aim of having their names removed from the list , this process offered , depending on the specific facts of the case , reasonable prospects of success. By challenging or explaining the information provided to the Secretary of State by third parties which had led to their provisional listing , the applicants could seek to demonstrate that they did not pose a risk such that their listing should be confirmed. However , the representations invited were directed to the merits of a final confirmed listing , and not to the procedure followed for inclusion of the applicants ’ names on a provisional basis. It emerges from the parties ’ submissions that the only way of challenging the procedure pursuant to which the applicants ’ names were provisionally listed was by commencing judicial review proceedings.

78. However , throughout the period of the provisional listing , the applicants continued to suffer the effects of the listing under a procedure which they contended was incompatible with the Convention. The longer their provisional listing , the longer they were precluded from employment for which they were qualified and the greater the potential damage to their lives and livelihoods. The listing itself and the consequences of listing were governed by primary legislation and the Court has already accepted that in the circumstances of the present cases there was no effective remedy which the applicants could have pursued to seek redress for their complaints (see paragraph 66 above). As such the Court considers it arguable that the period of the applicants ’ provisional listing was so closely linked to the decision to list them provisionally that it would be artificial to ignore the continued effects of the decision provisionally to list when assessing when the six ‑ month period began to run.

79. In this regard , the Court observes that although Ms Wright was provisionally listed on 4 February 2005 , she did not lodge her claim for judicial review until 21 February 2006 , over a year after her provisional listing , but within three months of the last day of her provisional listing , following the Secretary of State ’ s decision of 22 November 2005 to confirm her name on the POVA list (see paragraph 7 above). The Government did not dispute that the applicable time-limit in the case of the Wright applicants was “not later than 3 months after the grounds to make the claim first arose” (see paragraph 48 above). The Government considered Ms Wright ’ s application to have been lodged in time and did not take any issue in the domestic proceedings as to the timeliness of the application (see paragraph 57 above). It is evident from the judgments in the judicial review proceedings that they addressed solely the decision provisionally to list the four claimants under section 82(4)(b) of the Act , and did not consider the decision to confirm Ms Wright on the list.

80. In these circumstances , having regard to the nature of the alleged violation in the present cases and the respondent Government ’ s approach in the domestic proceedings , the Court finds that the six months began to run on the date on which the applicants ’ provisional listing ended , either because their names were removed from the list or because they were confirmed on the list.

81. Forty-one of the applicants lodged their applications with this Court more than six months after the last day of their provisional listing. Their names are included in Appendix 2. The Court accordingly declares those cases inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

82. Thirty-two applicants , whose names are listed in Appendix 3 , lodged their cases within six months of the last day of their provisional listing. The Court considers that their complaints under Articles 6 , 8 and 13 raise serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. They cannot , therefore , be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court therefore declares admissible the complaints of these applicants.

II. COMPLIANCE WITH ARTICLE 35 § 3 OF THE CONVENTION

83. Article 35 § 3 provides:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(a) the application is ... manifestly ill-founded ... ”

84. Three applicants , whose names are included in Appendix 4 , lodged their cases with this Court within six months of their provisional listings. The Government contend that these applicants ’ claims should be declared inadmissible as manifestly ill-founded. The applicants contested that argument.

A. The parties ’ submissions

1. The Government

85. The Government explained that the three applicants concerned were invited , prior to a decision being taken as to whether their names should provisionally be included in the POVA list , to make representations to the Secretary of State. In the cases of Mr Fletcher and Ms Horsely , representations were not received prior to the decision being taken. In Mr Byron ’ s case , representations were received but the Secretary of State nonetheless concluded that his name ought to be included in the list on a provisional basis. The Government argued that the inability to make representations prior to being provisionally included on the list was a critical part of the House of Lords ’ reasoning in finding the scheme to be incompatible with Convention rights. As this did not apply to the three applicants in question , the Government invited the Court to declare their applications inadmissible as manifestly ill-founded.

2. The applicants

86. The applicants argued that the Government ’ s submission overlooked the fact that it was the unfairness of the provisional listing scheme as a whole , including the lack of any right of appeal for nine months , which rendered it incompatible with the Convention.

B. The Court ’ s assessment

87. The Court finds that the question whether the procedure followed in the cases of these three applicants was compatible with the Convention is inextricably linked to the merits of the applicants ’ complaints. It follows that these applications cannot be rejected as manifestly ill-founded pursuant to Article 35 § 3 of the Convention , nor is any other ground of inadmissibility made out. The Court accordingly declares them admissible.

For these reasons , the Court unanimously

Declares admissible , without prejudging the merits , the applications of those applicants whose names are listed in Appendix 3 and Appendix 4;

Declares inadmissible the remainder of the applications.

Fatos Aracı Lech Garlicki Deputy Registrar President

A PPENDIX 1

The applicants are:

App no.

Date of introduction

Name of applicant

Date of provisional listing

Date of decision on full listing

19064/07

18 May 2007

Godwin Agbo

2 November 2004

27 July 2005

19064/07

16 May 2007

Maria Berry

18 November 2005

12 January 2007

19064/07

16 May 2007

Dawn Campy

3 January 2006

4 May 2006

19064/07

16 May 2007

Alice Cheang

26 October 2006

11 December 2007

19064/07

18 May 2007

Kim Clarke

5 August 2005

21 November 2005

19064/07

16 May 2007

Peter Davies

25 October 2006

14 November 2006

19064/07

30 April 2007

Dianne Dixon

3 December 2004

16 September 2005

19064/07

10 September 2007

Janet Foster

14 November 2005

4 October 2007

19064/07

16 May 2007

Catherine Mary Furniss

5 October 2005

3 July 2006

19064/07

4 September 2007

Josephine Ghunney

30 June 2006

19 November 2007

19064/07

30 April 2007

Mercy Grabet

13 March 2006

31 July 2007

19064/07

18 May 2007

Jacqueline Hodgson

17 March 2006

29 April 2008

19064/07

16 May 2007

Kim Holland

1 October 2005

1 July 2006

19064/07

16 May 2007

Neil Johnson

6 May 2005

30 March 2006

19064/07

4 September 2007

Yuri Kazlouski

26 September 2006

15 November 2007

19064/07

16 May 2007

Mary Ann Kerry

9 June 2006

23 February 2007

19064/07

14 September 2007

Nicola Koster

31 May 2006

24 August 2007

19064/07

30 April 2007

Weng Kheong Lim

6 February 2006

18 July 2007

19064/07

4 September 2007

Annah Madamombe

30 November 2006

26 November 2007

19064/07

4 September 2007

George Marsh

7 February 2005

4 January 2006

19064/07

16 May 2007

Angus Simon McDonald

3 March 2006

29 January 2007

19064/07

10 September 2007

John Merrit

12 April 2006

28 November 2006

19064/07

16 May 2007

Adam James Millis

5 October 2005

3 July 2006

19064/07

10 September 2007

Temakazi Moyana

22 August 2006

29 November 2011

19064/07

16 May 2007

Mariatu Nuni

8 November 2006

13 September 2007

19064/07

30 April 2007

Lucy Olaniya

11 August 2005

16 March 2006

19064/07

30 April 2007

Tina Orsich

2 November 2005

6 April 2006

19064/07

30 April 2007

Dhanwantee Rampersad

20 December 2005

26 February 2007

19064/07

30 April 2007

Pran Rampersad

20 December 2005

26 February 2007

19064/07

30 April 2007

Philip Thompson

4 October 2005

5 December 2006

19064/07

30 April 2007

Shelvi Varkey

14 February 2005

25 April 2006

19064/07

30 April 2007

Anne Wallace

12 September 2005

11 September 2006

19064/07

16 May 2007

Philip Weeks

12 September 2005

9 August 2006

19064/07

4 September 2007

Samina Wright

25 August 2006

June 2007

31588/09

30 March 2009

Mary Afolabi

2 February 2007

4 May 2007

31588/09

30 March 2009

John Ajewole

15 February 2006

20 May 2008

31588/09

21 April 2009

Oluwatoyin Abeni Amao

28 August 2008

June 2009

31588/09

30 March 2009

Audrey Mary Barnfield

30 August 2007

8 August 2008

31588/09

30 March 2009

Carol Joan Burnett

9 August 2007

28 February 2008

31588/09

30 March 2009

Alison Butterworth

14 August 2006

25 September 2007

31588/09

9 June 2009

Stuart Byron

5 May 2009

25 September 2009

31588/09

30 March 2009

Coleen Carter

26 January 2007

20 September 2007

31588/09

30 March 2009

Margaret Corser

5 March 2007

27 November 2008

31588/09

30 March 2009

Valerie Ann Davies

18 July 2008

28 April 2009

31588/09

9 June 2009

Enda Evans

15 February 2006

20 January 2010

31588/09

30 March 2009

Bridget Evington

16 January 2007

16 January 2008

31588/09

30 March 2009

Elaine Fitzgerald

29 November 2007

29 January 2009

31588/09

9 June 2009

David Fletcher

23 March 2009

O ngoing

31588/09

30 March 2009

Susan Phyllis Greening

31 July 2006

7 May 2008

31588/09

30 March 2009

Debbie Hall

20 July 2007

20 July 2008

31588/09

9 June 2009

Dawn Harris

29 July 2006

February 2009

31588/09

30 March 2009

Denise Ann Holroyd

20 December 2006

16 May 2008

31588/09

30 March 2009

Kenneth Francis Holroyd

20 December 2006

16 May 2008

31588/09

9 June 2009

Victoria Anne Horsley

4 February 2009

28 February 2010

31588/09

30 March 2009

Maureen Javor

27 July 2006

10 July 2007

31588/09

9 June 2009

Shibu Joseph

15 February 2006

20 May 2008

31588/09

30 March 2009

Shaun Joyce

23 March 2005

6 March 2006

31588/09

30 March 2009

Nikolinka Kamberova

16 July 2007

17 April 2008

31588/09

30 March 2009

Doreen Mahlunge

20 September 2007

6 December 2007

31588/09

21 April 2009

Maureen Malone

9 November 2007

10 March 2009

31588/09

30 March 2009

Rebecca Mweseli

20 February 2008

23 January 2009

31588/09

30 March 2009

Sarah Newark

26 September 2007

3 January 2008

31588/09

30 March 2009

Flavia Ngcobo

19 July 2007

21 February 2008

31588/09

21 April 2009

Joan Nhachi

19 February 2007

19 February 2009

31588/09

30 March 2009

Sarah Celia Reilly

19 September 2007

30 January 2009

31588/09

30 March 2009

Debra Richards

11 April 2007

19 June 2008

31588/09

21 April 2009

Simon Rutter

19 December 2007

25 February 2009

31588/09

30 March 2009

Hasifa Segujja

7 February 2008

29 January 2009

31588/09

30 March 2009

Maureen Priscilla Sheikh

28 September 2007

10 March 2009

31588/09

30 March 2009

Neil Paul Taylor

3 November 2006

Never received letter confirming listing.

31588/09

9 June 2009

Emily Charlotte Tutton

15 June 2007

29 August 2007

31588/09

30 March 2009

Bindu Vanalloor Punushothaman Pillai

14 April 2008

1 April 2009

31588/09

30 March 2009

Caroline Ann Wade

13 September 2007

7 March 2008

31588/09

30 March 2009

Linda Watkins

22 February 2008

21 April 2008

38619/09

14 July 2009

Annita Mace

26 February 2007

3 September 2007

38619/09

14 July 2009

Timothy Madziwa

21 September 2006

21 June 2007

APPENDIX 2

APPENDIX 3

APPENDIX 4