DBS unlawful Part 2

19 May 2017

In January last year I wrote about the High Court declaring the DBS scheme unlawful. This is a link to my article which discusses the key facts and the judgement: The Disclosure and Debarring Service

The Home Office appealed and the Court of Appeal gave it’s judgement a couple of weeks ago in four linked cases. It confirmed the previous decision so the DBS scheme is still unlawful.

The Court found the multiple conviction rule indiscriminate and the approach to serious offences  “insufficiently calibrated so as to ensure that the proportionality of the interference [with Article 8 rights] is adequately examined.” It then turned it’s attention to the Home office argument that the rules are necessary in a democratic society concluding that it’s not the court’s job to come up with a solution to a problem of Parliament’s making. In a caustic passage the President of the Queens Bench Division noted the legislature has created a system in which legal challenges are almost inevitable and if the courts have to resolve these it can only do so case by case generating yet more challenges which can’t be in the public interest.

I detect a degree of judicial irritation with the Home Office and the police because in applying his decision to the presenting cases the President offered a couple of potential solutions:

  • a filter that takes account of the lapse of time, disposal and the timing and nature of the convictions; or
  • a mechanism for review in specified circumstances with preconditions and parameters perhaps aligned with those prescribed for removal from the Sex Offenders’ Register.

The President acknowledges the present regime can lead to employers indulging in defensive decision making so what should you do? My guidance is to take each potential requirement for a disclosure certificate on its own merits. Ask yourself, is it really necessary, reasonable and proportionate in your circumstances? If it is, proceed and be ready to critically assess any information which is disclosed asking yourself, is my response reasonably justified?

Of course there’s an issue of balance here but the harvesting, retention and indiscriminate release of so much sensitive personal data has serious implications for our freedom. The Human Rights Act has provided some basic first aid but it’s high time Parliament engages with the issue and provides us with a solution.