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Proportionality
Proportionality
This issue was mentioned in the Appellant’s written submission and at the oral hearing but was not argued in any detail. We note the decision in MFAG v The Disclosure and Barring Service: [2024] UKUT 330 (AAC) where Independent Safeguarding Authority v SB [2012] EWCA Civ 977was followed:
“24. The central principles to be derived from ISA v SB appear to us to be that on a proportionality challenge the Upper Tribunal should objectively judge whether DBS’s decision to bar was proportionate, undertaking the ordinary judicial task of weighing up the competing considerations on each side, but giving appropriate weight to DBS’s views.”
There was no application to stay this case pending the outcome of another Upper Tribunal appeal focusing on proportionality.
We have examined whether the DBS barring decision disproportionately interferes with the Appellant’s Article 8 right to respect for his family and private life, including to work in his field of choice and proficiency. That right must be balanced against the public interest in safeguarding children from harm. The test is whether it is proportionate to bar him from working in regulated activity with this vulnerable group in all the circumstances.
In summary, the proportionality of DBS’s decisions to include individuals on the barred lists should be examined applying the tests laid down by Lord Wilson in R (Aguilar Quila) v Secretary of Stage for the Home Department [2012] 1 AC 621 at para 45:
…But was it “necessary in a democratic society”? It is within this question that an assessment of the amendment's proportionality must be undertaken. In Huang v Secretary of State for the Home Department [2007] 2 AC 167, Lord Bingham suggested, at para 19, that in such a context four questions generally arise, namely:
is the legislative objective sufficiently important to justify limiting a fundamental right?
are the measures which have been designed to meet it rationally connected to it?
are they no more than are necessary to accomplish it?
do they strike a fair balance between the rights of the individual and the interests of the community?
- Heading
- A summary of the Upper Tribunal’s decision
- Introductory matters
- The statutory framework
- The appeal provisions
- The guidance in the case law
- Mistakes of law
- The DBS’s barring decision
- A brief summary of the factual background to the appeal
- The grounds of appeal and the parties' submissions
- The oral hearing of the substantive appeal
- JA’s oral evidence at hearing
- Our assessment of the appellant’s evidence and findings of fact
- Other grounds of appeal relating to first finding of relevant conduct
- T he indecent image: second finding of relevant conduct
- Materiality
- Proportionality
- 49.These four questions were later developed by Lord Sumption in Bank Mellat [2013] UKSC 39 at 20
- 50.In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Author
- Conclusions