As the minister said, the two-part test is well established and has been approved in multiple decisions of the Supreme Court, including in the case that was referred to in the letter from the Faculty of Advocates, that is, R(L) v Commissioner of Police of the Metropolis.
The leading judgment in that case was delivered by Lord Neuberger, who commented that if the test was only one of relevance for the purpose of the disclosure, it would be insufficient to meet the proportionality test in the context of article 8 of the European convention on human rights. He said that the requirement for the chief officer to go on to consider whether the information ought to be included is a necessary part of the test for establishing proportionality.
Lord Neuberger gave examples of factors that would be considered as part of a decision about what ought to be included. They include:
“the gravity of the material involved, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events occurred, and the impact on the applicant of including the material”.
A decision maker who is applying the tests must comply with those established principles, to ensure that the decision is lawful and proportionate.
The Faculty of Advocates said in its letter:
“We support the Minister’s comments”—
in a previous letter to the committee—
“that the test will be informed by case law from the Courts and reflected in guidance.”
It is worth making the point that, in preparing the bill, a balance has had to be struck between the need for foreseeability, which we recognise is a key component of making legislation that is consistent with ECHR requirements, and the need to allow for flexibility, which I think that witnesses have recognised is an important part of a rights-based approach. A nuanced approach, particularly in relation to childhood convictions, has been supported by a number of witnesses.