The High Court has ruled that vetting and barring legislation for people working with children and vulnerable adults breaches human rights law.
Under the legislation, the Independent Safeguarding Authority (ISA) keeps lists of people who are barred from working with children or vulnerable adults. Once barred, the restrictions on work last from a minimum of one to a maximum of ten years.
But last week the High Court ruled that automatically banning those convicted of, or admitting to, crimes with children and vulnerable adults, without allowing them to make representations breached their rights to a fair trial.
The case involved four nurses, two of whom had received police cautions for leaving their children at home alone.
Under the Safeguarding Vulnerable Groups Act 2006, the nurses had been automatically put on the barred list. The Royal College of Nursing, who represented the nurses, challenged the lawfulness of the auto barring element of the scheme.
The RCN challenged four issues in the courts: listing without representation, the lack of a right to oral representation, the grounds for appealing a barring decision, and the ten-year minimum barring period.
The claimants successfully argued that the scheme was contrary to Articles 6 (right to a fair trial) and 8 (right to private and family life) of the European Convention on Human Rights because it requires the ISA to place individuals who have been convicted or cautioned for a wide range of offences on the barred lists without the right to make representations prior to listing.
The High Court judge, Mr Justice Wyn Williams, found “the denial of the right to make representations in advance of listing 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”.
The Secretary of State had argued that the potential consequences of the automatic barring system were justified by the serious effects that allowing perpetrators to work with children would have.
The judge rejected this, saying the claimants, who were convicted of relatively minor offences, were the kind of people who would suffer most from the automatic barring measures.
Dr Peter Carter, RCN chief executive and general secretary, said: “We are naturally delighted at the outcome of today’s judicial review. No-one would ever doubt that the protection of children and vulnerable people is of the most critical importance. However, we had long-standing concerns about the procedural fairness of this scheme, which we felt needed to be challenged.
“We are delighted that the clients we supported have now been removed from the barred list and that other members of the RCN will not have to face the emotional and financial hardship caused by the auto-barring scheme. We look forward to building upon the judge's comments and working with the government to create a fairer vetting system for nurses and healthcare support workers.”
The Safeguarding Vulnerable Groups Act 2006 was introduced as a response to the Bichard inquiry, in the wake of the murders of two schoolgirls by school caretaker Ian Huntley in Soham in 2002.
The Act, which introduced the vetting and barring scheme, keeps lists of people involved in crimes with children and vulnerable adults.
This June, the scheme would have required volunteers and staff working with children and vulnerable adults to register with the Independent Safeguarding Authority.
However, the government decided to halt the introduction and review and remodel the process.
The scheme has provoked much consternation in the charity sector, with opponents complaining that the scheme will deter volunteers and add unnecessary bureaucracy.
