“Vetting and Barring Scheme” infringes Human Rights Act

11 November 2010

The Royal College of Nursing ("RCN") has been successful in its High Court judicial review ("JR") of the Vetting and Barring Scheme ("VBS"). The judgment was released today.

Background
The VBS is operated by the Independent Safeguarding Authority ("ISA"). We have commented on the VBS and ISA in previous INSIGHTS (click here for details). The VBS is intended to prevent unsuitable people from working with children and vulnerable adults. It is a unified database and replaces the "List 99", Protection of Vulnerable Adults and the Protection of Children Act barring lists. In June the Home Office suspended the VBS for review.

The RCN sought a JR over the way the ISA added names of unsuitable persons to the unified list. The RCN argued that this breached the terms of Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). The specific complaints of the RCN are that the VBS:

• requires ISA to place individuals who had been convicted or cautioned for a wide range of offences on the barred lists without the right to make any representations prior to listing ("auto-barring"), contrary to Articles 6 and 8 ECHR;
• does not allow individuals who were given a right to make representations to do so orally rather than solely in writing, contrary to Article 6;
• does not give individuals placed on a barred list the opportunity of a full merits review on appeal, contrary to Article 6.
• introduces a minimum barring period of 10 years for a person aged 25 or over, which the RCN claims is disproportionate and in breach of Article 8.

The relevant parts of the ECHR read as follows:

• "6-(1) In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... "
• "8-(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

High Court judgment
Finding in favour of the RCN on the auto-barring issue, Mr Justice Wyn Williams stated that the procedure was:

" ... 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. In my judgment and notwithstanding the fact that the person concerned has been convicted or cautioned of a specified offence the denial of the right to make representations in advance of listing is a denial of a fundamental right. It is not justified…"

He continued:

" ... I regard the denial of the right to a person to make representations as to why he should not be included upon one or more of the barred lists as being a breach of Article 6. ... , I consider that 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 measures later in the process which are designed to afford a sufficiency of procedural protection to the person concerned."

With regard to the situations when an urgent decision might be needed the Judge stated:

" ... I cannot conclude, however, that the automatic inclusion of all persons convicted or cautioned of specified offences can be justified simply to cater for what must be a very small number of truly urgent cases. In appropriate circumstances courts have to act with great speed. Regulatory bodies such as the Nursing and Midwifery Council or the General Medical Council are also capable of acting with commendable speed when the circumstances justify such action. I can see no reason why in a truly urgent case the Interested Party cannot act with speed so as to determine whether or not a person’s name should be included on one or both of the barred lists."

Although the judgment upheld the RCN’s view that auto-barring breaches fundamental human rights, the Judge did not accept the following points:

• Right to oral representation: Because an oral hearing can be requested there was no breach of Article 6.
• Right to appeal: The reasonableness or proportionality of a decision to add a name to the list can be challenged on appeal as a mistake of law.
• Minimum barring periods: It was accepted that the ISA has a system in place for reviewing the proportionality of the length of a barring period but the Judge stated: "Since the scheme as a whole is under review, I express the hope that the issue of minimum barring periods will be looked at anxiously in the light of all the information available"

Comment
The Home Office suspended the implementation of the registration scheme in June 2010 as part of its review of the effectiveness of the VBS following the general election. The review will have to take into account this decision.