8 Safeguarding vulnerable groups and
vetting and barring
139. The Coalition Agreement committed the Government
to reviewing the Vetting and Barring Scheme under the Safeguarding
Vulnerable Groups Act 2006 "to scale it back to common sense
levels." The Bill aims to do this by "re-balancing"
individuals' right to respect for their private life under Article
8 ECHR and the general interest in protecting vulnerable groups.[122]
It seeks to do this in a number of ways, for example by
reducing the scope of regulated activity,[123]
abolishing the concepts of controlled activity[124]
and monitoring,[125]
and altering the test for barring decisions so that an individual
can only be barred from working with either children or vulnerable
adults if the Independent Safeguarding Authority is satisfied
that the individual is working or is likely to work with these
groups..[126]
140. We welcome
the Government's aim of making the Vetting and Barring Scheme
more targeted and proportionate, by taking a more explicitly risk-based
approach. As the Government's Human Rights
Memorandum observes, the Scheme engages the Article 8 ECHR rights
of those working with vulnerable groups because of the need to
carry out checks to establish that they are appropriate people
to have contact with such groups, and it is important to ensure
that such individuals are not subjected to disproportionate scrutiny
or to a culture of suspicion.[127]
141. We note, however, that the Government's analysis
characterises the issue as one of re-balancing the Article 8 rights
of individuals with the "public" or "general"
interest in protecting vulnerable groups. We remind the Government
that the adequate protection of vulnerable groups is not merely
a matter of "public interest" but is also the subject
of positive obligations imposed by human rights law. It is well
established in the case-law of the European Convention on Human
Rights that the State must ensure that its laws provide adequate
protection of vulnerable groups against interferences with their
right to life, their right not to be subjected to inhuman or degrading
treatment, their right to physical integrity and their right to
respect for their private life and dignity under Articles 2, 3,
5 and 8 ECHR, even where the threats to those rights come from
other individuals. The Vetting and Barring Scheme is one of the
ways in which the UK fulfils those important positive obligations,
and any re-balancing of the scheme must therefore be carefully
scrutinised to ensure that it does not give rise to any risk of
breaching those obligations.
142. This Part of the Bill also remedies a Convention
incompatibility in the current legal framework on safeguarding
identified by the High Court in the case of Royal College of
Nursing v Secretary of State for the Home Department.[128]
The court in that case declared the relevant provisions
of the Safeguarding Vulnerable Groups Act 2006[129]
to be incompatible with the right to a fair hearing and the right
to respect for private life to the extent that they provide that
individuals' representations are not considered before their names
are included by the Independent Safeguarding Authority on the
barred list. The Act currently provides for such representations
to be made only after the individual has been included on the
list.
143. The Bill amends the provisions of the Safeguarding
Vulnerable Groups Act 2006 which provide for a person's inclusion
on the children's or adults' barred list subject to consideration
of representations, by requiring the Independent Safeguarding
Authority to give the person the opportunity to make representations
as to why they should not be included in the barred list, before
they are so included.[130]
We welcome the amendment
which in our view remedies the incompatibility identified in the
court's declaration of incompatibility in the Royal College
of Nursing case.
144. However, we are concerned about the Convention
compatibility of another aspect of the current legal framework
which is left untouched by the Bill, namely the lack of a full
merits appeal for an individual who is included on the barred
list by the ISA. Under the Safeguarding Vulnerable Groups Act
2006, an individual who is included in a barred list has a right
of appeal to the Upper Tribunal on the grounds that the ISA has
made a mistake on any point of law or in any material finding
of fact.[131] However,
a full merits appeal is expressly excluded by a provision in the
2006 Act which says that "the decision whether or not it
is appropriate for an individual to be included in a barred list
is not a question of law or fact."[132]
145. In the Royal College of Nursing case
the High Court was "troubled" by the absence of a full
merits-based appeal against inclusion on the barred lists,[133]
but on balance was persuaded that the absence of such an appeal
does not render the scheme as a whole in breach of Article 6 ECHR.
The High Court reached that conclusion because the ISA, as an
expert and independent body, is in the best position to make a
reasoned judgment as to when it is appropriate to include an individual
on the barred list, and in the absence of an error of law or fact
it is difficult to envisage a situation in which an appeal against
the judgment of the ISA would have any realistic prospect of success.
146. Notwithstanding the conclusion of the High Court
in the Royal College of Nursing case, we are concerned
about whether the lack of opportunity for the individual to challenge
the merits of their inclusion on a barred list before an independent
and impartial tribunal is compatible with Article 6 ECHR. As
the Court of Appeal observed in Governors of X School v R (on
the application of G), "the issue most likely to be critical
in a case like the present, namely whether on the proved or admitted
facts the quality of the individual's act should be judged severe
enough to put him on the barred list, appears to lie beyond the
Upper Tribunal's jurisdiction."[134]
In Wright, Baroness Hale, commenting on the predecessor
scheme to that in the 2006 Act, said "the scheme appears
premised on the assumption that permanently to ban a person from
a wide variety of care positions does require a full merits hearing
before an independent and impartial tribunal. That premise is,
in my view, correct."[135]
147. In our
view, Article 6 ECHR requires that an individual who is included
on the barred list have the opportunity of a full merits hearing
before an independent and impartial tribunal. We therefore consider
that the restrictions on the jurisdiction of the Upper Tribunal
in s. 4 (3) of the Safeguarding Vulnerable Groups Act 2006 are
incompatible with the right of access to an independent court
or tribunal in Article 6 ECHR. We recommend that the Bill be amended
to repeal s. 4(3) and so provide for a full merits appeal against
inclusion on the barred list.
148. Finally, we note that this Part of the Bill
was the subject of extensive Government amendments in Committee,
including the introduction of a new clause and Schedule providing
for the dissolution of the Independent Safeguarding Authority
and the establishment of a new Disclosure and Barring Service
("DBS"). Another amendment changed the scope of "regulated
activity", while another concerned mandatory information
sharing about barring between the safeguarding authority and the
police. The Home Office has not, to date, provided us with any
human rights memorandum explaining the human rights implications
of those amendments. We look forward to receiving such a memorandum
and may wish to report further in the light of its contents.
122 Part 5, Chapter 1. Back
123
Clauses 63-65. Back
124
Clause 67. Back
125
Clause 68. Back
126
Clause 66(1). Back
127
Human Rights Memorandum, para. 149. Back
128
[2010] EWHC 2761 (Admin). Back
129
Paragraphs 2 and 8 of Schedule 3 to the Act. Back
130
Clauses 66(2) and (6), inserting new paras 2(4) and 8(4) respectively
into Schedule 3 of the 2006 Act. Back
131
Safeguarding Vulnerable Groups Act 2006, s. 4(1) and (2). Back
132
Section 4(3) of the 2006 Act. Back
133
[2010] EWHC 2761 (Admin) at para. 104. Back
134
R (on the application of G) v The Governors of X School
[2010] EWCA Civ 1.The Court of Appeal's decision in the case was
reversed by the Supreme Court [2011] UKSC 30, but on a basis which
does not affect the observation cited. Back
135
R (on the application of Wright) v Secretary of State for Health
[2009] UKHL 3 at para. 26. Back
| 
