November’s judicial review by the RCN has overturned a key feature of the barring system introduced last year under the Safeguarding Vulnerable Groups Act. The High Court has said that the automatic inclusion of individuals on the barred list following a caution or conviction for specified offences infringes Article 6 of the Human Rights Convention (the right to a fair trial). This is so even if they have the right to make representations to overturn the barring decision. The court refused to spell out the changes necessary to make the scheme lawful: this will now no doubt be looked at as part of the review of the whole scheme being undertaken by the Coalition Government, which has led to a delay in the launch of the new registration (vetting) system for workers undertaking regulated activities. See also the article by Lee Parkhill and Jill Mason on the vetting and barring scheme in the patient matters section.
The proceedings were brought by the RCN and four of its members, three of whom had been included on the barred listed after receiving cautions for offences which were described as at the less serious end of the spectrum. One of the claimants was a nurse who had accepted a caution for leaving her 11 year old son alone at home while she went shopping, which resulted in her being included on the barred list for over two months before her name was removed, following representations. However the judge did not confine his observations to cases like this, but ruled that the entire system of automatic barring, even for more serious offences, was flawed.
Three other features of the scheme were also challenged, including the limited right of appeal to the Higher Tribunal against ISA’s decisions and the absence of an express right to make oral representations. These all survived, though in some cases it was a close run thing.
The decision has not come as total surprise, in view of the successful challenge to similar features of the one of the predecessor barring schemes in the Wright case, which was heard by the House of Lords last year. But it is surprising that automatic barring even in the most serious cases has been ruled out. It is probable that ISA will need to devise a fast track system for making decisions in cases like these. Certainly if these particular proceedings serve as a typical case study, the time that ISA took to include the individuals in question on the barred list and then reach a decision to remove them, is not reassuring, either for employers or their staff.