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Independent Safeguarding Authority not above the rule of law

Civitas, 16 November 2010

Last week, the High Court ruled in favour of the Royal College of Nursing, that a barring scheme imposed by the Independent Safeguarding Authority was unlawful. Although from one perspective the judgement is relatively inconsequential, pertaining only to procedure, it in fact represents a significant erosion of needless and overly protective vetting practices that are seeping into everyday life, writes Carolina Bracken.

The RCN brought its judicial review claim to challenge four parts of the ISA’s newly introduced vetting and barring scheme, which had thus far affected some 72 of its members. In each of the cases on which the ruling was based, the claimant had been barred from practice after they accepted a police caution for a minor offence. In the first, Mr O, a nurse, received a caution after his wife left their children at home alone for a short period. Although there was no suggestion that Mr O was aware that his wife intended to leave the children alone, more than nine months after he accepted the caution, the ISA informed him that his name would appear on the Children’s and Adults’ Barred Lists for ten years. The second case involved Mrs W, who was barred when she accepted a caution for leaving her 11 year old son at home alone whilst she went shopping. Both claimants’ names were removed from the list only once the RCN had made representations, several months after the bans were initially imposed.

The Home Office had already accepted two grounds on which the RCN’s claim was based: firstly, that individuals should be able to request an oral hearing, rather than rely on written submissions, before being barred; secondly, that an applicant should be able to appeal a decision on the grounds of reasonableness or proportionality as a mistake of law. In relation to the third ground regarding minimum barring periods, the court accepted that the ISA had a system for reviewing the proportionality of the length of a barring period, although it hoped that ‘the issue…will be looked at anxiously in the light of all the information available’ during the current review of the system, due to report in early 2011.

However, it is the final issue that is of greatest consequence. The RCN successfully argued that the imposition of an automatic bar should be reserved for only the most serious offences. Mr Justice Wyn Williams, who heard the case, agreed with the RCN that listing an individual without representation 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’.

Created in the wake of the Safeguarding Vulnerable Groups Act 2006, the ISA holds a database of all individuals who work frequently or intensively with children and vulnerable adults. When it is fully rolled out in 2015, it will cover over 11 million people, more than a quarter of England’s adult population, and will stand as the largest scheme of its kind in the world. The very framework of the system reinforces the notion that ‘[t]he state knows what is right’, and smothers the ability of professionals to use their judgement, discretion and common sense. As RCN’s Chief Executive, Dr Peter Carter, rightly stated: ‘No-one would ever doubt the protection of children and vulnerable people is of the most critical importance.’ However, far from protecting those most in need, the current scheme injects a ‘culture of fear’ into daily life, which endangers ‘what should be ordinary relationships’.

In Licensed to Hug, Professor Frank Furedi and Jennie Bristow calls for a ‘halt’ to the ‘juggernaut of regulation’, which threatens to bulldoze any remaining sense of community and trust. Far from cultivating confidence, the recent epidemic of child protection measures has merely engendered a culture of suspicion, which paradoxically undermines its own aims. ‘When parents feel in need of official reassurance that other parents have passed the paedophile test before they even start on the pleasantries’, they argue, ‘this indicates that something has gone badly wrong in our communities’.

Furthermore, it is far from certain that such a vetting procedure is an effective means by which to guarantee that an individual can be entrusted in a particular role. Both Mr O and Mrs W had acted in a way that many would not realise was criminal. Some even contend that the decision whether or not to leave a child at home alone represents a ‘laudable’ exercise of proper parental judgement. Regardless of the validity of this argument, it is unclear how either of the claimants’ actions make them unsuitable, not only to continue their previous career, but to be employed in any capacity in medicine, education or social care – whether in professional nursing, or driving a bus for a care home. The vetting procedure offers only a hazy veneer of protection. It tells us nothing of how the individual performs in their role, nor guarantees good future conduct, providing only ‘a ritual of security’.

Indeed, it is most unlikely that the claimants would have been aware that accepting a caution could cause them to lose their job in this way. In accepting a caution, an individual admits an offence in return for the police taking no further action (beyond keeping a record of the incident, taking your fingerprints, and keeping your DNA on the database). It is in effect an administrative tool for police to deal swiftly with minor offences. In these cases, two otherwise capable and experienced practitioners were barred from their profession as a result of form filling expedience.

It is axiomatic that children and other vulnerable people must be safeguarded, however we must achieve this goal by promoting beneficial relationships, not suffocating them, and implement protective measures in a considered, constructive way. Dr Carter has emphasised that the RCN is eager to work with the Home Office to shape arrangements which will effectively protect the vulnerable, rather than continue with these ISA bars, which were ‘rushed through and were a denial of the fundamental principles of natural justice’. Decisions that impact an individual’s job, and thus earning capacity, in such a way should be made on a case by case basis. An indiscriminate blanket ban will result only in minimal protection for all, and profound hardship for individuals. Indeed, it is possible that the RCN will now turn to Europe to seek compensation for lost earnings.

As yet, it is unknown whether the Home Office will appeal the decision. A spokesperson commented that the Government ‘will consider the judgement carefully’ and emphasised that it had ‘recently announced a review and remodelling of the vetting and barring scheme to re-examine whether it is the most appropriate mechanism to protect children and vulnerable adults’. Whether this review will lead to the badly needed shake-up of this system of intrusion remains to be seen.

2 comments on “Independent Safeguarding Authority not above the rule of law”

  1. The Home Office has responded to this blog post seeking to clarify two separated, but related, points. Firstly, in relation to the issue whether Article 6 ECHR requires an oral hearing in every case, Mr Justice Wyn Williams found that there was no case to answer, as there was no such absolute right; the process must be considered holistically, including the possibility for oral representations in the appeal process. The second point is related to the right to appeal. To ascertain whether a process as a whole is fair, the court must consider the nature of the right to appeal to the Upper Tribunal. The Upper Tribunal can put right any errors of law and any material errors of fact, including at an oral hearing if necessary. Although Mr Justice Williams expressed some trepidation over the absence of a full merits based appeal, he concluded that this factor alone could not render the scheme, considered as a whole, incompatible with Article 6. Moreover, the court rejected the notion that the right to oral representations on appeal was “illusory”. Even if the issue of relief under these aspects of Article 6 had arisen, a Human Rights Act 1998 compatible reading under s.3 would be possible.

    Though administered by the ISA, the barring scheme was implemented by the Home Office, the Department of Health and the Department for Education. The ISA holds a register of people who are not able to work with vulnerable groups.


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